Despite the Supreme Court’s foray into this issue next term, the U.S. Court of Appeals for the Fifth Circuit held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. United States v. Amer, No. 11-60522, slip op. (5th Cir. May 9, 2012) (Jones, Owen, and Higginson, JJ.). Judge Higginson wrote the panel’s opinion.

This case involved an individual whose federal conviction, obtained through a guilty plea, became final on February 24, 2009, approximately thirteen months prior to the date on which the Supreme Court issued Padilla, the landmark decision recognizing that the Sixth Amendment right to counsel requires that defense attorneys advise noncitizen clients about the immigration consequences of conviction. Amer, No. 11-60522, slip op. at 1. The district court vacated Amer’s conviction on the basis that his defense attorney “fail[ed] to inform him that his guilty plea carried a risk of deportation.” Amer, No. 11-60522, slip op. at 2.

On appeal, the Fifth Circuit turned to the retroactivity framework announced in Teague v. Lane, 489 U.S. 288 (1989). Pursuant to Teague, which I have discussed at length previously on crImmigration.com and in an Emerging Issues Analysis for Lexis, a criminal procedure decision applies to convictions that were final on the date the decision was issued only if the decision constitutes an “old” rule. If the decision announces a “new” rule of criminal procedure, then it applies only to convictions that become final after the date the decision was issued.

The Fifth Circuit “join[ed] the Seventh and Tenth Circuits in holding that Padilla announced a ‘new’ rule within the meaning of Teague.” Amer, No. 11-60522, slip op. at 3. To reach this conclusion, the court observed that, according to the Supreme Court, “A rule is ‘new’…unless it was so ‘dictated by precedent existing at the time the defendant’s conviction became final.’ The Court reiterated this strict ‘dictated by precedent test in Lambrix v. Singletary, 520 U.S. 518 (1997), emphasizing again the test’s stringency by clarifying that ‘dictated by precedent’ means that ‘no other interpretation was reasonable.’” Amer, No. 11-60522, slip op. at 3 (internal citations omitted).

To determine whether another interpretation was reasonable, the Fifth Circuit, like other courts that have addressed Padilla’s retroactivity had done, considered the fact that the Padilla decision represents a divided Court. Amer, No. 11-60522, slip op. at 3. In particular, the Fifth Circuit focused on the point made by the two justices who concurred and the two who dissented that the Padilla decision was the first time that the Court interpreted the Sixth Amendment right to counsel as requiring advice about “collateral” consequences of conviction. Amer, No. 11-60522, slip op. at 3-4. The Fifth Circuit, however, did not acknowledge the Padilla majority’s explanation that it was rejecting the direct versus collateral consequences distinction in the context of deportation. Padilla, 130 S. Ct. at 1481.

The Fifth Circuit then explained that “Padilla departed markedly from the ‘legal landscape’ extant when Amer’s conviction became final” insofar as “[e]very federal court of appeals to decide the issue…and numerous state appellate courts had held that the Sixth Amendment did not impose any duty to advise noncitizen defendants of the immigration consequences of pleading guilty.” Amer, No. 11-60522, slip op. at 4. As such, the court concluded, “it cannot be said that Padilla’s holding would have been ‘apparent to all reasonable jurists’ at the time that Amer’s conviction became final.” Amer, No. 11-60522, slip op. at 5.

Finally, the court referenced the fact that the Padilla Court acknowledged that even though its holding followed Hill v. Lockhart, 474 U.S. 52 (1984), which extended the modern ineffective assistance of counsel test announced in Strickland v. Washington, 466 U.S. 668 (1984), to the plea context, “the Court at the same time acknowledged that Hill did ‘not control’ the decision….” Amer, No. 11-60522, slip op. at 5. The court does a particularly poor job of explaining the significance of this point. I’m assuming that the Fifth Circuit panel thinks this that this discussion in Padilla means that Padilla didn’t rely on controlling precedent. If that’s true, then the Fifth Circuit’s conclusion is strengthened.

Because the court held that Padilla is a “new” rule (and neither party contended that one of the two available exceptions applied), the Court concluded that Padilla “does not apply retroactively.” Amer, No. 11-60522, slip op. at 6.

After all is said and done, this decision may have limited significance because the Supreme Court is slated to decide whether Padilla applies retroactively toward the end of this year. It recently granted cert in a Seventh Circuit decision, Chaidez v. United States, holding that Padilla does not apply retroactively.

The BIA held that the burden of proof rests with the noncitizen respondent to show that a possession of marijuana with intent to distribute conviction is not an aggravated felony because it involved a “small” amount of the drug, and that the respondent may prove this by using evidence outside the record of conviction. Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (Pauley, Mullane, and Guendelsberger, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR convicted of possession with the intent to give or distribute less than one-half ounce of marijuana. Va. Rev. Stat. § 18.2-248.1(a)(1). The IJ concluded that this constituted a controlled substances offense, but not an aggravated felony under the illicit trafficking in a controlled substance subsection, INA § 101(a)(43)(B). Matter of Castro Rodriguez, 25 I&N Dec. at 699.

The BIA relied on its decision in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), in which it explained that the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. §§ 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor. Matter of Castro Rodriguez, 25 I&N Dec. at 701 (citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003)).

This “mitigation exception,” the Board added, is not an element of the federal offense, thus “the categorical approach is not applicable to a determination of these facts”—that is, relying on evidence outside the record of conviction may prove mitigation eligibility. Matter of Castro Rodriguez, 25 I&N Dec. at 701. As additional support for abandoning the categorical approach that normally dictates analysis of the INA, the Board turned to Nijhawan v. Holder, 557 U.S. 29 (2009), in which the Supreme Court condoned looking outside the record of conviction to determine whether a theft offense involved a loss of $10,000 or more because this information was not usually an element required for conviction.

The “circumstance-specific” approach used in Nijhawan, the BIA concluded, is appropriate for determining whether a possession of marijuana with intent to distribute conviction involved a “small” amount of marijuana and no remuneration was involved. Matter of Castro Rodriguez, 25 I&N Dec. at 702. If these criteria are satisfied—that is, the conviction involved a small amount of marijuana and no remuneration—than it does not meet the illicit trafficking definition of aggravated felony. Matter of Castro Rodriguez, 25 I&N Dec. at 699 n.2.

Proving that a small amount was involved and no remuneration was present, the Board continued, is up to the respondent. This is because to receive the benefit of the mitigation exception in the federal possession context, the criminal defendant “bears the burden of proving the additional facts that trigger this mitigating exception, namely, the ‘smallness’ of the amount of marijuana and the absence of remuneration.” Matter of Castro Rodriguez, 25 I&N Dec. at 701 (citing Hamlin, 319 F.3d at 671).

The less than 30 grams of marijuana involved in Castro Rodriguez’s offense (though not his conviction), the Board added, “may, in general, serve as a useful guidepost in determining whether an amount is “small’.” Matter of Castro Rodriguez, 25 I&N Dec. at 703. However, because no evidence was introduced regarding whether Castro Rodriguez was convicted with the intent to receive remuneration, the Board remanded. Matter of Castro Rodriguez, 25 I&N Dec. at 704.

ICE’s new policy regarding prisoner transfers promises to shed more light on decisions to move prisoners from one facility to another, but relies heavily on requirements the agency has long imposed on itself without success and inadvertently identifies major reform obstacles that arise from its heavy reliance on private prison operators. U.S. Immigr. & Customs Enforcement, Policy 11022.1: Detainee Transfers (Jan. 4, 2012).

The policy announced in January 2012 makes some significant improvements by recognizing the impact of transfers and the reality of immigrant relationships. For example, it recognizes civil unions and domestic partnerships alongside marriages. Detainee Transfers at § 3.3. It requires that medication accompany a detainee when transferred, § 5.11, and requires that the detainee’s attorney of record receive notice of the transfer, § 5.3.

In addition, it sets out specific criteria that militate against transfer: immediate family or an attorney of record nearby, pending or on-going removal proceedings, or a bond or scheduled bond hearing. Detainee Transfers at § 5.2(1).

These are all common sense considerations. So common sense that some have been part of ICE’s requirements for years. In a 2011 article I wrote about DHS’s policy of informing attorneys of all transfers. “ICE’s detention standards require ICE staff to notify a detainee’s attorney-of-record of an impending transfer, notify the attorney again when the detainee has arrived at the new location, and provide the attorney with contact information for the new facility,” I wrote in Due Process and Immigrant Detainee Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel, 21 Berkeley La Raza Law Journal 17, 42 (2011). “All this must be done as soon as practicable, but no later than 24 hours after the transfer.”

I then went on to list several violations of this policy. According to a 2009 report that I discussed, “the DHS Inspector General, reviewing ICE’s compliance with the current transfer policy, reported that ICE staff interviewed at the sites visited said they did not notify the detainee’s legal representative because they considered the notifications to be the detainee’s responsibility. Indeed, the Inspector General found that the Detainee Transfer Notification form, a one-page form that ICE officials are required to fill out upon any transfer, was not properly completed for 143 of the 144 transfers we tested. As the Inspector General added, ‘[a]gency staff interviewed generally considered completing and providing copies of the transfer forms to detainees a low priority.’”

My concern isn’t that DHS has adopted faulty policies. It hasn’t. Rather, my concern is that, without an effective accountability measure, DHS field officials won’t bother to comply with departmental mandates. This is what’s been happening for years and the new directive doesn’t seem to change the status quo. As we’ve seen in the context of prosecutorial discretion, DHS headquarters and DHS field offices don’t always see eye-to-eye. And, much like the prosecutorial discretion context, prisoner transfer policy is an area in which it’s crucial that everyone be on the same page.

Another feature of DHS’s policy that concerns me is its subtle but clear failure to apply to contractors. “This Directive,” the document states, “establishes responsibilities and procedures for ICE employees who perform detainee transfers and does not govern contract staff.” Policy 11022.1: Detainee Transfers at 1. The lines between ICE and contract employees working for the private prison companies that DHS pays millions of dollars to run its prisons—the Corrections Corporation of America, GEO Group, and Management Training Corporation, among others—are frequently fuzzy. As such, it’s unclear to me exactly how common it is to have contract staff “perform detainee transfers.” My hunch is that there is no shortage of contract staff doing this work, but I would love to hear from others with more insight into this. If my guess is correct, then this policy might not mean very much to the 360,000 people who find themselves in an immigration prison every year because the people actually moving prisoners from one location to another don’t work directly for DHS.

Thanks to Mark Noferi (Brooklyn Law) for sharing his thoughts on immigration imprisonment and, specifically, this detention policy with me.

An intermediate appellate court in Ohio concluded that a claim of ineffective assistance of counsel brought pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010), was sufficiently meritorious that an evidentiary hearing was necessary to determine if a motion to withdraw a guilty plea ought to be granted. State v. Yahya, 2011-Ohio-6090 (Ohio Ct. App. 2011) (Dorrian, Klatt, and Connor, JJ.). Judge Dorrian wrote the panel’s opinion.

This case involved an LPR who pleaded guilty to theft, Ohio Rev. Code § 2913.02, on May 25, 2010. Yahya, 2011-Ohio-6090 at ¶ 2. Yahya was subsequently detained by ICE and placed in removal proceedings. Yahya, 2011-Ohio-6090 at ¶ 3. Soon thereafter she moved to withdraw her guilty plea on the basis that “her trial counsel provided ineffective assistance by advising her that a guilty plea would not adversely affect her immigration status or subject her to deportation” and “that ‘if I had known that my plea would subject me to mandatory detention, I would not have pled to the original charge.’” Yahya, 2011-Ohio-6090 at ¶ 8-9.

A guilty plea may be withdrawn on the basis of ineffective assistance. To permit withdrawal, though, a court must hold a hearing on the motion. Yahya, 2011-Ohio-6090 at ¶ 8. A hearing is required, the intermediate appellate court explained, if the reviewing court determines, first, that “taking her allegations as true, her trial counsel provided ineffective assistance,” and, “[s]econd, once again taking her allegations as true…the ineffective assistance would constitute manifest injustice requiring the trial court to permit withdrawal of the guilty plea.” Yahya, 2011-Ohio-6090 at ¶ 9.

The first prong of this two-part analysis of course turns on the familiar two-pronged measure of ineffective assistance of counsel announced in Strickland v.Washington, 466 U.S. 668 (1984): was the defense attorney’s performance constitutionally deficient and, if so, did that deficient performance prejudice the defendant?

Padilla refined the first part of the Strickland test to clarify that constitutionally competent representation requires advising noncitizen criminal defendants about the immigration consequences of conviction prior to entering a plea. “[W]hen the deportation consequence [of conviction] is truly clear,” the Padilla Court held, “the duty to give correct advice is equally clear.” Padilla, 130 S. Ct. at 1483. However, “[w]hen the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130 S. Ct. at 1483.

The Ohio intermediate appellate court had no difficulty concluding that Yahya’s attorney was required to have informed her that a conviction for theft involving a restitution order of $131,549.27 clearly fell into the fraud or deceit category of aggravated felony: “in reviewing the law it appears sufficiently clear that appellant’s theft conviction would constitute an aggravated felony [under INA § 101(a)(43)(M)(i) relating to offenses that involve fraud or deceit in which the loss to the victim exceeds $10,000] and that she would be subject to deportation. Thus, appellant’s trial counsel had a duty to give her correct advice about the immigration consequences of her guilty plea and, assuming appellant’s claims are true, her attorney’s failure to give correct advice constitutes a deficiency sufficient to satisfy the first prong of the ineffective assistance of counsel test.” Yahya, 2011-Ohio-6090 at ¶ 11.

Having concluded that Yahya’s attorney provided deficient representation, the court then turned to Strickland’s second prong, the prejudice requirement. The state argued that Yahya was not prejudiced because the trial court admonished her about the potential immigration consequences of conviction. In support of this position, the state relied on two recent Ohio intermediate appellate court decisions, State v. Yazici, 2011-Ohio-583 (Ohio App. Ct. 2011), and State v. Ikharo, 2011-Ohio-2746 (Ohio App. Ct. 2011).

The Yahya court distinguished those cases by explaining that they “were based on a lack of advice or a lack of complete advice from trial counsel, [while] this case involves an allegation that trial counsel gave incorrect advice to appellant.” Yahya, 2011-Ohio-6090 at ¶ 14. The court then went on to distinguish the facts of Yahya’s predicament with other cases in which an ineffective assistance claim “based on alleged failure to advise the defendants of the immigration consequences of their pleas” was denied. Yahya, 2011-Ohio-6090 at ¶ 14 (discussing State v. Gallegos-Martinez, 2010-Ohio-6463 (Ohio App. Ct. 2010), and State v. Velazquez, 2011-Ohio-4818 (Ohio App. Ct. 2011)).

The court continued distinguishing past decisions. Addressing State v. Bains, 2011-Ohio-5143 (Ohio App. Ct. 2011), the court explained that the Bains court “found that the trial court not only gave the statutory warning, ‘but also continued to probe even further into [the movant’s] understanding of it by pointedly asking [the movant] if he understood the serious consequences of pleading guilty.’” Yahya, 2011-Ohio-6090 at ¶ 16 (quoting Bains, 2011-Ohio-5143 at ¶28). In contrast, “[i]n the present appeal, it appears that the trial court only gave the statutory warning, without any further ‘pointed’ discussion of the consequences of pleading guilty.” Yahya, 2011-Ohio-6090 at ¶ 16.

Further, the court explained, the trial court’s qualified admonishment that conviction “might” result in deportation would not necessarily cure the defense attorney’s specific advice that deportation would not result. Yahya, 2011-Ohio-6090 at ¶ 17.  Rather, acting on her attorney’s advice, Yahya claimed “that she relied on specific advice…that she would not be deported as a result of that plea.” Yahya, 2011-Ohio-6090 at ¶ 17.

If these allegations are true, the court added, Strickland’s prejudice prong might be satisfied.  Given Yahya’s fifteen years of permanent residency and family ties to the United States, the court went on, “it might be rational for [Yahya] to insist on going to trial if a guilty plea automatically subjects her to deportation.” Yahya, 2011-Ohio-6090 at ¶ 22.

As such, “if the trial court found the statements in appellant's affidavit to be true, she would have demonstrated that her counsel's performance was deficient and that, but for this deficient performance, she would not have entered a guilty plea. Under these circumstances, trial counsel's ineffective assistance might constitute manifest injustice sufficient to permit withdrawal of appellant's guilty plea.” Yahya, 2011-Ohio-6090 at ¶ 23. Accordingly, “we find that the trial court abused its discretion by denying appellant's motion without holding a hearing.” Yahya, 2011-Ohio-6090 at ¶ 23. The court reversed and remanded for an evidentiary hearing in which the trial court must determine whether Yahya’s allegations are credible.

A practice advisory issued by two of the leading crImmigration resource centers suggests that the Supreme Court’s two ineffective assistance of counsel decisions from this term could impact how courts apply the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010). National Immigration Project of the National Lawyers Guild & Immigrant Defense Project, Practice Advisory: Implications of Lafler v. Cooper on Retroactive Application of Padilla v. Kentucky (March 29, 2012).

The advisory addresses a number of features of the Court’s two IAC decisions, Lafler v. Cooper, No. 10-209 (U.S. March 21, 2012), and Missouri v. Frye, No. 10-444 (U.S. March 21, 2012), and provides helpful background that I won’t repeat.

I’m most intrigued by the advisory’s suggestion that Lafler helps make the argument that Padilla is to apply retroactively. In particular, the authors argue that the Lafler Court’s conclusion that the state courts failed to apply clearly established federal law—namely that the longstanding ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), applies to pleas—suggests that Padilla, which also applies Strickland to pleas, is an “old rule” of criminal procedure.

According to the advisory: 

“The significance of Lafler for Padilla is that it demonstrates that what may appear to be a novel rule is nothing more than the application of the long-standing Strickland rule. It follows that if the Supreme Court’s holding in Lafler that the rejection of ineffective assistance in plea bargaining was contrary to settled federal law then the Padilla Court’s reliance on Strickland establishes that Padilla is an ‘old rule’ for purposes of Teague. Lafler and Padilla then are two of a kind: each a plea case governed by the existing Strickland standard.”

Practice Advisory at 6.

The advisory stresses that the Lafler Court concluded Strickland’s application to pleas was clearly established law even though four Justices dissented and the government argued that holding as the majority did would create a “floodgates” problem—that is, it would lead to excessive litigation. Both of these reasons are regularly touted as explanations for why Padilla does not apply retroactively. Practice Advisory at 6-7.

Indeed, the Tenth Circuit and Seventh Circuit have each relied on similar rationale in holding that Padilla does not apply retroactively (I’ve written in detail about those decisions). Earlier this week the Supreme Court granted cert in the Tenth Circuit's non-retroactivity decision, Chaidez v. United States, No. 11-820 (U.S.). Lafler, the advisory suggests, “provides a basis to renew the retroactivity argument in the Tenth and Seventh Circuits….” Practice Advisory at 7.

In addition, the advisory suggests that Lafler rejects the conclusion of some lower courts that Padilla-based ineffective assistance of counsel can be cured by a trial court admonishment explaining to the defendant the risks of pleading guilty. Practice Advisory at 9. As the advisory explains, Lafler rejected the government’s argument that a defense attorney’s deficient performance can be cured by a trial court’s admonishment “even if specific to the defendant and ‘knowing and voluntary.’” Practice Advisory at 10. 

Attorneys litigating Padilla claims or considering whether to bring a Padilla claim would be well advised to read this advisory.

Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the landmark decision recognizing that the Sixth Amendment right to counsel requires advice about immigration consequences of conviction, returns to the U.S. Supreme Court. This morning the Court granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), a Seventh Circuit decision holding that Padilla does not apply retroactively.

The Court’s decision to grant cert was not unexpected given that the Solicitor General agreed that cert was warranted because Chaidez addresses a circuit split that’s developed about how to apply Padilla to convictions that became final before it was announced on March 31, 2010. Brief for the United States, Chaidez v. United States, No. 11-820, at 8 (U.S.); Petition for a Writ of Certiorari, Chaidez v. United States, No. 11-820, at i (U.S.). Indeed, Chaidez is itself a split decision, with Judges Bauer and Flaum writing the majority opinion that Padilla is not retroactive and Judge Williams writing in dissent that it should apply retroactively. 

The Solicitor General's brief explains that the question presented to the Court is "whether, under the retroactivity framework established in Teague v. Lane, 489 U.S. 2888 (1989), Padilla announced a new rule that does not apply retroactively to convictions that became final before Padilla was decided.” Brief for the United States, Chaidez v. United States, No. 11-820, at i (U.S.).

The Third Circuit holds that Padilla applies retroactively, while the Seventh and Tenth Circuits hold that it does not. Several state courts have weighed in as well with similarly conflicting results. See, e.g., State v. Alshaif, No. COA11-817 (N.C. Ct. App. 2012) (not retroactive); Denisyuk v. State, No. 45 (Md. 2011) (retroactive); Commonwealth v. Clarke, No. SJC-10888 (Mass. 2011) (retroactive); Campos v. Minnesota, No. 27CR0933865 (Minn. Ct. App. 2011) (retroactive); Ex Parte Tanklevskaya, No. 01-10-00627-CR (Tex. App. 2011) (retroactive).

Teague, as I have explained previously, dictates how courts determine whether a newly issued decision of constitutional criminal procedure is to be applied retroactively—that is, to convictions finalized prior to the date the decision was announced.

As the Seventh Circuit explained in Chaidez, “Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a ‘watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.’” Chaidez, No. 10-3623, slip op. at 6 (discussing Whorton v. Bockting, 549 U.S. 406, 416 (2007)) (internal citations and quotations omitted).

To determine whether the rule in Padilla is an “old” or “new” rule, “[t]he pertinent inquiry here is whether Padilla’s outcome was susceptible to debate among reasonable minds. Put differently, our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final—pre-Padilla—would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Chaidez, No. 10-3623, slip op. at 8 (internal quotations and citations omitted).

Acknowledging that Padilla presents a difficult question, the Seventh Circuit majority turned to the existence of a concurring opinion and dissenting opinion in Padilla and the views those justices expressed. Chaidez, No. 10-3623, slip op. at 8. “That the members of the Padilla Court expressed such an ‘array of views,’” the Seventh Circuit majority explained, “indicates that Padilla was not dictated by precedent.” Chaidez, No. 10-3623, slip op. at 9 (quoting O’Dell v. Netherland, 521 U.S. 151, 159 (1997)).

The Seventh Circuit majority also relied on the fact that most lower federal courts and state courts that had addressed the issue prior to Padilla had determined that the Sixth Amendment did not reach immigration advice. Chaidez, No. 10-3623, slip op. at 10. At least nine federal courts of appeals, plus the courts of 30 states and the District of Columbia, the panel majority explained, “had uniformly held that the Sixth Amendment did not require counsel to provide advice concerning any collateral (as opposed to direct) consequences of a guilty plea.” Chaidez, No. 10-3623, slip op. at 10-11.

“Such rare unanimity among the lower courts,” the majority went on, “is compelling evidence that reasonable jurists reading the Supreme Court’s precedents in April 2004 could have disagreed about the outcome of Padilla,” referring to the date Chaidez was convicted. Chaidez, No. 10-3623, slip op. at 11.

On this point, the Seventh Circuit majority explicitly disagreed with the U.S. Court of Appeals for the Third Circuit’s recent ruling that Padilla is retroactive: “[T]he Third Circuit downplayed the significance of the contrary lower court decisions, reasoning that they generally pre-dated the adoption of the professional norms relied on by the Padilla Court. Not so.” Chaidez, No. 10-3623, slip op. at 12 (discussing United States v. Orocio, No. 10-1231, slip op. (3d Cir. June 29, 2011), which I wrote about previously).

Unlike the Third Circuit that rested on its determination that Padilla merely applied the Supreme Court’s longstanding ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), to a new factual context (immigration advice), Orocio, No. 1231, slip op. at 14, the Seventh Circuit majority determined that “[t]he fact that Padilla is an extension of Strickland says nothing about whether it was new or not.” Chaidez, No. 10-3623, slip op. at 15.

Rather, it concluded that Padilla is “the rare exception” in which an extension of Strickland nonetheless produces a new constitutional rule of criminal procedure. Chaidez, No. 10-3623, slip op. at 16-17. “In our view,” the panel explained, Padilla “was sufficiently novel to qualify as a new rule.” Chaidez, No. 10-3623, slip op. at 18. The majority did not address whether either of Teague’s exceptions under which new rules are applied retroactively applies.

Here the dissenting judge (Williams) parted ways with the majority. Judge Williams explained that it is most proper to read Padilla as a clarification that the prevailing professional norms to which Strickland turns to as guidance for determining effective assistance of counsel require advice about “the removal consequences of a decision to enter a plea of guilty,” thus “a violation of these norms amounts to deficient performance under Strickland v. Washington.” Chaidez, No. 10-3623, slip op. at 20-21 (Williams, J., dissenting).

As the Solicitor General noted in its brief, the Tenth Circuit followed a similar position as Chaidez in holding that Padilla is not retroactive. United States v. Hong, No. 10-6294, slip op. (10th Cir. Aug. 30, 2011) (O’Brien, McKay, and Tymkovich, JJ.). (I wrote about Hong in more detail a few months ago.)

Already the Court’s next term features two crImmigration cases: Chaidez and Moncrieffe v. Holder, which I wrote about previously, about the drug trafficking type of aggravated felony. It promises to be a busy October for crImmigration followers. As crImmigration.com readers know, I've written academic articles (see here and here and a forthcoming article in the Georgetown Immigration Law Journal) and many blog posts about Padilla, including retroactivity, so there is no question that I will be following Chaidez quite closely over the next several months.

Update: SCOTUSblog mentioned this analysis in its "Tuesday round-up" feature.

The BIA held that a statute of conviction is divisible if some conduct that satisfies an element of the offense could result in removal while other conduct would not. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR convicted of menacing in the second degree, NY Penal Code § 120.14. An IJ determined that this was a firearms offense under INA § 237(a)(2)(C). Upon remand from the U.S. Court of Appeals for the Second Circuit, the BIA was required to determine whether the New York statute of conviction is divisible under the modified categorical approach to statutory analysis. Lanferman v. Bd. of Immigr. Appeals, 576 F.3d 84, 86 (2d Cir. 2009).

The Board considered three approaches used by the Second Circuit to identify whether a statute is divisible. Matter of Lanferman, 25 I&N Dec. at 727.

It first rejected an approach under which “the modified categorical approach may only be applied if certain structural or grammatical statutory characteristics are present on the face of the statute of conviction, such as the enumeration of a list of qualifying alternative elements in discrete subsections or the separation of various means of committing the offense within disjunctively divided words or phrases.” Matter of Lanferman, 25 I&N Dec. at 725.

So too did the Board reject an approach that allows use of a modified categorical analysis where “the relevant removability provision ‘invite[s] inquiry into the facts underlying the conviction.’” Matter of Lanferman, 25 I&N Dec. at 726 (quoting Singh v. Ashcroft, 383 F.3d 144, 161-62 (2d Cir. 2004)).

Ultimately, the BIA adopted the “broadest” analytical method for use in immigration cases. Matter of Lanferman, 25 I&N Dec. at 727. Under the chosen approach, “divisibility would be permitted in ‘all statutes of conviction . . . regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct.’” Matter of Lanferman, 25 I&N Dec. at 727 (quoting Lanferman, 576 F.3d at 90).

Interestingly, the Board explained that the broadest approach to determining whether a statute is divisible is appropriate because “the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.” Matter of Lanferman, 25 I&N Dec. at 728.

For support of this proposition, the Board cited Conteh v. Gonzales, 461 F.3d 45, 55-56 (1st Cir. 2006), in which the First Circuit, as the Board put it, “not[ed] several differentiating factors between the criminal and immigration contexts that warrant not applying the categorical approach in the same manner.” Matter of Lanferman, 25 I&N Dec. at 728. It could have, it seems to me, added the Supreme Court’s two recent decisions interpreting the fraud or deceit category of aggravated felony to its list, Nijhawan v. Holder, 557 U.S. 29 (2009), and Kawashima v. Holder, 565 U.S. --, No. 10-577, slip op. (Feb. 21, 2012) (about which I wrote in an earlier post).

The BIA then went on to apply its newly adopted divisibility approach to New York’s menacing statute of conviction and concluded that it is divisible. Matter of Lanferman, 25 I&N Dec. at 731. Furthermore, because the criminal complaint stated that the noncitizen used a revolver to commit the offense and the defendant-respondent subsequently admitted to doing so, under the modified categorical approach the conviction was properly deemed a firearms offense under INA § 237(a)(2)(C). Matter of Lanferman, 25 I&N Dec. at 733.

After years of contentious debate, the Supreme Court will finally weigh in on the constitutionality of Arizona’s infamous immigration law, Senate Bill 1070, tomorrow. The justices will hear oral arguments in Arizona v. United States (No. 11-182), the state’s attempt to overturn a preliminary injunction granted against several of the statute’s provisions. 

There will undoubtedly be a bevy of news reports about tomorrow’s oral arguments (and I’ll be sure to post a link to the arguments when a recording becomes available). Unlike much of the media’s focus, however, the justices are likely to focus on whether Arizona’s law is preempted by the Constitution’s Supremacy Clause. If SB 1070 is preempted, then it is unconstitutional. If it’s not preempted, then it’s constitutional (at least under the Supremacy Clause). The Court could conclude that some provisions are preempted and others aren’t.

Indeed, only four provisions are before the Court:

·      Section 2(B) which requires that police officers check the immigration status, where practicable, of all people stopped, detained, or arrested “where reasonable suspicion exists that the person is an alien and is unlawfully present” and “requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” United States v. Arizona, 641 F.3d 339, 347 (9th Cir. 2011)

·      Section 3, which, the Ninth Circuit explained, “essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011)

·      Section 5(C), which makes it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona. United States v. Arizona, 641 F.3d 339, 357 (9th Cir. 2011)

·      Section 6, which permits warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States.” United States v. Arizona, 641 F.3d 339, 360 (9th Cir. 2011).

In anticipation of oral arguments, I gave a short talk to students at Capital University Law School at an event sponsored by the school’s chapter of the American Constitution Society in which I summarized the Obama Administration’s enforcement of immigration law and compared it to the claims by Arizona legislators and others that Arizona had to act because the federal government isn’t doing its job of enforcing immigration law. In a PowerPoint presentation that I prepared for this talk, I also summarized the preemption doctrine that will likely take center stage in oral arguments.In anticipation of arguments,

It’s also worthwhile to highlight a couple of guides about what to expect as the case gets before the Court. Ben Winograd of the Immigration Policy Center wrote a wonderfully helpful explanation, Q&A Guide to Arizona v. United States: What You Need to Know About the Supreme Court Case Over SB 1070. The Center for American’s Marshall Fitz and Jeanne Butterfield also released a great resource summarizing the key legal issues that the case presents, Arizona’s ‘Show Me Your Papers’ Law in the U.S. Supreme Court: What’s at Stake?.

Dean Kevin Johnson (UC Davis) at the ImmigrationProf Blog wrote a great short review of the legal backdrop to this case and later followed it up with another commentary that suggests that the Court’s conservative wing might be most tempted to uphold sections 2(B) and 6 in line with the Ninth Circuit’s dissent.

Meanwhile, over at PrawfsBlawg, Professor Jack Chin (UC Davis) pointed out a very interesting effect that section 3 has on undocumented people: it criminalizes the failure to do something they can't do. According to an amicus brief by the Leadership Conference on Civil and Human Rights that Chin discusses, section 3 criminalizes failure to register with the federal government, but the federal government has no mechanism for allowing undocumented people to register. State legislators have such limited understanding of immigration law that nuances like this can easily find their way into state attempts to regulate immigration. As Chin says, this is just another reason for states to keep out of the immigration business.

I’ll be eagerly anticipating the Court’s decision, which will likely be issued in June, and will be sure to post it on crImmigration.com as soon as it comes out.

The economy may still be stuck in the doldrums for most industries, but the largest private prison company is feeling good about where it stands and where it’s headed. The Corrections Corporation of America, the country’s dominant private imprisoning corporation, recently told investors that it is doing a lot of business with DHS and sees plenty of growth potential. CCA, Investor Presentation (March 2012).

In a slideshow posted on its web site recently, CCA announced that it has a “$3 billion gross book value portfolio consist[ing] of 92,043 beds comprised of 47 owned facilities with 66,719 beds and 20 managed-only facilities with 25,334 beds.” Investor Presentation at 6. These numbers give it control of 43.7% of the USA’s privately owned or managed prison beds. Investor Presentation at 7.

Though most of CCA’s business comes from penal confinement, a significant percentage comes from ICE—11.78% of its revenue, in fact. Investor Presentation at 8. Importantly, it thinks ICE will provide more business in the coming years. Many ICE-run detention centers, CCA reports, “do not meet new detention standards.” Investor Presentation at 20.

Plus, ICE has been trying to moves its prisoners from local jails to centralized prisons, an objective CCA thinks it is well positioned to help ICE satisfy given that “since 1998, ICE has relied solely on incremental bed capacity from the private sector and local jails” rather than build its own prisons. Investor Presentation at 20. Indeed, ICE is currently “seeking concepts to build three new facilities to consolidate populations currently housed in county jails”—near Miami, San Francisco, and Chicago, a plan corroborated by the New York Times. Investor Presentation at 36.

Whether CCA will succeed at luring more ICE business remains to be seen. What’s clear from reading its slideshow, though, is that it’s salivating at the prospect of this and other private prison growth. “Only 10% of the $74 billion market is privatized,” it went on to tell investors, so plenty of room exists to expand its footprint. Investor Presentation at 43.

One other graphic caught my eye. CCA claims that state prison populations usually drop during recessions. Investor Presentation at 21. It explained this as part of its pitch that business will be even better once the economy picks up.

For me, though, the interesting point is that immigration imprisonment has been growing quite steadily for many years, including during the Great Recession. A recent Congressional Research Service report provides the daily DHS detention population from 2001 to 2012. Alison Siskin, Congressional Research Service, Immigration-Related Detention: Current Legislative Issues 13 fig. 1 (Jan. 12, 2012). It’s wavered a bit, but the 2012 figure (32,953) is well above the 2006 number (19,409) as well as higher than every year except 2011 (33,330). So what’s different about immigration imprisonment?

Many thanks to Harold Rocha from bringing the CCA information to my attention.