Immigration-Related Cases: March 2010 Update

Recent Supreme Court Decisions

Padilla v. Kentucky, 558 U.S. __ 2010

On March 31, the Supreme Court held in Padilla v. Kentucky that defendants considering a plea agreement have a Sixth Amendment right to accurate advice on how their plea might affect their immigration status.  In 2001, Mr. Padilla, a U.S. permanent resident, pled guilty to a marijuana trafficking offense upon advice from his attorney that the plea would not affect his immigration status.  The offense, in fact, is designated an “aggravated felony” under the Immigration and Nationality Act, resulting in mandatory deportation.  When Mr. Padilla appealed for post-conviction relief, the Kentucky Supreme Court ruled that the Sixth Amendment’s guarantee of effective assistance of counsel did not protect him from erroneous advice about the “collateral” matter of the deportation consequences.

The Supreme Court reversed this decision, holding that incorrect information by Padilla’s lawyer did violate his right to effective counsel, and that mandatory deportation stemming from a guilty plea to an “aggravated felony” is a consequence that is not beyond the scope of representation.  The Court specifically observed that historically, immigration judges had much greater discretion to consider individual circumstances and that deportation is now “virtually inevitable for a vast number of noncitizens convicted of crimes.”  To the Court, this showed that deportation is an integral part of the penalty that may be imposed on noncitizen defendants, and thus accurate legal advice was essential.  Where the immigration outcome may be unclear, the Court stated, the attorney’s duty does not go further than notifying the defendant that a guilty plea may carry adverse consequences.  But when the sentence invokes mandatory deportation, the Court found a clear duty to give correct advice on that question. 

The Court did not decide whether Padilla’s guilty plea should thus be thrown out, but remanded the question of actual prejudice to Mr. Padilla’s case back to the lower court.  Mr. Padilla will still have to demonstrate that the result would have been different if he had received different advice.

As the vast majority of criminal cases result in plea bargains, it is likely that the vast majority of immigrants deported as a result of criminal convictions also earned those convictions through plea bargains.  After this decision, those noncitizen defendants will have a Constitutional right to accurate information about the negative immigration consequences that could befall them.

Kucana v. Holder, 558 U.S. __ 2010

On January 20, 2010, the Supreme Court issued its first immigration decision of the year. It held, in Kucana v. Holder,  that federal courts of appeal have jurisdiction to hear cases where individuals seek to reopen removal proceedings. At issue before the Court was whether a provision in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) applies only to Attorney General determinations deemed discretionary by statute, or whether it extends to determinations made discretionary by the Attorney General himself through self-made regulation.

The Seventh Circuit Court of Appeals had held that it lacked jurisdiction to hear Justice Department and Board of Immigration Appeals (BIA) decisions not to reopen removal proceedings. The court stated that the law’s jurisdictional bar extends to cases in which the Attorney General’s discretion is specified by his own agency’s regulations. The Seventh Circuit concluded that, in accordance with regulations that made decisions to reopen removal proceedings discretionary, the exercise of the Attorney General’s self-given discretion removed judicial review authority from the federal courts. The Supreme Court disagreed and instead concluded that only Congress could limit the federal courts jurisdiction, and not the Attorney General.

In many cases, such as asylum claims, where the petitioner is seeking protection from persecution if sent back to his or her country of origin, a decision on whether to reopen a removal proceeding can have life or death consequences. Judicial review in removal cases is a crucial safeguard, especially given that removal can mean permanent separation from family in the U.S. or being returned to a country where a person would be in fear for his or her life. The Supreme Court’s decision recognizes that federal judicial review is an important layer of protection that ensures that federal appellate courts are available to protect against inadvertent government mistakes in applying U.S. immigration laws. The Court’s decision serves as a step towards protecting the right to fair process for every immigrant in removal proceedings.

Cases Pending before the Supreme Court

Hui v. Castaneda, Docket No. 08-1529

The Court heard oral arguments in the case of Hui v. Castaneda on March 2, 2010.  In this case, the Court will address whether the Public Health Service Act makes actions against the U.S. under the Federal Tort Claims Act the exclusive remedy for claims arising from medical care provided by U.S. Public Health Services personnel, barring Bivens actions. Bivens actions allow for damage remedies for constitutional violations committed by federal agents. 

Mr. Castaneda, an immigration detainee at who died after a battle with penile cancer, brought a Bivens action against the U.S. alleging inadequate care, amounting to violations of his Fifth and Eighth Amendment constitutional rights.  Mr. Castaneda’s survivors allege that he was denied appropriate medical care, even after various doctors within the detention facility recommended a biopsy.  Upon release from detention, Mr. Castaneda obtained care, requiring the amputation of his penis.  He died from the cancer in 2008.The U.S. government argued that the government doctors responsible for Mr. Castaneda’s care were immune from being personally sued for medical negligence. 

A similar case involving the death of Mr. Hiu Lui Ng, a computer engineer, is now before the federal district court in Providence, Rhode Island. “The government’s positions both in Castaneda and in the Ng case fly in the face of the stated commitment to overhauling the immigration detention system and bringing to it more transparency and accountability,” said Vanita Gupta, a lawyer with the American Civil Liberties Union. 

Flores-Villar v. United States, Docket No. 09-5801

On March 22, 2010, the Court also agreed to hear the case of Flores-Villar v. United States, in which it will decide whether, in a derivative citizenship case, gender discrimination that has no biological basis is permitted, in accordance with the Supreme Court case Nguyen v. INS. Oral arguments will likely be set for the coming months.  

At the Ninth Circuit Court of Appeals, Ruben Flores-Villar challenged the constitutional validity of two former sections of the Immigration and Nationality Act which impose a five-year residence requirement, after the age of fourteen, on U.S. citizen fathers – but not U.S. citizen mothers – before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen.

The Ninth Circuit found itself bound by Nguyen where the Court held that the law’s legitimization requirements for citizen fathers, but not for similarly situated mothers, did not offend principles of equal protection. 

Carachuri-Rosendo v. Holder, Docket No. 09-60

The Court heard arguments on March 31, 2010, in the case of Carachuri-Rosendo v. Holder. The Court will determine whether immigrants with legal status or asylum seekers with two or more drug possession offenses should be treated as “drug trafficking aggravated felony” offenders.  A finding that an individual has committed a drug trafficking aggravated felony would subject the person to mandatory deportation and remove judicial discretion in doing so. 

Under the statute, it is unlikely that Congress intended to channel, for example, U.S. military veterans using drugs to cope with post traumatic stress disorder into deportation, especially without a hearing. Nevertheless, the Justice Department is pushing for an aggressive interpretation of the mandatory deportation statute. If the Court were to side with the federal government, immigrants with legal status who have already paid their debt to society would be swept into the harshest penalties of immigration law.

While immigrants with drug possession offenses are generally deportable, what this case stands to do is deny many lawful permanent residents the right to a hearing.  Legal advocates cite the Supreme Court’s ruling in Lopez v. Gonzales, where the Court rejected a claim that a single drug possession conviction could be treated as an aggravated felony under immigration law. As the Court reasoned in Lopez, drug trafficking and minor drug possession offenses are not the same. The Supreme Court should see through this attempt to escalate minor drug offenses into felonies and to strip lawfully permanent residents of the right to have their day in court.

For more on this topic see, “Wishing Doesn’t Make It Law” NY Times, Mar. 31, 2010, and “How One Marijuana Cigarette May Lead to Deportation,” NY Times, Mar. 31 2010

Supreme Court Petition for Certiorari Denied

Gomis v. Holder, Docket No. 09-194

On January 11, 2010, the Supreme Court declined to hear an asylum case involving a Senegal citizen fearing female genital mutilation if returned to Senegal. Ms. Francoise Anate Gomis was denied asylum, withholding of removal, and Convention Against Torture protection, after failing to file her asylum application within the one year deadline. Ms. Gomis appealed to the Fourth Circuit Court of Appeals after the BIA affirmed denial of relief. The Fourth Circuit held that it lacked jurisdiction to review the BIA’s factual determination that Ms. Gomis had failed to establish extraordinary circumstances, the standard for waiver of the one year filing deadline.  The 4th Circuit also affirmed that there was substantial evidence supporting the BIA’s finding that it was not “more likely than not” that Ms. Gomis would be subjected to female genital mutilation if returned to Senegal. 

Kiyemba v. Obama, Docket No. 09-581

On March 22, 2010, the Supreme Court denied a petition to hear Kiyemba v. Obama. The Court decided to leave intact a lower court ruling that takes away the power of federal judges to block the transfer of detainees out of Guantanamo Bay.

The D.C. District Court, below, granted habeas relief to petitioners who sought to be released into the United States. On appeal, the D.C. Circuit Court held that the federal court lacked authority to grant the relief sought, citing lack of express authorization to review the Executive Branch’s exclusion decisions. It stated that release of Guantanamo Bay detainees is beyond the Judicial Branch’s power, reasoning that judges do not have the power to override immigration laws and force the executive branch to release foreigners into the U.S.

The Supreme Court’s decision not to hear the case enhances the federal government’s authority to decide when and where to send detainees that are cleared for release from confinement. The practical effect of the denial leaves District Court judges without power to delay any transfers to which a detainee or his lawyer objects. Although this case does not primarily involve immigration law it emphasizes the political branches’ authority over immigration and removes any power from a district court to order the release of a person who is unlawfully held by the U.S. government.

District Court Decision

Villas at Parkside v. City of Farmers Branch, United States District Court, Northern District of Texas

In another constitutional equal protection challenge, a City of Farmers Branch, Texas, ordinance regulating housing was challenged and declared unconstitutional in a March 24, 2010, decision of the Northern District of Texas federal court. The ordinance established a residential licensing scheme under which the city would revoke the authorization to occupy rental housing for individuals that the federal government determined to be “not lawfully present” in the U.S.

The ordinance is the third action by the city of Farmers Branch touching on rental property and immigration status.  Plaintiff’s contended that the context of the ordinance’s enactment demonstrates the city’s intent to regulate immigration. The city argued that the ordinance, though touching on immigration, was instead merely a regulation of rental housing and not a regulation of immigration.

The Texas district court found the ordinance invalid pursuant to the Supremacy Clause of the Constitution, which provides for situations in which state and federal law are in conflict; in such cases where the two overlap, federal law trumps.