Practice Advisory: Matter of Chairez-Castrejon: BIA Applies Moncrieffe and Descamps to Modify and Clarify Its Views on Proper Application of the Categorical Approach (July 31, 2014): IDP and the National Immigration Project have issued an advisory on the Board of Immigration Appeals July 24th decision in Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014). In this decision, the Board applied last year’s Supreme Court’s decisions in Moncrieffe v. Holder and Descamps v. United States to modify and/or clarify the Board’s views on proper application of the categorical approach for determining whether a conviction fits within a criminal removal ground. The advisory describes the developments in the Board’s views relating to (1) minimum conduct test; (2) divisibility; (3) realistic probability standard; and (4) relief eligibility burden of proof. The advisory is meant to supplement and update the discussion of these concepts in last year’s advisories on the Moncrieffe and Descamps decisions.
Practice Advisory: Matter of Chairez-Castrejon: BIA Applies Moncrieffe and Descamps
New York State Court of Appeals finds Padilla Not Retroactive
On June 30, 2014, in People v. Baret, the New York State Court of Appeals held that Padilla does not apply retroactively in N.Y. State, thereby elevating “sterile legal doctrine” over humanity and justice, according to Chief Judge Lippman. IDP has responded with an advisory detailing strategies to achieve post-conviction relief after Baret. Although this decision may insulate many unjust pre-Padilla convictions from collateral attack, guilty pleas entered in ignorance of the consequence of deportation are unlawful and unjust, no matter the date. Immigrants will continue to fight to vacate these convictions, and IDP is deeply committed to supporting immigrants and their attorneys in those efforts. Despite this setback, la lucha sigue!!
Padilla Model Materials Have Arrived!
IDP has developed a complete set of model Padilla 440 materials, including a comprehensive guide to preparation of a 440 filing. The materials contain a sample motion, affidavits, memorandum of law, and tips on investigating the case with an eye to creating a strong record to support the Padilla claim.
IDP staff attorney Dawn Seibert (email@example.com) is available for litigation support on Padilla 440 motions. IDP is particularly interested in Padilla litigation in the appellate courts, and will provide technical support and possibly amicus briefing in impact cases. Litigants are encouraged to contact IDP at the inception of the appellate process.
Court of Appeals to Hear Arguments on Padilla Retroactivity on May 1st
IDP filed an amici brief in People v. Baret, asserting that the New York criminal defense bar’s diligent response to the draconian immigration laws passed in 1996 supports Padilla retroactivity as a matter of state law. 440 litigants may find the brief useful for its compilation of resources – trainings, publications, hotline support – available to support defense attorneys in their representation of immigrant clients. Learn more about Padilla Post Conviction relief here.
Signatories to the brief include the New York State Defenders Association, the New York State Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, and many other New York criminal defense organizations. The brief presents the view of criminal defense organizations that diligent attorneys in NY took advantage of these available resources and acted to protect their clients from deportation when possible by seeking dispositions that mitigated or avoided immigration consequences.
Join us: “Cambodian Son” screening April 27
Join Mekong NYC, IDP, and Families for Freedom for the NYC screening of “Cambodian Son” at MIST Harlem, 46 West 116th Street, April 27. There is a reception at 2 pm and the film begins at 3 pm. This documentary follows the life of Kosal Khiev. Kosal was convicted as an adult of attempted murder at 15, served 14 years, and then was deported by the U.S. to Cambodia in 2011. You can view the trailer here, and learn more about the film, at cambodianson.com:
“Cambodian Son documents the life of deported poet, Kosal Khiev after receiving the most important performance invitation of his career—to represent the Kingdom of Cambodia at the London 2012 Cultural Olympiad. Kosal would travel to London having only taken two flights prior; first, as a 1-year-old refugee child whose family fled Cambodia and, then as a 32-year-old criminal “alien” forcibly returned to Cambodia in 2011. The film follows a volatile yet charming and talented young man who struggles to find his footing amongst a new freedom that was granted only through his deportation. Kosal’s London representation is a triumphant moment for many people in his life, both in America and Cambodia. The film traces the impact and significance of this moment for Kosal, his friends, family, mentors and a growing international fan base. Armed only with memorized verses, he must face the challenges of being a deportee while navigating his new fame as Phnom Penh’s premiere poet. After the performances end and the London stage becomes a faint memory, Kosal is once again left alone to answer the central question in his life: ‘How do you survive when you belong nowhere?’”
I Served My Country. Then It Kicked Me Out.
IDP has been working with Howard Bailey, a veteran who was deported in 2012 to Jamaica, a country he had not seen in over 24 years. Read Howard’s story published April 11 in Politico Magazine.
“I often think about Friday dinners with my family. Every Friday, no matter what, my wife and I took our two children out to eat; it was a ritual we looked forward to all week. We would sometimes try new restaurants, but my children’s favorite was the Olive Garden. My daughter loved to order Shirley Temples and my son always wanted whatever I was having, so I’d order two of the same meal for us…”
To view and download an infographic of Howard’s story, visit the Immigrant Justice Network website here.
Practice Advisory: Supreme Court Opens Door to Domestic Violence/Aggravated Felony Removal Challenges
IDP’s Manny Vargas Receives Lifetime Achievement Award from Nation’s Criminal Defense Bar
(left to right: Rick Jones, Manny Vargas, Jerry Cox, and Norman Reimer)
On March 6, the National Association of Criminal Defense Lawyers (NACDL) presented Manuel D. Vargas, senior counsel at the Immigrant Defense Project, with its Lifetime Achievement Award. The award was presented by NACDL President Jerry J. Cox at the opening of NACDL’s 2014 Midwinter Seminar & Meeting, which is devoted entirely to the subject of the collateral consequences of conviction.
“For more than two decades, Manny Vargas has been a leader in the fight to protect the rights of non-citizens ensnared in America’s massive criminal justice system. He has led the criminal defense bar in coming to grips with the profound immigration consequences that may flow from virtually every encounter that an immigrant has with law enforcement. Indeed, Vargas was an initiator of the Deportation Defense Initiative, a massive pro bono effort in support of immigrant rights, and he co-founded the Defending Immigrant Partnership, a national collaboration to provide legal training and back up support for the defense bar. That partnership, of which NACDL is a proud member, is a sponsor of the collateral consequences seminar at which Vargas received this award today.”
Read NACDL’s press release here.
Practice Advisory: BIA revises policy to allow many more LPRs with pre-1996 convictions to apply for 212(c) waivers of deportation
On February 28, 2014, the Board of Immigration Appeals issued Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), in which the Board ruled that a lawful permanent resident immigrant who has accrued 7 consecutive years of lawful domicile in the U.S. may seek a waiver of removal for most deportable criminal offenses if the plea or conviction was entered before April 24, 1996 (or, in certain limited cases, before April 1, 1997). As a result of this decision, such long-time permanent resident immigrants should be able to seek waivers under former Immigration and Nationality Act Section 212(c) so long as the conviction or convictions in question do not fall within certain national security or international child abduction grounds, and are not aggravated felony convictions entered after November 29, 1990 for which the person served 5 years or more in prison in the aggregate. This decision overrules prior BIA decisions that had held that immigrants could not seek such waivers of deportation for several categories of deportable offenses that lacked substantially equivalent statutory counterparts in the criminal inadmissibility grounds. See, e.g., Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 66 (BIA 2005) (relating to certain aggravated felony categories). The decision also abrogates a Justice Department regulation that had declared 212(c) relief unavailable to those convicted after trial, and rules that an immigrant may now seek such relief without regard to whether the relevant conviction resulted from a plea agreement or a trial. The decision relies in large part on the recent U.S. Supreme Court decisions in Judulang v. Holder, 132 S. Ct. 476 (2011), and Vartelas v. Holder, 132 S. Ct. 1479 (2012) — see IDP practice advisories relating to the Supreme Court decisions in Judulang and Vartelas. IDP and pro bono counsel Mark Fleming of Wilmer Hale (attorney for the petitioner in Judulang) provided assistance to the American Immigration Lawyers Association (AILA) in the development of the amicus curiae brief submitted by AILA arguing for the relief granted by the BIA in this case. For a practice advisory on the implications of Matter of Abdelghany for lawful permanent residents seeking 212(c) relief from removal for pre-1996/1997 plea agreements/trial convictions, see Practice Advisory (with Sample Motion to Reconsider with the BIA) prepared by IDP with the National Immigration Project.
Just released! The Short Immigration Guide to How Arrests & Convictions Separate Families
Learn, Share, Fight Back:
The Short Immigration Guide to How Arrests and Convictions Separate Families
IDP helps educate Supreme Court of risk to immigrant domestic violence survivors of overbroad reading of a federal criminal law provision
On December 23, 2013, the Immigrant Defense Project joined with other immigrant rights’ organizations in filing an amici curiae brief before the U.S. Supreme Court in U.S. v. Castleman. In that criminal case, the federal government is asking the Court to adopt a broad reading of the “misdemeanor crime of domestic violence” predicate crime provision at issue that would include even state misdemeanors that cover nonviolent conduct. The amici brief, drafted by renowned immigration lawyer Ira Kurzban and the law firm of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, urges the Court to consider the immigration law implications of the government’s reading, which it points out could lead to unintended broad applications of the similarly defined “crime of domestic violence” and “crime of violence” immigration law deportability provisions that could ensnare even domestic violence survivors. The brief urges the Court to reject the government’s broad interpretation so as to avoid these unintended deportation consequences for domestic violence survivors and their family members convicted of low-level state offenses.
IDP Welcomes Michelle Parris!
We are excited to announce the addition to our staff of Michelle Parris, who will be starting as our Staff Attorney and Hotline Director in February.
Michelle brings to the work several years as a public defender in the Criminal Defense Practice at The Bronx Defenders, where she developed a keen understanding of the challenges of representing immigrant clients. Michelle was previously awarded an Equal Justice Works Fellowship focused on indigent defense for those with mental health issues.
Michelle is a graduate of Stanford Law School where she was a student attorney with Stanford Law’s Immigrants’ Rights Clinic. She was also Board Member of the Stanford Black Law Students Association, a coordinator and translator for the Housing Pro Bono Program, a Juvenile Detention Facility Teacher for Street Law, an Editor for the Stanford Journal of Civil Rights and Civil Liberties, and a member of the Stanford Latino Law Students Association. She previously interned with The Legal Aid Society’s Immigration Practice and the Orleans Public Defenders. She is fluent in Spanish.
Groundbreaking Due Process Decision from the NY Court of Appeals
On November 19th, in People v. Peque, the highest court in NY held that due process requires that judges warn defendants of possible deportation as a result of felony guilty pleas. The due process analysis is wonderful, and worth a read.
The problem with the decision is the Court’s articulation of a remedy, or lack thereof. The Court ordered a remand to the trial court for the defendant to file a motion to vacate which, if facially sufficient, will result in a hearing at which the defendant must establish prejudice – “a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation.” The non-exhaustive list of factors are virtually identical to those considered in the Padilla prejudice determination – the favorable nature of the plea, the consequences of conviction after trial, the strength of the People’s case, ties to the US, and any advice from counsel about deportation.
There is a thoughtful dissent by Chief Judge Lippman in which he chides the majority for creating a right without a remedy, stating that the decision “telescopes” due process and Padilla claims. Judge Lippman asserts that automatic vacatur, as argued forcefully in IDP’s amicus brief, is the only logical remedy.
It is unclear how useful this decision will be to individual defendants; the systemic impact also remains to be seen. The risk of advancing such a due process claim, from a systemic perspective, is the potential for courts to conflate the doctrines governing claims brought under the 5th and 6th Amendments. Immigrant defendants are typically much better served by Padilla’s requirement of individualized advice from defense counsel during the course of plea negotiations than by a court notification formally issued at the plea colloquy (too little, too late). Some courts have deemed a court notification of immigration consequences to substitute for the advice required by Padilla, although there are some great decisions that go the other way. For in-depth arguments on this issue, check out IDP’s amicus brief in People v. Lambert.
IDP Spring & Summer Internship Announcement
The Immigrant Defense Project (IDP) is a national nonprofit advocacy organization that promotes fundamental fairness for immigrants accused or convicted of crimes. IDP seeks to minimize the harsh and disproportionate immigration consequences of contact with the criminal justice system by working to transform unjust deportation laws and policies, and by educating and advising immigrants, their criminal defenders, and other advocates.
IDP is currently accepting applications from law students seeking internships for the upcoming Spring and Summer.
Our interns get unique exposure to both the criminal justice and immigration systems and an opportunity to develop substantive legal expertise. They can work on these issues from a holistic perspective that includes policy, litigation, and community outreach.
Based on interns’ interests and program needs, potential projects for this summer could include:
- Policy research and advocacy to help us ensure that federal immigration reform efforts restore due process rather than increase detention and deportation
- Support for impact litigation, including research and writing on cutting-edge legal arguments following major recent victories at the Supreme Court
- Provision of detailed legal analyses to criminal defense attorneys, immigration advocates, and immigrants and their loved ones on their cases through our free national hotline
- Know Your Rights presentations and intakes in NYC jails
- Work with community-based organizations on local and state campaigns
- Resource development for public defender offices across the country
We have helped many of our past interns find employment at public defender offices, immigrant rights organizations, and other social justice organizations. We work hard to ensure that interns get the most out of their experience and provide trainings and a dynamic work environment.
Please submit cover letter and resume to Alisa Wellek at firstname.lastname@example.org. Applications accepted on a rolling basis until positions filled, but we encourage you to apply early. Please note that applicants must seek outside funding from their law schools or other funders. We are happy to support these efforts. Term-time internships will also be considered if applicants can commit a minimum of 12 hours/week.
The Immigrant Defense Project is an Equal Opportunity Employer that actively recruits women, people of color, persons with disabilities, persons with diverse gender and sexual identities, immigrants, and formerly incarcerated persons.
View PDF of this announcement
Nov 2 Crimes & Immigration Seminar – Materials available
On November 2, 2013, IDP, the National Immigration Project of the National Lawyers Guild, and the Law Offices of Norton Tooby hosted our annual Crimes & Immigration Seminar for immigration and criminal defense attorneys at the NYU School of Law. National expert faculty Norton Tooby, Sejal Zota, Dan Kesselbrenner, and IDP’s own Manny Vargas, Dawn Seibert, and Isaac Wheeler presented the latest developments on timely topics such as the SCOTUS decisions in Moncrieffe and Descamps, as well as winning strategies for Padilla PCR litigation. A printed copy of the training materials is now available for purchase.
On the removal defense litigation front, IDP is using the momentum from recent Supreme Court victories in Moncrieffe and Descamps to support efforts to roll back overreaching court interpretations of the deportation laws. Together with the Stanford Law School Immigrants’ Rights Clinic and other allies, last month IDP filed an amici brief in Carrasco-Chavez v. Holder, urging the Fourth Circuit to abandon its misguided rule that prevents some immigrants from seeking relief from removal even when court records do not clearly show that a criminal bar to relief applies. IDP is also supporting a similar effort in the Ninth Circuit. (For more on IDP’s and partners’ efforts on this issue nationally, see our new issue page here). Also in August, IDP, joined by all of New York City’s providers of indigent defense and with pro bono representation by Gibson, Dunn & Crutcher, filed an amici brief in Pascual v. Holder asking the Second Circuit to reconsider its ruling that certain New York drug “sale” offenses are “aggravated felonies” even though, under New York’s expansive definition of what it means to “sell,” these laws punish minimal conduct that should not be deemed felonies under federal law. (For an earlier more comprehensive brief submitted in this case by Gibson Dunn on behalf of the same amici, click here). And beginning the fall on a high note, IDP helped to bring about an important victory in the Third Circuit, which ruled last week in Castillo v. Attorney General that immigration authorities acted arbitrarily in treating New Jersey’s non-criminal “disorderly persons” offenses as “crimes” triggering deportation. Thanking IDP for the assistance and advice it has provided in this case over the last two years, Francis Geier, one of Mr. Castillo’s attorneys, wrote: “I couldn’t have won the case without you!”
Deportation for a state drug-related offense overturned where failure to show that the offense related to a drug on the federal lists
In Rojas v. Holder, __- F.3d ___ (3rd Cir. August 23, 2013), the full Third Circuit federal court of appeals upheld the appeal of the immigrant in a case where the government had ordered the person deported based on a Pennsylvania drug paraphernalia conviction even where the government had failed to show that the offense was related to a controlled substance on the federal schedules. In so doing, the court rejected the Board of Immigration Appeals’ decision in Matter of Espinoza, 25 I&N Dec. 118 (BIA 2009) to the extent that the BIA decision could be read to permit immigration judges to order the deportation of immigrants convicted of drug-related crimes (other than possessory offenses), such as a drug paraphernalia offense, even where the government has not established that the offense related to a drug on the federal schedules or lists of illegal controlled substances. The Third Circuit relied on the plain text of the federal drug deportation statute, which requires that the offense be related a controlled substance “as defined in” federal law. The petitioner in this case was represented by Pennsylvania attorneys Craig R. Shagin and Tracey M. Hubbard. IDP provided expert legal assistance.
Senate Immigration Bill Is Not a Clear Victory for Immigrant Communities
The final Senate vote on the immigration bill has just been cast. This is a historic moment for the United States, but there remain serious problems with this flawed bill as it stands today. The Senate bill falls short of ensuring fundamental due process protections for all aspiring citizens, and disregards the safety and wellbeing of immigrant communities nationwide by including extreme and punitive measures that leave individuals vulnerable to racial profiling, automatic deportation and human and civil rights abuses along the borders. As the legislation moves on to the House…(read full Huffington Post blog)
Job Announcement: Staff Attorney
IDP is hiring a staff attorney to coordinate its telephone hotline, which provides information, advice and referrals to criminal defenders, immigrants and their families, and immigration and other advocates on criminal-immigration issues. The staff attorney will also train public defenders, other attorneys, and community members on criminal-immigration law and assist institutional public defender offices with the development and implementation of protocols to represent immigrant clients. See job announcement here.
Practice Advisory for NYC Detainer Policy Effective July 2013
IDP has issued a practice advisory for criminal defense attorneys regarding New York City’s 2013 detainer laws (Local Laws 2013/021 and 2013/022). This advisory provides guidance as to which immigration detainers the New York Police Department and the NYC Department of Corrections will not honor, thereby preventing certain non-citizens from being transferred to immigration detention. IDP also includes bail payment and plea decision tips for criminal defense attorneys within this advisory.
IDP Letter to Supporters
In these tumultuous times, we turn to our movement – a movement rooted in the principles of fairness and justice – to stand up for the rights of all immigrants. This past year, we continued to see record-breaking numbers of deportations tear apart families, communities, and loved ones. We are thankful to have attorneys and advocates like you alongside us, fighting tirelessly to ensure that our current immigration laws, as well as potential reforms, uphold due process and recognize the full humanity of those caught at the brutal intersection of the mass deportation and criminal legal systems.
Because of your generous support, we at the Immigrant Defense Project (IDP) are able to zealously litigate and advocate for policy reforms that support the rights of immigrants accused or convicted of crimes while providing the resources that advocates and directly-impacted communities need to protect against detention and deportation.
We know that we cannot afford to advocate for less than the full rights of all immigrants.
That is why we seek to create new legal precedents, new policies, and new ways of communicating about the changes this country needs to strengthen an immigrant rights movement that is inclusive of all immigrants. In 2013, we made significant progress in meeting these goals. On behalf of all of us here at IDP, I would like to extend my deep gratitude to you for your partnership. In 2014, we hope to build on this work even more: in the courts, in the halls of Congress, in our statehouses and in communities across the country. Can we continue to count on your support?
This past year, your thoughtful contribution allowed us to:
- Coordinate a major victory in the Supreme Court in Moncrieffe v. Holder. IDP coordinated the submission of a range of amicus briefs and provided extensive strategic and legal analysis to those leading the case. This April decision was a stinging rebuke to the government’s repeated attempts to expand the drug trafficking deportation grounds to reach minor drug offenses. More broadly, the Court’s decision will arm advocates to scale back government overreaching in other deportation contexts as well.
- Challenge collaboration between ICE and police and offer trainings for immigrants and advocates on protection from deportation. We educated legislators, staffers and organizations across New York City on the impact of mass deportation programs on local immigrant communities. We conducted monthly bilingual workshops to immigrant detainees at Rikers Island jail on how to navigate the immigration detention and deportation systems and how to fight their cases. We conducted Know-Your-Rights workshops to train immigrant communities on how to protect rights when snared in the criminal legal system. We worked in coalitions with a variety of organizations, including LGBTQ, domestic violence, racial justice, and immigrant rights advocates, to fight against discriminatory policing and police collaboration with ICE. Our work helped lay the groundwork for the New York City Council’s February 2013 passage of a more protective detainer discretion law that applies to both the NYPD and the Department of Correction.
- Implement Padilla v. Kentucky more broadly. At IDP, we take seriously our duty to uphold the Supreme Court mandate in Padilla to ensure that immigrants accused of crimes are fully advised of the potentially devastating immigration consequences of their criminal cases. IDP trained hundreds of defense attorneys and judges across the country; helped defender offices in New York, New Jersey, Maryland, Pennsylvania, and Florida institutionalize Padilla advisals; and strengthened the Defending Immigrants Partnership (DIP), our national collaboration with National Immigration Project of the National Lawyers Guild (NIPNLG) and Immigrant Legal Resource Center (ILRC).
- Contribute to three high-impact victories in New York appellate courts on the scope and reach of Padilla v. Kentucky. IDP provided technical and amicus support in three cases – Baret, Picca, and Chacko – that significantly advanced defendants’ ability to vacate pleas entered in ignorance of immigration consequences. We are using these victories as a model for efforts in state courts across the country.
- Field over 2,000 inquiries on our free, national criminal-immigration hotline. We provide detailed analyses to criminal defense attorneys, immigration advocates, and immigrants and their loved ones on their cases. In 2013, we will break our record for the most calls in a single year – and the phone keeps ringing.
- Stand up for the rights of immigrants with criminal convictions in federal immigration reform efforts. Early this year, IDP seized an incredible moment of opportunity, along with our partners in the Immigrant Justice Network – NIPNLG and ILRC – to restore the rights for immigrants accused or convicted of crimes through national immigration reform. We provided expert analysis to educate lawmakers about how the current immigration laws and aspects of the federal immigration bill harm or otherwise negatively impact immigrants with criminal convictions. We helped organizations build an analysis of the immigration consequences of criminal offenses so that they can work to encourage the protection of immigrants with convictions in their ongoing efforts. And in all of our communications work, we aim to reflect the full humanity of all immigrants in the language we use to move the national debate forward.
In our federal reform efforts, we are leading a communications campaign to disrupt dominant narratives about immigrants convicted of crimes and lift up the voices of our unlikely allies – including prosecutors, immigration judges, and criminal justice advocates. A focal point of the campaign is a new series of infographics that tell the stories of real people who have faced or will face mandatory deportation due to harsh and inflexible immigration laws. These compelling infographics, through powerful words and images, expose this injustice to a broad audience.
Available on our IJN website is one of these infographics that tells the story of Roland Sylvain. IDP worked with Roland to secure counsel and is currently seeking post-conviction relief for him. We have worked to share his story with legislators and are working with Human Rights Watch to include his family in a photo essay in Time Magazine.
Roland came here from Haiti in 1985 when he was 7 years old. Now a father of four children, he is facing mandatory deportation due to a 2001 traffic stop. In a moment of panic, Roland signed his cousin’s name to a speeding ticket. He immediately told the police officer and was subsequently arrested for forging a public document. At the advice of his lawyer, Roland pled guilty to the charge, which he was not told would lead to his mandatory deportation (his conviction is considered an “aggravated felony” under immigration law). Over 10 years later, Roland is now facing imminent deportation because harsh and inflexible immigration laws dictate that his immigration judge cannot weigh Roland’s individual circumstances in his ruling. Roland faces permanent exile, despite this being his only offense, and despite being the sole breadwinner of his family, an active member of his community, and the son, husband and father of U.S. citizens.
IDP is proud of our and our colleagues’ many achievements over the past year, yet we are humbled and troubled by the challenges that lie ahead. The US has seen a staggering 2 million people deported in the past 5 years alone – we can’t tolerate the exile of more people like Roland. IDP is redoubling its efforts in the fight for basic fairness in our criminal and immigration systems in 2014, and we hope we can count on your continued partnership once again. To face the uphill battle that lies ahead, we need you to help us grow our movement that is inclusive of all immigrants – on the federal, state and local fronts. We know that it will take the full force of our community behind us to enact our vision for a more just, humane and fair system for immigrants accused and convicted of crimes. We hope you will continue to be a vital part of it.
As 2013 draws to a close, we embrace the challenges and opportunities that lie ahead, and look forward to welcoming in a new era of leadership at IDP. We honor the vision of Manny Vargas that led to the founding of IDP 16 years ago, and the fearless leadership of Marianne Yang, Joanne Macri, Benita Jain, and Michelle Fei. We eagerly await the next chapter in IDP’s history.
Your continued partnership, now more than ever, will ensure that the consequences of criminal convictions for immigrants do not result in a double, and disproportionately harsh, penalty. We must continue our ambitious work to keep immigrant families and communities whole. Please consider making a year-end donation now to IDP so that, together, we can continue this critical fight.
With very best wishes to you, your family and your community this New Year,
Interim Executive Director
On behalf of Mizue Aizeki · Benita Jain · Dawn Seibert · Manny Vargas · Isaac Wheeler
P.S. One great way to maximize your tax-deductible donation is to become a monthly sustainer. Your thoughtful gift will fund our work every month to ensure fairness for all immigrants.
P.P.S. To contribute by check, please send to a check payable to “Fund for the City of NY – IDP” to Immigrant Defense Project, 28 W. 39th Street #501, New York NY 10018
Immigrant Justice Network new website on federal immigration reform
Immigrant Justice Network (IJN) recently launched a new website at www.immigrantjusticenetwork.org. This site includes resources on the immigration reform bills pending in Congress, including IJN’s analysis, talking points, fact sheets, action alerts, and stories of people impacted by our harsh immigration laws. IJN is a collaboration between the Immigrant Defense Project, the National Immigration Project and the Immigrant Legal Resource Center. IJN is on the steering committee of the CAMBIO Campaign for an Accountable, Moral, and Balanced Immigration Overhaul. IJN works to protect and defend the rights of immigrants who are exposed to the criminal justice system and advocates for policies that expand judicial discretion and strengthen due process. IJN accomplishes its goals through alliance building, public education, technical assistance, training, messaging, and legislative and administrative advocacy.
Job Announcement: Executive Director of IDP
IDP seeks a dynamic and creative Executive Director who is committed to and passionate about justice for immigrants. The position is available as of September 2013, with some flexibility as to start date. For more details, click here.
IDP and NIP-NLG Release Advisory on Descamps v. US
IDP and the National Immigration Project of the National Lawyers Guild have issued a practice advisory on Descamps v. United States, in which the Supreme Court clarified the proper use of the “modified categorical approach” to analyze the immigration and federal sentencing consequences of prior convictions. The Court squarely rejected a rule adopted by some lower courts (as well as the BIA) that allowed judges to look behind an earlier criminal conviction and impose federal collateral consequences based on “facts” from the underlying court records that the defendant was not necessarily convicted of. Together with the Court’s recent decision in Moncrieffe v. Holder, the Descamps decision should allow resort to underlying records in a much smaller number of cases, thus giving immigrant defendants the benefit of their plea bargains. Our practice advisory covers: (1) the holding in Descamps; (2) the decision’s applicability to immigration law; and (3) the decision’s potential implications for specific removal grounds.
IDP and Partners Release Advisory On Implications of Moncrieffe v. Holder
IDP, the American Immigration Council, and the National Immigration Project have issued a practice advisory on the implications for drug charges and other issues involving the categorical approach of the Supreme Court’s long-awaited decision in Moncrieffe v. Holder. The Supreme Court held that an offense that punishes the transfer of small amounts of marijuana for no remuneration cannot be deemed a “drug trafficking crime” aggravated felony under the categorical approach. The Court’s 7-2 decision is also likely to have a beneficial impact on some other key issues regarding the proper way to assess the immigration consequences of convictions. Our practice advisory covers: (1) the holding in Moncrieffe; (2) the decision’s potential broader implications; (3) strategies for noncitizen criminal defendants; and (4) steps that lawyers (or immigrants themselves) should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.
9th Circuit rules immigration judges can’t deport based on alleged facts a criminal judge or jury never found
In Olivas-Motta v. Holder, __- F.3d ___ (9th Cir. May 17, 2013) the Ninth Circuit became the fourth circuit court of appeals to reject the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), which permitted immigration courts to find some immigrants who have been convicted of crimes removable on the basis of alleged facts about their criminal conduct that were never established in the criminal case. (The Third, Fourth and Eleventh Circuits had previously rejected Silva-Trevino while the Seventh and Eighth had upheld it). IDP, joined by partner organizations including the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo Law School, prepared and filed an amicus brief in the case pointing out how re-trying criminal cases in immigration court is deeply unfair to immigrants, who are often detained and lack counsel and who may have accepted plea bargains specifically to avoid immigration consequences. The court’s decision adopted several of IDP’s arguments concerning why the Silva-Trevino rule misunderstood Congress’ intent in making deportation hinge on a “conviction” for removable conduct.
NY Defendants Can Seek to Vacate Convictions Post-Deportation
On May 16, the First Appellate Dept. ruled in People v. Antonio Badia that it was improper to dismiss Antonio Badia’s 440 motion because the defendant had been deported. IDP, along with the Post-Deportation Human Rights Project, filed an amici brief arguing that defendants should be allowed to litigate post-conviction relief cases after deportation. The trial court had refused to look at the merits of the defendant’s post-conviction relief case, dismissing it only because the defendant had been deported after filing the case. The trial court dismissed the case despite acknowledging that this placed the defendant in a catch-22, since the conviction was the reason for his deportation.
IJN ACTION ALERT: Call or Tweet Senate Judiciary Committee to not leave many out of path to citizenship
Tell members to protect parts of the immigration reform bill that allow immigration judges and officials to look at the individual circumstances of a person’s case and fight back against attempts to exclude more immigrants from the path to citizenship
The current immigration bill falls short of overhauling our broken immigration system. The heart of the bill is clearly the pathway to citizenship, but what’s missing from the conversation is the number of individuals who will actually be barred from the path. Several amendments that will be voted on this week further exclude immigrants, both undocumented individuals and green card holders, and will leave them off the path and without a fair day in court by
- expanding the categories of so called “aggravated felonies”, which include offenses that are neither aggravated nor felonies;
- targeting youth and their families for any “gang related” activity which infers guilt by association and not criminal conduct;
- leaving domestic violence survivors without any protections from deportation when reporting abuse, even if already on the path to citizenship; and
- taking away the bill’s already limited due process protections that allow immigration judges and officials to weigh individual circumstances in some cases before ordering deportation.
Decisions about these amendments will have a tremendous impact on immigrant families, and their ability to stay together in the United States. The SJC needs to hear from you— immigrant communities, advocates and allies— about the impact these amendments will have on our communities.
Please call members of the SJC (below is a sample script),
Staff will be reporting on the number of calls for and against each amendment to the Senators, so it is important to call and tweet on Monday and over the next week.
|Senator Leahy: 202-224-4242
Senator Feinstein: 202-224-3841
Senator Whitehouse: 202-224-2921
Senator Klobuchar: 202-224-3244
Senator Durbin: 202-224-2152
Senator Schumer: 202-224-6542
Senator Franken: 202-224-5641
Senator Blumenthal: 202-224-2823
Senator Coons: 202-224-5042
|Senator Hirono: 202-224-6361
Senator Lee: 202-224-5444
Senator Hatch: 202-224-5251
Senator Cornyn: 202-224-2934
Senator Flake: 202-224-4521
Senator Sessions: 202-224-4124
Senator Graham: (202) 224-5972
Senator Cruz: (202) 224-5922
Senator Grassley: 202-224-3744
On Twitter, use #CIRmarkup, #SJC (senate judiciary committee), #timeisnow, #p2c (path to citizenship).You can also tweet at Judiciary Committee members: @SenatorLeahy, @SenFeinstein, @ChuckSchumer, @SenatorDurbin, @SenWhitehouse, @amyklobuchar, @alfranken, @ChrisCoons, @SenBlumenthal, @maziehirono, @ChuckGrassley, @OrrinHatch, @SenatorSessions, @LindseyGrahamSC, @JohnCornyn, @SenMikeLee, @tedcruz, @JeffFlake
“I am calling to ask Senator _ [name of senator]_ to support and protect parts of Senate Bill 744 that allow immigration judges and officials to review the individual circumstances of a person’s case to determine whether they should remain in the United States.
I also urge the Senator to oppose amendments that exclude more immigrants from the path to citizenship and deny them an opportunity to have their case considered and heard. Specifically, I ask the Senator to OPPOSE: Grassley #10, 21, 22, 43, 44, and 46; Cornyn #3 and 4; and Sessions #5 and 22.
In the current bill and under certain proposed amendments, a wide range of criminal convictions, no matter how old or how minor, and regardless of the fact that time was already served in the criminal justice system, would block and immigrant from gaining or keeping her legal status.
Over the years, America’s attempts to toughen our immigration laws took away, in many cases, the ability of immigration law enforcement and judges to consider the individual circumstances of a person’s case. An offense triggering the bars to legalization or deportation lasts forever, even if it was a mistake that occurred years ago. Under the current Senate bill, there are only a few exceptions or waivers to overcome these bars. The path to citizenship should allow the government to consider individual factors, such as family and community ties, the nature, seriousness, and other circumstances of the conviction, passage of time, medical conditions, and contributions to community and family. The existence of a waiver does not mean that it will be granted. Waivers should be available in all cases to account for individual circumstances.
Immigrants should not be treated only as the sum of their mistakes in a nation that values second chances. Immigration judges must be given back the power to grant a second chance and cancel someone’s deportation after looking at other aspects of a person’s life. Judicial discretion must be restored and expanded, and limits must be made on the number and categories of offenses that would exclude long time green card holders’ ability to maintain legal status and undocumented individuals’ eligibility to pursue the path to citizenship.
What would these amendments do?
Grassley #10: Mandates deportation, with only extremely limited exceptions, for people found ineligible for legalization. This would have a huge chilling effect on those hoping to come out of the shadows and apply for legalization. It will funnel hundreds of thousands of people into the deportation system.
Grassley #21 & 22: These amendments further take away the bill’s already limited due process protections that allow immigration judges and officials to weigh individual circumstances in some cases before ordering deportation.
Grassley #43: This amendment will exacerbate existing problems of misidentifying gang members, increase racial profiling, and result in targeting children and youth who are victims of crime and human trafficking. This amendment incriminates individuals for mere association and membership, not actual criminal conduct.
Grassley #44: This amendment expands the heavily criticized aggravated felony definition to include strict liability and negligence offenses, upends settled Supreme Court case law on the scope of aggravated felonies, and hurts families that have conquered alcohol abuse problems and gone on to live stable and productive lives.
Grassley #46: These amendments will harm domestic violence survivors; domestic violence groups overwhelmingly reject amendments that further expand domestic violence deportation grounds.
Cornyn #3 and Sessions #22: These amendments automatically excludes from legalization, with no possibility of discretion, several single misdemeanor convictions. This amendment will have the effect of excluding victims of domestic violence, someone whose only brush with the law was a bar fight, and a person with one DUI. This amendment lacks any sense of proportionality, automatically and permanently excluding people from legalization for offenses that were often deemed punishable with only a small fine in criminal court.
Cornyn #4: In the current bill, people with old deportation orders are allowed to apply for legalization if they’re otherwise eligible. This amendment would bar individuals with old deportation orders and any criminal convictions from applying. This amendment specifically targets individuals with domestic violence convictions.
Sessions #5: This amendment would add a new crime that provides a mandatory 90 day sentence for a noncitizen who overstays a visa.
Thanks for your help!
Alisa Wellek (IDP), Angie Junck (ILRC), Paromita Shah (NIP/NLG), and Aidin Castillo (ILRC)
The Immigrant Justice Network (IJN) is a collaborative formed in 2006 between the Immigrant Defense Project (IDP), the Immigrant Legal Resource Center (ILRC), and the National Immigration Project (NIP/NLG) to work towards the elimination of unjust penalties for immigrants entangled in the criminal justice system and to end the criminalization of immigrant communities. IJN members are amongst the foremost immigration advocacy and defense organizations with expertise in the intersection between the immigration and criminal justice systems. IJN accomplishes its goals through alliance building, public education, technical assistance, training, messaging, and legislative and administrative advocacy.
URGENT: Action & Sign on Letter to Oppose CIR Deportation Provisions Based on Allegations of Gang Membership
To oppose deportation provisions and amendments in the Senate Immigration Bill (S. 744) targeting those alleged to be gang members, please:
1. Sign your organization (no individuals) to the letter here.
Sign-ons DUE by TOMORROW, May 15, 5 p.m. Eastern.
2. Call your senators Wednesday, May 15th and Thursday, May 16th (see action alert below):
(1) Ask the Senate Judiciary Committee to OPPOSE Grassley Amendment #43 which seeks to replace Section 3701 of S. 744′s gang deportation and ineligibility provisions for suspected gang members. This amendment will further increase racial profiling, increase targeting of youth of color and lead to the separation of families.
(2) Ask the Senate Judiciary Committee to ELIMINATE the new grounds of deportation and ineligibility (Sec. 3701) for suspected gang members.
What does Grassley #43 amendment do?
This amendment replaces and worsens the Senate bill’s 744 provisions regarding gang membership disqualification bars to legalization and deportation for those with lawful status by creating a new broad definition of criminal street gang and substantially increasing the burden of proof on a person to prove he did not know or reasonably should have known about the gang. A person would be permanently blocked from legal status and/or deported if the person falls within this new amendment. This amendment will target people who never committed any crimes whatsoever and who have obeyed all of our laws. The Los Angeles Times editorial board recently criticized the far–reaching provisions of this amendment.
Section 3701 of Senate bill S. 744 also contains new egregious deportation and disqualification bars for suspected gang members. Even though there is no sponsor for an amendment to eliminate Section 3701 of the Senate Bill, we ask that you call for the elimination of these existing provisions.
Background information is below.
What you need to do THIS WEEK, May 14-May 16:
The SJC needs to hear from you about the impact that Grassley Amendment #43 will have on our youth and families. Please focus your call on members of the Senate Judiciary Committee who are in bold. Below is a sample script. Staff will be reporting on the number of calls for and against each amendment to the Senators, so it is important to start calling TODAY, and increase call-in efforts on Thursday, May 16th.
Sample Script: “I am calling to ask Senator _ [name of Senator]_ to oppose Grassley Amendment #43 that relates to suspected gang membership. This amendment would punish mere “membership,” and is nothing more than guilt by association. There is no way to challenge the evidence being used to prove membership and it unfairly places the burden on the noncitizen to prove that he should not have known that the organization was a gang. This will lead to racial profiling, the increased targeting of youth and further separation of families.
Also, I object to Sec. 3701 gang removability grounds and the legalization ineligibility provisions in S. 744 because they are overbroad. We request that members of the Senate Judiciary Committee reconsider these new gang removability provisions and seek to eliminate it.”
Senator Leahy: 202-224-4242
Senator Feinstein: 202-224-3841
Senator Whitehouse: 202-224-2921
Senator Klobuchar: 202-224-3244
Senator Durbin: 202-224-2152
Senator Schumer: 202-224-6542
Senator Franken: 202-224-5641
Senator Blumenthal: 202-224-2823
Senator Coons: 202-224-5042
Senator Hirono: 202-224-6361
Senator Lee: 202-224-5444
Senator Hatch: 202-224-5251
Senator Cornyn: 202-224-2934
Senator Flake: 202-224-4521
Senator Sessions: 202-224-4124
Senator Graham: (202) 224-5972
Senator Cruz: (202) 224-5922
Senator Grassley: 202-224-3744
BACKGROUND: What is wrong with having new gang deportability grounds?
It would be disastrous for youth, particularly for youth of color and those who live in communities with a high concentration of gangs.
This kind of dragnet approach targets the wrong people and risks deporting and separating from their families individuals who are not gang members. Young people living in “bad” neighborhoods will certainly be vulnerable. Moreover, these provisions do not adequately protect people who have left gangs and have stable and productive lives.
These proposals impose guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their associations with groups considered to be dangerous. For example, this provision could impact a person who resides with or associates with a family member known to be in a gang or lives in a neighborhood where there is a high concentration of gangs.
These proposals will likely exacerbate racial profiling and bad police practices because the Department of Homeland Security will likely rely on heavily criticized gang databases or gang injunctions to assess membership or gang activity. Often, these law enforcement tools label a person as a “gang member” for living in a neighborhood where there is a high concentration of gangs or living with a family member who is a gang member.
These proposals make it very difficult to challenge and correct mistakes of misidentification. Gang databases face mounting criticism for their use of inconsistent definitions, improper documentation procedures and inadequate review. A person can be in a gang database without ever knowing about it, and most gang databases do not have accessible mechanisms for individuals to be removed from the database.
These proposals diminish public safety in communities that experience gang violence. Individuals will be less likely to report crimes and gang violence in their communities because they will fear that any interaction with law enforcement will lead to deportation.
Press conference to End Stop-and-Frisk and S-Comm: May 15, 9 a.m. City Hall
Join us at a press conference on the one-year anniversary of ICE’s activation of “Secure Communities” in NY to call for an end to discriminatory policing and ICE’s deportation machine!
When: Wednesday May 15, 9 a.m.
Where: Steps of City Hall
Download flyer for event here
URGENT: CALL NOW TO OPPOSE AMENDMENT GUTTING JUDICIAL REVIEW
URGENT Action Alert: CALLS needed TODAY (Thursday, May 9)
TODAY is the first day that the Senate Judiciary Committee will be considering amendments on the bipartisan immigration bill, S. 744. Today they will consider amendments on the bill’s border provisions. We’ve learned that Sen. Grassley of Iowa plans to offer his amendment 17 as a 2d-degree to Feinstein’s amendment 2 today. Grassley’s amendment 17 is aimed at gutting the judicial review protections in the Gang of 8 bill that are essential to protecting the RPI, DREAM, and AG JOBS programs.
Please call 202-224-7703 or 202-224-5225 TODAY to speak with the Majority and Minority offices of the Senate Judiciary Committee.Below is a sample script you can use. More information on the amendments is below.
Do you tweet? If you use Twitter, please note that @SenatorLeahy will be tweeting out real-time info on what amendment they are on, etc., and #CIRmarkup is the hashtag that Judiciary staff will be using. Tweet to oppose this amendment.
Please urge Senate Judiciary Committee (SJC) offices to:
Vote NO on Grassley 17 (to be offered as a second-degree to Feinstein 2)
Sample script: “I urge the Senator to OPPOSE amendment 17 proposed by Senator Grassley, which would eliminate judicial review and would deny individuals a way to correct an agency mistake over which they had no control.” [See below for further details, if you want them.]
The S.744 judicial review provisions provide for review of individual denials in district court or the court of appeals under the Administrative Procedures Act (“APA”) standard; the bill also provides for full review of pattern and practice violations and class action suits in the district court under APA standards. The Grassley 17 amendment would severely restrict review and provide 1) review only in the district court in DC, and 2) only over challenges to the constitutionality of sections of the program and implementing regulations. In other words, Grassley 17 would abolish all judicial review of decisions relating to RPI and adjustment of status applications, including those relating to Dreamers, agricultural workers, and the spouses and children of all these individuals — except to challenge the constitutionality of the law itself or the regulations.
The need for judicial review is critical because RPI/Dream/Ag Jobs will be newly created programs with new provisions being implemented for first time. Agency mistakes are inevitable. Under Grassley 17 — if the executive branch were to adopt a regulation, policy or practice that erroneously denies thousands of people legalization, there would be no way to correct it – even if the regulation, policy or practice was manifestly inconsistent with the legalization standards created by Congress. Without judicial review, Congress’s intent in the Act will be thwarted.
Giving an agency employee the sole responsibility on such important decisions puts far too much unchecked power in the hands of a single agency employee. A single error by a single agency employee will destroy the life opportunity that Congress has chosen to make available to the individual. In the RPI dependent context, such an error could result in long-term, often permanent, separation of spouses or separation of parents from their children. Without judicial review, these errors will go uncorrected.
By restricting judicial review to the DC district court only, Grassley 17 would be highly unfair to RPI applicants who are unable to travel to DC. As long as the DC Dist. Court says a provision or regulation is constitutional, an individual can be deported even if the legalization denial was blatantly wrong under the standards created by Congress.
In our justice system, it would be unprecedented to bar judicial review of administrative agencies’ decisions involving individual interests of this magnitude. Grassley 17 would be unconstitutional because it wouldn’t provide review over non-constitutional legal claims or even non-systemic constitutional claims, as required by US v. St Cyr and other Supreme Court cases.
Boston Should Not Be Excuse to Deny Human Rights in Immigration System
As the nation recovers from the horrific bombings in Boston, conservatives hastily called for delay of the Senate’s upcoming immigration reform debate, perhaps with the intent of proposing more extreme immigration measures and scoring political points with immigration opponents.
Some likewise used the fear after Timothy McVeigh’s 1995 bombing in Oklahoma City as an impetus to pass drastic changes to immigration laws in 1996, and again after 9/11. These laws exemplify the consequences to human rights when Congress legislates in knee jerk fashion.
By vastly expanding the number of crimes that can trigger deportation and making deportation a mandatory minimum for a wide range of offenses, these punitive immigration laws not only impose punishments disproportionate to the crime, but deny people their fair day in court. Noncitizens who get ensnarled in the criminal justice system — one that disproportionately targets and convicts people of color — face double jeopardy: they serve a sentence, and then, with few exceptions, get deported without an opportunity to argue their case to a judge.
After 9/11, the U.S. imposed severe “security” measures that have further eroded our rights and have deported over 3 million people — more than in the previous 110 years combined.
We should learn from the lessons of the 1996 laws and the post-9/11 era, and use the momentum for immigration reform to reverse the negative repercussions to our communities and to values of fairness and due process. We need to put an end to the ever expanding list of criminal offenses that bar an individual from relief from deportation and to allow judges to weigh the individual circumstances of a person’s case before he or she is permanently separated from family and expelled from the U.S.
While some are trying to use the Boston bombing to derail immigration reform, there is one significant difference between Boston and 9/11, when immigrants — regardless of status — came under political attack. The American public is clear that if basic rights are denied to one person, they are denied to all. A March 2013 national poll conducted by the Campaign for Accountable, Moral and Balanced Immigration (CAMBIO), found eight in ten (80 percent) in agreement, that “we should uphold American values of due process and human rights, which means immigrants should not be deported without a judge being able to evaluate the circumstances of their case.”
Under our current unfair legal system for immigrants imposed in 1996, thousands of Green card holders, asylum seekers and undocumented are prohibited from presenting their entire case before an immigration judge because they are accused of having committed “aggravated felonies,” an immigration legal term that includes a wide range of offenses that are neither aggravated nor felonies. An immigrant with an aggravated felony conviction is mandatorily deported and exiled forever.
Some parts of the bill proposed by the “Gang of 8″ begin to address these concerns, but the measure is riddled with provisions that would repeat and expand policy and political mistakes that led to record number deportations, including expulsion of many long time lawful permanent residents.
Congress should follow the advice of law enforcement veterans like Paul Grussendorf, who was an immigration judge in San Francisco and Philadelphia for seven years and is the author of My Trials: Inside America’s Deportation Factories.
“Federal legislation should include a waiver that allows immigration judges the discretion to grant relief from deportation in deserving cases by weighing the age of the conviction, the severity of the offense, evidence of rehabilitation, substantial family ties in the United States and other factors relevant to the public interest,” Grussendorf wrote recently in the San Francisco Chronicle.
Immigration reform, if handled correctly, will protect American values of fairness and due process, and preserve the well-being of families and the communities in which they live.
(View on the Huffington Post blog here)
4/29 IJN Telebriefing Criminal Bars to Immigration Reform
After registering you will receive a confirmation email containing information about joining the webinar.
Criminal Bars to Immigration Reform:
Creating a Pathway to Citizenship for All Immigrants
Monday April 29, 2pm EST/11am PST
The Immigrant Justice Network, a collaboration between the Immigrant Defense Project, Immigrant Legal Resource Center, and the National Immigration Project of the National Lawyers Guild, along with the Immigration Advocates Network, is a hosting a webinar for grassroots activists and other allies to discuss the impact of federal immigration reform efforts on those with prior contact with the criminal justice system.
The briefing will cover:
- What kind of crime-related bars are in the “Gang of 8″ immigration bill? What does it mean for immigrants accused or convicted of crimes?
- How can we ensure that federal immigration reform rolls back harsh mandatory deportation laws and allows judges to weigh the individual circumstances of a person’s case?
- How can we message these difficult issues most effectively to ensure fundamental fairness for all immigrants?
Paromita Shah, Associate Director, National Immigration Project of the National Lawyer’s Guild
Angie Junck, Supervising Attorney, Immigrant Legal Resource Center
Alisa Wellek, Deputy Director, Immigrant Defense Project
If you have questions, email us at support@
Supreme Court once again scales back government overreach on drug aggravated felonies
The Supreme Court has released its long-awaited decision in Moncrieffe v. Holder, holding that an offense that punishes the transfer of small amounts of marijuana for no remuneration cannot be deemed a “drug trafficking crime” aggravated felony under the categorical approach. The Court’s 7-2 decision is also likely to have a beneficial impact on some other key issues regarding the proper way to assess the immigration consequences of convictions. Check back soon for an advisory explaining the Moncrieffe decision and its potential application to other issues.
POSTPONED!!! 4/26 EVENT to Call for End to Stop-and-Frisk and S-Comm
We have postponed this event due to a last minute cancellation of the Floyd court case tomorrow.
Press Release: Senate “Gang of 8” Immigration Bill Needs More Work to Ensure Fundamental Fairness for All Immigrants
For Immediate Release – April 18, 2013
Contact: Alisa Wellek, email@example.com 212.725.6421 917-727-8444
or Gebe Martinez, firstname.lastname@example.org 703-731-9505
Senate “Gang of 8” Immigration Bill Needs More Work to Ensure Fundamental Fairness for All Immigrants
Immigrant Justice Network applauds start of immigration debate
PDF available here
WASHINGTON, DC — The long-delayed congressional debate over vital immigration reform begins this week following the filing of a bipartisan measure that creates a roadmap to citizenship for a portion of the 11 million immigrants now in the country without documents. However, more work lies ahead to ensure that Congress upholds the fundamental American values of fairness and due process as part of any reforms, according to the Immigrant Justice Network, a collaboration of the Immigrant Defense Project, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild.
These organizations, which promote fundamental rights for immigrants accused of or convicted of a crime, note that many parts of the bill repeat and expand the same policy and political mistakes that led to record number deportations, including expulsion of many long time lawful permanent residents. There were more deportations in the past 10 years than in the last 100 years combined, under a system that eroded due process and increased unchecked militarization of the border.
“The Senate bill includes some restoration of due process and judicial discretion, especially for considerations regarding detention,” said Alisa Wellek, of the Immigrant Defense Project. “The promise of immigration reform requires further improvements to judicial waivers that would allow judges to weigh the individual circumstances of a person’s case before she is permanently separated from her family and exiled from the United States.”
Under our current unfair legal system for immigrants, thousands of Green card holders, asylum seekers and undocumented are prohibited from presenting their entire case before an immigration judge because they are accused of having committed “aggravated felonies,” an immigration legal term that includes crimes that are neither aggravated nor felonies. An immigrant with an aggravated felony conviction is automatically deported and exiled forever.
“Reform legislation must amend harsh criminal bars preventing people from staying on the path to citizenship and ensure that so-called aggravated felonies no longer trigger mandatory detention and deportation,” said Robert Johnson, former President of the National District Attorneys Association. “It is inappropriate and unjust for immigration penalties to far surpass the criminal sanctions for these offenses.”
A March 2013 national poll conducted by the Campaign for Accountable, Moral and Balanced Immigration (CAMBIO), of which IJN is a member, found that eight in ten (80%) agreed “we should uphold American values of due process and human rights, which means immigrants should not be deported without a judge being able to evaluate the circumstances of their case.”
“The public supports the fundamental values of fairness and equal protection, and we believe it is in the interest of Congress to follow their lead,” said Angie Junck of the Immigrant Legal Resource Center.
For IDP and IJN resources on federal immigration reform, click here
IDP Resources on Federal Immigration Reform
Visit IDP’s new Federal Immigration Reform page for analyses and updates
Post-Conviction Relief Litigation Post-Chaidez: Now What?
The Defending Immigrants Partnership has published a Chaidez advisory detailing the claims for post-conviction relief that can still be asserted by immigrants who were not properly advised regarding the immigration consequences of a pre-Padilla criminal case. Chaidez is not the end of the story for these cases, and there are ways to fight dismissal of Padilla claims for convictions that were final on March 31, 2010. Stay tuned for model briefing and practice tips on NY-specific strategies to defeat dismissal post-Chaidez.
Second Circuit overreaches on drug trafficking aggravated felony ground
In Pascual v. Holder, 12-2798, 2d Cir. Feb. 19, 2013, the Second Circuit held that third degree criminal sale of a controlled substance in violation of New York Penal Law § 220.39(1) is categorically an aggravated felony. The Court considered and rejected the argument in the Fifth Circuit’s unpublished decision in Davila v. Holder, No. 08-60530, slip op. (5th Cir. June 15, 2010) that inclusion of “offer to sell” in the New York sale statute means that a conviction under the statute is not categorically a drug trafficking aggravated felony. IDP had been working with pro bono partner Gibson Dunn on a different case also raising this issue before the Second Circuit. We plan to submit an amicus brief in support Mr. Pascual’s Petition for Rehearing. Please stay tuned for more updates and analysis.
Supreme Court Issues Decision on Chaidez vs. U.S.
The Court issued its decision in Chaidez v. United States this past Wednesday. IDP worked extensively on amicus strategy and other support for the case. We are very disappointed in the decision and our hearts go out to all those who will be impacted by it.
The Court held that Padilla is a “new rule” pursuant to Teague, and thus under the Teague analysis does not apply retroactively to convictions that were final before Padilla was decided. This is a deeply unjust decision. Ms. Chaidez pleaded guilty two years after Mr. Padilla, and her coram nobis petition was pending when Padilla was decided. Therefore, the norms supporting the Sixth Amendment duty to advise regarding immigration consequences were firmly in place at the time of her plea, and it is only the fortuity of timing that prevented her case from reaching the Supreme Court first.
The silver lining in this decision is that Chaidez did not dispute Padilla’s assertion that for at least the past 15 years professional norms have obligated defense counsel to advise regarding immigration consequences; in fact, the opinion cited to a 1968 ABA standard that instructed defense attorneys to give advice regarding deportation. Thus, in a post-Chaidez world, Padilla claims stand on a strong footing substantively. Given what is at stake for many of these defendants – separation from family, friends, job, the place they consider home, where they have lived for years or decades – IDP expects that a substantial number of defendants will continue to fight hard to get their day in court on the merits of their ineffective assistance of counsel claim. IDP intends to remain in the forefront with model legal materials, amicus briefing, and technical support for defendants and their attorneys.
Chaidez dealt a heavy blow to Padilla retroactivity but it did not render Padilla completely unavailable for challenges to convictions that were final when Padilla was decided. For state and federal post-conviction relief (PCR) petitioners in the same boat as Ms. Chaidez, there are ways to fight the dismissal of those claims. For instance, Chaidez was a federal PCR case, and New York courts can apply broader state retroactivity principles to award relief on Padilla 440 motions. Also, there is an independent New York state constitutional right to effective assistance of counsel, which is unaffected by Chaidez.
IDP and the National Immigration Project of the National Lawyers Guild published a Chaidez practice advisory on March 1. Soon, IDP will distribute NY-specific briefing of the Padilla 440 arguments that remain available post-Chaidez. Please contact IDP Staff Attorney Dawn Seibert if you have urgent questions before then. For updates and information on other Padilla 440 issues, please check IDP’s Padilla PCR webpage.
IDP and ILRC Release Practice Advisory on Important Categorical Approach Issue
This advisory, issued jointly by IDP and the Immigrant Legal Resource Center, discusses the potentially helpful impact that a pending Supreme Court case may have on whether immigration judges can look behind criminal convictions to examine underlying court records. The criminal case, Descamps v. United States, has the potential to undermine the BIA’s problematic decision in Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), which permits resort to such records in many cases. The advisory includes suggestions for immigration and criminal practitioners on how to handle cases while a decision in Descamps remains pending and also discusses potential obstacles to using a good decision in Descamps in immigration court (and arguments to overcome these obstacles).
IDP and Partner Groups Issue Statement of Principles for Immigration Reforms
As the White House and Congress considers reforms to the federal immigration system, the nation has an opportunity to address some of the system’s most unfair aspects and simultaneously resist new harmful provisions that immigrants and advocates would have to fight for decades to come. To help guide advocacy for a more humane immigration system toward fairness for all immigrants, IDP along with the Immigrant Legal Resource Center, National Immigration Project of the National Lawyers Guild and the Washington Defender Association have issued a one-page statement of needed reforms, “Principles for Immigration Reform that Promote Fairness for All Immigrants.”
Padilla Post-Conviction Relief Updates
Check out IDP’s Padilla Post-Conviction Relief page for the latest news on Padilla retroactivity – Chaidez, Baret, and more! Also, IDP is working to make post-conviction relief accessible to deported defendants – for the latest arguments, go to the Post-Deportation Vacatur section on the Padilla PCR page.
Natz Training on February 21 & 22nd in NYC
IDP, along with ILRC, is co-sponsoring a two-day naturalization training for attorneys and immigration service providers in New York City on February 21-22, 2013. During this training, IDP will lead a four-hour workshop on how a criminal incident can affect a naturalization application and why some naturalization applicants could be placed in deportation proceedings based on contact with the criminal justice system. Register now or please contact Josh Epstein at email@example.com for more information.
Pre-registration via fax or mail by February 14, 2013 is necessary to ensure seminar materials. MCLE from the State Bar of New York will be granted
IDP Joins NIP in Submitting Brief Arguing Against Retroactive Application of Deportation Relief Bar
On December 21, 2012, the IDP joined the National Immigration Project in submitting an amici “friend of the court” brief arguing that the federal government is wrong to apply retroactively the cancellation of removal eligibility “clock-stop” rule – enacted by Congress in 1996 – to pre-1996 criminal conduct. Under the clock-stop rule, an applicant for cancellation of removal must show that he or she has continuously resided in the U.S. for seven years prior to commission of certain offenses triggering deportability. The brief argues that the U.S. Supreme Court’s recent decisions in Vartelas v. Holder and Judulang v. Holder preclude the government from continuing to apply this rule retroactively to pre-1996 offenses. The arguments in this brief may be useful to others looking to use the recent Supreme Court decisions to argue against retroactive application of the clock-stop rule and other restrictive immigration amendments.
The Election is Over: Now What?
Over the years, those of us who fight for immigrant rights have heard our calls for a just immigration system rebuked by most politicians at the federal level. Instead, we have been met with an increasingly harsh mass deportation regime leading to the permanent exile of record numbers of our friends, family, clients, and community members.
During the build up to the election, we saw some attempts to use immigration issues for political gain by preying on people’s fears of an unstable economy and crime, scapegoating immigrants, and appealing to nativist sentiments. As the dust settles, the flaws in this strategy and the importance to both parties of winning over voters who care about just immigration policies has only become more apparent. Around the country, immigrants and advocates are saying that the time to fix our broken immigration system is now. And there are reasons to be optimistic that this will be a priority during the administration’s second term.
However, the question of how this system will get “fixed” weighs heavily on us. We at IDP believe in fundamental fairness for all immigrants, including those accused or convicted of crimes. We see on a daily basis how the deportation system compounds the injustices and racial disparities of the criminal justice system. While we all make mistakes and should be held accountable for them, we are a country that believes in second chances and that the penalty for most mistakes shouldn’t be to ruin our lives and the lives of everyone around us. We need one system of justice for all, not second punishments for some.
That is why IDP, along with our allies, has been fighting for immigration policies that align with our values of fairness and justice. We need immigration laws that don’t punish people without fair hearings or deprive them of their constitutional rights; that encourage mercy and give people a chance to seek it.
Proposals for comprehensive immigration reform have often included provisions that undermine some of these values. Compromises are offered that demonize some immigrants and make their lives even more difficult. That is, in part, why our policy and public education team has spent the last several years working with others to create models of resistance at the state and local levels that can and have been used across the country. In addition, we have worked with more mainstream immigrant rights groups to help shape and define their anti-deportation campaigns in ways that we hope will impact their policy asks and decisions in the coming years. Finally, we have been building support and power amongst groups who could be aligned with our values but not always part of the larger immigration discussion, such as those fighting for criminal justice reform, LGBT rights, and freedom from violence. As always, we remain devoted to keeping you informed and providing legal analyses of how proposed laws will impact immigrants, their advocates, and defenders.
In the upcoming fights for immigrant rights, we are committed to continuing on this path and hope you will join us.
Weathering the Storm
Everyone here at IDP hopes this email finds you and your loved ones safe following Hurricane Sandy. Our thoughts are with all those who are still trying to recover from the devastating storm. Disasters like these have an impact on all of us, but they make the situations of those who are most vulnerable even more precarious. Our hearts especially go out to those whose health and well-being are at the mercy of city, state, and federal correctional and immigration authorities.
While our staff has all survived the storm relatively unscathed, the IDP office in Manhattan remains closed. We recently had our power restored but remain without working internet or phones. We are all working from home, and email is the best way to contact us. We have prioritized keeping the hotline up and running remotely and can still receive calls at our regular number: 212-725-6422.
Below are some resources for those seeking individual disaster assistance or hoping to volunteer their services.
Information on applying for disaster relief:
Information on FEMA and immigration status:
Volunteer opportunities for attorneys:
Information on other service opportunities:
- Occupy Sandy Relief (http://interoccupy.net/
- Make the Road New York (http://maketheroad.org/)
- New York City Communities for Change Resources for Recovery (http://www.nycommunities.org/node/1519)
- VOCAL-NY Info for People Living with HIV/AIDs and Methadone Patients (http://www.vocal-ny.org/blog/drug-policy/post-sandy-updates-for-people-with-hivaids-methadone-patients/)
IDP Contributes to Two Major Appellate Victories that Help Ensure the Promise of Padilla in New York State
IDP has been working steadfastly to ensure the promise of Padilla both across the state and nationally by attempting to shape the way courts interpret the scope of post-conviction relief for Padilla advisals. We are pleased to share these two exciting recent victories:
Appellate Division, First Department Holds that Padilla Applies Retroactively to Convictions at Least as Far Back as 1996
In People v. Baret, amicus IDP teamed up with Attorney Labe Richman and convinced the Appellate Division, First Dept. that Padilla applies retroactively to convictions as far back as 1996 (the court expressed no opinion on the applicability of Padilla to pleas taken prior to 1996). No other Appellate Dept. has explicitly addressed the issue, although other Departments have implied that Padilla applies retroactively. Therefore, the Baret decision currently applies to all trial courts in NY state. Prior to the Baret decision, trial courts were split on retroactivity, so that some defendants were allowed to present the merits of their Padilla claims and others were not. The Court sent Mr. Baret’s case back to the trial court for a hearing on the motion to vacate the plea. Click here for the NY Law Journal coverage of the Baret decision.
Appellate Division, First Department Holds that under Padilla, Defense Counsel has a Duty to Inquire about Clients’ Citizenship; Prejudice Prong Can Be Met by Showing Attorney’s Failure to Seek Reasonable Immigration-Safe Plea
In People v. Chacko, amicus IDP and Center for Appellate Litigation attorney Robin Nichinsky combined efforts to persuade the First Dept. that under Padilla, defense counsel has a duty to ask a defendant whether he is a U.S. citizen. The Chacko Court rejected the People’s argument that would have placed the burden on a defendant to show that his attorney was aware, or should have reasonably been aware, that the client was a noncitizen in order to trigger the obligation to give advice regarding immigration consequences. Instead, the Court placed the duty to ask about citizenship squarely on the defense attorney. In addition, IDP and CAL successfully convinced the Court to make two important findings regarding the prejudice prong of a post-conviction relief motion: 1) Trial courts must consider the defendant’s desire to avoid deportation when deciding whether the defendant would have rationally rejected the plea; and 2) A defendant can show prejudice from his attorney’s failure to seek a reasonable immigration-safe plea. The Court sent Mr. Chacko’s case back to the trial court for a hearing on the motion to vacate the plea.
IDP Fights Against Government Overreaching in Drug Aggravated Felony Case Before Supreme Court
On October 10, the Supreme Court heard argument in Moncrieffe v. Holder, the third Supreme Court case in the last six years challenging the government’s overbroad readings of the harsh drug trafficking mandatory deportation ground. In this case, the immigrant petitioner challenges the government’s policy of deeming certain low-level marijuana offenses to be “drug trafficking” aggravated felonies even if the offense may have involved only the social sharing of a small amount of marijuana for no remuneration. IDP provided technical support for the pro bono lawyers representing the immigrant petitioner and coordinated amicus briefing in support of the petitioner. The Court will issue its decision in the case by June 2013. Look for an update when the decision comes out.
DACA Practice Advisory Including Notes on NY Criminal Bars
IDP has produced a practice advisory regarding the criminal bars to
obtaining protection under Deferred Action for Childhood Arrivals (DACA), including specific notes on NY crimes and dispositions. This practice advisory was originally created by the Immigrant Legal Resource Center which granted IDP permission to
generate this version.
A Message from Benita Jain
As many of you know, I have been working from Oakland, California, for the past year. During this time, my family has also grown to include two amazing children, Maya and Rohit. I have now decided to make my move to Oakland permanent and shift my role at IDP from Co-Director to Managing Attorney, Defending Immigrants Partnership. In this capacity, I will continue to coordinate our work with the Defending Immigrants Partnership (our national collaboration with Immigrant Legal Resource Center and National Immigration Project) to implement the historic Supreme Court decision in Padilla v. Kentucky.
I am thrilled to also announce that Michelle Fei will now serve as IDP’s Executive Director, and Alisa Wellek will step into a newly-created Deputy Director position, where she will both continue her substantive program work and build our organizational strength. Keep an eye out for a message from Alisa about how you can continue to support our mission!
As I move into this new role, I’ve been able to take a step back and reflect on what we have accomplished since IDP moved from being a project of the New York State Defenders Association (NYSDA) to a more independent organization just four years ago. We have tripled in size, growing into an amazing, committed, and creative staff. This has helped enable us to become more impactful: we’ve brought new allies into our struggle; celebrated litigation victories at the Supreme Court; fought to delink the deportation and criminal justice systems; and resourced attorneys, community-based organizations, and immigrant leaders to make real differences.
While I am proud of what we have accomplished, we all know that attacks on immigrants labeled “criminal aliens” are growing, and the criminal justice system continues to be the focus of deportation policies. That’s why I’m excited that these staff transitions will help us even more effectively promote a robust impact of Padilla, fight deportation programs like so-called “Secure Communities,” and aggressively litigate the government’s misinterpretations of already-harsh immigration laws. Through all of this, we will continue to build and use principled messaging to advance our mission and equip our communities with comprehensive tools to fight the targeting of immigrants with criminal arrests and convictions.
I am excited to remain a part of the IDP family – and together with you – as we continue to make great strides in this struggle.
DACA Legal Clinic on September 24
September 22 New York Crimes and Immigration Seminar
IDP co-sponsors the New York Crimes and Immigration Seminar at NYU on September 22, 2012. Please join us for a cutting edge crim-imm training and discussion, featuring a session on Post-Conviction Relief (PCR) Padilla developments. Further details and registration here: https://nortontooby.com/
IDP Releases New Report on Detention and Deportation Practices in NYC
On July 23, IDP along with New York University School of Law Immigrant Rights Clinic and Families for Freedom, released “Insecure Communities, Devastated Families: New Data on Immigrant Detention and Deportation Practices in New York City.” In the wake of growing deportation programs such as the recently-activated “Secure Communities” initiative, this new report sheds light on the precise ways in which current detention and deportation practices are wreaking havoc on New York City immigrants and their communities. The deportation system is devastating families by not only threatening to exile their loved ones, but also often forcing immigrants to fight their cases for years while locked up in far-away immigration jails.
“Secure Communities” and the U.S. Immigrant Rights Movement: Lessons from New York State
Read IDP’s new blog post on the North American Congress on Latin America website.
Practice Advisory on ICE’s “Secure Communities” in NYC
On May 15, 2012, ICE activated its “Secure Communities” program throughout New York State. As the implementation of this program may drastically alter the decision of noncitizen clients at arraignments, IDP has issued a practice advisory for criminal defense attorneys. “Secure Communities” (S-Comm) is an Immigration and Customs Enforcement (ICE) agency program that requires state and local law enforcement agencies to automatically forward the fingerprints of all people arrested through immigration databases at booking. ICE then coordinates with local law enforcement to target people suspected of immigration violations for detention and deportation.
Practice Advisory for New NYC Detainer Policy
IDP has issued a practice advisory for criminal defense attorneys regarding New York City’s new immigration law (Local Law 2011/62). This advisory provides guidance as to which immigration detainers the NYC Department of Corrections will not honor thereby preventing certain undocumented people from being transferred to immigration detention. IDP also includes bail payment and plea decision tips for criminal defense attorneys within this advisory.
Advisory issued. Immigrants with convictions or arrests: Don’t let the DREAM become a nightmare
The Obama Administration’s decision to exercise prosecutorial discretion to extend deferred action to DREAMers is a step in the right direction toward ending unjust deportations, but may pose risks for some people who apply, especially those who have criminal convictions or arrests, juvenile dispositions, or possibly even tickets for minor violations. The government has not yet developed specific rules and regulations to put this new policy into practice, but the policy that the President announced includes broadly-worded bars to eligibility that may include even minor criminal and juvenile offenses. People who apply for deferred action under the new DREAM policy could end up being detained and placed in deportation proceedings, and should proceed with caution. Some things that do not count as a “conviction” for most purposes, including some cases that have been dismissed, sealed or expunged, may still cause immigration problems. IDP strongly urges individuals who have had contact with the criminal justice system or with the juvenile justice system to call our hotline at 212-725-6422 before seeking DREAM benefits, or to have their criminal history reviewed by an experienced, licensed attorney who is skilled in deportation defense before applying. For more information, see the advisory prepared by the National Immigration Project of the National Lawyers Guild and partner organizations.
IDP Issues Updated Practice Advisory/Model Briefing for Immigrants Fighting Criminal Bars on Eligibility for Relief from Removal
On May 4th, IDP and the Stanford Law School Immigrant Rights Clinic issued an updated practice advisory with model briefing for immigrants and their lawyers fighting criminal bars on eligibility for relief from removal. In an application for relief from removal, the noncitizen has the burden to prove that he or she is eligible for relief. If the noncitizen has a criminal conviction in his or her past, this may include establishing that the conviction does not fall within a criminal bar to relief eligibility, e.g., aggravated felony bar to the relief of cancellation of removal. This advisory and the accompanying model briefing provides arguments to persuade adjudicators that an immigrant meets his or her burden when the criminal record evidence does not conclusively establish that the conviction falls within the relevant criminal ground bar. Although this advisory focuses on the aggravated felony bar to cancellation of removal for lawful permanent residents, portions of the advisory may also be helpful in analyzing other criminal bars faced by noncitizens applying for other forms of relief from removal. For a copy of this advisory, click here.
IDP’s 2012 Wrap-up and Plans for 2013
IDP’s recent accomplishments and an overview of some of our plans in the coming year:
Litigation efforts in defense of immigrants’ rights
- Realize the full potential of Padilla v. Kentucky by continuing to train and mentor defender offices across the country to provide effective immigration advisals, to raise awareness in immigrant communities about these rights, and to shape best practices among criminal court judges. This past year was a milestone for the New York City public defense system. Every public defender office in New York City now has an immigration department staffed with full time immigration attorneys, many of whom were trained and mentored by IDP. We also served as a training center for immigration attorneys at public defender offices nationally, developing immigration protocols in 6 states and, along with our partners in the Defending Immigrants Partnership, training defender offices in 31 states.
- Engage in impact litigation efforts in defense of immigrants’ rights through amicus briefing and technical support. Since last year, IDP has contributed to two victories at the Supreme Court, scaling back the government’s retroactive application of immigration laws. This is already shaping up to be another busy term in the Supreme Court, with pending cases concerning the retroactive reach of Padilla, whether minor marijuana offenses are “aggravated felonies” under immigration law, and the complex but critical issue of what records an immigration judge may examine to determine whether a conviction triggers deportation. We will continue to partner with pro bono law firms and law school clinics to protect and expand the rights of immigrants in these cases and many more in the lower courts.
- Ensure that immigrants can challenge past uninformed pleas by monitoring and intervening in litigation raising Padilla issues in federal and New York State appellate courts. Our work in New York has already yielded major victories, ensuring that more immigrants who pled guilty without being advised of the immigration consequences will be able to vacate their convictions. We hope that our work in Chaidez v. U.S., the Supreme case addressing Padilla retroactivity, will result in victory soon. We also plan to expand our post-conviction relief pro bono representation project, which we have worked to institutionalize with the Center for Appellate Litigation and Appellate Advocates. We have placed over 45 cases for immigrants challenging their convictions on Padilla grounds through these efforts.
Fighting back against deportation programs and for the rights of all immigrants.
- In response to victories like ours in getting New York State to suspend Secure Communities, ICE eliminated the state agreements that had previously governed S-Comm. On May 15 of this year, ICE activated the program throughout New York State. We are gathering information about S-Comm’s implementation, analyzing potential legal challenges to attack S-Comm, developing inclusive messaging and communications, and supporting the enactment of local detainer policies to break ICE- police collaborations. We also did administrative advocacy to limit the criminal bars for Deferred Action for Childhood Arrivals. We plan to work with our partners across the country to fight for immigration reform that includes all immigrants.
Training, legal support, and cutting-edge resources
- Train even more attorneys, advocates, judges, and immigrant leaders across the country on how to ensure fairness for immigrants facing deportation after arrests and convictions. So far this year, nearly 1,400 people have attended our trainings, ranging from national gatherings of hundreds of defenders to Know-Your-Rights workshops for directly-impacted communities.
- Continue our legal hotline – the only one in the country exclusively for criminal-immigration issues – to provide high-quality legal analyses to defense attorneys, immigration advocates, and immigrants and their loved ones. We are already approaching 2,100 calls fielded this year! Our hotline also hosted and trained attorneys from four public defender organizations and a variety of domestic violence and immigrant rights organizations.
- Provide more cutting-edge resources for immigrants and their advocates fighting current harsh government enforcement policies. During the past year, we produced practice advisories on how to use recent Supreme Court decisions to fight deportation, model briefing on defending against criminal bars on eligibility for relief from deportation, materials for understanding the criminal bars to Deferred Action for Childhood Arrivals, a national toolbox for fighting ICE detainers, model materials for Padilla-based post-conviction relief motions, and practice advisories on Secure Communities and New York City’s local detainer policy. We hope to produce additional such resources this year, as well as updates of current resources such as our acclaimed Removal Defense Checklist for those fighting detention and deportation based on past criminal charges.
126 defenders, 31 states, 1 national training
The Defending Immigrants Partnership (DIP) held its Sixth National Training on Immigration Consequences of Criminal Convictions in Denver in May 2012. DIP Partners IDP, ILRC and NIPNLG trained 126 attorneys from public defender offices in 31 states on crim-imm law, advising immigrant clients, strategies to avoid deportability and institutionalizing Padilla in defender offices. Attendees were nominated by their chief defender or training director and selected based on a commitment to share the information with their colleagues. IDP and its partners will offer guidance and assistance throughout the year, as the attendees begin or enhance immigration protocols at their offices. This training was supported by a generous grant from the Ford Foundation. For more information on Padilla/immigration protocols at defender offices, contact Benita Jain at bjain@immigrantdefenseproject.
Free Prosecutorial Discretion Clinic for Individuals Facing Deportation
LEARN HOW TO SUBMIT PROSECUTORIAL DISCRETION REQUESTS
Wednesday, July 18, 2012
6 to 9 p.m.
137-139 West 25th Street, 12th floor, New York, NY
The New York Immigration Coalition, New York Chapter of the American Immigration Lawyers Association and the Immigrant Defense Project would like to invite your members to a training on submitting prosecutorial discretion applications. This training is designed for pro se individuals. The training will cover how to submit prosecutorial discretions for individuals currently in removal proceedings and for those who have final orders of removal.
The training is limited to individuals currently in proceedings or those with final orders of removal. Volunteer attorneys will be on hand to screen individuals for affirmative immigration relief and provide information on how to submit requests. The training portion of the event will be in a group setting, however individual screenings will be done privately. A second training will also be offered in the coming weeks to assist individuals in finalizing their submissions to ICE.
The training will be held at the New York Immigration Coalition, 137-139 West 25th Street, 12th floor, New York, NY on July 18th at 6 p.m.
If you work with individuals who would benefit from learning how to submit their own prosecutorial discretion requests, please email Jacki Esposito firstname.lastname@example.org. Please indicate any non-English language need when you RSVP.
Space is limited and RSVP is required.
IDP Issues Practice Advisory on the Implications of Recent U.S. Supreme Court Decisions on Padilla v. Kentucky
On April 11, 2012, IDP and the National Immigration Project of the National Lawyers Guild issued a practice advisory addressing the argument that the U.S. Supreme Court Lafler v. Cooper decision supports the retroactive application of Padilla. The advisory also explains how the U.S. Supreme Court Missouri v. Frye decision supports the argument that a court warning cannot cure the prejudice flowing from a Padilla violation. Additionally, the advisory details how an advocate can use Missouri v. Frye and the U.S. Supreme Court Vartelas v. Holder decision to assert that the scope of defense counsel’s duty under Padilla extends to seeking a reasonable resolution that mitigates or avoids immigration consequences. Lastly, the advisory shows how to use Missouri v. Frye to argue that the defendant suffered prejudice under Padilla from the loss of the opportunity to seek a reasonable resolution that would have mitigated or eliminated the immigration consequences. For a copy of this advisory, click here. For additional research and technical information on post-conviction relief claims under Padilla, click here.
Upcoming CLE Training for Defenders: April 23
IDP and Cardozo School of Law are leading a continuing legal education workshop for 18b attorneys and other criminal defenders on Monday, April 23rd at 6:45PM. Topics will include integrating immigration into a criminal defense practice, immigration consequences of criminal conduct, immigration enforcement in the NYC criminal justice system, and a review of NYC’s new detainer law. Please see the flyer for location and registry information.
Just Released: The All-in-One Guide to Defeating ICE Hold Requests
The National Immigration Project, the Immigrant Legal Resource Center, the Immigrant Defense Project, the Washington Defenders Association, and the National Immigration Law Center have produced a new resource for organizers and advocates to prevent deportations in our communities: The All-in-One-Guide_to_Defeating_ICE_Hold_Requests. This Guide aims to help communities better understand how immigration enforcement works, and ways to to engage with local police and policymakers to pass laws and policies against hold requests. It includes organizing suggestions, details about ICE hold requests and how they work, legal and policy analyses, messaging advice, and sample materials.
U.S. Supreme Court Protects Rights of Lawful Permanent Residents to Travel without Risking Denial of Re-Admission
On March 28, 2012, the U.S. Supreme Court issued an important decision protecting the rights of immigrants with long ago criminal convictions to travel abroad without risking detention and removal upon their return. In Vartelas v. Holder, No 10-1211, the Supreme Court struck down the government’s retroactive application of a 1996 immigration law amendment that the government said allowed denial of re-admission and removal of lawful permanent residents who take short trips abroad even if their old convictions preceded the new law. Such retroactive application of the 1996 amendment subjected immigrants with relatively minor offenses—many of whom were not deportable while inside the U.S.—to detention and removal simply because they needed to travel to attend a funeral, visit a sick family member, or otherwise attend to family or other emergent business abroad. The Court’s ruling in this case may also favorably affect the ability of immigrants to challenge retroactive application of other harsh immigration law amendments. Mr. Vartelas was represented pro bono by the University of Pennsylvania Law School Supreme Court Clinic (Stephanos Bibas, Counsel of Record). IDP provided immigration law support and coordinated amicus briefing submitted by national criminal justice and criminal-immigration law expert organizations in support of Mr. Vartelas’ position and prepared pro bono by the law firm of Gibson Dunn & Crutcher (David Debold, Counsel of Record). For a practice advisory on how immigrants may benefit from this decision, click here.
IDP Supports Successful Challenge to Depriving Noncitizen Defendants of the Benefits of Their Plea-Bargains
On January 30, the Fourth Circuit Court of Appeals rejected Matter of Silva-Trevino, a controversial decision of former Attorney General Mukasey that requires immigration authorities in certain cases to re-try the facts of criminal cases to determine whether the defendant engaged in deportable misconduct rather than relying on the facts established beyond a reasonable doubt in the criminal court. The effect of this ruling, which has now been rejected in four federal circuits, was to deprive defendants of the benefits of plea bargains negotiated with prosecutors and judges in exchange for waiving their rights to trials, and force them to re-litigate the facts of their convictions all over again in immigration court with few procedural protections. Prudencio v. Holder, ___ F.3d ___ (4th Cir. Jan. 30, 2012). IDP and allied organizations filed an amicus brief in the case. Amici were represented by the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law. For more information on IDP’s and others’ efforts to challenge Matter of Silva-Trevino, click here.
New York High Court Protects Right of Immigrants to Appeal NY Criminal Convictions
In an important victory for the rights of immigrants convicted of crimes, on October 25, 2011, New York’s highest court held in a pair of cases that the intermediate appeals courts abuse their discretion when they dismiss the criminal appeals of defendants who have been involuntarily deported. In both People v. Ventura and People v. Gardner, Nos. 11-160, 11-161 (N.Y. Oct. 25, 2011), the defendants were deported while the appeals of their trial convictions were pending. Although state law guarantees every defendant the right to appeal a criminal conviction to the intermediate court, those courts had been dismissing the appeals of deported defendants on the theory that the defendants were outside the jurisdiction of the court and therefore not available to obey the courts’ mandates. Noting the “uniquely critical role in the fair administration of justice” a first appeal plays in the criminal justice system, the high court held that immigrant defendants “have a[n even] greater need to avail themselves of the appellate process” than citizen defendants “in light of the tremendous ramifications of deportation,” and ruled that the intermediate courts must hear the appeals (whether or not the challenged conviction was the sole or primary cause of the defendant’s deportation).
IDP filed an amicus brief in both cases in partnership with the Post-Deportation Human Rights Project at Boston College. Appellants Ventura and Gardner were represented by Appellate Advocates. For additional news coverage of this landmark decision, click here.
Stop S-Comm Now! Join Us to Protest ICE’s May 15 Activation of its Mass Deportation Program in NY
WHEN: Monday May 14, 2012, 12pm-2pm
Under S-Comm, local law enforcement send fingerprints of arrestees to the Department of Homeland Security database. This program will push even more immigrants into the unjust detention and deportation system, On June 1, 2011, Governor Andrew Cuomo suspended S-Comm in New York. But Immigration and Customs Enforcement (ICE) just announced that it would be activating its fundamentally flawed S-Comm program throughout the state on May 15. Join us in our call for an end to S-Comm!
Initial Sponsors: Immigrant Defense Project, Make the Road New York, New Sanctuary Coalition, New York Civil Liberties Union, New York
State Working Group Against Deportation, New York Immigration Coalition
U.S. Supreme Court Protects Rights of Immigrants to Apply for Relief from Deportation
On December 12, 2011, the U.S. Supreme Court issued an important decision protecting the rights of immigrants convicted of long ago crimes to apply for relief from deportation. In Judulang v. Holder, No. 10-694, the Supreme Court unanimously held that the government’s policy for deciding when lawful permanent resident immigrants may apply for relief from deportation for pre-1996 guilty plea convictions — deeming such immigrants ineligible for relief if the deportation ground at issue does not have a sufficiently comparable inadmissibility ground – was arbitrary and capricious in violation of the Administrative Procedure Act. The Court remanded the case for the government to adopt a new approach that does not arbitrarily deny long-term permanent resident immigrants such as Mr. Judulang from applying for relief from deportation. Mr. Judulang was represented pro bono by Mark Fleming of the law firm of Wilmer Hale. IDP provided immigration law support and coordinated amicus briefing submitted by national criminal justice organizations in support of Mr. Judulang’s position and prepared pro bono by the law firm of Jenner and Block. For a practice advisory entitled “Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Aribitrary Agency Policies” (prepared by IDP along with the National Immigration Project, American Immigration Council and NYU Clinical Law Professor Nancy Morawetz), click here.
Jan 31 and Feb 1: “Padilla in Practice” trainings for criminal defense attorneys
National Association of Criminal Defense Lawyers and the Defending Immigrants Partnership present three new webinars providing IMMIGRATION LAW ESSENTIALS for defense lawyers. Join online or in-person in DC. Register here.
The 5th Edition of Our “Representing Immigrant Defendants in New York” Manual is Now Available!
Click here to order!
Law and Disorder: Benefit Performance by Labe Richman March 29
Please Join Us for A Performance and Party
to Benefit the Immigrant Defense Project (IDP)
IDP & the Law Office of Labe M. Richman
LAW AND DISORDER
My Courthouse Stories
Written and Performed by Labe M. Richman
MARCH 29, 2012
Open bar and Food begins at 6:15 p.m.
Performance at 7:15 p.m.
JUDSON MEMORIAL CHURCH
55 WASHINGTON SQUARE SOUTH
NEW YORK, NY 10012
Please join us for Labe’s entertaining monologue of moving, crazy and funny stories from his life in the law. There is no charge for admission but Labe respectfully requests that donations be made to the Immigrant Defense Project
Event Host Committee: Lauren DeBellis Aviv, Kerry Bretz, Cheryl David, Elizabeth Felber, Steve Statsinger, Marianne Yang
Please RSVP to Mizue Aizeki at maizeki[at]immigrantdefenseproject[dot]org
Download flyer here
Know-Your-Rights Workshops on “Secure Communities”
IDP and Northern Manhattan Coalition for Immigrant Rights, in coordination with the New York Immigration coalition, are conducting Know-Your-Rights workshops throughout New York on S-Comm and similar programs. We’ll also be doing a Train-the-Trainers curriculum for interested workshop participants. For more information, contact Lili Salmeron at email@example.com.
Just Released: IDP Report on Judicial Obligations After Padilla v. Kentucky
Click here to download the report.
The Immigrant Defense Project (IDP) and the New York University (NYU) School of Law Immigrant Rights Clinic have published a Report entitled Judicial Obligations after Padilla v. Kentucky: The Role of Judges in Upholding Defendants’ Rights to Advice About the Immigration Consequences of Criminal Convictions. The October 2011 Report is intended to help educate criminal court judges about the implications of the Supreme Court’s Padilla decision and to recommend best practices for judges to protect the rights of noncitizen defendants under that decision.