Copland and Brenner

Table of Contents

1. Multiple Convictions, Hypothetically Speaking
2. Supreme Court: Counsel Must Advise of Deportation Risk
3. In Brief: Recent Developments

1. Multiple Convictions, Hypothetically Speaking

   Imagine yourself having had the poor judgment and bad luck to have been arrested as a teenager for possessing a small amount of marijuana. Imagine that the case was dismissed after a period of good behavior, known in New York state as adjournment in contemplation of dismissal. Imagine that you did not learn the folly of your ways, and, at the age of 25, you were arrested for possession of a marijuana cigarette. As fortune would have it, you took the advice of your Legal Aid lawyer, pleading guilty as charged and paying the $100 fine applicable under state law.

   If you are a U.S. citizen, this outcome could result in a sigh of relief – no jail time and a minimal monetary penalty would be the end of it, and might be viewed as a slap on the wrist. If you are not a U.S. citizen, however, such an outcome portends consequences rightly characterized as Kafkaesque. As recently reported in The New York Times, Jerry Lemaine is living that nightmare.

   As reported in the March 30 Times article, Mr. Lemaine immigrated from Haiti as a three-year-old. Following his youthful transgression and regrettable subsequent guilty plea to the marijuana charge as an adult, Mr. Lemaine was taken into custody by immigration authorities, flown “in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti.” At first, he was detained at the Port Isabel Detention Center near Los Fresnos, Texas, where his weight dropped from 190 to 145 pounds.

   He was subsequently transferred to privately run detention centers, including Karnes County Correctional Center, “which houses a mix of immigration detainees and federal prisoners.” There, as Mr. Lemaine described it, guards “let inmate gangs impose their own pecking order, and as the only black detainee in his dormitory he seemed especially vulnerable.”

   For the first few days “guards refused him utensils at mealtime, [ ] leaving him alone eating stew and cereal with his hands.” He is reported as stating that, after writing the medical staff that he was depressed, “he was placed on a 10-day suicide watch in a filthy segregation unit where he did not see a psychiatrist for a week.” After being beaten by fellow inmates, he “was returned to isolation for his own protection,” and chose to remain there, “locked in a tiny cell 23 hours a day, rather than go back to the same dorm.”

   Meanwhile, his family struggled to help him. They could not afford attorneys for a federal appeal, but his case was referred to a New York City firm that was willing to do so without a fee. Finally, on January 11, 2010, Mr. Lemaine was released under an order of supervision – following his attorneys’ third request for this interim relief from detention. His troubles are far from over, however.

   At issue are provisions of the Immigration and Nationality Act (“INA”), chief among them the definition of the term “aggravated felony.” That term, which appears at Section 101(a)(43) of the statute, sets forth a range of offenses at subsections (A) – (U). One relates to “illicit trafficking in controlled substance [sic] (as described in section 102 of the Controlled Substances Act) [“CSA”], including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)” at subsection (B). Section 924(c) defines a “drug trafficking crime” as, among other things, any felony punishable under the CSA. 18 U.S.C. Section 924(c)(2). Although simple possession of drugs is generally only a misdemeanor under the CSA – and therefore not an aggravated felony, a prosecutor may seek a recidivist sentencing enhancement in cases where the judge determines there is a valid prior conviction for simple possession.

   Why, one might wonder, is Mr. Lemaine’s state conviction even at issue when the CSA is a federal law that played no role in his prosecution? As stated by the Times, this is because “[s]uch twists are part of a system that requires immigration authorities to match the elements of a variety of state criminal statutes with federal criminal laws, and proceed as though the noncitizen had been convicted of the federal crime.” Whether a state offense corresponds to a federal offense that constitutes an aggravated felony can be an extremely complicated issue.

   One might also wonder why Mr. Lemaine could be adjudged subject to a recidivist law when he had only one actual conviction (remember, his case as a teenager was dismissed). This is because, in the immigration context, the consequences of a criminal allegation can be the same as those involving an actual conviction. Despite the fact that the case against Mr. Lemaine as a teenager was dismissed, and despite the fact that his only actual conviction was for simple possession of marijuana, the Immigration Judge deemed him to be a “recidivist felon.” Thus, in Mr. Lemaine’s case, his New York state conviction – and the offense with which he was charged as a teenager – conspired to render him an aggravated felon by an Immigration Judge in the Lone Star State.

   An alien found to be an aggravated felon is ineligible for a range of immigration benefits, including certain forms of relief from removal (deportation). Among them is “cancellation of removal” under Section 240A(a) of the INA, for which certain lawful permanent residents may apply. Generally stated, in order to be eligible for cancellation, a lawful permanent resident must have held that status for at least five years, must have resided continuously in the U.S.A. for at least seven years, must not have been convicted of an aggravated felony, and must warrant a favorable exercise of discretion.

   Because Mr. Lemaine was deemed to be an aggravated felon, he is ineligible to even apply for cancellation of removal. His attorneys are battling the government for the opportunity to apply for this form of relief from removal. Even if that battle is won, Mr. Lemaine will have a difficult path because cancellation is a discretionary form of relief that requires weighing the positive and negative factors to arrive at a determination. Positive factors include family ties in the U.S.A., lengthy U.S. residence, evidence of hardship to the applicant and family members, property and business ties, history of employment, value and service to the community, evidence of good character, and genuine rehabilitation in cases involving a criminal record. Negative factors include the nature and underlying circumstances of removal grounds, additional significant immigration violations, a criminal record, and evidence of bad character or undesirability.

   Because his Immigration Court proceedings took place in Texas, Mr. Lemaine’s federal court case is before the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana and Texas. Thus, if his attorneys win him the opportunity to apply for cancellation of removal, he is likely to go before the same Immigration Judge who previously deemed him to be an aggravated felon – an inauspicious setting for a challenging set of circumstances. As to venue, there are many who believe it is no accident that Mr. Lemaine, like many others, was transferred to Texas for detention and Immigration Court proceedings. Only the Fifth and the Seventh (Illinois, Indiana and Wisconsin) Circuit Courts of Appeals take the position that multiple simple possession offenses in violation of state law constitute a federal drug felony – and thus an aggravated felony under the INA. Elsewhere in the U.S.A., the Board of Immigration Appeals decision in Matter of Jose Angel Carachuri-Rosendo would require a different outcome.

   In Carachuri, the Board held that, unless a controlling Circuit Court precedent holds otherwise, an alien’s state conviction for simple possession of a controlled substance will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense. Carachuri involved two Texas convictions: one for possession of two ounces or less of marijuana, and another for possessing less than 28 grams of alprazolam – a single Xanax tablet - for which he did not have a prescription.

   Mr. Carachuri-Rosendo was not tried as a recidivist under Texas law. Nonetheless, the Board ruled that controlling Fifth Circuit precedent dictated that the alprazolam possession conviction was an “aggravated felony” because the underlying offense was committed after his prior state conviction for a drug, narcotic, or chemical offense became final. United States v. Sanchez-Villalobos, 412 F.3d 57, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006).

   Mr. Carachuri-Rosendo appealed to the Fifth Circuit. Using an analysis that the opinion itself refers to as the “hypothetical federal-felony” approach, the Court affirmed that a second state misdemeanor drug offense qualifies as an aggravated felony simply because it could have been prosecuted as a felony under federal law. Under this reasoning, the Court found that Mr. Carachuri-Rosendo had been convicted of an aggravated felony and was ineligible to apply for cancellation of removal. The Fifth Circuit’s decision was appealed to the Supreme Court, where oral argument was heard on March 31. The transcript is available on the Supreme Court’s web site at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-60.pdf. The March 30 Times article reports that the Fifth Circuit will await the Supreme Court decision in Carachuri before ruling in Mr. Lemaine’s case.

2. Supreme Court: Counsel Must Advise of Deportation Risk

   Mr. Lemaine’s attorneys may look to a March 31 Supreme Court ruling in Padilla v. Kentucky, 559 U.S. ____ (08-651) for an additional argument in his favor. In that case, Jose Padilla pleaded guilty to transporting a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky on advice of counsel that his immigration status would not be affected. Instead, the plea made him deportable.

   The Supreme Court of Kentucky denied Mr. Padilla post-conviction relief, finding that the Sixth Amendment guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation, because it is merely a collateral consequence of conviction. The Supreme Court granted certiorari in Mr. Padilla’s case to decide whether, as a matter of federal law, his counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from the U.S.A.

   The Court, in an opinion by Justice Stevens, recounts how U.S. immigration laws have become increasingly harsh and complex, while also sharply limiting judicial authority to alleviate the consequences of deportation. According to the Court, this confluence of legislative activity has “dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Accordingly, the Court held that, in order to satisfy its responsibility “under the Constitution to ensure that no criminal defendant – whether a citizen or not - is left to the ‘mercies of incompetent counsel’…counsel must inform her client whether his plea carries a risk of deportation.” The Court’s decision is online at www.supremecourt.gov.

3. In Brief: Recent Developments

   ICE in the hot seat: On March 27, the Washington Post published U.S. Immigration and Customs Enforcement (“ICE”) memos that are embarrassingly revealing in their descriptions of agency achievements, priorities and goals for fiscal year 2010. One of the memos sets forth quotas and complains that overall removals projected at just over 310,000 are “well under the Agency’s goal of 400,000.” (emphasis in original) Another memo makes clear that “employees are expected to produce a minimum of 3 actual Charging Documents Issued” each day, and those “unable to conform to this standard” must provide an explanation to his or her supervisor. The memos can be accessed at www.washingtonpost.com.