Judge Posner Ruling on PSG based on Gang Membership

See Judge Posner's latest asylum decision for the U.S. Court of Appeals for the Seventh Circuit, see Download TG13OC9G[1]. The case involves a particular social group claim by a Salvadoran based on gang membership.

(HT: ImmigrationProf)

2008 Raid Violated 4th Amendment Right to Privacy

Remember the case of Amalia Cerrillo in Weld County, Colorado, who helped thousands of immigrants, regardless of status pay their taxes but whose business was raided by law enforcement seeking to use tax returns to criminally prosecute undocumented immigrants with identity fraud?

Well, the The Colorado Supreme Court ruled that the 2008 raid of the local tax preparer's office aimed at building identity-theft cases against hundreds of suspected illegal immigrants violated their Fourth Amendment right to privacy. From The Denver Post:

The 4-3 ruling was the latest and most devastating legal blow against Operation Numbers Game, an investigation launched by Weld County Sheriff John Cooke and District Attorney Ken Buck that aimed to use tax returns to identify and prosecute illegal immigrants.

The raid on Amalia's Tax and Translation, a business that caters to Spanish-speaking clients, led to the seizure and review of some 4,900 tax returns. Deputies said they found about 1,300 suspects in identity-theft and criminal-impersonation cases.

Prosecutors around the country have been watching the case closely, reportedly the first in the United States in which law enforcement sought to use tax returns — generally considered confidential under federal law — to take suspected illegal immigrants to criminal court.

The court majority ruled that the defendant in this case, Ramon Gutierrez, as a taxpayer "has a reasonable expectation of privacy in his or her tax returns and return information, even when that information is in the custody of a tax preparer."

The ruling also said that Gutierrez, who was among more than 70 people charged with criminal impersonation and identity theft, was a victim of an "exploratory search" and that police had no probable cause to search Gutierrez's tax records.

Supreme Court to Look at Fragmented Immigration Policy

In the absence of Federal Immigration Reform, many states and municipalities have over the years passed laws attempting to "fix" their own local problems, but this has resulted in a patchwork of laws that have no uniformity nationally. Via a New York Times Editorial:

The Supreme Court is now weighing whether to consider a challenge to Arizona’s immigration law. Before deciding, the justices have asked the solicitor general, Elena Kagan, to provide the views of the Obama administration. This is a chance for the court to weigh in against the improper splintering of national immigration policy, and Ms. Kagan should urge the court to seize that opportunity.

At issue is a problematic ruling last year by the United States Court of Appeals for the Ninth Circuit. The ruling upheld Arizona’s state-based employer sanctions law, which provides for the suspension or revocation of business licenses when firms are found to have knowingly hired illegal immigrants.

The state’s approach may not sound unreasonable. But like the more extreme Hazleton, Pa., ordinance struck down by a federal judge in 2007, the Arizona scheme has a crucial legal flaw. It usurps the federal government’s right to set immigration policy.

Arizona has broad authority to regulate companies doing business within the state. But that authority does not include the right to penalize firms for immigration violations that have not been determined by the federal government nor to impose penalties vastly harsher than Congress intended when it created the current employer sanctions system more than 20 years ago.

When the Hazleton decision was handed down, then-Senator Barack Obama hailed it as a “victory for all Americans” that underscored the need for national immigration reform. In that same spirit, President Obama should now want the Supreme Court to grab the Arizona case to vindicate the nation’s interest in having uniform immigration policies, and to stop the spread of local laws that can make achieving real worthwhile national reform harder.

The Arizona statute was signed into law by Arizona’s former governor, Janet Napolitano, who now leads the Department of Homeland Security. But that awkward fact should not prevent the administration from taking a principled stance in favor of Supreme Court review.

Improving Access to Counsel for Immigrants

Via Immigration Impact:

The Department of Justice now has an opportunity to develop a new framework that meaningfully protects the right to counsel. Soon after coming into office, Attorney General Holder vacated a decision issued by former Attorney General Mukasey that would have made it more difficult for immigrants to obtain a remedy when their lawyer was incompetent. Attorney General Holder directed the Executive Office for Immigration Review (EOIR)—the agency within the Department of Justice that houses the immigration courts and the Board of Immigration Appeals—to initiate rulemaking procedures to evaluate and possibly modify the current framework for evaluating ineffective assistance of counsel claims.

This month, the American Immigration Council (formerly the American Immigration Law Foundation) and the American Immigration Lawyers Association sent a letter to EOIR recommending steps the agency can take to better protect victims of ineffective assistance of counsel and help ensure that all immigrants in removal proceedings are afforded a fair hearing. The letter recommends that EOIR’s new framework strive to achieve the following:

• Ensure that all noncitizens in removal proceeding have a fair opportunity to be heard

• Promote quality representation and ensure that the immigration bar meets ethical and professional standards

• Reduce the need for litigation and promote judicial efficiency.

Language and cultural barriers and lack of knowledge about the immigration system mean that immigrants must have access to competent counsel. However, these realities also mean that immigrants are susceptible to fraudulent practices. Victims of ineffective assistance of counsel may not immediately realize that their lawyer did something wrong, and they may not be equipped to bring appropriate claims to the immigration agencies. EOIR’s new framework must reflect these realities and the challenges that immigrants in removal proceedings face.

The Ninth Circuit's Latest on FGM

Via ImmigrationProfBlog:

The Ninth Circuit, in an opinion by Judge McKeown (joined by Judges Fletcher and Smith), ruled today that "[t]he BIA’s(Board of Immigration Appeals) determination concerning the persecution Annisa suffered when she was forced to undergo female genital mutilation and the dismissal of that procedure as a lesser form of circumcision was erroneous. Female genital mutilation `constitutes persecution sufficient to support an asylum claim.' Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005) (en banc). The BIA’s conclusion to the contrary is at odds with Ninth Circuit law and represents a misunderstanding of the BIA’s own precedent. The BIA also erred in failing to consider whether the threat that Anakarina would be forced to undergo female genital mutilation in the future could be a ground for relief in this matter. Substantial evidence supports the rejection of Benyamin’s other proffered basis for relief. We grant the petition for review and remand for further proceedings consistent with this opinion."

Benyamin v. Holder, Aug. 24, 2009. Download 05-71488[1]

The San Francisco Chronicle reports:

The Ninth U.S. Circuit Court of Appeals in San Francisco criticized immigration officials who, in ordering the family deported, decided that the girl had suffered no serious harm when her genitals were mutilated as a newborn.

Any form of female genital mutilation is "horrifically brutal" and amounts to persecution under established precedents in federal courts and the Justice Department's immigration courts, the court said.

The 3-0 ruling gives Bob Benito Benyamin, his wife, Anabella Rodriguez, and their three daughters another chance to challenge deportation to Indonesia, where the oldest daughter underwent forced circumcision at 5 days old in 1992 at the orders of a grandmother. The family said she has felt pain from the procedure ever since.

Federal courts have granted asylum to women who fled their countries after being genitally mutilated or threatened with mutilation. In this case, the parents argued that one of their younger daughters would face ritual mutilation if deported to Indonesia, and that sparing her from deportation would be meaningless if the rest of her family was deported.

In denying asylum, immigration judges cited a State Department report that said female genital mutilation as practiced in Indonesia "involves minimal short-term pain, suffering and complications."

Contrasting the procedure to a court's description of mutilation in Ethiopia, where the genitals are cut with knives and recovery takes 40 days, immigration courts said the Indonesian girl had not been persecuted and that neither she nor her family was entitled to asylum.

But the appeals court said its rulings and a World Health Organization report have found that even in its least drastic form, the genital mutilation of women and girls causes physical and psychological harm and the risk of serious complications.

An immigration review board's "attempt to parse the distinction between differing forms of female genital mutilation is ... a threat to the rights of women in a civilized society," Judge Margaret McKeown said in the court ruling.

The court returned the case to the immigration board to decide whether the younger daughter faced a likelihood of genital mutilation in Indonesia. If so, the board must decide whether the entire family is eligible for asylum or whether the parents and their daughters might instead be sent to Venezuela, the mother's native country. The younger daughter was born there.

Posner on 'Particular Social Group'

Via ImmigrationProf Blog:

For an excellent opinion by Judge Richard Posner (joined by Judges Ripple and Wood), frequent critic of the rulings of the Board of Immigration Appeals, on the definition of "particular social group" for purposes of asylum, see Download 08-3197 opn The case involves the question whether defectors of the Mungiki in Kenya are members of a particular social group. The court disagrees with the reasoning of the BIA and vacates the ruling and remands the case to the Board.

Jury Rules in Favor of Hospital for Deportation

I have blogged about the case of a Luis Alberto Jiménez who was deported....by a hospital- Martin Memorial Medical Center in Florida. Today, a jury in Stuart, Fla., decided Monday that Martin Memorial Medical Center did not act unreasonably when it chartered a plane and repatriated a severely brain-injured Guatemalan patient against the will of his guardian.

The New York Times reports:

The case of Mr. Jiménez, which was featured in an in-depth report in The New York Times last summer, is believed to be the first to test the legality of patient repatriations and to judge the liability of the hospitals that undertake them. Such repatriations are a relatively rare but widespread practice, especially in cases involving catastrophic injuries or serious illnesses, where patients need continuing care that is not covered by Medicaid because of their immigration status.

The jurors, all of whom were white, with no Hispanics among them, declined to discuss the verdict; one said, “It was a very tough decision.”

Mr. Jiménez’s cousin and legal guardian, Montejo Gaspar, filed the lawsuit seeking nearly $1 million to cover the costs of providing care for Mr. Jiménez in Guatemala and seeking damages for what he essentially saw as the hospital’s kidnapping and deportation of his profoundly disabled cousin.

A Mayan Indian from the highlands of Guatemala, Mr. Jiménez paid a smuggler to transport him to the United States about a decade ago so he could work as a gardener and send money home to his wife and two sons. He had been living in Stuart with Mr. Gaspar for just under a year when a drunken driver in a stolen vehicle plowed into his car in the winter of 2000.

Now 37, Mr. Jiménez, who cannot walk and has the mental age of a child, lives in a one-room house in a remote village, tended by his elderly mother. He is largely confined to his bed and suffers from routine seizures. When The Times visited him last summer, he had not received medical care for over five years.

Here is the Wall Street Journal Blog.

Sotomayor on Immigration

With the Senate set to confirm Judge Sotomayor very soon, little has been said about her record on immigration. Sure Republicans have associated her Puerto Rican background and 'wise Latina' comment as automatic assumption that she will be an immigrant sympathizer. Lou Dobbs on CNN called Sotomayor a “racist” and her nomination “pure pandering to the Hispanics.” However, her track record actually shows that she is average on immigration cases.

From the Washington Independent:

In fact, a far more comprehensive analysis by Sen. Charles Schumer’s (D-N.Y.) office analyzing Sotomayor’s entire record on immigration as a district court and court of appeals judge reveals that she ruled for the immigrant petitioner in cases before her only 8 percent of the time. In asylum cases, she ruled for the asylum applicant 17 percent of the time – which is the average rate for asylum cases in the Second Circuit Court of Appeals. Schumer’s office examined 955 rulings from Sotomayor’s 17 years on the federal bench.

“These findings should put to rest any doubts about Judge Sotomayor’s fidelity to the rule of law,” Schumer said in a statement accompanying the release of his study in June. “Even in immigration cases, which would most test the so-called ‘empathy factor,’ Judge Sotomayor’s record is well within the judicial mainstream.”

Indeed, some on the left have criticized Sotomayor for being too conservative on immigration cases. In a recent piece in Mother Jones, “The Progressive Case Against Sotomayor,” James Ridgeway noted that her record in immigration matters is nothing for progressives to cheer about. Ridgeway ridiculed Schumer for boasting that Sotomayor had ruled against asylum petitioners claiming they’d be persecuted back home 83 percent of the time.

“In other words,” wrote Ridgeway, “being a Latina doesn’t make Sotomayor any more compassionate toward immigrants who face torture and death when we ship them back home.”

But for the most part, Sotomayor’s conservative record in immigration cases has been largely ignored by her biggest supporters – including those ordinarily concerned with justice for Latinos, who have generally focused more on the symbolism of her nomination than the substance of her opinions.

An ACLU report on the Sotomayor nomination has similarly found that as a judge in immigration cases, Sotomayor “has taken an even-handed approach, applying caselaw and other authorities with care and holding courts and administrative agencies to proper legal standards and procedures.” That’s the same sort of evaluation Sotomayor has received for her rulings in other areas of law. As a Second Court Circuit judge, she has generally sided with the government, opting for a broad reading of criminal statutes even where the statutory text or legislative history permitted a narrower construction, the report found.

During the hearings, Senator Dick Durbin asked Judge Sotomayor about her views about the decision-making of the immigration courts, as well as whether she agreed with Judge Richard Posner's criticisms of the immigration courts and Board of Immigration Appeals. Judge Sotomayor was cautious, as can be expected.

Here is a fuller text of the discussion between Judge Sotomayor and Senator Schumer on the topic of immigration.

Is Rape Also Torture?

Via the UN dispatch:

The International Criminal Court formally ordered that Jean Pierre Bemba, a former Congolese vice president and militia leader, stand trial on charges that he commanded his militia in a campaign of rape, murder and pillage in the Central African Republic. Bemba was arrested last year in Belgium where he was living in exile.

The case against Bemba is unprecedented in international war crimes tribunals for the fact that it will center on the crime of rape. The number of alleged rapes by Bemba's troops far outnumber cases of murder that his troops are alleged to have committed in the Central African Republic in 2002-2003. Rape was Bemba's primary weapon of war. Accordingly, much of the jurisprudence decided upon by this case will have long-lasting effects on how future war crimes prosecutors and judges approach cases of rape-as-a-war crime.

At issue yesterday was whether or not the prosecutor could charge Bemba for both rape AND torture for the same act of rape. That is, when a soldier under Bemba's command raped a victim, the prosecution argued that this soldier is also committing the crime of torture.

In yesterday's pre-trial ruling, ICC judges said, basically, "not so fast."

Bec Hamilton summarizes the key point.

Although during the confirmation hearing the Prosecution said that Bemba’s...troops “used torture through acts of sexual violence for the purpose of punishing and intimidating the civilian population for allegedly sympathizing with Bozizé’s rebels, as well as for the purpose of discriminating against their victims”, the Chamber found that the specific purpose was not clearly articulated in the Amended Document Containing the Charges, and therefore the Defence did not have sufficient notice to respond to the charge. (para 299/300) It was this lack of notice, rather than an ‘in-principle’ view that both rape and torture as a war crime could not be charged for the same act of rape, that lead the Chamber to dismiss the charge of torture as a war crime.

So, it seems we will have to wait a bit longer for a resolution to the legal question: "is rape also torture."

If you want to learn more about the terrible crimes that occurred in CAR during 2002-2003, this Amnesty report is a good place to start.

Obama Selects Sotomayor to Replace Justice Souter

The biggest news yesterday was Obama's appointment of Sonia Sotomayor- lots of great new articles about her, but I liked NPR's coverage. How could her background and life experience not inform her legal outlook?

Sotomayor was raised in the New York City borough of The Bronx. She was diagnosed with juvenile diabetes at age 8. Her father, a factory worker with a third-grade education who did not speak English, died a year later. Her mother, a nurse, raised her two children in a Bronx housing project near Yankee Stadium, working six days a week to send Sonia and her brother to Catholic school.

Its also about time that the nation has an open, honest dialogue about class, race, and prvilage. David Sirota agrees:

Between the Wall Street Journal telling us that business groups are confident that President Obama's Supreme Court nominees won't rock the boat and the New York Times telling us that Obama shunned so-called "favorites of the Left" in his Supreme Court search, I'm not (yet) fully confident that the selection of Sonia Sotomayor will mean huge policy change from the court. However, I am increasingly confident (and happy) that the Sotomayor nomination and ensuing confirmation fight could open up a much-needed discussion of taboo subjects like race, class, gender and privilege.

Other thoughts- the appointment of the first 'Hispanic' to the Supreme Court has little affect on immigration policy, but it has made the Latino community very happy. I am positive that the political game here is to satisfy the crowd a little so that Obama has some 'breathing' room before he tackles comprehensive immigration reform.

MSNBC Agrees:

As we’ve mentioned before, Latino groups have been grumbling somewhat about their representation (or lack thereof) in the Obama administration, as well as the fact that immigration reform doesn’t appear to be on the White House’s front-burner. But this pick buys Obama A LOT of time with Hispanics — a demographic he won last year, 67%-31% — on immigration and other issues. Is it a coincidence that Obama this week heads out West to Nevada and California, two states with large Latino populations? [Emphasis mine].

I do think the administration understands that there is no substitute for comprehensive immigration reform.

Supreme Court Rules in Favor of Defendent in Flores-Figueroa v. U.S.

SCOTUS Blog provides us with good news this morning. The United States Supreme Court has ruled against the government in the identity theft case Flores-Figueroa v. US. A unanimous court rules the United States government must prove that those who use a phony identification card (social security card) know the numbers belong to a real person.

The Court today decided Flores-Figueroa v. United States. The decision below, which held for the United States, is unanimously reversed and remanded in a 9-0 opinion written by Justice Breyer. Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment. Download 08-108[1]

Flores-Figueroa v. U.S. gave the Court the opportunity to spell out the proof that federal prosecutors must offer in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increased the use of the identity theft fraud criminal charges in immigration reform re: Potsville, Iowa in May 2008. Thus, Flores-Figueroa will likely affect future immigraton enforcement efforts. Federal appellate courts had been divided over the government's burden of proof in aggravated identity theft cases.

This win for non-citizens follows Negusie v. Mukesey in March and Nken v. Holder in April which is not bad given the conservative Supreme Court. It suggests that the Bush administration took some extreme positions on immigration-related matters that even this Court could not swallow.

More analysis by MPI here.

Asylum Seekers have Better Luck with Female or Northern Judges

It appears that female judges or with a judge located in the North. The Chicago Sun- Times reports:

If you're a political refugee afraid to go back to your homeland, pray you get a woman judge or a Northerner. A male judge sitting in a Southern court is about twice as likely to reject your asylum plea, according to research from two Georgetown University professors.

"The fact that women are more sympathetic to asylum seekers -- that is certainly a factor, and maybe Southerners don't like foreigners as much," Federal Appellate Judge Richard Posner said with a chuckle. "Maybe people in big cities are more used to having large [less] indigenous populations. Maybe it's different in more homogenous areas of the United States."

Posner has been the most outspoken appellate judge criticizing the decisions of federal immigration judges and he sits on the appellate court most likely to grant asylum pleas -- the Chicago-based 7th Circuit. Posner spoke this past week at a seminar by the Georgetown professors -- Philip Schrag and Andrew Schoenholtz who are compiling the book about how U.S. Courts handle asylum cases.

Using data they obtained through Freedom of Information requests, Schrag and Schoenholtz charted the progress of asylum cases from the hearing officers who first rule on the cases, to the immigration judges who those rulings can be appealed to, to the Board of Immigration Affairs (BIA) in Virginia to the federal appellate courts that represent the last hope for the refugees.

At the immigration judge stage, they found judges in Atlanta granted only 12 percent of asylum requests, while judges in New York granted 52 percent and judges in San Francisco granted 54 percent. Even within those jurisdictions, the rulings were all over the map, they said. One New York judge granted asylum in six percent of the cases; another New York judge granted asylum in 91 percent of cases.

Asylum-seekers with no attorney won only 16 percent of the time. Those with an attorney won 46 percent of the time.

One statistic that caught the professors by surprise: the 78 female immigration judges granted asylum in 54 percent of cases; while the 169 male judges granted it in 37 percent of cases.

Horne vs. Flore

The Supreme Court heard Horne vs. Flore, a long- running ELL case in Arizona. The Supreme Court Justices questioned what is sufficient academic progress for ELLs. Here is some SCOTUS coverage.

The case, Horne v. Flores, involves the English-language instruction program in Nogales, Ariz., for students identified as “English Language Learners (ELL).” Nogales is a border town and many of the the students in the school district speak Spanish as a first language.

In 2000, U.S. District Court Judge Alfredo Marquez found that the ELL program violated the federal Equal Education Opportunity Act of 1974, which says that students may not be denied educational opportunity based on the failure of a school district to take “appropriate action” to remedy language barriers.

Marquez ruled that Nogales’ ELL program was not adequately funded and that the school district needed to fund the program based on its needs. The judge said that the district should conduct a study to determine what an adequate level of funding would be.

Here is some more context.

An article and video on the case can be found on NPR.

Supreme Court Rejects U.S. Government's Argument on Standard on Stay of Removal

SCOTUS blog has the scoop on the latest immigration decision from the Supreme Court. In Nken v. Holder (click here for a previous posting on oral argument in the case), Chief Justice Roberts wrote for the 7-2 majority:

"This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria."

In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, seventh, and Ninth Circuits on the other.

Justice Kenndy filed a concurring opinion joined by Justice Scalia, which emphasized that there is a demanding standard for the issuance of a stay and suggesting that the Ninth Circuit is perhaps overly liberal in granting stays.

Justice Alito, joined by Justice Thomas, dissented, emphaszing that "[t]he Court's decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996."

(HT: ImmigrationProf Blog)

Legal Analysis of the California Ballot Initiative for New Caste of Birth Certificates

Some legal analysis by Jonathan Gingerich of the new caste of birth certificates for children of undocumented people proposed in California.

• Anyone born in the U.S. (and subject to US jurisdiction, so not children of foreign diplomats, prisoners of war, invading enemies) is a citizen under the 14th amendment section 1 citizens clause. Citizenship in the U.S. is an issue of federal law, so California couldn't do anything about that even if it weren't constitutionalized.

• Can a state deny a birth certificate to a citizen born in the U.S.? California can't claim that the children are US citizens but not California citizens, because the citizenship clause says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"
  

• I suppose the state has an argument that the restrictions are imposed on the parents, not the child. But that seems doubtful. Birth certificates are necessary to exercise so many of the rights that accompany U.S. citizenship. In the long run, birth certificates are probably more important to children than to the parents.

• I think the question may be: under the equal protection clause, can the state make it harder to get a birth certificate for a certain class of citizens because that class of citizens has non-citizen parents? The supreme court has subjected classifications based on alienage to heightened scrutiny, and it is hard to see how this would pass rational basis review (what is the legitimate government interest?) much less any form of heightened scrutiny.

• A much closer question would be if California sought to impose these requirements on all infants. This would then be a case of disparate impact on children of non-citizens, rather than disparate treatment. My view is that it would still be unconstitutional, and there is some chance that it would still fail rational basis review under due process, but such a uniform burden might well pass muster with the current SCOTUS. Nevertheless, California isn't going to do that.
  

• Unrelated: also raises equal protection gender questions (and perhaps race questions too, not facially, but as applied). What if the father isn't present?

• There might be separate equal protection issues under California's constitution, which the state courts have often interpreted creatively (and progressively).

Sixth Circuit Strikes Down Widow Penalty

Previously I have blogged a lot about the Widow Penalty. It had been upheld but the Sixth Circuit today held that:

"The sole issue before us is a question of law, which requires us to interpret language of the INA to resolve a matter of first impression in this Circuit. The question is whether an alien-spouse, whose citizen-spouse filed the necessary “immediate relative” petition form under 8 U.S.C. §§ 1187, 1255(c)(4), but died within two years of the qualifying marriage, qualifies as a spouse under the “immediate relative” provision of the INA. For the reasons set forth below, we conclude that a “surviving alien-spouse” is a “spouse” within the meaning of the “immediate relative” provision of the INA. Accordingly, we AFFIRM the district court’s grant of summary judgment for Lockhart."

See Lockhart 6 4-8-09

Robert A. Katzmann Calls for More Representation for Immigrants

There are not enough lawyers helping immigrants defend their way through the immigration courts. Robert A. Katzmann, a federal judge on the Second Circuit Court of Appeals is doing something about the problem. The New York Times reports:

Robert A. Katzmann, a federal judge on the Second Circuit Court of Appeals, believes that fact alone should summon the city’s legal profession to do more volunteer work in the immigration court system, where no defendant has the right to a court-appointed lawyer, and some of the most vulnerable end up in the hands of fly-by-night operators who bungle cases wholesale.

But Judge Katzmann, son of a refugee from Nazi Germany and grandson of immigrants from Russia, found that in the nation’s historic gateway to immigrants, few big corporate law firms seemed to hear that summons — even as the consequences of no lawyers or bad lawyers flooded the federal appeals courts, including his own.

So the judge took a rare step: Almost alone among the nation’s federal judges, he has used the prestige of his office to push for more and better legal representation of immigrants.

“Justice should not depend on the income level of immigrants,” Judge Katzmann told the group at the outset of this “working colloquium,” seen by some as a model for circuits around the country. Studies show immigrants with legal representation are three to four times more likely to win their case, yet nationwide, only about 35 percent have any kind of lawyer. With 39 percent of the Second Circuit’s caseload now made up of immigration appeals, he said in an interview, he considers his effort part of any judge’s responsibility to improve the administration of justice.

Flores-Figueroa v. United States

The United States Supreme Court will hear Flores-Figueroa v. United States tomorrow on whether to prove aggravated identity theft under federal law, the Government is required to prove a defendant knew that the ID card used belonged to another person. The defendant, Flores-Figueroa, an undocumented alien used a forged social security card and permanent resident card to obtain work.

Some analysis from an editorial in the New York Times:

The court must decide whether he can be convicted of the crime of aggravated identity theft — which carries a heavy mandatory prison sentence — even though he did not know the numbers belonged to specific people. This is a case about the misapplication of federal law. It also is a case about unequal justice. The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation.

Ignacio Carlos Flores-Figueroa, an undocumented Mexican immigrant, purchased a forged Social Security card and a permanent resident card bearing his name and false identification numbers in Chicago. When he submitted those documents at his job in East Moline, Ill., his employer reported him to the Immigration and Customs Enforcement, which determined that the numbers belonged to other people. There is no evidence those people were harmed.

Mr. Flores-Figueroa pleaded guilty to misuse of immigration documents and illegal entry into the United States. He pleaded not guilty to aggravated identity theft, saying that he didn’t know that the ID numbers belonged to anyone. He was convicted and sentenced to 51 months of imprisonment for the crimes for which he pleaded guilty, and an additional mandatory two-year sentence for aggravated identity theft. Mr. Flores-Figueroa is asking the Supreme Court to reverse his identity-theft conviction, arguing that the law does not apply to his actions.

The federal aggravated identity theft statute is aimed at the most serious forms of identity theft — and it says the theft must be done knowingly. Congress wanted to punish those who take the identities of other people to do them harm, typically by trying to drain their bank accounts. Mr. Figueroa did not have the intent necessary to violate this law. He was guilty of identity fraud — a separate, and lesser, crime.

One of the criminal law’s most important tasks is sorting out degrees of culpability. People like Mr. Flores-Figueroa enter the country illegally to work at jobs that pay little and are often dangerous. Their actions are illegal, but they fall far short of stealing a specific person’s identity to rob someone’s life savings.

U.S. Immigration Courts “Overburdened, Under-Resourced”

The Brookings Institution held a meeting last Friday to discuss immigration and the U.S. court system. The focus was on the many issues in the current system and what needs to be done to improve it. Juan Osuna, Chairman of the Board of Immigration Appeals, began the meeting by saying, “I think that the most significant issue is basically the lack of resources. There are simply too many cases and too few judges to hear them.” He pointed out that the average judge in an immigration court hears about 1200 cases every year, compared to an average 480 case load per year for district judges."

In addition, Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit emphasized that "the issue is not only with the lack of judges, but with the poor quality of representation. “The problem of quality of representation is a severe problem in the courts… There are many fine immigration lawyers but all too often I see cases where the immigrants representation is substandard.” Additionally, he pointed out that only about 35% of immigrants have representation when they go to court. Katzmann believes improving the quality of representation is a critical issue to improve the immigration court system as a whole.

Will Attorney General Eric Holder work to fix these problems? Initial signs do not show him placing much attention on these overburdened and under-resources courts.

Padilla v. Commonwealth of Kentucky

The Supreme Court granted cert in Padilla v. Commonwealth of Kentucky. Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Petition for certiorari, Petitioner’s Reply Brief, and an amicus curiae of Criminal and Immigration Law Professors, et al. (in support of petitioner).