In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
For an appointment call (703) 837-8832
(571) 551-6069 (ESP)

Arlington Circuit Court Grants a Writ to Allow Alien Detainee to Testify

The Arlington Circuit Court issued a writ of habeas corpus ad testificandum, instructing U.S. Immigration and Customs Enforcement to transfer the custody of an immigration detainee to the Arlington County Sheriff's Department, temporarily, to allow the alien to testify in an upcoming hearing in state court.

The alien is challenging a sentence entered years ago in a petit larceny conviction. The sentence was for twelve months, with ten months suspended. However, this makes the conviction one for an aggravated felony under U.S. immigration law, and thus renders the alien ineligible for cancellation of removal. The alien argues that his criminal defense lawyer did not discuss the immigration consequences of his plea bargain. If true, then this would be a clear case of ineffective assistance of counsel, as the Supreme Court recently defined it in Padilla v. Kentucky.

There are many different types of writs of habeas corpus. The one that most people are familiar with is a writ where a prisoner seeks to be released, claiming his imprisonment is in violation of law. Usually, this is sought when the prisoner believes that his conviction was the result of a constitutional violation.

A habeas corpus ad testificandum is a writ addressed to the government entity holding the person, to have that person appear before another court in order to give testimony. It is related to a writ of habeas corpus ad prosequendum, which is a writ used when a state court wants to prosecute a prisoner in federal prison.

Where the legal action is pending in a state court, a writ of habeas corpus ad testificandum or habeas corpus ad prosequendum must be issued by that state court. Federal courts have no power to supervise state court proceedings.

This ruling is significant because it is often difficult to get ICE to permit an immigration detainee to appear for a state court proceeding. That is, some aliens have experienced the problem where the alien is arrested for a state criminal action, ICE places a detainer on them, the alien makes bail, only to find himself in ICE custody. Once in ICE custody, the alien often misses his state court hearing. Having the state court issue a habeas corpus writ may permit the alien to attend the state court proceedings, while preserving ICE's custody over the alien for immigration purposes.

Ineffective Assistance of Counsel: Padilla v. Kentucky & Post-Conviction Relief for Criminal Offenses with Immigration Consequences

On March 31, 2010, the U.S. Supreme Court issued its decision in the case of Padilla v. Kentucky, Crt. No. 08-651, which held that the failure to give advice concerning the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and thus a violation of the Sixth Amendment. Immigrants facing deportation or removal because of criminal convictions now face the possibility of using the Supreme Court’s decision to solve their own immigration problems.

Padilla was a permanent resident and veteran of the Vietnam War, where he served his country honorable. He was charged under Kentucky law for transporting marijuana, an offense that carried with it an assured deportation if convicted. According to Padilla, when considering whether to plead guilty, he asked his counsel about the immigration consequences of his conviction. His counsel told him not to worry because of the long time that he had spent in the United States. This advice was dead wrong.

After pleading guilty, Padilla faced removal proceedings. It was at this time that Padilla sought post-conviction relief to withdraw his guilty plea and face trial. The Supreme Court of Kentucky denied his request.

The U.S. Supreme Court held that the failure of counsel to provide advice on the immigration consequences of a guilty plea amounted to ineffective assistance of counsel, and remanded the case for further proceedings under Kentucky law. In reaching this conclusion, the Court made a number of key findings. First, the Court found that even though immigration is governed by civil law, the immigration consequences of a conviction are inexorably intertwined. Second, the Court noted that there was no distinction between bad advice and no advice. That is, criminal defense counsel is under a duty to provide advice concerning the immigration consequence of a conviction, even if the topic was not affirmatively brought up by the client. Finally, a key point of the Supreme Court’s decision is that Padilla sought to remedy a guilty plea that was allegedly procured by ineffective assistance of counsel.

With the Supreme Court weighing in on the subject, the question now for many facing deportation or removal is how to use Padilla to gain immigration relief.

All people being held by the government have the right to file a writ of habeas corpus. That means, that they can challenge the legality of their detention. Thus, in many instances, it may be possible now to file for a writ of habeas corpus, and argue that the detention is illegal because the conviction was based on a guilty plea procured by counsel’s bad immigration advice.

But, habeas corpus may not be available for everyone facing immigration consequences of their criminal convictions. For example, in Virginia, a habeas corpus action is only available for two years after the final judgment of the trial court, or one year after the final decision on appeal.

Virginia has one more avenue that may be available. That is the writ of error coram vobis. This is a procedure meant to correct errors that affect the validity and regularity of the judgment. In Commonwealth v. Mohamed, 71 Va. Cir. 383 (2006), a defendant attacked the length of his sentence, claiming his criminal defense counsel failed to advise him properly on the fact that the length of his sentence would cause his to be deportable. The Circuit Court of Arlington County permitted the defendant, who had served his sentence completely, to use the coram vobis procedure to reduce his sentence in order to avoid deportation proceedings.

It is important to note that Mohamed did not challenge a guilty plea itself. Indeed, in Virginia, by pleading guilty, a defendant waives a host of rights, including the right to appeal. A question remains as to whether the coram vobis procedure can be used to withdraw a guilty plea when based on ineffective assistance of counsel. The Virginia Supreme Court in Dobie v. Commonwealth, 198 Va. 762, 96 S.E.2d 747 (1957), held that coram vobis cannot be sought merely if the criminal defendant thinks he can obtain a better result by going to trial.

However, Dobie was decided long before Padilla. And, Padilla specifically addresses the situation where the guilty plea was alleged procured because of bad advice on the immigration consequences of the plea. The argument would be that the guilty plea itself is invalid because it stemmed from the ineffective immigration advice.

Such a strategy remains untested. Its success is, therefore, unknown. Moreover, this strategy faces the hurdle that guilty pleas are difficult to attack under Virginia law. However, it may be the best hope available for immigrants who have already served their sentences in Virginia, and now face the immigration consequences of their guilty plea.

Update (September 27, 2012):  The Virginia Supreme Court case of Morris v. Commonwealth has pretty much shut the door on obtaining post-conviction relief based on Padilla.  Morris held that the writ of error coram vobis and the writ of audita querela were not available in Virginia to address a claim of ineffective assistance of counsel.  The only avenue open for post-conviction relief based on a Padilla claim is a writ of habeas corpus.

There is, however, a statute of limitations on a writ of habeas corpus in Virginia.  It must be filed two years after the final judgment of the trial court, or one year after the appellate decision is final.

This creates a gross inequity in Virginia.  A person can have a conviction of a deportable crime that is ten years old.  There is no statute of limitation on the ability of the Government to use such a conviction for deportation.  But, that person may not have any clue that the advice he or she received when accepting the plea was faulty until ICE takes him or her into detention and starts removal proceedings.  That person would then have no ability in Virginia to challenge the conviction based on the Sixth Amendment violation.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com