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.

The DREAM ACT

The word is that Hispanic Democrats in Congress are pressing for the passage of the DREAM Act during the lame duck session. The DREAM Act stands for "The Development, Relief and Education for Alien Minors Act." It would provide for a pathway for alien children who graduate from a U.S. high school to earn a way to eventual citizenship.

If the Act passes, then an undocumented alien who graduated from a U.S. high school, was brought to the U.S. as a minor, is of good moral character, has been present in the U.S. for five years before the passage of the Act, and who either enlists in the military or completes two years of higher eduction could earn conditional permanent residency.

The DREAM Act is meant to address the inequities that occur when a family brings a minor child into the United States, and raises the child here. Often, such children may not know the language of their home country. The only life they may know is here in the United States. Moreover, undocumented children now face a situation where they cannot qualify for various scholarships and financial aid. Thus, many are trapped in a life without further education.

The DREAM Act was offered as an amendment to a spending bill just before the October recess for the 2010 elections. However, the amendment never came to the floor. Whether the DREAM Act will have an opportunity to face a vote is an open question, since many Republicans will resist such major policy pushes in the waining days of the current Congress.

What Do the Elections Mean for Immigration Reform?

I will be the first to admit that I am no geenie. I cannot read the tea leaves and see the future. But, I can give an educated guess on what I think the future of comprehesive immigration reform is based on this year's mid-term elections.

This past Tuesday gave the Republicans a historic victory with a pick-up of about 60 seats in the House of Representatives (as I write this, about 10 races are still not decided). The fact is that Republicans generally draw their support from people who oppose immigration reform. Do not expect any movement from the new Congress on comprehensive immigration reform, then.

But, is that the final answer? The current Congress still has a lame duck session. Many hope Congress will address some of the most pressing issues before it adjourns, such as tax reform. Quite frankly, I don't see this Congress addressing tax reform when the Republicans will be more than happy to take that up in the next Congress when they control the agenda and do not have to compromise with the Democrats.

But, immigration is another story. Realistically, the next two months may be the last chance for comprehensive immigration reform for a long time to come. No one will want to touch it before the 2012 election. The outgoing Speaker, and some of the ousted Democrats may see this as their last hurrah. That is, it may be possible to push immigration reform through with the majorities the Democrats will have until January. Such actions are not unprecedented.

Of course, the Democrats who will be remaining in the House after January may have a differenet point of view. If passing comprehensive immigration reform as a last gasp can be seen as abusive and countrary to the will of the people, those Democrats may be resistant to going along with a push to pass such important legislation before the end of this Congress.

In the end, the answer is simply that if comprehensive immigration reform is to happen, it must happen in the next two months. If it does not pass the lame duck session of Congress, then I believe that there will not be another opportunity to pass it again for a long period of time.

Third Circuit Court of Appeals Strikes Down Hazelton Law

The U.S. Court of the Appeals for the Third Circuit today struck down a law from Hazelton, Pennsylvania that attempted to crack down on those who did business with undocumented aliens. The law imposed sanctions against landlords who rented to known undocumented aliens, and to deny business licenses to business that hired illegal immigrants.

The Third Circuit held that this was an intrusion into the power of the Federal Government to regulate immigration. In response to the decision, the Mayor of Hazelton vowed to take the case to the U.S. Supreme Court.

Our Government is one of divided powers. The state and local governments have their domains, and the Federal Government has its own. The Constitution squarely gives the Federal Government the power to regulate immigration and nationality. Indeed, the Federal Government has a comprehensive body of law regulating the employment of aliens.

Given this broad constitutional power, and the comprehensive legal scheme that the Government has adopted to regulate employment of aliens, the Third Circuit's decision is correct. State and local government simply cannot adopt their own set of immigration laws.

Asylum Granted Based on Inter-Faith Marriage

On September 1, 2010, Immigration Judge Paul Schmidt of the Arlington Immigration Court granted asylum to a woman from Nepal who entered into an inter-faith marriage. The woman was raised a Hindu, and her family had arranged a marriage with a Hindu man. Before the marriage occurred, the woman came to the United States, met a Muslim, fell in love, married him, and converted to Islam.

The woman offered evidence that her father had threatened her life for marrying a Muslim. She demonstrated that her father was a violent man, who had beaten her, her mother and her sister in the past. The father had gone so far as to arrange for a fraudulent marriage certificate. State Department Human Rights Reports on Nepal indicated that the police tend not to take domestic violence in Nepal seriously.

Based on this evidence, Judge Schmidt found that the woman showed a fear of persecution based on her religion, and that the Nepali Government was unwilling to protect her.

A redacted copy of the decision can be found here.

How Criminal Lawyers and Immigration Lawyers Differ

As an immigration lawyer, you have to think about the immigration consequences of everything. This includes traffic violations.

Hypothetically, let's say you have a client charged with driving without a license. He has no immigration status, so he can't get a license. This is his second offense.

In Virginia, this would be a class 1 misdemeanor, punishable with up to 1 year in jail and/or a $2500 fine. The offense itself does not require that the person know that he had no valid license. This means that the conviction in and of itself would not have immigration consequences.

Now, let's say the prosecutor offers a 30 day sentence with 25 days suspended. The jail counts a day and a night as separate days. Client could serve the whole sentence in a weekend by reporting Friday afternoon. Most criminal defense attorneys would find that a good deal.

But, here's where an immigration attorney differs. I would see my client going into jail, being put in a computer system. ICE would pick that up, and could possibly put a detainer on him for being present without status. Thus, even though the offense itself may not have immigration consequences, the fact that he goes to jail and is put in a system could have immigration consequences. In this situation, my judgment is to advise taking the fine, even if it is $2500, and walking out of the courthouse free, to avoid any jail time and the risk that ICE starts removal proceedings.

Bottom line is that sometimes an immigration attorney will see it better to reject what a criminal attorney would think is a good deal, in order to avoid the opening of removal proceedings.

New US Citizen!

Congratluations to one of the newest citizens of the United States, my friend and client, Pam Berrios!