REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - DUE PROCESS -- RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IS GROUNDED IN DUE PROCESS
The courts of appeals continue to affirm that noncitizens have a constitutional right under the Fifth Amendment Due Process Clause to fundamentally fair removal proceedings, and that incompetent counsel may deprive people of that right. Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007) (ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if, and to the extent that, the proceeding is thereby rendered fundamentally unfair); Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir.
SAFE HAVEN - TRAVEL ACT
18 U.S.C. 1952 ("travels . . . or uses the mail or any facility in interstate or foreign commerce, within intent do (1) distribute the proceeds of any unlawful activity."), by it minimum conduct is arguably not controlled substances offense or a crime involving moral turpitude (the funds may have been obtained through non-CMT activity and be distributed for non-CMT purposes).
Thanks to Jonathan Moore.
POST-CON - FEDERAL - HABEAS CORPUS - TOLLING
Waldron-Ramsey v. Pacholke, No. 07-35938 ("Neither Waldron-Ramsey's alleged confusion regarding the basis of the state court rulings, nor his alleged confusion regarding AEDPA justify his 340-day delay. In a motion filed April 18, 1997, Waldron-Ramsey explicitly stated he knew his AEDPA deadline was April 23, 1997.FN3 His alleged belief he was entitled to statutory tolling beyond that date was based on his own assumptions, and a diligent petitioner in that situation would have filed a basic form habeas petition as soon as possible.
DETENTION - CONDITIONS OF PLEA AGREEMENTS
Criminal defense counsel should be careful when including in a plea agreement an agreement not to contest removability. An agreement not to contest "removability" means that a noncitizen will not contest a finding by the court that they are subject to a ground of deportation, but arguably allows the noncitizen to make an application for relief from removal before the immigration court.
STATUTORY CONSTRUCTION - AVOIDANCE DOCTRINE
Jean v. Nelson, 472 U.S. 846, 854 (1985) (constitutional questions should be reached only as a last resort).
REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - STATUTORY RIGHT TO COUNSEL IMPLIES RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
INA 292, 8 U.S.C. 1362 (statutory right to counsel in removal proceedings); INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Sanchez v. Keisler, 505 F.3d 641, 649 (7th Cir. 2007) (the attorneys performance was so deficient that Sanchez did not have the fair hearing to which the immigration statutes entitle her); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (" aliens in deportation proceedings have a statutory right to be represented by counsel at their own expense."); Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) ("[A]liens have a statutory right to counsel, see 8 U.S.C. 1362 .
JUDICIAL REVIEW - ALTERATIONS IN LONG-STANDING REGULATION
INS v. Cardoza-Fonseca 480 U.S. 421, 446 n.30 (1987) (courts look very skeptically at and will not defer to sudden, material alterations to a 20-year old administrative scheme); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).
DETENTION - CRIMINAL DETENTION AND RELEASE OF NONCITIZEN FEDERAL DEFENDANTS UNDER FEDERAL BAIL REFORM ACT
Thanks to Ingrid Eagly and Cecilia Wong, who have had success securing release for federal noncitizen defendants under the Federal Bail Reform Act, for this analysis:
CRIM DEF - COLLATERAL CONSEQUENCES OF CRIMINAL CASES BIBLIO
American Bar Ass'n Comm'n on Effective Criminal Sanctions & Public Defender Service for the District of Columbia, Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations (January 2009),
http://www.abane t.org/cecs/internalexile.pdf
INVESTIGATION - FOIA
The Government has been denying FOIA requests from attorneys representing "fugitive aliens." An AILF practice advisory on this issue can be found here:
http://www.ailf.org/lac/lac_pa_topics.shtml#section13.
