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January 6, 2015

Argument preview: Removal for a misdemeanor “drug paraphernalia” conviction

Cross-posted from SCOTUSBlog.

On January 14, the Supreme Court will hear oral argument in Mellouli v. Holder, one of several recent cases in which the Court has scrutinized the federal government's efforts to remove a lawful permanent resident from the United States based on a minor drug conviction. The frequency with which these kinds of cases recur reflects the focus of the Obama administration's removal efforts on noncitizens who have had brushes with the criminal justice system.

The case now before the Court specifically involves the government's efforts to remove a lawful permanent resident based on a state misdemeanor conviction for possession of drug paraphernalia - here, a sock used to hide drugs.

Facts

In 2004, Moones Mellouli, a native of Tunisia, entered the United States on a student visa and later became a lawful permanent resident. After pleading guilty to a misdemeanor under Kansas law, he was sentenced to probation for "possess[ing] with intent to use drug paraphernalia, to wit: a sock, to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance." As the court of appeals later observed, "[i]t seems surprising to call a sock 'drug paraphernalia,' but using a sock to store and conceal a controlled substance falls within the [Kansas] statute's literal prohibition." State laws vary widely on the regulation of drug paraphernalia; some states do not criminalize its possession.

The record of conviction, which is the touchstone in removal proceedings, did not indicate what controlled substance was connected to Mellouli's "drug paraphernalia." However, a document not part of the record of conviction alleged that, while in jail on a DUI charge, Mellouli had hidden four tablets of Adderall - a prescription medicine normally used to treat attention deficit hyperactivity disorder (ADHD) - in his sock.

The U.S. government sought to remove Mellouli under Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act, which provides for the removal of "any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)." The immigration court ordered his removal. The Board of Immigration Appeals (BIA), which has found drug paraphernalia convictions to justify removal because they relate to "the drug trade in general" - language not found in the statutory provision at issue - dismissed the appeal. The court of appeals agreed with the BIA, noting that deference to the Board's interpretation was justified under Chevron v. Natural Resources Defense Council, Inc.  Mellouli filed a petition for certiorari, which the Court granted last summer.

Arguments

In his briefs, Mellouli contends that the plain language of the statute requires the state conviction to be directly tied to a controlled substance under federal law; by contrast, the court of appeals effectively held that, contrary to the text of the statute, lawful permanent residents may be removed from the United States based on paraphernalia used in connection with substances that are not regulated by federal law. Mellouli further argues that, because the BIA ruling contradicts the text of the statute as well as the Board's inconsistency in interpreting the statutory provision in question, Chevron deference does not apply.

The United States counters emphatically that the conviction in fact is under a state law "relating to a controlled substance (as defined in section 802 of title 21)," and thus one that subjects Mellouli to removal. The government points out that Congress employed broad language to ensure that, even when federal- and state-controlled substances schedules are not identical, noncitizens who commit crimes related to drugs are removable. The United States also contends that the BIA interpretation is entitled to Chevron deference.

The significance of the case

The case raises two issues common to the run-of-the-mill contemporary immigration cases on the dockets of the federal courts: (1) interpretation of the complex immigration removal statute; and (2) the deference properly afforded the BIA's interpretation. Because the particular removal provision incorporated by reference the federal controlled substances statute, Mellouli has the better of the statutory argument and thus on the Chevron deference point as well (because deference to an interpretation contrary to the text of the statute is unwarranted). If the Court finds ambiguity in the statute, it might well invoke a version of the rule of lenity, as it has occasionally in recent years, to construe the statute against Mellouli's removal.

In interpreting the criminal removal provisions of the immigration laws, the Roberts Court has opted for bright-line rules (as advocated by Mellouli) as opposed to more flexible standards (as argued for by the U.S. government). In Moncrieffe v. Holder, for example, the Court rejected mandatory removal based on a conviction for possession of a small amount of marijuana and embraced the "categorical approach" requiring all crimes under a state penal law to qualify as an "aggravated felony" for a conviction under that statute to constitute such a felony. Similarly, in Carachuri-Rosendo v. Holder, the Court would not mandate removal based on a misdemeanor conviction for possession of a single tablet of Xanax because the prosecutor had not adhered to the requirements of the statute necessary for the conviction to be treated as a felony. In neither case did the Court defer to the BIA's interpretation of the statute because the Board's interpretation conflicted with the statutory text. Indeed, the argument has been made that Chevron deference is not justified in instances like this one given that the BIA's expertise is in immigration, not criminal, law.

The Supreme Court has been reluctant to impose the harsh penalty of removal on lawful permanent residents convicted of small-time drug offenses. Despite being engaged to marry a U.S. citizen, Mellouli - who already has been removed - has been exiled from the United States. His misdemeanor drug paraphernalia conviction for concealing contraband in his sock has resulted in the possibility of permanent separation from his fiancé in the United States.

December 19, 2014

Faculty Scholarship: Legal Studies Research Paper Series, Vol. 16, No. 6

Faculty members at UC Davis School of Law publish truly unique scholarship that advances the legal profession. You can view their scholarly works via the Social Science Research Network (SSRN) Legal Scholarship Network. An archive can be found on this web page.

What follows here is the most recent collection of papers:

"Corporate Social Responsibility in India" 
The Conference Board Director Notes No. DN-V6N14 (August 2014)
UC Davis Legal Studies Research Paper No. 399

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu
SHRUTI RANA, University of Maryland
Email: shrutirana@yahoo.com

In an era of financial crises, widening income disparities, and environmental and other calamities linked to some corporations, calls around the world for greater corporate social responsibility (CSR) are increasing rapidly. Unlike the United States and other major players in the global arena, which have largely emphasized voluntary approaches to the adoption and spread of CSR, India has chosen to pursue a mandatory CSR approach. This report discusses India's emerging CSR regime and its potential strengths and weaknesses.

"The Advent of the LLP in India" 
Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman and Mark J. Loewenstein eds.) (Edward Elgar Publishing, 2015, Forthcoming)
UC Davis Legal Studies Research Paper No. 408

AFRA AFSHARIPOUR, University of California, Davis - School of Law
Email: aafsharipour@ucdavis.edu

In 2008, India passed a ground-breaking law to introduce the Limited Liability Partnership form into Indian business law. The Indian LLP Act was the first major introduction of a new business form in India in over 50 years. While the partnership and corporate forms (i.e. companies under the Indian Companies Act) have long flourished in India, both forms have presented challenges for certain Indian businesses. The Indian government's impetus for the LLP Act was to develop a business association form that could better meet the needs of entrepreneurs and professionals with respect to liability exposure, regulatory compliance costs and growth. This chapter begins with a broad overview of the political and legislative process which led to the adoption of the LLP Act. It then addresses the critical aspects of the Indian LLP Act, and analyzes some of the challenges and uncertainties that may derail the success of the LLP form.

"Reed v. Town of Gilbert: Signs of (Dis)Content?" 
NYU Journal of Law & Liberty, Forthcoming
UC Davis Legal Studies Research Paper No. 403

ASHUTOSH AVINASH BHAGWAT, University of California, Davis - School of Law
Email: aabhagwat@ucdavis.edu

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court. The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes. The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination. I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert's sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit's resistance to finding Gilbert's ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine - that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn't legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).

"Brand New World: Distinguishing Oneself in the Global Flow" 
UC Davis Law Review, Vol. 27, No. 2, December 2013
UC Davis Legal Studies Research Paper No. 410

MARIO BIAGIOLI, University of California, Davis - School of Law
Email: mbiagioli@ucdavis.edu
ANUPAM CHANDER, University of California, Davis - School of Law
Email: achander@ucdavis.edu
MADHAVI SUNDER, University of California, Davis - School of Law
Email: msunder@ucdavis.edu

Ancient physicians engaged in property disputes over the seals they impressed on the containers of their medications, making brand marks the oldest branch of intellectual property. The antiquity of brand marks, however, has not helped their proper understanding by the law. While the conceptual and historical foundations of copyrights and patents continue to be part and parcel of contemporary legal debates, the full history and theorizing on business marks is largely external to trademark doctrine. Furthermore, with only a few and by now outdated exceptions, whatever scholarship exists on these topics has been performed mostly not by legal scholars but by archaeologists, art historians, anthropologists, sociologists, and historians of material culture. Such a striking imbalance suggests that the law is more eager to assume and state what trademarks should be rather than understand how they actually work today. Nor does the law often acknowledge the many different ways in which marks have always been deployed to distinguish both goods and their makers. This is not just a scholarly problem: given the extraordinary importance of brands in the global economy, the growing disjuncture between the way brands function in different contexts and cultures and trademark law's simplified conceptualization of that function has become a problem with increasingly substantial policy implications.

"Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule" 
Boston University Law Review, Vol. 94, No. 5, 2014
UC Davis Legal Studies Research Paper No. 411

GABRIEL J. CHIN, University of California, Davis - School of Law
Email: gjackchin@gmail.com

In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to "preclear" changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution's Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing - as well as from what little the Court has said - that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

"Wills Law on the Ground" 
UCLA Law Review, Vol. 62, 2015 Forthcoming
UC Davis Legal Studies Research Paper No. 404

DAVID HORTON, University of California, Davis - School of Law
Email: dohorton@ucdavis.edu

Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents' preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.

"Can Human Embryonic Stem Cell Research Escape its Troubled History?" 
44 Hastings Center Report 7 (Nov.-Dec. 2014)
UC Davis Legal Studies Research Paper No. 409

LISA CHIYEMI IKEMOTO, University of California, Davis - School of Law
Email: lcikemoto@law.ucdavis.edu

In 2013 and 2014, three U.S.-based research teams each reported success at creating cell lines after somatic cell nuclear transfer with human eggs. This essay assesses the disclosures about how oocytes were obtained from women for each of the three projects. The three reports described the methods used to obtain eggs with varying degrees of specificity. One description, in particular, provided too little information to assess whether or not the research complied with law or other ethical norms. This essay then considers methodological transparency as an ethical principle. Situating the research within the ethical and moral controversies that surround it and the high-profile fraudulent claims that preceded it, the essay concludes that transparency about methodology, including the means of obtaining human cells and tissues, should be understood as an ethical minimum.

"Evidence of a Third Party's Guilt of the Crime that the Accused is Charged with: The Constitutionalization of the SODDI (Some Other Dude Did It) Defense 2.0" 
UC Davis Legal Studies Research Paper No. 401

EDWARD J. IMWINKELRIED, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Defense counsel have employed a version of the SODDI defense for decades. The late Johnny Cochran successfully employed the defense in the O.J. Simpson prosecution, and the legendary fictional defense attorney Perry Mason used the defense in all his cases.

However, in most jurisdictions there are significant limitations on the availability of the defense. In an 1891 decision, the United States Supreme Court announced that evidence of a third party's misconduct is admissible only if it has a "legitimate tendency" to establish the accused's innocence. Today most jurisdictions follow a version of the "direct link" test. Under this test, standing alone evidence of a third party's motive or opportunity to commit the charged offense is inadmissible unless it is accompanied by substantial evidence tying the third party to the commission of the charged crime. Moreover, the evidence that the accused proffers to support the defense must satisfy both the hearsay and character evidence rules. If the defense offers out-of-court statements describing the third party's conduct, the statements must fall within an exemption from or exception to the hearsay rule. If the defense attempts to introduce evidence of the third party's perpetration of offenses similar to the charged crime, the defense must demonstrate that the evidence is admissible on a noncharacter theory under Federal Rule of Evidence 404(b)(2).

However, a new version of the SODDI defense has emerged - SODDI 2.0. When the defense relies on this theory, the accused makes a more limited contention. The defense does not contend that reasonable doubt exists because there is admissible evidence of the third party's guilt. Rather, the defense argues that there is reasonable doubt because the police neglected to investigate the potential guilt of a third party who was a plausible person of interest in the case. Two 2014 decisions, one from the Court of Appeals for the Second Circuit and another from an intermediate Utah court, approved this version of the defense. Even more importantly, both courts ruled that the trial judge violated the accused's constitutional right to present a defense by curtailing the accused's efforts to develop the defense at trial.

The advent of this new version of the defense is both significant and controversial. The development is significant because the defense can often invoke this version of the defense when the restrictions on the traditional SODDI defense preclude the accused from relying on the traditional defense. As the two 2014 decisions point out, when the defense invokes the 2.0 version of the defense, the hearsay rule does not bar testimony about reports to the police about the third party's misconduct. Under the 2.0 version of the defense, those reports are admissible as nonhearsay to show the reports' effect on the state of mind of the police officers: putting them on notice of facts that should have motivated them to investigate the third party. Similarly, when the defense relies on the 2.0 version of the defense, the prosecution cannot invoke the character evidence prohibition to bar testimony that the third party has committed offenses similar to the charged crime. The prohibition applies only when the ultimate inference of the proponent's chain of reasoning is that the person engaged in conduct consistent with his or her character trait. In this setting, the prohibition is inapplicable because the ultimate inference is the state of mind of the investigating officers.

Since the restrictions on the new version of the SODDI defense are much laxer than those on the traditional defense, the advent of this defense is also controversial. Are the inferences from the 2.0 version of the defense so speculative that as a matter of law, the defense is incapable of generating reasonable doubt? Moreover, is it wrong-minded to recognize a version of the defense with such minimal requirements when the prevailing view is that traditional version is subject to much more rigorous requirements?

This article addresses those questions and concludes that it is legitimate to recognize the SODDI defense 2.0. In the past few decades, there has been a growing realization of the incidence of wrongful convictions. In the late Johnny Cochran's words, some of those convictions were a product of a "rush to judgment" by the police. The recognition of the SODDI defense 2.0 will provide a significant disincentive to such premature judgments by police investigators.

"Should Arrestee DNA Databases Extend to Misdemeanors?" 
Recent Advances in DNA & Gene Sequences, 2015, Forthcoming
UC Davis Legal Studies Research Paper No. 406

ELIZABETH E. JOH, U.C. Davis School of Law
Email: eejoh@ucdavis.edu

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court's 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

"Racial Profiling in the 'War on Drugs' Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder" 
University of Michigan Journal of Law Reform, Forthcoming
UC Davis Legal Studies Research Paper No. 402

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

This paper is an invited contribution to an immigration symposium in the Michigan Journal of Law Reform.

In 2013, the Supreme Court in Moncrieffe v. Holder rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction involving possession of a small amount of marijuana. In so doing, the Court answered a rather technical question concerning the definition of an "aggravated felony" under the U.S. immigration laws.

Because the arrest and drug conviction were not challenged in the federal removal proceedings, the Court in Moncrieffe v. Holder did not have before it the full set of facts surrounding the state criminal prosecution of Adrian Moncrieffe. However, examination of the facts surrounding the criminal case offers important lessons about how the criminal justice system works in combination with the modern immigration removal machinery to disparately impact communities of color. By all appearances, the traffic stop that led to Moncrieffe's arrest is a textbook example of racial profiling.

This Article considers the implications of the facts and circumstances surrounding the stop, arrest, and drug crimination of Adrian Moncrieffe for the racially disparate enforcement of the modern U.S. immigration laws. As we shall see, Latina/os, as well as other racial minorities, find themselves in the crosshairs of both the modern criminal justice and immigration removal systems.

Part II of the Article provides details from the police report of the stop and arrest that led to Adrian Moncrieffe's criminal conviction. The initial stop for a minor traffic infraction is highly suggestive of a pretextual traffic stop of two Black men on account of their race. Wholly ignoring the racial tinges to the criminal conviction, the U.S. Supreme Court only considered the conviction's immigration removal consequences - and specifically the Board of Immigration Appeals' interpretation of the federal immigration statute, not the lawfulness of the original traffic stop and subsequent search.

The police report describes what appears to be a routine traffic stop by a police officer who, while apparently trolling the interstate for drug arrests in the guise of "monitoring traffic." The officer stopped a vehicle with two Black men - "two B/M's," as the officer wrote - based on the tinting of the automobile windows. Even if the stop and subsequent search did not run afoul of the Fourth Amendment, Moncrieffe appears to have been the victim of racial profiling. A police officer, aided by a drug sniffing dog, in drug interdiction efforts relied on a minor vehicle infraction as the pretext to stop two Black men traveling on the interstate in a sports utility vehicle with tinted windows.

The Moncrieffe case exemplifies how a racially disparate criminal justice system exacerbates racially disparate removals in a time of record-setting deportations of noncitizens. Although he was fortunate enough to stave off deportation and separation from an entire life built in the United States, many lawful permanent residents are not nearly so lucky.

"Social Innovation" 
Washington University Law Review, Vol. 92, No. 1, 2014
UC Davis Legal Studies Research Paper No. 407

PETER LEE, University of California, Davis - School of Law
Email: ptrlee@ucdavis.edu

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical studies to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the patent context is individualistic, arises from a discrete origin and history, and prioritizes novelty. Much social innovation, however, arises from communities rather than individual inventors, evolves from multiple histories, and entails expanding that which already exists from one context to another. These attributes, moreover, apply in large part to technological innovation as well, thus revealing how patent law relies upon and reinforces a rather distorted view of the innovative processes it seeks to promote. Moving from the descriptive to the prescriptive, this Article cautions against extending exclusive rights to social innovations and suggests several nonpatent mechanisms for accelerating this valuable activity. Finally, it examines the theoretical implications of social innovation for patent law, thus helping to contribute to a more holistic framework for innovation law and policy.

"Brief of Interested Law Professors as Amici Curiae Supporting Respondent in Direct Marketing Association v. Brohl" 
Stanford Public Law Working Paper No. 2516159
San Diego Legal Studies Paper No. 14-71
UC Davis Legal Studies Research Paper No. 400
UC Berkeley Public Law Research Paper No. 2516159
UCLA School of Law Research Paper No. 14-19

DARIEN SHANSKE, University of California, Davis - School of Law
Email: dshanske@ucdavis.edu
ALAN B. MORRISON, George Washington University - Law School
Email: abmorrison@law.gwu.edu
JOSEPH BANKMAN, Stanford Law School
Email: JBANKMAN@LELAND.STANFORD.EDU
JORDAN M. BARRY, University of San Diego School of Law
Email: jbarry@sandiego.edu
BARBARA H. FRIED, Stanford Law School
Email: bfried@stanford.edu
DAVID GAMAGE, University of California, Berkeley - Boalt Hall School of Law
Email: david.gamage@gmail.com
ANDREW J. HAILE, Elon University School of Law
Email: ahaile@brookspierce.com
KIRK J. STARK, University of California, Los Angeles (UCLA) - School of Law
Email: STARK@LAW.UCLA.EDU
JOHN A. SWAIN, University of Arizona - James E. Rogers College of Law
Email: john.swain@law.arizona.edu
DENNIS J. VENTRY, University of California, Davis - School of Law
Email: djventry@ucdavis.edu

The petitioner in this case has framed the question presented as follows: "Whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration."

Amici agree with the respondent, the State of Colorado, that the Tax Injunction Act bars federal courts from enjoining the operation of the Colorado Statute at issue in this case because this lawsuit is intended to create the very kind of premature federal court interference with the operation of the Colorado use tax collection system that the TIA was designed to prevent. To assist the Court in understanding the application of the TIA to this case, amici (i) place the reporting requirements mandated by the Colorado Statute in the broader context of tax administration and (ii) explain the potential interaction between a decision on the TIA issue in this case and the underlying dispute concerning the dormant Commerce Clause.

Third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Like all states with a sales tax, Colorado faced - and faces - a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction - specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities.

Amici law professors contend that the centrality of third-party reporting to tax administration in general, and its aptness for this problem in particular, indicate that enjoining the operation of the Colorado Statute constitutes "restrain[ing] the assessment, levy or collection" of Colorado's use tax.

Amici also observe, however, that even a narrow ruling on the scope of the TIA in the Supreme Court could have an unexpected - and we would argue undesirable - impact on the federalism concerns that we think should decide this case. This is because any interpretation of the Colorado Statute for purposes of the TIA made by the Court might be erroneously construed as carrying over to interpreting the Statute for purposes of the dormant Commerce Clause.

We think it likely and reasonable for the courts below to look to the Supreme Court's decision on the TIA for guidance as to what test to apply under the dormant Commerce Clause. However, amici fear that a decision that held that Colorado's reporting requirement is integral to Colorado's "tax collection" for purposes of the TIA will exert a gravitational pull on the lower courts, encouraging them to apply the physical presence test from Quill Corp. v. North Dakota, 504 U.S. 298 (1992) to the Colorado Statute. The Quill test is an especially strict test under the dormant Commerce Clause, and one arguably meant only for "taxes." Thus, a victory for sensible state tax administration and federalism in this Court could be transmuted into a defeat for those principles below. Amici believe that NFIB v. Sebelius, 132 S. Ct. 2566 (2012), teaches that an answer on the TIA does not compel an answer concerning the dormant Commerce Clause. We call this issue to the Court's attention so that the Court is aware of how a decision on the TIA issue might be used - or misused - when the case reaches the merits, either in the state or federal court system.

"Non-Citizen Nationals: Neither Aliens Nor Citizens" 
UC Davis Legal Studies Research Paper No. 405

ROSE CUISON VILLAZOR, University of California, Davis
Email: rcvillazor@ucdavis.edu

The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory.

This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people's membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment's Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.

March 31, 2014

Professor Jack Chin Presents Leary Lecture on Intersection of Immigration Law, State Laws

Professor Jack Chin delivered the Leary Lecture at the University of Utah S.J. Quinney College of Law today. Here is the web announcement from Utah.

March 31 Leary Lecture to Focus on Intersection of Immigration Law, State Laws

For 150 years, states have fought Congress for the power to control authorized and unauthorized migration. The immigrant stream continues to change the demographics of the nation, and immigration’s economic effects are debated in the midst of a tough job market. On March 31, Professor Jack Chin will deliver the 48th Annual Leary Lecture, “The Endless Battle for State Immigration Crimes,” at the University of Utah S.J. Quinney College of Law. The 12:15 lecture, to be held in the Sutherland Moot Courtroom, is free and open to the public.

“Jack Chin is one of the leading scholars on the intersection of immigration law and criminal law,” Professor Robin Craig said. “His Leary Lecture reflects a career's worth of research and thought, as well as Professor Chin's acute observations of the real world.”

In the context of the current debate about immigration, a number of states and localities have become interested in using their own police, laws and courts to address what some consider an invasion, taking place in open disregard of the nation’s laws. “What could be wrong,” they ask, “with helping the federal government carry out its own laws?” This lecture will address the constitutionality of the recent wave of state and local laws dealing with immigration, the Supreme Court’s decisions on the matter, President Obama’s administrative amnesties, and the SAFE Act, pending in Congress, which would explicitly allow the states to enact their own immigration laws, so long as they were consistent with federal law.

Gabriel "Jack" Chin teaches at the UC Davis School of Law where he specializes in criminal law, immigration and race and law. He is an award-winning scholar whose work has been published in the Cornell, UCLA and Penn law reviews, and the Yale, Duke and Georgetown law journals. His scholarship has been cited four times in the U.S. Supreme Court in cases dealing with prosecution of immigrants.

The 48th Annual Leary Lecture is free and open to the public. One hour free CLE available. The event will be streamed live at ulaw.tv and archived for future viewing.

The Leary Lecture is named in honor of William H. Leary, the College of Law’s dean from 1915 to 1950, who was renowned for his intellectual rigor and love of teaching.

September 17, 2013

An Immigration Gideon for Lawful Permanent Residents

I had the privilege of participating in a Yale Law Journal symposium entitled "The Gideon Effect:  Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright."  Gideon, of course, was the path-breaking decision guaranteeing counsel to defendants on criminal prosecutions.  The symposium included a star-studded cast of speakers, including Carol Steiker, Erwin Chemerinsky, Paul Butler, Neal Kumar Katyal, Jack Chin, and many others.

My contribution is entitled An Immigration Gideon for Lawful Permanent Residents, 122 YALE L.J. 2394 (2013) and can be downloaded at: http://www.yalelawjournal.org/the-yale-law-journal/essay/an-immigration-gideon-for-lawful-permanent-residents/

Here is the abstract to the article:

In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court's decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases-immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.

May 16, 2013

Book Review: Governing Immigration Through Crime

Cross-posted from Law and Politics Book Review.

The book is Governing Immigration Through Crime: A Reader.

Authors: Julie A. Dowling is Assistant Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign. Jonathan Xavier Inda is Associate Professor of Latina/Latino Studies at the University of Illinois, Urbana-Champaign.

For several years, immigration scholars have criticized the increasing reliance on the criminal law (and criminal penalties) to enforce the U.S. immigration laws, which historically have been enforced through civil sanctions. Juliet Stumpf encapsulated the growing body of scholarly criticism in her seminal work “The Crimmigration Crisis,” a path-breaking article reprinted in Governing Immigration Through Crime.

The criminalization of U.S. immigration law has proceeded relatively quickly through a variety of steps. Congress in the last 25 years has systematically reformed the immigration laws so that increasing numbers of crimes can result in the removal of lawful permanent residents from the country. Exhibiting an Alice in Wonderland-like quality, the immigration laws today frequently classify misdemeanors as “aggravated felonies,” thus subjecting a lawful permanent resident to near-mandatory removal from the United States. The harshness of the removal grounds has led a conservative Supreme Court on several occasions to intervene; for example, the Court in 2013 halted the virtually mandatory removal of a long term resident of the United States guilty of possession of a few grams of marijuana for personal use (Moncrieffe v. Holder). Congress also has required the mandatory detention of the ever-expanding category of “criminal aliens,” which has created a huge, and growing, immigrant detention industry (McLeod 2012).

Beginning in earnest during the George W. Bush administration, U.S. immigration authorities have worked increasingly closely with state and local law enforcement authorities to remove noncitizens from the United States. The Obama administration has enlisted state and local police in efforts to enforce the U.S. immigration laws. Many states have passed immigration enforcement laws relying on the criminal law ostensibly designed to encourage undocumented immigrants to “self deport.” In addition to extension of an expensive fence along the U.S./Mexico border, U.S. immigration authorities have dramatically increased enforcement operations to levels never previously seen before in U.S. history. Last but not least, the crime of “illegal re-entry” into the United States has been prosecuted ever-aggressively by the U.S. government, contributing to docket congestion in the federal courts and a large increase in the number of Mexican nationals imprisoned in the United States.

The increased use of the criminal law to regulate immigration has had dramatic impacts. In President Obama’s first five [*209] years in office, his administration set records by removing roughly 400,000 immigrants from the United States annually; he has by a large margin deported more noncitizens than any President in U.S. history. It is noteworthy that removals have not been limited to undocumented immigrants but include many lawful permanent residents who have lived in the country for many years. Hundreds of thousands of removals have resulted in the destruction of hundreds of thousands of families, communities, and lives. Although the administration claims to focus on serious criminal offenders, many of those caught in the enforcement net are at best small time criminals, including persons arrested for traffic infractions such as lacking driver’s licenses for which undocumented immigrants are not eligible in most states.

Governing Immigration Through Crime collects in one reader important contributions to the scholarly literature on the use of the criminal law in immigration enforcement. The previously-published works were written by influential scholars from law and the social sciences, including anthropology, sociology, ethnic studies, criminology, urban planning, communication, and political science. The stated aim of this book “is to provide an interdisciplinary introduction to the governing of immigration through crime” (p.38). Fulfilling that aim, the editors’ selection and organization of the book results in a concise and thoughtful reader, with the pieces offering important perspectives from a variety of vantage points.

The volume begins with an extended introduction to “Governing Migrant Illegality” that sets the stage for the subsequent readings. The editors “broadly (but not exhaustively) map the governing of immigration through crime in the contemporary United States” (p.3, footnote omitted). As the editors state, “in the contemporary United States, undocumented immigration has come to be seen largely as a law and order issue” (p.5, footnote omitted). Much of the public and many political leaders characterize undocumented immigrants as social, economic, political, and national security threats to the nation. In response, the U.S. government has adopted an array of criminal measures to deter undocumented immigration, such as criminalization of immigration violations, increased enforcement (at the border and beyond), immigration raids, additional technology, detention and deportation, and more.

The introduction starts by briefly summarizing the much-publicized 2008 raid at a meat processing plant in rural Postville, Iowa in which most of the immigrant workers were charged criminally for identity theft. The focus on this incident indirectly demonstrates just how quickly immigration enforcement has changed in the last five years. Unlike the Bush administration, the Obama administration is not focusing its interior enforcement efforts on workplace raids. Rather, it has relied heavily on a new “Secure Communities” program, which requires state and local law enforcement agencies to share information about persons arrested with federal immigration authorities. In 2013, it is Secure Communities, not workplace raids, which results in the mass removals of “criminal aliens.”

Importantly, because of the disparate impacts of immigration enforcement on [*210] Latinos, Governing Immigration Through Crime conceptualizes “immigration enforcement as a form of racial governance” (p.18). These impacts can be seen most clearly at the U.S./Mexico border, with deaths of Mexican migrants resulting from border enforcement operations on a regular, predictable basis. Similarly, enforcement measures in the interior of the United States have had disparate impacts on Latinos, who represent approximately 75-80 percent of the persons annually deported from the United States.

Governing Immigration Through Crime recognizes that Latinos and immigrants have contested racialized immigration enforcement. In 2006, tens of thousands of people marched in the streets of cities across the United States in protest of – and ultimately defeated – a tough-as-nails immigration bill passed by the House of Representatives. Since them, undocumented college students known popularly as the DREAMers have pressed the nation for justice, eventually pushing the Obama administration to establish the Deferred Action for Childhood Arrivals program.

The book is divided into five parts. Each part of the book has a short description of the chapters in that section.

Part I, “Law and Criminalization”, outlines in general terms the criminalization of U.S. immigration law. It includes chapters offering insights on Mexican migration to the United States (Nicholas DeGenova), the emergence of the “crimmigration crisis” (Juliet Stumpf), and the national security focus on migration since September 11, 2001 (Jennifer Chacón).

Part II, “Managing Borders”, has chapters on the physical and symbolic meanings of the growing U.S./Mexico “border wall” (Josiah McC. Heyman), the Minuteman Project’s vilification of Mexican migrants (Leo Chavez), and border-crossing deaths (Roxanne Lynn Doty). This part nicely links various enforcement measures, such as the border fence and the growing death toll of migrants in the U.S./Mexico border region.

Part III, “Policing the Interior”, includes chapters on the rise and fall of employer sanctions under U.S. immigration law (David Bacon and Bill Ong Hing), the human and civil rights impacts of Arizona’s immigration enforcement landmark S.B. 1070 (Rogelio Sáenz, Cecelia Menjívar, and San Juanita Edilia Garcia), and local immigration enforcement (including analysis of the passage of Hazleton, Pennsylvania’s much-publicized anti-immigrant ordinance) (Liette Gilbert). Added to the immigration laws in 1986, employer sanctions, which allow for the imposition of civil penalties on the employers of undocumented workers, has to this point failed to deter the employment of undocumented immigrants, thus contributing to political movements favoring state and local immigration enforcement measures.

Part IV, “Detention and Deportation”, includes chapters on the detention of Latinos as part and parcel of immigration enforcement (David Manuel Hernández), deportation and return to the United States of transnational Mexicans (Deborah A. Boehm), and the deportation of immigrants who had made the United States their true homes, aptly termed [*211] “exiled by law” by Susan Bibler Coutin.

Part V, “Immigrant Contestations”, includes chapters analyzing the mass immigration protests, or “La Gran Marcha”, of 2006 (Josue David Cisneros), the undocumented student movement (Robert G. Gonzales), and the use of surveillance strategies by groups seeking to ensure the protection of human rights and security (James P. Walsh).

The various chapters touch on the central issues raised by regulating immigration through deployment of the criminal laws. All of the chapters directly or indirectly criticize the use of the criminal law to regulate immigration to the United States. Their shared conclusion is that Governing Immigration Through Crime is a bad idea. Supporters of the current use of the criminal law to regulate immigration – and even its possible expansion – are not the intended audience of Governing Immigration Through Crime.

Space limitations necessarily require omissions in coverage. However, a few omissions deserve comment. The reader might have benefited from analysis of the most significant criminal immigration program currently in existence – the Obama administration’s Secure Communities program, which has culminated in more deportations than ever in U.S. history. Secure Communities requires state and local law enforcement to share information about persons arrested with U.S. immigration authorities. The program has generated considerable criticism from state and local law enforcement as well as immigrant rights’ advocates. It arguably undermines local law enforcement efforts to obtain the support of the immigrant community in ordinary law enforcement.

In addition, the chapter on Arizona’s S.B. 1070 would have benefitted – perhaps in a postscript, another chapter, or otherwise – from further analysis of the U.S. Supreme Court’s decision in Arizona v. United States (2012). Although striking down three core provisions of S.B. 1070, the Court left intact the law’s most controversial provision, Section 2(B), which requires state and local police to assist in the enforcement of the U.S. immigration enforcement laws. Activists have voiced serious concerns that Section 2(B)’s implementation will result in increased racial profiling of Latinos – U.S. citizens, legal immigrants, and others – in law enforcement.

More generally, one might have thought that a volume on the use of the criminal law in immigration enforcement would have considered the day-to-day immigration enforcement, namely the widespread practice of racial profiling of Latinos. The Supreme Court in 1975 held that “Mexican appearance” could be one of many factors in an immigration stop, a holding that has resulted in the legal sanction of racial profiling in immigration enforcement (United States v. Brignoni-Ponce). Such profiling helps account for the disproportionate stops and arrests of Latinos for immigration (and other law enforcement) violations as well as disparate detention and removal rates (Johnson 2010).

Last but not least, one is left to wonder what impact comprehensive immigration reform might have on the general [*212] phenomenon of governing immigration through crime. Immigration reform has been percolating in Congress for well over a decade. Unfortunately, current proposals on the table would increase, not decrease, the criminal law’s regulation of immigration with, for example, efforts to exclude and remove alleged “gang members.” At the same time, employers could be required to use a computerized database known as E-Verify to check the employment eligibility of all employees, which could make employer sanctions more enforceable and diminish the need for criminal measures.

In conclusion, Governing Immigration Through Crime offers important readings from influential legal and social science scholars critically analyzing the efforts of the United States to regulate immigration through the criminal laws. Although a few recent developments are not covered in the reader, the chapters aptly outline and succinctly criticize the increasing criminalization of immigration law in the United States.

February 22, 2013

Opinion recap: Court refuses to apply Padilla v. Kentucky retroactively

Cross-posted from SCOTUSblog.

In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

The petitioner in the case, Roselva Chaidez, entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977.  In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution.  Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.  In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her.  Through a writ of coram nobis, Chaidez sought to set aside her conviction.  While the petition was pending, the Court issued its decision in Padilla v. Kentucky.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.  On Wednesday the Supreme Court agreed.

At the outset, the Court observed that Teague v. Lane “makes the retroactivity of our criminal procedures decisions turn on whether they are novel.”  (emphasis added).  The Court notes that “garden-variety applications of the test in Strickland v. Washington (1984), for assessing claims of ineffective assistance of counsel do not produce new rules.”  However, the decision in Padilla v. Kentucky, in the Court’s view, “did something more” than that.  Before Padilla, the state and lower federal courts almost unanimously concluded that the Sixth Amendment does not require attorneys to advise their clients of a conviction’s collateral consequences, including possible removal from the country.  Padilla rejected that rule.  No precedent dictated the answer.  “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been – in fact, was not – ‘apparent to all reasonable jurists’ prior to our decision. Padilla thus announced a ‘new rule.’”

In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.”  These issues may well reappear before the Supreme Court in the near future.

Justice Thomas, who dissented in Padilla, concurred in the judgment, still believing that the case was wrongly decided and, in any event, should not apply to Chaidez’s case.

Justice Sotomayor, joined by Justice Ginsburg, dissented.  She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence.  The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision.  Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010.  The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old.  Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States.   Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens.   Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.

 

October 26, 2012

Argument preview: The retroactive application of Padilla v. Kentucky

Cross-posted from SCOTUSblog.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act.  Through a variety of changes to then-existing law, the Act took steps to facilitate the deportation of non-citizens convicted of crimes.

Aggressively enforcing the reforms, the executive branch has removed record numbers of noncitizens – four hundred thousand per year in the last two years.  As a result, the Supreme Court has addressed a growing number of removal cases based on criminal convictions.  Earlier this month, for example, the Court heard oral arguments  in Moncrieffe v. Holder, in which the government removed a non-citizen based on his criminal conviction for possessing a small amount of marijuana.  In addition, the growing intersection of immigration and criminal law — dubbed “crimmigration law” — has spawned a growing genre of legal scholarship.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in Moncrieffe.]

In Padilla v. Kentucky (2010), the Court held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on an attorney’s failure to inform a criminal defendant of the risk of deportation resulting from a plea agreement and criminal conviction.  In so holding, the Court recognized that “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.”  Next week, in Chaidez v. United States, the Court will hear oral argument on whether Padilla applies retroactively, so that non-citizens who were convicted before its 2010 decision in that case can benefit from it as well.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to Chaidez, but the author of this post is not affiliated with the firm.]

The case

In 1971, petitioner Roselva Chaidez, a citizen of Mexico, came to the United States; she became a lawful permanent resident in 1977.  In 2003, Chaidez, on advice of counsel, pled guilty to mail fraud in connection with an insurance scheme in which she received $1200; the entire scheme netted about $26,000.   Chaidez was sentenced to four years of probation.  Now fifty-five years old, she lives in Chicago with family members who are U.S. citizens.

Under the U.S. immigration laws, a fraud conviction involving a loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported.  In 2009, after Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview), the U.S. government initiated removal proceedings based on her conviction.

Chaidez filed a motion for a writ of coram nobis to set aside the conviction, claiming that her attorney failed to inform her that a guilty plea could result in removal from the United States.  She maintains that, if her attorney had informed her of the possible immigration consequences of the plea bargain, she would not have accepted it.  While Chaidez’s motion was pending, the Court issued its decision in Padilla.

In Teague v. Lane (1989), the Court held that a new procedural rule announced by a court could not be retroactively applied in a collateral attack on a criminal conviction.  Applying Teague to Chaidez’s case, the district court vacated her conviction, holding that Padilla applied the well-established rule – and thus not a new rule — that ineffective assistance of counsel violated the right to counsel under the Sixth Amendment.

A divided panel of the Seventh Circuit reversed.  The court held that because Padilla in fact announced a new constitutional rule, it could not, under Teague, apply retroactively to Chaidez’s conviction.  In its view, Padilla would be considered an established rule only if precedent “compelled the result” – which, as demonstrated by the fact that the Justices on the Court expressed such an “array of views,” it did not.

The arguments

The arguments by the parties in the merits briefs are fairly predictable.  Chaidez contends that Padilla did not announce a new rule but rather was simply a fact-specific application of the well-established rule that, under the Sixth Amendment, an attorney in a criminal case must provide reasonably effective assistance.   Chaidez’s lawyer thus had a duty to advise her of the immigration consequences of her criminal conviction.

In contrast, the government argues that the Seventh Circuit was correct that Padilla announced a new rule and does not apply retroactively to collaterally challenge Chaidez’s conviction.  Before Padilla, the applicable precedent did not require counsel to provide advice on matters that were not directly part of the criminal case.

Implications

As the Court has recognized, deportation is a harsh measure.  In Padilla, the Court acknowledged that that the possible removal due to a criminal conviction may be more important to a non-citizen than the punishment.  In so doing, the Court held that an attorney who fails to advise a client of the immigration consequences of a plea may be guilty of ineffective assistance of counsel under the Sixth Amendment.   It further noted that roughly ninety-five percent of the criminal convictions today are obtained through plea bargains similar to Chaidez’s.  Knowledge of possible deportation as a consequence of a plea is a critical ingredient to a non-citizen’s informed judgment about accepting the plea.

In Chaidez, the Court will decide the full reach of its decision in Padilla.  That decision in turn will have an impact on a great many non-citizens with criminal convictions before 2010 – many of whom in these times of increased immigration enforcement are frequently caught up in the removal machinery of the U.S. government.

From an immigration standpoint, the government is focusing resources on the detection, arrest, and removal of immigrants convicted of crimes, including crimes that many generally would not view as sufficiently serious to subject a person who has lived decades in the United States, like Chaidez, to removal from the United States.   The Obama administration and future administrations will likely continue to focus for the foreseeable future on removing “criminal aliens” – a politically unpopular group — from the United States.

In these times, defense counsel unquestionably should know that noncitizens are subject to serious immigration consequences, including possible removal, for almost any criminal conviction.  The 1996 reforms made the immigration consequences of many criminal convictions all the more onerous – and well-known among defense counsel.  Indeed, many treatises and practice guides as early as the 1980s observed that defendants could not knowledgeably decide whether to accept a plea bargain without weighing the possible deportation consequences of a criminal conviction.  In that light, it was patently unreasonable for Chaidez’s counsel in 2003 to fail to advise her of possible removal due to the plea and conviction.

July 5, 2012

Professor Imwinkelried's Top Ten Paper on SSRN

King Hall has a rich tradition of outstanding and innovative legal scholarship.  Our faculty members' papers can be downloaded at SSRN.com (Social Science Research Network).

Professor Ed Imwinkelried's paper, "THE EPISTEMOLOGICAL TREND IN THE EVOLUTION OF THE LAW OF EXPERT TESTIMONY: A SCRUTINY AT ONCE BROADER, NARROWER, AND DEEPER," is currently listed on SSRN's Top Ten downloaded list for: LSN: Evidence (Criminal Procedure) (Topic).  View the abstract here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2079214

Congrats, Professor Imwinkelried!

 

June 12, 2011

Downsides to Class Privilege? Hardly a Trend

Two recent news reports from very different parts of the world shared this theme: Affluence can have its drawbacks.

The first story was Michael Wines, “Execution in a Killing that Fanned Class Rancor,” which reports the execution of the son of an affluent Chinese businessman and military official. The son, Yoa Jiaxin, stabbed to death a “peasant” woman last fall. Jiaxin had struck the woman, who was cycling, with his vehicle, but she suffered only minor injuries. When Jiaxin realized that she was memorizing his license plate number, however, he attacked her with a knife.

Wines provides some class context for what happened next:

The crime had fanned deep public resentment against the “fu er dai,” the “rich second generation” of privileged families who are widely believed to commit misdeeds with impunity because of their wealth or connections.

Jiaxin later said that he “feared the woman, a poor peasant, would ‘be hard to deal with’ should she seek compensation for her injuries.”

But the victim’s husband fought back, refusing to accept the $6,900 a court ordered in compensation, “calling it ‘money stained with blood.’ He pledged to delay [his wife’s] burial until her killer was executed. A Shanghai lawyer later donated 540,000 renminbi, about $83,300, to her survivors after pledging to pay one renminbi for each message sent to the husband over Sina Weibo, a Chinese version of Twitter.”

Of course, these events, which some are calling “Internet-style mob rule,” raise serious concerns about the rule of law in China. One well-known blogger went as far as to invoke the Cultural Revolution, asserting that it was started in response to “this kind of leftist behavior.”

The second story illustrating the negative consequences of being a silver-spoon kid is more uplifting.  That's because the privileged kid in question, Chris Romer, son of former three-term Colorado governor Roy Romer, lost only a political race and not his life. Kirk Johnson reported this week on Michael B. Hancock’s victory over Romer in the Denver mayoral race. The story’s headline, "Message of Survival Won Denver Race for Mayor," suggests the role of class in the election’s outcome.  Here’s an excerpt detailing Hancock's background:

In running for mayor of Denver, a position he won overwhelmingly on Tuesday, Mr. Hancock told a family story so powerful, almost Dickensian in its poverty and hope — he and his twin sister were the youngest of 10 children raised by a single mother in Denver, part of that time in public housing — that the theme of adversity overcome became the heart of the campaign.

“We’ve come from difficult situations, we’ve faced serious challenges, but yet we’re still here,” said Mr. Hancock, 41, in an interview on Wednesday, talking about his seven surviving siblings, all of whom, he said, got involved as volunteers on his behalf, along with their mother, Scharlyne Hancock, 72, who made calls to voters for weeks.

Mr. Hancock will become Denver’s second African-American mayor (the first was Wellington Webb, elected in 1991), but supporters of both Hancock and Romer suggest that class played a greater role than race in the election’s outcome.  Johnson writes:

[B]ecause Mr. Romer and Mr. Hancock had few policy disagreements, supporters in both camps said the race inevitably turned on style, likeability and the power of a compelling story.

* * *

So, the Chinese story smacks of class warfare, while the  Denver story may simply affirm our attachment to the American Dream, rags-to-riches storyline.  Aspects of both stories are heartening in that working class and poor folks found access to power of different sorts.  I daresay, however, that “affluence as liability” is hardly a trend.  Nor do stories like Hancock’s election or “justice” for the Chinese peasant’s family suggest any real mitigation of the day-to-day hardship of deprivation and insecurity endured by the world’s working class and poor.

Cross-posted to SALTLaw.blog and ClassCrits.

November 1, 2010

How the Super Saved My Father

Almost everyone, especially apartment house dwellers, in and around  New York City knows that mentioning “The Super” refers to a very important individual. He is an employee of the apartment house owner, lives on the premises, and is in charge of all custodial services and other matters. This includes janitorial service,  plumbing repair in individual apartments, collecting rents each month, making sure  each apartment has heat during the winter, and, perhaps most important of all, taking out the garbage. If the apartment house is large enough to have many tenants, there can be staff members to handle the work under the direction of the Super. It is very obvious to most apartment house dwellers that keeping on the good side of the Super and giving him a cash gift at Christmas time assures prompt service whenever any matter requires expert attention.

Our family got along very well with our Super. In fact, we were on a first name  basis with him. We called him Doug, and he referred to my father as Sam.

One day, two FBI agents came by to question Doug about my father.  Supers knew much about their tenants and also networked with other Supers in the neighborhood so that information about tenants in other buildings was shared many times. The agents said that my father was suspected of smuggling diamonds into the country, especially through Asia.

During the session of intensive interrogation by the FBI, Doug interrupted the agents, exclaiming, “I just can’t believe this about Sam. He’s a good man who respects the law.”  One of the agents then opened a folder and showed a photograph to Doug, saying, “Well, here is what he looks like.”

Doug looked at the photographed and immediately replied, “That’s not Sam. It’s Ivan Zimmer. He lives two houses down the block. Nobody likes him, and you can check up on him with Dino Belucci, the Super in that building.”

Ivan had obviously stolen my father’s identity for his passport. The agents went on their way, possibly to talk with Dino about Ivan and his activities.  A short time later, no one saw Ivan in the neighborhood any longer.

The Super, being friendly and supportive with us, told my father all about this episode. When my father shared the information with us, we were somewhat confused because he had never left the United States for any reason after emigrating here from Germany some 35 years earlier and never acted suspiciously or secretly. We were also frightened because we had no experience with the FBI or any knowledge about their procedures.

Our “brush with the law” took place around 1938. My father died in 1963. Here is it is the year 2010. I suspect that somewhere in the archives of the FBI is a folder containing some yellowing pages referring to my innocent father as a suspected diamond smuggler.  So it goes sometimes with crime and corruption in America!

Mortimer D. Schwartz is Professor Emeritus at the UC Davis School of Law.