Amicus Curiae Brief — INS v. St. Cyr

MAR AX 7eCo( Mi I FILED }

No. 00-767

MAR 28 200}

In The OFFICE. OF THE CLERK

Supreme Court of the United States

.

IMMIGRATION AND NATURALIZATION SERVICE,

} Petitioner,

ENRICO ST. CYR,

Respondent.

+

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

¢

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, ASSOCIATION OF

FEDERAL DEFENDERS, CALIFORNIA PUBLIC

DEFENDERS ASSOCIATION, COMMITTEE FOR PUBLIC

COUNSEL SERVICES OF THE COMMONWEALTH OF

MASSACHUSETTS, COOK COUNTY PUBLIC

DEFENDER’S OFFICE, DIVISION OF PUBLIC DEFENDER

SERVICES OF THE STATE OF CONNECTICUT, FLORIDA

PUBLIC DEFENDER ASSOCIATION, LOS ANGELES

COUNTY PUBLIC DEFENDER, NATIONAL LEGAL AID

AND DEFENDER ASSOCIATION, NEW YORK STATE

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

NEW YORK STATE DEFENDERS ASSOCIATION, PUBLIC

DEFENDER OF FLORIDA’S ELEVENTH JUDICIAL

CIRCUIT, TEXAS CRIMINAL DEFENSE LAWYERS

ASSOCIATION, THE LEGAL AID SOCIETY OF THE

CITY OF NEW YORK, WASHINGTON DEFENDERS

ASSOCIATION IN SUPPORT OF RESPONDENT

+

JosHua L. Drare Manuet D. VarGcas*

Co-Chair, SEAL R. Zota

Amicus Committee CRIMINAL DEFENSE

NATIONAL ASSOCIATION IMMIGRATION PROJECT

OF CRIMINAL New York STATE

DereNse LAWYERS DEFENDERS ASSOCIATION

14 Wall Street, 28th Floor P.O. Box 20058,

New York, New York 10005 West Village Station

New York, New York 10014

(212) 367-9104

*Counsel of Record

Me BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

pet ge iy 8 i). er reo err iii

INTEREST OF THE AMICI CURIAE. .......6..6004. 1

SUMMARY OF ARGUMENT |. .....2..ss0cneecsedess 2

SPIES, Sarde bocdpvkedds pee ceacebich bebe a

I. LAWFUL PERMANENT RESIDENT IMMI-

GRANTS RELIED ON THE RIGHT TO SEEK

RELIEF FROM DEPORTATION WHEN PLEAD-

ING GUILTY PRIOR TO THE 1996 AMEND-

i POLE CPE eT PeTe TE eT ST TT ETT eo rae 4

A. Lawful Permanent Resident Immigrants

Convicted Prior To The 1996 Amendments

Had A Statutory Right To Seek Relief From

PP EEO TET ETE TE TOOT ee ~

B. Pre-1996 Practice Aids Informed Defense

Lawyers Regarding the Immigration Impli-

cations of Conviction Including the Right of

Long-Term Lawful Permanent Resident

Immigrants to Seek Relief from Deportation

TPR rere PIC E Cl Fe Sees ey OE Tre Peer re 6

C. Training Programs Further Alerted Defense

Lawyers to the Immigration Implications

of Conviction and to Relief from Deporta-

PE PPPOE Peer ys Cee TE ye ree Terr ree 8

D. In-House or Outside Experts Also Advised

Defense Lawyers Regarding the Immigra-

tion Implications of Conviction and Relief

SOY RIS hints hk Gadd a cea ne end ncc 10

ij

a

TABLE OF CONTENTS —- Continued

Page

E. Lawful Resident Immigrants Pled Guilty in

Reasonable Reliance on the Advice of their

Lawyers and Others that They Had a Right

to Seek Relief from Deportation. .......... 11

II. THE COURT BELOW CORRECTLY FOUND

THAT THE GOVERNMENT’S APPLICATION

OF THE 1996 AMENDMENTS TO PRE-

AMENDMENT GUILTY PLEAS IS IMPERMISSI-

BLY RETROACTIVE <icccuceuscusudsuuwense ss 21

Il. IN ANY EVENT, THE GOVERNMENT'S APPLI-

CATION OF THE 1996 AMENDMENTS TO THE

UNDERLYING ORIGINAL CONDUCT IS

IMPERMISSIBLY RETROACTIVE .............. 28

CONCLUSION 6000s «stu wee eee 30

ili

TABLE OF AUTHORITIES

Page

Cases

Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) ........... 17

Arias-Agramonte v. Commissioner of INS, 2000 U.S.

Dist. LEXIS 10724 (S.D.N.Y. 2000)................. 18

Boykin v. Alabama, 395 U.S. 238 (1969)............... 22

Brady v. United States, 397 U.S. 742 (1970)........... 22

DeOsorio v. INS, 10 F.3d 1034 (4th Cir. 1993) ........ 26

Duncan v. Lousiana, 391 U.S. 145 (1968).............. 22

Erewele v. Reno, 2000 U.S. Dist. LEXIS 11765 (N.D.

MUSA S AEE VEAGe eb Abi n0d ce nedsaue whbdandee 19

Francis v. INS, 532 F.2d 268 (2d Cir. 1976)............ 5

Harmelin v. Michigan, 501 U.S. 957 (1991)............ 22

Hughes Aircraft Company v. United States ex rel.

Schumer, 520 U.S. 939 (1997) ............2.. 24, 25, 28

me ve Vee, 397 US. S56 (IS7G) «... occ ccccncccsccs 22

Jideonwo v. INS 224 F.3d 692 (7th Cir. 2000) ......... 16

Johnson v. United States, 529 U.S. 694 (2000) ......... 29

Landgraf v. USI Film Products, 511 U.S. 244

nde atatnstavdkwes sevebaneoes 23, 24, 25, 26, 28

Lindsey v. Washington, 301 U.S. 397 (1937) ........ 25, 29

Lynce v. Matthis, 519 U.S. 433 (1997) ............. 23, 26

Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999) .... 20

Malloy v. Hogan, 378 U.S. 1 (1964)................... 22

iv

TABLE OF AUTHORITIES - Continued

Page

Matter of Marin, 16 I&N Dec. 581 (BIA 1978)......... 5

Matter of Silva, 16 I&N Dec. 26 (BIA 1976)........... 5

Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000) ........... 20

Michel v. United States, 507 F.2d 461 (2d Cir. 1974) ....12

Miller v. Florida, 482 U.S. 423 (1987).............. 25, 29

Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997),

motion to withdraw appeal granted sub nom. Yesil v.

INS, 175 FSG Zee CG CO. TSG) www cccccscsacaes 5, 11

North Carolina v. Alford, 400 U.S. 25 (1970) ........... 4

Pena-Rosario v. Reno, 83 F. Supp.2d 349 (E.D.N.Y.

Ds caxkanGivilsessskaceswhebal ees kod ahasdiewebes 30

People v. Pozo, 746 P.2d 523 (Colo. 1987)............. 13

People v. Soriano, 240 Cal. Rptr. 328 (Ct. App. 1987) .... 13

Pointer v. Texas, 380 U.S. 400 (1965) ................. 22

Pottinger v. Reno, 51 F. Supp.2d 349 (E.D.N.Y.

1998), aff'd, 2000 U.S. App. LEXIS 33521 (2d

GU iiss bcc cas skeaKdertisnbsaakiged esaaneaslae 15

Rivers v. Roadway Exp. Inc., 511 U.S. 298 (1994)...... 28

Santobello v. New York, 404 U.S. 257 (1971)........ 21, 22

Tam v. Reno, 1999 U.S. Dist. LEXIS 3577 (N.D. Cal.

1999), rev'd and remanded, 2001 U.S. App. LEXIS

ee Ge ee SR yr ak wa no eRe eee eee ces 17

Tasios v. Reno, 204 F.3d 544 (4th Cir.

Ph bxdcwkdckhuends nace teitseueeeee 5, 16, 20, 26

United States v. Campbell, 778 F.2d 764 (11th Cir.

SNES cae cK LRASARS OSE NANA DERE Sea EeRANenAs 12

Vv

TABLE OF AUTHORITIES - Continued

Page

United States v. Graham, 927 F. Supp. 619 (W.D.N.Y.

SPPOPs ss cveveaensdeewe ceva etawenek keel eeeee 17

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S.

CTS CERI) aa ib sennddvtvcns Cas shes nena 25

Washington v. Texas, 388 U.S. 14 (1967) .............. 22

Weaver v. Graham, 450 U.S. 24 (1981)................ 26

Williams v. State, 641 N.E.2d 44 (Ind. 1994).......... 13

STATUTES AND REGULATIONS

Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, § 440(d), 110

meek, T2046 (IOs 6 kus ious cnntuacepeanae eee a, a7

Cal. Penal Code © 10365 (2902). «a ivccsxacscesnscass 13

Conn. Gen. Stat. § 54-1] (West 1994 & Supp. 1999) .... 13

Pia. R. Crim. F S.2720CMWM IID nv kis ocd cncncss 13

Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Pub. L. 104-208,

5 SOG), 130 Seat, SOP CITI) ioc nce ccvnnncans 2, 27

Immigration Act of 1990, Pub. L. 101-649, § 511(a),

BIG SOOk. TRS vas sb shikse ides ns caadese cases 8

Immigration & Nationality Act of 1952, § 212(c), 8

CDA. ERR Cee aRe svc benedekeens cease eiehaees 5

N.Y. Crim. Proc. Law § 220.50(7) (McKinney Supp.

i, PTET eee Por ee rp ener te eS 13

Tex. Crim. P. Code Ann. § 26.13(a)(4) (West 1989) .... 13

S CER. B Ze Gen khan ieee ee 3

vi

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS

ABA Standards for Criminal Justice, Pleas of Guilty

(2d ed.), Standard 14-3.2, commentary (1982)...... 12

ABA Standards for Criminal Justice, Pleas of Guilty

(3d ed.), Standard 14-1.4(c) & 14-3.2(f), com-

MaMaTY (IGFS) oo vcccccccccccsccccossccsacssecs 12, 18

Larry Ainbinder, updated by Hilary Hochman,

Ch. 17, Special Considerations in Representing the

Non-Citizen Defendant, in Defending A Federal

Criminal Case 837 (Federal Defenders of San

Cheme, 19FS OG) aaccccccccscccesccceneccesesnnsaves 7

Declaration of Cristina C. Arguedas, filed in Jun Li

Tam v. Reno, No. C-98-2835 MHP (9th Cir.) on

Fae. 22, BORD .cosccncctvsncccenesseuseusenaunanaas 11

Maria Baldini-Potermin, Defending Non-citizens in

Minnesota Courts: A Summary of Immigration Law

and Client Scenarios (Minnesota Bar Association,

BOSS — BOGE « vccccccescstinsvcaveseubecesaueseses 18

Jan Bejar, Representing Aliens in Criminal Proceed-

ings in Criminal Justice Act Seminar materials,

peamee 4, W908 so nvwascusnssuseegeucees eee 8

3 Bender’s Criminal Defense Techniques (1999)........ 13

Jim Benzoni, Defending Aliens in Criminal Cases

(training materials prepared for criminal

defense lawyers attending CLE programs in

Bown Teeeh BOP EHIGOe Pes hss 60kccuceecewnesueuseese 8

Declaration of Katherine A. Brady, filed in In re

Resendiz, No. S078879 (Cal.) on Jan. 7, 1999........ y

Vii

TABLE OF AUTHORITIES - Continued

Page

Katherine A. Brady & David S. Schwartz, Public

Defenders Handbook On Immigration (California

Public Defenders Association, 1988)

Bureau of Justice Statistics, U.S. Dep’t of Justice,

Sourcebook of Criminal Justice Statistics 1999

GUND Svs ascndntccetautecprsaustibei ae 21

Declaration of Nancy L. Clarence, filed in Jun Li

Tam v. Reno, No. C-98-2835 MHP (9th Cir.) on

Feb. 22, 1999

Maryellen Fullerton and Noah Kinigstein, Strate-

gies for Ameliorating the Immigration Consequences

of Criminal Convictions: A Guide for Defense

Attorneys, 23 Amer. Crim. L. Rev. 425 CRU ccesesce 6

Declaration of Susan L. Hendricks, filed with

amicus curiae brief of The Legal Aid Society of

the City of New York, et al. in Calcano-Martinez

v. INS, No. 98-4033, 98-4214, 98-4246 (2d Cir.) on

Nov. 17, 1999

Immigration Act of 1990 and its Effect on Criminal

Aliens, Mar. 12, 1991 (Memorandum to All

Attorneys of the Division of Public Defender

Services of the State of Connecticut).............. 14

Affidavit of Daniel Kanstroom, filed with amicus

curiae brief of the National Legal Aid and

Defender Association & New York State

Defenders Association in Bonhometre v. Reno,

No. 98-12333-NG (D. Mass.) on Feb. 1,

DE widnbndvades Cheeses 11, 15, 16

Vili

TABLE OF AUTHORITIES - Continued

Page

Dan Kesselbrenner and Lory D. Rosenberg, Immti-

gration Law and Crimes (West Group, 1984-1999) ..... 6

Declaration of Larry Kupers, filed in Jun Li Tam v.

Reno, No. C-98-2835 MHP (9th Cir.) on Feb. 22,

BOON ck ctdnwecsddvesnctngecesaiatecatevnne 11, 15, 16

Ira J. Kurzban, The Immigration Act of 1990, The

Cramepion, Ape. 1991, 8 5.206 0sccccsscconsncessecs 8

Affidavit of Dennis R. Murphy, filed with amicus

curiae brief of the National Association of Crim-

inal Defense Lawyers & the National Legal Aid

and Defender Association before the Attorney

General in Matter of Soriano, Int. Dec. 3289, on

PE. TR TIPO 6c vcs ese vtasanerecveeeusvesana 9, 10, 15

NLADA Performance Guidelines for Criminal Defense

Representation, Guideline 6.2, 6.3, commentary

CREE Gs cb osbiskdeeceknctsconskiceksersanecea snes 12

Robert Pauw, A New Look at Deportation as Punish-

ment: Why at Least Some of the Constitution's

Criminal Procedure Protections Must Apply, 52

Ps ae BE Ee xb xe skeen anecndetedevaase ase 23

Declaration of James F. Smith, filed in In re Resen-

diz, No. S078879 (Cal.) on Jan. 7, 1999............. uy

Tarik H. Sultan, Immigration Consequences of Crimi-

nal Convictions: A Guideline for the Criminal

Defense Attorney, 30-Jun Ariz. Att’y 15 (1994)....... 7

Declaration of Norton Tooby, filed in in re Resen-

diz, No. S078879 (Cal.) on Jan. 7, 1999............. 9

ix

TABLE OF AUTHORITIES - Continued

Page

Norton Tooby with Katherine A. Brady, Criminal

Defense of Immigrants (Law Offices of Norton

Tooby, National Ed., 1999)................0.0sc0e. 18

Manuel D. Vargas, Representing Noncitizen Crimi-

nal Defendants in New York State (New York State

Defenders Association, 1st and 2nd eds., 1998,

WOMEN At cnn Sohn cad onbadicted ese obit en 18

1

INTEREST OF THE AMICI CURIAE!

Amici are associations of public and Private criminal, «

defense lawyers who have represented or counseled thouz

sands of lawful permanent resident immigrants accused of

crimes over the years. Before the 1996 amendments to the

nation’s deportation laws, many of our lawful resident immi-

grant clients gave up their right to a trial and agreed to plead

guilty. They did so with the expectation that conviction

would not result in deportation, or at least not mandatory

deportation. This understanding arose because, under pre-

amendment law, even if they were subjected to deportation

proceedings, they had a statutory right to seek a waiver of

deportation so long as they had lawfully resided in the

United States for at least seven years. Nevertheless, after

Congress amended the deportation laws to place new crimi-

nal bars on the right of long-term lawful permanent resi-

dents to apply for relief from deportation, the government

has sought to apply these amendments to pre-amendment

conduct and convictions even though Congress did not

direct such retroactive application. Amici have a strong inter-

est in protecting our lawful resident immigrant clients from

unfair disruption of the reasonable expectations they formed

when pleading guilty or making other choices during their

criminal proceedings based on our legal advice. Thus, to

inform the Court’s review of the decision below, amici offer

this brief, which is based on our collective experience in the

representation and counseling of lawful resident immigrants

in criminal proceedings.?

1 This amici curiae brief is filed with the written consent of

all parties. The parties’ counsel did not author the brief in whole

or in part, and no person or entity outside the organizations and

attorneys listed on the brief has made a monetary contribution

to its preparation or submission.

2 The separate statements of interest of each of the amici

criminal defense organizations are included in Appendix A.

2

SUMMARY OF ARGUMENT

This brief addresses the government’s contention on the

merits that application of 1996 amendments mandating

deportation for certain offenses to the respondent — whose

deportable conduct and plea of guilt to that conduct pre-

ceded these amendments - does not violate the presumption

against retroactivity of new laws. As a preliminary matter,

amici agree with the respondent and the court below that the

1996 amendments - Antiterrorism and Effective Death Pen-

alty Act (AEDPA), Pub. L. No. 104-132, § 440(d), 110 Stat.

1214 (1996); Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Pub. L. 104-208, § 304(b), 110

Stat. 3009 (1996) - do not include any clear and unam-

biguous statement of retroactive congressional intent. In the

absence of any such clear statement, the presumption against

retroactivity precludes the government from applying the

1996 amendments to any individual whose deportable con-

duct predated the effective date of the amendments. (See

Point III). However, as the Second Circuit’s holding was

limited to those individuals, like the respondent, who pled

guilty prior to the amendments, amici will focus first and

foremost on that more narrow holding. (See Points I and I).

Much is at stake when lawful permanent resident immi-

grants are accused of a crime that could render them deport-

able. Lawful resident immigrants possess a status that

confers authorization to reside in this country, to work with-

out restriction, and to travel abroad and lawfully return to

the United States. However, a lawful resident immigrant

who was convicted prior to the 1996 deportation law amend-

ments had a statutory right to apply for relief from deporta-

tion before his or her lawful resident status could be

extinguished in,\any subsequent deportation proceedings.

Lawyers representing lawful resident immigrants in criminal

proceedings were aware of this through defense practice

aids, training, and expert consultations. Thus, criminal

defense lawyers — as well as other lawyers, community

advocates, and immigrant neighbors, friends, and family -

advised lawful resident immigrants that conviction would

3

not necessarily result in deportation. Lawful resident immi-

grants pled guilty or made other choices in their criminal

proceedings in reliance on this advice. (See Point 1).

In order to maintain confidence in the integrity and

fairness of the plea bargaining process, the reasonable

reliance of lawful resident immigrants on the law in effect at

the time of a guilty plea should be protected from undue

interference. At present, over 90 percent of criminal convic-

tions are obtained by guilty plea. Clearly, the criminal justice

system relies heavily on the willingness of criminally

accused persons to give up their right to a jury trial and

other constitutional rights by agreeing to plead guilty. How-

ever, the government's disruption of the settled expectations

and reasonable zeliance of lawful resident immigrants who

pled guilty prior to the 1996 amendments unduly and

unlawfully interferes with the plea bargaining process. This

is because taking away a lawful resident immigrant’s right to

apply for relief from deportation changes the legal conse-

quence of his or her pre-amendment conduct and plea.

Whereas, at the time of the plea, deportation had been only a

possibility, the government's position now makes deporta-

tion certain in many cases. Thus, the court below correctly

found that the government's application of the new laws to a

pre-amendment guilty plea has retroactive effect and violates

the presumption against retroactivity of new statutes. (See

Point Il).

In any event, the law recognizes that people have a right

to know the possible legal consequences of their actions at

the time of their original conduct, whether or not they will

be able to demonstrate subsequent conduct, such as a guilty

plea, in reliance on that knowledge. Thus, the Court's deci-

sions — in both the civil and criminal contexts — have rightly

found that it is the law on the date of the original conduct at

issue that is the crucial benchmark for determining imper-

missible retroactive effect of application of a new law regard-

less of whether there is later conduct demonstrating reliance

on prior law. Therefore, the government's application of the

1996 amendments to the original conduct here is itself imper-

missibly retroactive. (See Point III).

4

ARGUMENT

I. LAWFUL PERMANENT RESIDENT IMMIGRANTS

RELIED ON THE RIGHT TO SEEK RELIEF FROM

DEPORTATION WHEN PLEADING GUILTY PRIOR

TO THE 1996 AMENDMENTS

In criminal proceedings, the accused faces a number of

choices on how to proceed. He or she may (1) plead guilty as

charged; (2) plead guilty to a lesser offense in satisfaction of

more serious charges; or (3) contest the charges and proceed

to trial. If the accused agrees to forego his or her right to a

trial and plead guilty, he or she may choose among different

disposition options after considering the penal sanctions and

other consequences of each option. If the case progresses to

trial, different choices may present themselves, such as

whether to make pre-trial motions or raise defenses with

respect to certain charges, and not to others. And once there

is a disposition of guilt by plea or verdict, the accused may

choose to appeal or refrain from doing so.

These choices are faced by the innocent as well as the

‘guilty. Though innocent, an individual accused of a crime

who is held without bail may choose to plead guilty to a

lesser charge in order to get out of jail with a sentence of

“time served” only, or in order to avoid the threat of a longer

prison sentence after trial on a more serious charge. See North

Carolina v. Alford, 400 U.S. 25, 33 (1970) (holding that a guilty

plea is not inconsistent with a claim of innocence because

“reasons other than the fact that he is guilty may induce a

defendant to so plead”).

In weighing his or her choices during a criminal case, a

lawful permanent resident immigrant defendant faces the

additional risk of deportation from the United States and

loss of his or her highly valued status. A lawful resident

immigrant — holder of the much-sought-after “green card” —

has been admitted to the United States with legal authoriza-

tion to reside permanently in this country, to work without

restriction, and to travel abroad knowing that he or she may

lawfully return. As a result, the risk of deportation is a

A oh et AOR RECT er aa

—

2

central concern of any plea negotiations involving such a

client.

A. Lawful Permanent Resident Immigrants Con-

victed Prior To The 1996 Amendments Had A

Statutory Right To Seek Relief From Deportation

Lawful permanent resident immigrants who pled guilty

to a crime that subjected them to possible deportation have

long had a right to seek a waiver of exclusion or deportation

from an immigration judge under Section 212(c) of the Immi-

gration and Nationality Act (INA), provided they had been

lawfully domiciled in the United States for seven years at the

time of their deportation hearing. See Immigration and

Nationality Act of 1952, § 212(c), 66 Stat. 163 (codified as

amended at 8 U.S.C. § 1182(c) (1994)); see also Francis v. INS,

932 F2d 268 (2d Cir. 1976) (holding that 212(c) relief is

available in deportation as well as exclusion proceedings);

Matter of Silva, 16 I&N Dec. 26 (BIA 1976) (adopting and

applying Francis holding nationwide). Under pre-amend-

ment law, 212(c) relief was barred only if the lawful resident

immigrant had been convicted of an “aggravated felony or

felonies” and had served five years or more in prison for the

crime(s). See 8 U.S.C. § 1182(c) (1994).

Even if an immigration judge found that a lawful per-

manent resident had been convicted of a deportable offense,

the judge was required by law to adjudicate an application

for 212(c) relief before deportation could be ordered. See 8

C.ER. § 212.3(e) (2000). In addition, the immigration judge’s

discretion on whether to grant 212(c) relief was governed by

standards established by the Board of Immigration Appeals,

and the judge’s decision was subject to review by the Board.

See, e.g., Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978)

(setting forth adjudicatory standard weighing positive fac-

tors, such as family ties and long residence, against serious-

ness of criminal record). In fact, in the years prior to the 1996

amendments, about half of applications for 212(c) relief were

granted. See Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000)

(citing Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997)).

6

Therefore, under pre-amendment law and practice, a

long-time lawful resident immigrant accused of a crime

could be assured that, even if he or she pled guilty or was

otherwise convicted in the criminal proceedings, he or she

would be_able to seek a waiver of deportation in any subse-

quent deportation proceedings. Additionally, the lawful resi-

dent immigrant could be reasonably advised that he or she

would have a good chance of being granted the waiver,

especially if he or she had long resided in the United States

or had significant family and other ties to the country.

B. Pre-1996 Practice Aids Informed Defense Lawyers

Regarding the Immigration Implications of Con-

viction Including the Right of Long-Term Lawful

Permanent Resident Immigrants to Seek Relief

from Deportation

Prior to the 1996 deportation law amendments, there

were numerous immigration law practice aids designed

specifically to assist criminal defense lawyers in analyzing

the immigration consequences of criminal convictions for

noncitizen defendants. These practice aids invariably

included information about the important right of lawful

permanent resident immigrants to seek a 212(c) waiver of

deportation. For example, Immigration Law and Crimes, con-

sidered the national “Bible” for determining immigration

law implications of criminal cases, informed defense lawyers

that the 212(c) waiver is “extremely beneficial” and empha-

sized its importance as an ameliorative mechanism for those

charged with crimes that could trigger immigration conse-

quences, particularly drug offenses such as the respondent's.

Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law

and Crimes, § 11.4 (West Group 1984-2000). Other practice

aids also advised defense lawyers about the wide availability

of 212(c) relief. See Maryellen Fullerton and Noah Kinigstein,

Strategies for Ameliorating the Immigration Consequences of

Criminal Convictions: A Guide for Defense Attorneys, 23 Am.

Crim. L. Rev. 425, 440 (1986) (instructing defense attorneys

that the “only crime for which this [212(c)] waiver is unavail-

able is a conviction for possession of a shotgun or automatic

—_—_——— See LLL.

7

weapon”); Katherine A. Brady and David S. Schwartz, Public

Defenders Handbook on Immigration Law (California Public

Defenders Association, 1988) (instructing defense attorneys

that “[t]he eligibility of [lawful permanent residents] to

apply for a [212(c)j waiver of deportation or exclusion will

survive a conviction for any crime, except possession of a

sawed-off shotgun or automatic or semi-automatic weapon”)

(see lodged document L-16); Tarik H. Sultan, Immigration

Consequences of Criminal Convictions: A Guideline for the Crimi-

nal Defense Attorney, 30-Jun Ariz. Att’y 15, 31 (1994) (instruct-

ing defense attorneys that a 212(c) waiver “is probably the

most common form of relief available, and also certainly the

easiest to obtain”).

The information about the importance of 212(c) relief

provided to criminal defense lawyers by these practice aids

is well summarized in a defense manual that was used by

federal defenders nationwide:

The most readily available form of relief from

deportation/exclusion is the discretionary waiver

available under § 212(c) of the Act. This waiver is

available to aliens who have accrued at least seven

years of uninterrupted legal resident status in the

United States . . . . It is crucial that defense counsel

determine whether a non-citizen client is eligible

for this waiver. . . . The wisest course of action is to

consult with an immigration attorney regarding the

probability that the client would be eligible for

such a waiver, after trying to determine the client's

immigration status and criminal history, so that the

client will be able to make an informed choice.

Larry Ainbinder, updated by Hilary Hochman, Ch. 17, Spe-

cial Considerations in Representing the Non-Citizen Defendant, in

Defending a Federal Criminal Case 837, 853 (Federal Defenders

of San Diego, 1995 ed.) (see lodged document L-13).

The practice aids conveyed to defense lawyers the sense

that, if their lawful resident client was considering a plea but

was worried about deportation, the possibility of 212(c) relief

could be raised as a means of allaying the client’s concerns

about a decision to plead guilty. For example, one practice

8

aid advised: “[T]he attorney should consider the possibility

of § 212(c) relief. It should be discussed with the alien client

prior to the plea or trial. This may help alleviate the alien’s

fears.” James A. Benzoni, Defending Aliens in Criminal Cases

(training materials prepared for criminal defense lawyers

attending CLE programs in Iowa from 1994-1997) (see

lodged document L-15).

The practice aids also emphasized the importance of

taking any necessary affirmative steps to preserve eligibility

for 212(c) relief. This was the case particularly after enact-

ment of the Immigration Act of 1990, which made persons

ineligible for 212(c) relief if they had served five years in

prison for an aggravated felony conviction. Immigration Act

of 1990, Pub. L. 101-649, § 511(a), 104 Stat. 5052. For example,

a 1991 article, which was distributed to all members of

amicus National Association of Criminal Defense Lawyers

(NACDL), counseled: “In entering a plea, a criminal defense

attorney should be aware of this serious consequence [inel-

igibility for 212(c) relief under the Immigration Act of 1990]

and take steps, where possible, to avoid it.” Ira J. Kurzban,

The Immigration Act of 1990, The Champion, Apr. 1991, at 5;

see also Jan J. Bejar, Representing Aliens in Criminal Proceedings

in Criminal Justice Act Seminar materials, June 4, 1991 (“This

is an extremely important waiver . . . negotiating a term of

even one day less than five years could make a difference”)

(see lodged document L-14).

A partial list of the many books, defense manual chap-

ters, articles, and other materials containing similar advisals

for defense lawyers throughout the country in the years

preceding the 1996 amendments is included in Appendix B.

C. Training Programs Further Alerted Defense Law-

yers to the Immigration Implications of Convic-

tion and to Relief from Deportation

Prior to the 1996 amendments, criminal defense lawyers

attended trainers on the immigration consequences of crimi-

nal convictions, including the availability of relief from

deportation. The National Immigration Project conducted or

———— _

9

participated in numerous training presentations throughout

the country, including programs specifically addressing

212(c) relief. See Appendix C. In addition, Federal Judicial

Center training for federal defenders from all over the coun-

try has periodically included training on the immigration

issues in criminal cases. See id. Many other organizations or

individual immigration law experts provided similar training

that focused on immigration issues relating to a particular

state’s criminal laws, including eligibility for relief. For

example, in California, the state with the largest lawful

permanent resident immigrant population, the Immigrant

Legal Resource Center (often in Continuing Legal Education

seminars co-sponsored by the California Bar Association,

Criminal Law Section), as well as individual public defender

offices, private expert lawyers, and law school faculty, pro-

vided training to defense lawyers about the immigration

consequences of criminal convictions. Over thirty of such

training seminars were conducted in the 1990s alone. See

Appendix C; see also Declarations of Katherine A. Brady,

James F. Smith, and Norton Tooby filed in In re Resendiz, No.

S078879 (Cal.) (see lodged documents L-5, L-11, L-12). In

New York, the state with the second largest lawful resident

immigrant population, criminal defense lawyers of amicus

The Legal Aid Society of the City of New York, the largest

provider of criminal defense legal services in the state, have

received initial orientation, update training, a staff manual

chapter, and training update written materials, about the

immigration consequences of criminal convictions. See Affi-

davit of Dennis R. Murphy, filed with amicus curiae brief of

the NACDL & the National Legal Aid and Defender Associa-

tion before the Attorney General in Matter of Soriano, Int.

Dec. 3289 (AG 1998) (see lodged document L- 10). A sam-

pling of the national and state training programs conducted

for defense lawyers throughout the country in the years

preceding the 1996 amendments is included in Appendix C.

10

D. In-House or Outside Experts Also Advised

Defense Lawyers Regarding the Immigration

Implications of Conviction and Relief from

Deportation

Defense lawyers also consulted with experts for guid-

ance on the immigration consequences of criminal convic-

tions and the evaluation of specific plea bargain choices in

individual criminal cases. On a national level, the National

Immigration Project has responded to about 800 inquiries

from criminal defense lawyers every year. In addition, immi-

gration law experts in many of the high-immigrant popula-

tion states have provided assistance on determining the

specific interplay between federal immigration law and these

states’ criminal laws. In California, for example, the Immi-

grant Legal Resource Center, a nonprofit legal backup center,

has conducted telephone consultations for public defenders

and private attorneys to answer questions concerning the

immigration consequences of choices faced by noncitizen

defendants in criminal proceedings. See Brady Decl., { 8.

Other public defense or legal aid offices have their own in-

house experts available for consultation on immigration

issues. For example, the immigration law training provided

to its staff by the Criminal Defense Division of amicus The

Legal Aid Society of the City of New York has been supple-

mented by the presence on staff of attorneys with special

expertise in immigration law. See Murphy Aff., { 6. In the

years prior to the 1996 deportation amendments, these out-

side or in-house immigration experts provided guidance to

defense attorneys not only on deportability, but also on

whether a noncitizen defendant would be able to apply for

relief from deportation and the likelihood of obtaining such

relief.

_—_—_—

11

E. Lawful Resident Immigrants Pled Guilty in Rea-

sonable Reliance on the Advice of their Lawyers

and Others that They Had a Right to Spek Relief

from Deportation

The experience of amici is that lawful permanent resi-

dent immigrants accused of crimes are generally extremely

concerned about the immigration implications of their crimi-

nal cases. Many lawful permanent residents immigrated to

this country at a young age, now work or study here, and

have all their family here. Many have not been in the coun-

try in which they were born since early childhood, and some

do not even know the language of that country. As a result,

lawful permanent residents are often more worried about

whether the disposition of their criminal case will lead to

deportation than they are concerned about the criminal sen-

tence. See Declaration «f Larry Kupers filed in Jun Li Tam v.

Reno, No. C-98-2835 MHP (9th Cir.) (see lodged document

L-9) (“I cannot state strongly enough the enormous impor-

tance that his or her immigration status has to a Legal Alien

and that it has been my experience that a Legal Alien will

place that status first above all other considerations, includ-

ing even guilt or innocence, when faced with criminal

charges conviction of which could result in deportation”); see

also Declarations of Cristina C. Arguedas & Nancy L.

Clarence filed in id. (see lodged documents L-4 & L-6);

Affidavit of Daniel Kanstroom filed with amicus curiae brief

of the National Legal Aid and Defender Association & the

New York State Defenders Association in Bonhometre v. Reno,

No. 98-12333-NG (D. Mass.) (see lodged document L-8); see

also Mojica v. Reno, 970 FSupp. 130, 177 (E.D.N.Y. 1997)

(“Deportation to a country where a legal permanent resident

of the United States has not lived since childhood; or where

the immigrant has no family or means of support; or where

he or she would be permanently separated from a spouse,

children and other loved ones, is surely a consequence of

serious proportions that any immigrant would want to con-

sider in entering a plea”), motion to withdraw appeal granted

sub nom. Yesil v. INS, 175 F.3d 287 (2d Cir. 1999).

12

In recognition of the severity of the penalty of deporta-

tion as a consequence of a criminal case, various ethical and

professional standards require defense lawyers to advise

noncitizen defendant clients about the immigration implica-

tions of pleading guilty. For example, the Standards for

Criminal Justice of the American Bar Association have long

provided that, where it is apparent that a defendant may face

deportation as a result of a conviction, counsel “should fully

advise the defendant of these consequences.” ABA Standards

for Criminal Justice, Pleas of Guilty (2d ed.), Standard 14-3.2,

commentary at 75 (1982); see also ABA Standards for Criminal

Justice, Pleas of Guilty (3d ed.), Standard 14-3.2(f), commen-

tary at 27 (1999) (“it may well be that many clients’ greatest

potential difficulty, and greatest priority, will be the immigra-

tion consequences of a conviction”) (see lodged documents

L-1, L-2). In addition, the Performance Guidelines of amicus

National Legal Aid and Defender Association likewise recog-

nize that it is defense counsel’s duty to “be fully aware of,

and make sure that the client is fully aware of .. .

consequences of conviction such as deportation,” and to

explain to the client the potential consequences of any plea

agreement. NLADA Performance Guidelines for Criminal

Defense Representation, Guidelines 6.2(a)(3) and 6.3(a), at 77

(1994) (see lodged document L-3).*

3 While some courts have held that a defense lawyer’s

failure to advise regarding the immigration consequences of a

guilty plea is insufficient basis for later vacatur of the plea

because immigration consequences are not “direct”

consequences of the conviction, the courts nevertheless

generally recognize the independent responsibility of defense

lawyers to advise regarding these “indirect” or “collateral”

consequences. See, e.g., United States v. Campbell, 778 F.2d 764,

769 (11th Cir. 1985) (“It is highly desirable that both state and

federal counsel develop the practice of advising defendants of

the collateral consequences of pleading guilty; what is desirable

is not the issue before us”); see generally Michel v. United States,

507 F.2d 461, 465-466 (2d Cir. 1974) (recognized defense

counsel's obligation to advise about the “indirect consequences

13

To further ensure the required discussion between

defense lawyer and noncitizen client regarding the immigra-

tion risks of pleading guilty, most of the high-immigrant

population states — as well as Connecticut, the state where

the respondent here pled guilty - require that trial judges

advise defendants of potential immigration law conse-

quences prior to accepting a guilty plea.4

Consistent with these standards and requirements, a

leading treatise for defense lawyers advised:

Preserving the client’s right to remain in the

United States may be more important to the cli-

ent than any potential jail sentence. Thus, the

immigration consequences of a prosecution may

totally alter the strategies chosen .. . . [An]

attorney who suspects that his client is an alien

has a duty to inquire and to protect his client’s

immigration status. Pleas and admissions must

be approached with caution and with knowledge

of the consequences... .

3 Bender’s Criminal Defense Techniques, § 60A.01 and

§ 60A.02[2] (1999).

the guilty plea may trigger,” including deportation); Williams v.

State, 641 N.E.2d 44, 49 (Ind. 1994) (“attorney’s duties to a client

are [not] limited by a bright line between the direct

consequences of a guilty plea and those consequences

considered collateral”); People v. Soriano, 240 Cal. Rptr. 328,

335-336 (Ct. App. 1987) (citing ABA standards as evidence of

defense counsel’s obligation to advise clients fully about

collateral consequences of their guilty pleas); People v. Pozo, 746

P.2d 523, 529 (Colo. 1987) (“attorneys must inform themselves of

material legal principles that may significantly impact the

particular circumstances of their clients”).

4 See, e.g., Cal. Penal Code § 1016.5 (1982); Conn. Gen. Stat.

§ 54-1j (West 1994 & Supp. 1999); Fla. R. Crim. P. 3.172(c)(viii)

(1989); N.Y. Crim. Proc. Law § 220.50(7) (McKinney Supp. 1999);

Tex. Crim. P. Code Ann. § 26.13(a)(4) (West 1989).

14

In order to fulfill their ethical and professional respon-

sibilities, defense lawyers questioned their clients to deter-

mine whether the client was a noncitizen subject to the

deportation laws. Many of the large providers of legal

services for indigent defendants specifically directed their

attorneys always to determine whether a client was a citi-

zen. For example, criminal defense attorneys of amicus The

Legal Aid Society of the City of New York were instructed:

“It is fundamental to effective representation that we find

out whether a client is a citizen or not before entering a

plea of guilty . . . In no event should a guilty plea be taken

before the staff attorney establishes whether the client is a

United States citizen or not.” Memorandum to All Staff

Attorneys of The Legal Aid Society, entitled “Ascertaining

Client Citizenship Status,” attached to Declaration of

Susan L. Hendricks, filed with amici curiae brief of The

Legal Aid Society of the City of New York, et al., in

Calcano-Martinez v. INS, No. 98-4033, 98-4214, 98-4246 (2d

Cir.) (emphasis added) (see lodged document L-7).

Once it was determined that a client was a noncitizen,

a defense lawyer was then required to advise the client

regarding the immigration implications of any plea option.

See, e.g., Memorandum to All Legal Aid Society Staff

Attorneys entitled “Important Immigration Concerns in

Your Criminal Practice,” attached to Hendricks Aff.; Mem-

orandum to All Attorneys of the Public Defender Division

of the State of Connecticut, dated Mar. 12, 1991 (including

Immigration Law Bulleting advising defense lawyers: “It is

of critical importance that the defense bar (1) identify their

alien clientele (2) ider ‘y the issues and collateral conse-

quences relating to th. . alien clientele and (3) deal with

the issues at the pre-conviction stage, rather than at the |

post-conviction, immigration hearing level”) (see lodged |

document L-17).

Before the 1996 amendments, defense lawyers carried

out their duty to advise their noncitizen clients regarding |

immigration consequences of conviction based on the ~

immigration practice aids, training programs, and expert

resources described above. These resources informed them

15

that they could advise a lawful permanent resident immi-

grant client convicted of a deportable offense that the

client would later be able to apply for a waiver of deporta-

tion. Obviously, defense lawyers could not assure a lawful

resident client that a waiver would be granted. But

defense lawyers could - and did - inform lawful resident

clients of their right to apply, and these clients relied on

this advice. See, e.g., Murphy Aff., { 7 (“Over the years,

many of our lawful permanent resident clients have relied

on information that we have provided regarding their

statutory right to apply for relief from deportation when

pleading guilty to a criminal charge that made them

deportable from the United States, or when choosing not

to pursue an appeal”); Kupers Decl., { 11 (“We knew that

212(c) relief was available to legal resident defendants who

had a drug-related conviction of no more than five years

and we so advised our clients”); Kanstroom Aff., | 5 (“I

am personally aware of many such plea agreements that

were expressly predicated on the defendant’s belief that he

or she might be able to apply for so-called Section 212(c)

relief”).

Moreover, the counsel that lawful permanent residents

received from criminal defense lawyers regarding the

availability of relief from deportation was frequently sup-

ported or informed by the advice of other lawyers, com-

munity advocates, and the experiences of permanent

resident immigrant family members, friends, and neigh-

bors who had been in deportation proceedings but were

not deported. Thus, even if they did not discuss immigra-

tion issues with their criminal lawyer, many lawful perma-

nent residents were generally aware that their guilty plea

would not automatically result in deportation. As one

district court put it, “[a] lawful permanent resident is, in

any event part of a community and it is not unreasonable

to attribute to him or her a basic sense of what happens to

other members of the resident alien community who

engage in criminal conduct.” Pottinger v. Reno, 51

F. Supp.2d 349, 363 (E.D.N.Y. 1998), aff'd, 2000 U.S. App.

LEXIS 33521 (2d Cir.).

16

The awareness of defense lawyers and their lawful

resident clients regarding the right to apply for relief from

deportation is also demonstrated by the fact that defense

lawyers negotiated, when necessary, for a case outcome

that would preserve eligibility for 212(c) relief. It was

common practice, for example, for federal criminal defense

lawyers to negotiate sentences that would lead to less than

five years of imprisonment for lawful resident immigrant

clients charged with drug and other offenses in order to

preserve eligibility. As one senior federal defender litigator

in California stated:

Our annual training and our periodic office meet-

ings and informal training sessions had

ingrained in us the need, if at all possible, to

plead an [sic] Legal Alien client in a drug case to

a sentence of no more than five years in order to

be eligible for relief from deportation in the form

of the so-called “212(c) relief.” .. . In fact, in any

case in which a Legal Alien defendant charged

with drug trafficking faced a sentence in excess

of five years if convicted, I and every other attor-

ney in The Federal Defender’s Office, with the

agreement of the client, tried to avoid trial (no

matter what the ultimate strength of the govern-

ment’s case) and negotiate a plea bargain to

achieve a sentence of no more than five years.

Kupers Decl., {J 11-12; see also Kanstroom Aff., { 4 (“Prior

to 1996, when IIRIRA was passed, it was, without excep-

tion, a central component of my advice to clients and

attorneys that if a plea agreement could not be structured

in such a way as to avoid renvering a person subject to

deportation, the next best option would be to attempt to

structure a plea agreement to preserve the possibility of

discretionary relief from deportation”); see also Tasios, 204

F.3d at 546 (court found that the petitioner had entered a

plea agreement with the government and pled guilty on

the understanding that he would receive a sentence that

would leave him eligible to seek relief from deportation);

Jideonwo v. INS, 224 F.3d 692, 699 (7th Cir. 2000) (same);

17

Tam v. Reno, 1999 U.S. Dist. LEXIS 3577, *3-5, 26 (N.D. Cal.

1999), rev'd and remanded, 2001 U.S. App. LEXIS 541 (9th

Cir. 2001) (District Court found that availability of 212(c)

relief played a role in petitioner’s decision to plead guilty,

and Court of Appeals remanded for evidentiary hearing to

allow petitioner to pursue this claim).

In most criminal cases before the new laws, such

negotiating with the express purpose of preserving eligi-

bility for relief was not necessary because, under prior law,

even conviction of the charged offense would not have

triggered mandatory deportation (e.g., offense was not

subject to prison sentence of five years or more). However,

had lawful resident immigrant defendants who pled guilty

prior to the 1996 amendments been aware of the new bars

to relief from deportation, there are a number of steps they

might have taken to avoid mandatory deportation. Some

of these steps would be counterintuitive in the case of a

U.S. citizen defendant, and a defense lawyer would not

have advised such a course of action in the past. For

example, based on the advice of his or her lawyer, a lawful

resident client charged with a misdemeanor or low-level

felony drug sale offense in the past might have decided to

plead guilty in order to avoid prison time, even if the “

client professed innocence of any intent to sell the drugs

found in his or her possession. The lawyer would have

been correct to advise the client that the guilty plea with a

sentence of little or no jail time would not trigger inel-

igibility for relief under the law at the time, even though

the conviction could be deemed an aggravated felony. See,

e.g., United States v. Graham, 927 F. Supp. 619 (W.D.NLY.

1996) (New York misdemeanor criminal sale of marijuana

is an aggravated felony). However, had the lawyer known

that future laws were going to impose ineligibility for

relief and mandatory deportation for any aggravated fel-

ony conviction regardless of sentence, the lawyer could

have instead sought to negotiate a plea to an equivalent or

higher level felony drug possession offense and a longer

sentence in order to avoid conviction of an aggravated

felony. See, e.g., Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996)

18

(New York Class A felony possession of a controlled sub-

stance without sale element is not an aggravated felony for

immigration purposes). Or, if the lawyer was unable to

negotiate a non-aggravated felony plea, the client might

have chosen to stand trial on the sale charge in the hope of

acquittal. See, e.g., Arias-Agramonte v. Commissioner of INS,

2000 U.S. Dist. LEXIS 10724, *4-6, 43 (S.D.N.Y. 2000) (after

citing findings of immigration judge regarding lawful resi-

dent immigrant who pled guilty to a deportable offense

prior to the 1996 amendments despite evidence of his

innocence and no prior criminal record, the court stated

“[cJertainly Arias, who at the time of his arrest was expect-

ing his first child, and who pled guilty at least in part

because he would only receive probation, may well have

stood trial, with its concomitant risk of prison time upon a

jury verdict of guilty, had the consequences been known to

him”).

The careful planning and counseling that would have

gone into the choices faced by lawful permanent resident

immigrants and their lawyers in criminal proceedings in

the past if they had known of the mandatory deportation

provisions of the new laws is reflected by the heightened

responsibility now assigned to both trial judges and

defense lawyers to warn defendants of the threat of depor-

tation, see ABA Standards for Criminal Justice, Pleas of Guilty

(3d ed.), Standards 14-1.4(c) & 14-3.2(f) (1999) (see lodged

document L-2), and by the numerous new immigration

resources developed in order to enable defense lawyers to

counsel their noncitizen clients properly regarding the

impact of these provisions today.° These new standards

> Examples of specialized manuals that have been prepared

for defense lawyers since 1996 are: Norton Tooby with

Katherine A. Brady, Criminal Defense of Immigrants (Law Offices

of Norton Tooby, National Ed., 1999); Maria Baldini-Potermin,

Defending Non-citizens in Minnesota Courts: A Summary of

Immigration Law and Client Scenarios (Minnesota Bar

Association, 1998 — 2000); Manuel D. Vargas, Representing

Noncitizen Criminal Defendants in New York State (New York State

19

and resources underscore how different would have been

the advice defense lawyers gave to a noncitizen client

considering a guilty plea in the past if they knew that what

then seemed to be a favorable plea deal would now trigger

mandatory deportation. For example, in its commentary to

its new plea standards, the ABA observed:

The Immigration and Nationality Act (“INA”), in

the wake of the 1996 amendments . . . constitutes

a great threat to non-citizen defendants who are

considering a plea of guilty . .. The expansion of

the “aggravated felony” list is significant because

conviction of an aggravated felony generally

means certain and speedy deportation given that

the defendant will not, under the statute, be eli-

gible for most discretionary relief from removal.

Under the amended INA, then, a plea deal that

might otherwise seem attractive — for example, a

suspended 1-year sentence for misdemeanor

theft — may often look considerably different

once it is determined that that plea would in fact

be deemed an “aggravated” felony conviction

leading to the alien client’s swift deportation.

Id., Standard 14-1.4(c), commentary at 58, n.96 (1999).6

Indeed, if deportation had been a certainty, rather

than the calculated risk it was before the 1996 amend-

ments, lawful resident immigrant defendants would have

Defenders Association, lst and 2nd eds., 1998, 2000). In

addition, several new state-based initiatives have been

established to provide training and consultation resources for

defense lawyers.

6 Several recent court decisions confirm the ABA’s

conclusion that even a guilty plea to a misdemeanor theft

offense —- which might have been a good plea deal from a

defense perspective in the past - could now be deemed an

“aggravated felony.” See, e.g., Erewele v. Reno, 2000 U.S. Dist.

LEXIS 11765 (N.D. Ill. 2000) (held that “aggravated felony” term

includes conviction of a misdemeanor shoplifting offense with

suspended sentence of twelve months in prison).

20

been much less likely to plead guilty in many circum-

stances. Before agreeing to plead guilty, many specifically

asked their defense lawyers what chance they would have

of being granted relief from deportation, and then

weighed the likelihood of deportation just as they weighed

other aspects of a plea offer, such as the probable sentence,

the availability of parole, and the overall disruption that

the plea would cause to themselves and their families.

Sadly, those lawful permanent residents who tended to

rely the most on the possibility of a waiver of deportation

were those with the strongest equities, e.g., individuals

who had lived virtually their entire lives in the United

States, whose family members were all in the United

States, or who had served in the U.S. military. Even if such

a permanent resident had no prior criminal record and the

evidence of guilt was weak, he or she might nevertheless

have pled guilty based on information or advice that

deportation would not be automatic and that they would

have a good chance of having their 212(c) application

granted if they could demonstrate those very same factors

— family, job, residence, etc. — that made it more likely that

the lawyer would be able to negotiate a plea with little or

no jail time.”

7 Many courts have concluded that tne possibility of a

waiver of deportation could be a critical factor in the plea-

bargaining process. See, e.g., Tasios, 204 F.3d at 551 (“[P]rior to

the passage of AEDPA the legal effect of pleading guilty .. . was

mitigated by the realistic possibility of obtaining a waiver under

§ 212(c)”); Mattis v. Reno, 212 F.3d 31, 39-40 (1st Cir. 2000)

(“[T]here is reason to believe that there might be some aliens

who [entered guilty pleas before April 1996] in actual and

reasonable reliance on the availability of § 212(c) relief”);

Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999) (“That an

alien charged with a crime involving controlled substances

would factor the immigration consequences of conviction in

deciding whether to plead or proceed to trial is well-

documented”).

21

In sum, the experience of amici is that, prior to the

1996 amendments, our lawful resident immigrant clients

understood that deportation was generally not automatic

upon conviction of a deportable offense. Our lawful resi-

dent clients often pled guilty in reliance on this under-

standing when they could have gone to trial or made other

choices in their criminal case in order to seek to avoid

mandatory deportation had they had notice of what future

legislation would bring.

Il. THE COURT BELOW CORRECTLY FOUND THAT

THE GOVERNMENT’S APPLICATION OF THE

1996 AMENDMENTS TO PRE-AMENDMENT

GUILTY PLEAS IS IMPERMISSIBLY RETROAC-

TIVE

The criminal justice system relies heavily on the will-

ingness of individuals to plead guilty and forego their

right to a jury trial. In fact, more than 90 percent of

criminal convictions today are obtained by guilty plea. See

Bureau of Justice Statistics, U.S. Dep’t of Justice, Section 5:

Judicial Processing of Defendants, Tables 5.30, 5.51 in

Sourcebook of Criminal Justice Statistics 1999, (2000) (over 95

percent of federal convictions and over 91 percent of fel-

ony convictions in state court are obtained by guilty plea).

Without this willingness of the criminally accused to plead

guilty, the wheels of justice would most certainly grind to

a screeching halt. As the Court has stated:

The disposition of criminal charges by agreement

between the prosecutor and the accused, some-

times loosely called “plea bargaining,” is an

essential component of the administration of jus-

tice. Properly administered, it is to be encour-

aged. If every criminal charge were subjected to a

full-scale trial, the States and the Federal Govern-

ment would need to multiply by many times the

number of judges and court facilities.

Santobello v. New York, 404 U.S. 257, 260 (1971).

22

Given the importance of the rights relinquished when

an individual agrees to plead guilty,’ the integrity and

fairness of the plea bargaining process requires strict

application of rules to protect the expectations underlying

the plea.? These include not only the Ex Post Facto Clause

8 Those accused of crimes who agree to plead guilty -

sometimes even when innocent of the criminal charges — give up

fundamental rights at the core of our nation’s Bill of Rights.

They give up not only their right to a trial by a jury of their

peers, Duncan v. Lousiana, 391 U.S. 145 (1968), but also their

rights to confront one’s accusers, Pointer v. Texas, 380 U.S. 400

(1965), to present witnesses in one’s defense Washington v. Texas,

388 U.S. 14 (1967), to remain silent, Malloy v. Hogan, 378 U.S. 1

(1964), and to be convicted by proof beyond all reasonable

doubt, In re Winship, 397 U.S. 358 (1970). Recognizing the

significance of an individual’s agreement to plead guilty, the

Court has recognized the importance of counsel during plea

negotiations, Brady v. United States, 397 U.S. 742, 758 (1970), the

need for a public record indicating that a plea was knowingly

and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242

(1969), and the requirement that a prosecutor’s plea bargaining

promise be kept, Santobello, 404 U.S. at 262.

9 Retroactive application of mandatory deportation

provisions compromises the integrity of the plea bargaining

process by disrupting the legitimate expectations not only of the

noncitizen defendant but also of other actors in the criminal

justice system. For example, retroactive application of new laws

to change the legal effect of a guilty plea ur:dermines the efforts

of defense attorneys who try to comply with ethical standards

and to provide effective counsel to noncitizen defendants

regarding the consequences — both direct and indirect - of a

plea. Ironically, those defense attorneys who made the best

efforts to provide effective counsel on the immigration

implications of guilty pleas are the attorneys whose clients may

have most relied on the availability of relief from deportation. In

addition, retroactive application undermines the expectations of

prosecutors who may have agreed to a lesser or alternative plea,

or a lenient sentence, prior to the 1996 amendments with the

expectation that it would allow the defendant to return sooner

to his or her home and family in the United States. See Harmelin

23

prohibition on retroactive application of later “punitive”

legislation, but also the presumption against retroactivity

of other subsequently enacted laws that change the conse-

quences of the plea, even if the new laws are not deemed

punitive in nature. As the Court has stated:

The presumption against the retroactive applica-

tion of new laws is an essential thread in the

mantle of protection that the law affords the

individual citizen ... . In both the civil and the

criminal context, the Constitution places limits

on the sovereign’s ability to use its lawmaking

power to modify bargains it has made with its

subjects. The basic principle is one that protects

not only the rich and the powerful, but also the

indigent defendant engaged in negotiations that may

lead to an acknowledgment of guilt and a suitable

punishment.

Lynce v. Mathis, 519 U.S. 433, 439-440 (1997) (emphasis

added).1°

v. Michigan, 501 U.S. 957, 1008 (1991) (prosecutorial discretion

allows for consideration of individualized circumstances to

ameliorate the effect of mandatory sentences). Likewise,

retroactive application of mandatory deportation laws also

undermines the expectations of a trial judge who accepted a

plea or imposed a sentence also with the expectation that the

defendant would be permitted to return to home and famuily.

10 Although the Court here need not reach the background

constitutional issues implicated by retroactive applications of

new rules to past conduct, amici note that this case does raise

Due Process Clause concerns. See Landgraf, 511 U.S. 244, 266

(“The Due Process Clause also protects the interests in fair

notice and repose that may be compromised by retroactive

legislation”). In addition, were the Court not to apply the

traditional presumption against retroactivity, this case would

provide an appropriate vehicle for the Court to reconsider the

current viability of its prior decisions holding that deportation

laws are not subject to the Ex Post Facto Clause. See Robert

Pauw, A New Look at Deportation as Punishment: Why at Least

24

In Landgraf v. USI Film Products, 511 U.S. 244 (1994),

the Court reaffirmed the traditional presumption against

retroactivity. The Court stated that the inquiry as to

whether application of a new statute would have imper-

missible retroactive effect requires a “common sense, func-

tional judgment about ‘whether the new provision attaches

new legal consequences to events completed before its

enactment.’” Id. at 269. The determination is guided by

“familiar considerations of fair notice, reasonable reliance,

and settled expectations.” Id. One way that application of a

new statute to past events will be found to have retroac-

tive effect is if it “takes away or impairs vested rights

acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability, in respect

to transactions or considerations already past... . ” Id.

(quoting Justice Story in Society for Propagation of the Gospel

v. Wheeler, 22 F. Cas. 756, No. 13,156 (C.C.D.N.H. 1814)).

The government's application of the 1996 deportation

relief bars to lawful permanent residents convicted of com-

mitting deportable offenses prior to the new law unques-

tionably eliminates a legal right — eligibility to apply for

212(c) relief from deportation — or attaches a new disability

- ineligibility to apply — based on criminal conduct and

convictions that occurred in the past. Under prior law, :

convicted long-time lawful permanent residents faced pos- |

sible, but not certain, deportation. However, if the 1996

amendments are applied to them, their statutory right to

seek 212(c) relief is taken away and deportation becomes

virtually inevitable. The government's position changes a

possibility of deportation into a certainty of deportation.

The Court’s retroactivity jurisprudence establishes

that such a change in legal risk has impermissible retroac-

tive effect when applied to prior conduct or transactions

even if the new law does not change the maximum extent

of a party’s liability. See, e.g., Hughes Aircraft Company v.

PP a Sf ee BO

Some of the Constitution’s Criminal Procedure Protections Must

Apply, 52 Adm. L.R. 305 (Winter 2000).

25

United States ex rel. Schumer, 520 U.S. 939 (1997) (finding

retroactive effect when a 1986 amendment was applied to

cause a private party to lose a°prior defense against pri-

vate suits for submitting a false claim to the government,

even though elimination of the defense in question did not

increase the defendant's liability exposure because the

defense had never been available in suits brought by gov-

ernment litigators).

Moreover, the Court’s Ex Post Facto Clause case law,

to which the Court turns to determine what civil as well as

criminal law consequences have a genuine retroactive

effect,11 has long recognized the retroactive effect of a

change from a discretionary penalty system to a system of

mandatory penalties. See Warden, Lewisburg Penitentiary v.

‘Marrero, 417 U.S. 653, 663 (1974) (held that a statute elim-

inating parole eligibility for offenses subject to parole

under the law at the time of commission was impermissi-

ble as an ex post facto law); Lindsey v. Washington, 301 US.

397 (1937) (held that a statute changing a maximum sen-

tence to a mandatory sentence for offense committed prior

to the statute’s enactment is an impermissible ex post facto

law). In Lindsey, the Court stated:

Removal of the possibility of a sentence of less

than fifteen years . . . operates to their detriment

in the sense that the standard of punishment

adopted by the new statute is more onerous than

that of the old . . . . We need not inquire whether

this is technically an increase in the punishment

annexed to the crime... . It is plainly to the

substantial disadvantage of petitioners to be

deprived of all opportunity to receive a sentence

which would give them freedom from custody

and control prior to the expiration of the 15 year

term.

11 See, e.g., Hughes Aircraft, 520 U.S. at 94&fciting Collins v.

Youngblood, 497 U.S. 37 (1990) and Beazell v. Ohio, 269 U.S. 167,

169-70 (1925)); Landgraf, 511 U.S. at 269 n. 23 (citing Miller v.

Florida, 482 U.S. 423 (1987)).

26

Id. at 401-02 (citations omitted) (emphasis added).!2 Sim-

ilarly, taking away the statutory right to apply for discre-

tionary 212(c) deportation relief, thus making deportation

mandatory, must be considered retrospective. See Tasios,

204 F.3d at 552 (“As cases decided under the Ex Post Facto

Clause establish, any change of outcomes from a discre-

tionary relief to one of prescribed outcomes is retroac-

tive”).

The change in the legal consequence of pre-amend-

ment guilty pleas here is graphically illustrated by the

disruption of the reasonable reliance of lawful resident

immigrants on prior law, as described in Point I above.

Reasonable reliance on prior law is a hallmark indicator of

whether a new law has retroactive effect. See Landgraf , 511

U.S. at 282-83 (a “legal change that would have an impact

on private parties’ planning” operates retrospectively).

Thus, not surprisingly, a growing number of courts have

found that the government’s application of new deporta-

tion laws barring 212(c) relief is impermissibly retroactive

based on the reasonable reliance of lawful permanent resi-

dent immigrants on their eligibility under the law at the

time they were convicted.}5

12 See also Lynce, 519 U.S. 433 (held that cancellation of

provisional early release credits awarded to alleviate prison

overcrowding was a retroactive effect in violation of the Ex Post

Facto Clause); Weaver v. Graham, 450 U.S. 24 (1981) (held that a

new law repealing an earlier statute and reducing amount of

“gain time” for good conduct and obedience to prison rules

deducted from a convicted prisoner’s sentence violated Ex Post

Facto Clause).

13 For example, the Fourth Circuit last year retreated from

its prior decision in De Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993),

in which the court had suggested that the possibility of a waiver

of deportation was not relevant to noncitizen decision-making

in the criminal process, stating: “[W]Je conclude that the

observations made in De Osorio do not account for the essential

retroactive consequences of removing the availability of 212(c)

relief.” Tasios, 204 F.3d at 551. The Fourth Circuit found that

—————— ———— —

27

In sum, many lawful permanent residents pled guilty

in specific reliance on the real promise of avoiding depor-

tation offered by the statutory right to apply for 212(c)

relief, or in general reliance on knowledge that there

would be some consideration of the equities in their cases

before any government decision to carry out a deportation.

As discussed in Point III below, such reliance is not neces-

sary to show the retroactive effect of the government’s

application of AEDPA Section 440(d) and IIRIRA Section

304(b). Nevertheless, the reasonable reliance on prior law

confirms and illustrates the retroactive effect of the appli-

cation of these new laws to pre-enactment pleas. Thus, the

Court should affirm the lower court’s application of the

presumption against retroactivity at least with respect to

lawful resident immigrants who agreed to plead guilty

- prior to the new laws.'4

AEDPA 440(d) would upset reasonable, settled expectations and

change the legal effect of prior conduct if applied to guilty pleas

before AEDPA’s effective date, and thus should not be applied

to any case based on a pre-AEDPA guilty plea. As the Fourth

Circuit explained: “By withdrawing the availability of [§ 212(c)]

relief, AEDPA § 440(d) worked a fundamental change in the legal

effect of such a plea... .” Id. at 552 (emphasis added).

14 Although the court below limited the extent of its

holding to individuals who pled guilty prior to the 1996

amendments, lawful permanent resident immigrants also relied

on the availability of relief from deportation in making other

choices during criminal proceedings, such as a decision to reject

an offered plea deal and go to trial where relief eligibility

existed under prior law even if the individual was found guilty

after trial of the more serious charged offense, or a decision to

fight certain charges more than others at trial, or a decision not

to appeal a conviction after trial. Thus, although the choice

whether to plead guilty is one of the most important decisions a

defendant faces, it is by no means the only choice that may be

affected by the availability of relief from deportation.

28 |

Ill. IN ANY EVENT, THE GOVERNMENT'S APPLICA-

TION OF THE 1996 AMENDMENTS TO THE |

UNDERLYING ORIGINAL CONDUCT IS IMPER-

MISSIBLY RETROACTIVE

In order to determine whether application of a new

law to past conduct has an impermissible retroactive

effect, what matters is simply “whether the new provision

attaches new legal consequences to events completed

before its enactment.” Landgraf, 511 U.S. at 269-270. Princi-

ples of fair warning require no less. As the Court stated in

Landgraf.

Elementary considerations of fairness dictate that

individuals should have an opportunity to know

what the law is and to conform their conduct

accordingly; .. . . For that reason, the “principle

that the legal effect of conduct should ordinarily

be assessed under the law that existed when the

conduct took place has timeless and universal c

appeal.” 4

Id., at 265 (quoting Kaiser Aluminum & Chem. Corp. v. |

Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring)).

Thus, in Landgraf and other cases where the Court has

analyzed whether a new civil statute has impermissible ;

retroactive effect, the essential question is not whether the 4

person later expressly relied on a given understanding of

the 1..., but whether applying the new law to the original

past conduct changes the consequences of that conduct.

See id. at 283-284 (finding retroactive effect of new punitive

and compensatory damages and jury trial provisions of

the Civil Rights Act of 1991 even though there was no

finding of reliance on prior law and the sexual harassment

conduct at issue was already illegal at the time of the

conduct); Rivers v. Roadway Exp. Inc., 511 U.S. 298 (1994)

(finding retroactive effect of new right of action for dis-

criminatory contract terminations in the Civil Rights Act of

1991 even though the parties believed that the right of

action existed when they acted and therefore they could

not have relied on prior law); Hughes Aircraft, 520 U.S. at

948 (finding retroactive effect when a private party lost a

29

defense against private suits for submitting a false claim to

the government, even though the private party never had

such a defense against a government suit and there was no

showing that the party relied on the government failing to

pursue a suit).

The Court's retroactivity analysis in its ex post facto

decisions also focus on whether applying the new law at

issue to past conduct changes the legal consequence of the

original criminal conduct, rather than on whether the

affected individual later acted in reliance on prior law. In

these decisions, the crucial benchmark for determining

retroactive effect of new penalties for criminal conduct is

the law that was in existence on the date of that original

conduct, as opposed to the law on the date of plea or

conviction. See, e.g., Miller v. Florida, 482 U.S. 423 (1987)

(found retroactive effect when the government applied

revised sentencing guidelines that went into effect

between the date of the petitioner’s offense and the date of

his conviction); see also Johnson v. United States, 529 U.S. 694

(2000) (held that original criminal conduct, not a subse-

quent violation of supervised release, was the operative

event for retroactivity analysis). This is true even if the

new statute applies only upon “conviction.” See Lindsey v.

Washington, 301 U.S. at 398, rev’g State v. Lindsey, 61 P.2d

293, 294 (Wash. 1936) (court found retroactive effect when

the government applied a new sentencing statute that was

triggered “[w]hen a person is convicted” to an individual

who committed offense on April 15, 1935, even though

criminal proceedings did not commence until after the

new law was enacted on June 12, 1935).

In short, the Court’s decisions in both the civil and

criminal contexts recognize that people have a right to

know the possible legal consequences of their actions at.

the time of their original conduct, whether or not they will

be able to demonstrate subsequent acts in reliance on that

knowledge. Indeed, it would be contrary to our system of

justice, not to mention largely unfeasible and tremen-

dously burdensome, for persons to have to prove actual

individual reliance on prior law before they can avoid the

| | —E

30

‘adverse consequences of a new law. Rather, in our system

of justice, it is presumed that a person acts in light of the

law at the time of his or her actions. As one U.S. district

judge stated:

Individuals are presumed to act against a back- :

drop of legal obligations. If they were not, there

would be little problem with the retrospective

application of many laws; there are likely to be

few instances of an individual poring over a

statute book before acting. “Whether or not the

operative conduct might have been different, the

immigrant has a presumptive right to the imposi-

tion of only those consequences which could

have attached at the time he committed his act.”

Pena-Rosario v. Reno, 83 F. Supp.2d 349, 366 (E.D.N.Y. 2000)

(Gleeson, J.) (quoting Maria v. McElroy, 68 F. Supp.2d 206,

229 (E.D.N.Y., 1999)).

CONCLUSION

For the foregoing reasons, the Court should affirm the

decision of the court below.

Respectfully submitted,

JosHuA L. DRATEL

National Association of Criminal

Defense Lawyers

MaANue.L D. Varcas*

SEJAL R. Zora

New York State Defenders

Association

*Counsel of Record (Other

Organizations Listed in

Appendix A)

App. 1

APPENDIX A: ORGANIZATIONAL STATEMENTS OF

INTEREST

The National Association of Criminal Defense Law-

yers (NACDL) is a nationwide, nonprofit voluntary asso-

ciation of criminal defense lawyers founded in 1958 with

a membership of more than 10,000 attorneys. NACDL is

affiliated with 80 state and local criminal defense organi-

zations with which it works cooperatively on issues

related to criminal defense. Thus, it speaks for more than

28,000 criminal defense lawyers nationwide.

The Association of Federal Defenders (AFD) was

formed in 1995 to enhance the representation provided

under the Criminal Justice Act, 18 U.S.C. 3006A, and the

Sixth Amendment of the United States Constitution. The

AFD is a nationwide, nonprofit, volunteer organization

whose membership includes attorneys and support staff

of the Federal Defender Offices. One of the AFD’s mis-

sions is to file amicus curiae briefs to ensure that the

positions of indigent habeas corpus petitioners previously

convicted of criminal offenses are adequately repre-

sented.

The California Public Defenders Association

(CPDA) has a membership of over 3,000 public defenders

and private defense counsel. The CPDA attorney mem-

bers act as legal counsel for over 95 percent of the indi-

gents accused of criminal conduct in California. The

- CPDA, established in 1969, is the state-designated con-

tinuing legal education provider for all local public

defender offices in the state of California, and also repre-

- gents the interests of CPDA’s criminal defense attorney

App. 2

members in legislative and significant issues at the appel-

late court levels. Due to the numerous and complex

immigration laws and regulations, criminal prosecutions

and convictions can and do have serious adverse conse-

quences for a substantial percentage of the defendants

represented by our member attorneys, and thus the

CPDA and its members have great interest in the out-

come of this case.

The Committee for Public Counsel Services (CPCS),

the Massachusetts public defender agency, is statutorily

mandated to provide counsel to indigent defendants in

Massachusetts criminal proceedings. G.L. c. 211D, §5. The

issue presented in this case is of immediate importance to

CPCS because many of its clients’ criminal cases are

resolved by a guilty plea or by an admission to sufficient

facts. In addition, because many of its clients are no‘

citizens of the United States. their guilty pleas have sig-

nificant immigration consequences. As a result, CPCS

attorneys are trained, and then required to advise clients

not only of the nature of the plea colloquy, the constitu-

tional rights they are giving up in pleading guilty, and

the effect of the plea, but also the potential consequences

of deportation, exclusion from admission to the Unitec

States, or denial of naturalization. See M.G.L. c. 278 § 29D;

CPCS Performance Standards.

The Cook County Public Defender’s Office is an

independent Cook County agency operating within the

largest unified court system in the world. Services are

provided by Administrative, Chicago, Suburban and

Countywide Operations with multiple offices located in

Chicago, Illinois, and five adjacent suburbs. The office

employs 567 lawyers and provides legal representation to

App. 3

nearly 400,000 people annually who cannot afford to hire

a private lawyer, in adult criminal cases and appeals

resulting from conviction. Because of the diversity of

Cook County’s population, a large percentage of the

Office’s clients are not United States citizens.

The Division of Public Defender Services of the

State of Connecticut is a statewide public defender sys-

tem responsible for providing legal representation to

indigent persons in adult criminal cases, juvenile delin-

quency matters, habeas corpus proceedings, and appeals.

The Division represents individuals in approximately -

75,000 cases annually before the Connecticut courts.

Attorneys in the Division handle approximately 75% of

all cases in the 13 Judicial Districts and one-third of all

cases in the 22 Geographical Areas of the Superior Court,

as well as a significant percentage of cases before the

Connecticut Supreme and Appellate courts. The Division

of Public Defender Services is an independent agency of

the State of Connecticut.

The Florida Public Defender Association consists of

the State of Florida’s twenty elected Public Defenders.

Florida’s Public Defenders have a constitutional and stat-

utory duty to represent poor people accused of crimes in

Florida’s courts. The Florida Public Defender Association

has an interest in matters affecting the administration of

justice and the practice of criminal defense in the State of

Florida. Florida is the state with the third highest percent-

age of immigrants among its population, with more than

eighteen percent of Florida’s fifteen million people born

outside the country.

App. 4

The Los Angeles County Public Defender is the

primary trial counsel in the County of Los Angeles, Cali-

fornia for all persons charged with crimes who are indi-

gent and unable to afford private counsel. The Office is

the largest office of trial counsel for criminal defendants

in the State of California, with over six hundred trial

lawyers. The Office represents tens of thousands of

defendants each year in criminal proceedings who are

long-term permanent resident immigrants. In addition,

the Office is involved in post-conviction litigation in

cases where long-term permanent resident immigrants

are facing mandatory deportation as a result of the 1996

amendments to the deportation laws.

The National Legal Aid and Defender Association

(NLADA) is a private, non-profit membership organiza-

tion based in Washington, D.C. Founded in 1911, the

NLADA is the only national organization devoted solely

to assuring the delivery of high quality legal services to

poor people. The NLADA often appears as an amicus

party on issues of broad concern that address the consti-

tutional right to counsel and equal access to and fairness

in the judicial system. Its national membership includes

members of the indigent defense and civil legal service

bars, and professionals who provide related services.

Many of the nation’s public defender organizations, as

well as assigned counsel and private criminal defense

practitioners, are NLADA members. NLADA member

lawyers have also represented thousands of long-term

lawful permanent resident immigrants in criminal pro-

ceedings.

App. 5

The New York State Association of Criminal

Defense Lawyers (NYSACDL) is a non-profit member-

ship organization of more than 1,100 attorneys who prac-

tice criminal defense law in the State of New York. Its

purpose is to assist, educate, and provide support to the

criminal defense bar to enable them to better serve the

interest of their clients and to enhance their professional

standing.

The New York State Defenders Association

(NYSDA) is a non-profit membership association of more

than 1,300 public defenders, legal aid attorneys, assigned

counsel, and other persons throughout the State of New

York. Its objectives are to improve the quality of public

defense services in the state, establish standards for prac-

tice in the representation of poor people, and engage in a

statewide program of community legal education. Among

other initiatives, NYSDA operates the Criminal Defense

Immigration Project, which provides public defender,

legal aid, and assigned counsel program lawyers with

legal research and consultation, publications, and train-

ing on issues involving the interplay between criminal

and immigration law.

The Public Defender of Florida’s Eleventh Judicial

Circuit, Honorable Bennett H. Brummer, is the elected

state constitutional officer charged with representing

poor people accused of crimes in Miami-Dade County

Miami-Dade is Florida’s most populous county, and the

Office of the Public Defender employs 200 lawyers to

handle approximately 90,000 cases a year. In many of

those cases, attorneys are called upon-to advise clients of

the potential immigration consequences of plea bargains.

Half of Miami-Dade County’s more than two million

App. 6

residents were born outside the United States, and

Miami-Dade has the highest immigration rate of any

urban county nationwide.

The Texas Criminal Defense Lawyers Association is

an organization of more than 2,300 attorneys in Texas

who represent people accused of crimes. The application

of immigration laws to criminal convictions affects a large

number of the clients of Association members who are

not citizens of the United States. Since Texas is a border

state, Association members regularly represent immi-

grants. The retroactive application of the immigration

laws has exposed many Association members to com-

plaints and disciplinary hearings regarding ineffective

assistance of counsel. For these reasons, the outcome of

this case is of critical interest to Association members.

The Legal Aid Society of the City of New York is a

private, non-profit legal services agency that represents

poor New York City residents who cannot afford to hire a

lawyer. The Criminal Defense Division, the largest divi-

sion of The Society, employs more than 400 attorneys.

Since 1965, the Division has been the primary public

defender for indigent persons who are prosecuted for

crimes in state courts in New York City. In fiscal year

1999, the Division represented more than 180,000 clients

in New York, Kings, Queens, and Bronx counties. Because

of the diversity of the New York City population, a large

percentage of the Division’s clients are not United States

citizens.

The Washington Defender Association (WDA) is a

non-profit membership organization comprised of public

defenders, assigned counsel and legal aid attorneys

App. 7

throughout the State of Washington. WDA’s mission is to

promote, assist and encourage public defense systems

which ensure that all accused persons in every court

receive effective assistance of counsel. In recognition of

the severe immigration consequences that may result to

noncitizen defendants, the WDA operates the Washington

Defenders Immigration Project (WDIP). WDIP provides

case-by-case technical assistance and training to public

defenders and assigned counsel representing noncitizen

clients throughout Washington State.

App. 8

APPENDIX B: PARTIAL LIST OF PRE-APRIL 1996 PUB-

LICATIONS AND PRACTICE MATERIALS ON THE

IMMIGRATION CONSEQUENCES OF CRIMINAL

CONVICTIONS

NATIONAL MANUALS/TREATISES/PRACTICE

MATERIALS:

1.

Larry Ainbinder, updated by Hilary Hochman, Ch.

17, Special Considerations in Representing the Non-Citi-

zen Defendant, in Defending A Federal Criminal Case

(Federal Defenders of San Diego, an updated Chap-

ter 17 has been included in the nationally distributed

manual from 1983 — 2000).

Kari Converse, Keeping Dorothy in Kansas After Ozkok:

New Strategies for Defending Non-Citizens, The Cham-

pion, Mar. 1989, at 8 (The National Association of

Criminal Defense Lawyers).

Jeffrey B. Fawell & Robert S. White, Effects Of Recent

Immigration Legislation On Criminal Aliens & Defense

Practitioners, The Champion, Sept./Oct. 1995, at 10

(The National Association of Criminal Defense Law-

yers).

Maryellen Fullerton & Noah Kinigstein, Strategies for

Ameliorating the Immigration Consequences of Criminal

Convictions, 23 Am. Crim. L. Rev. 425 (1986).

C. Gordon, et al., Immigration Law and Procedure

(Bender, 1988 - ).

Steven D. Heller, Criminal Convictions And Aliens:

Preventing The ‘Collateral Consequence’ Of Deportation,

94-10 Immigr. Briefings 1 (1994).

Nancy Hollander & Kari Converse, Immigration

Implications for the Alien Defendant (pts. 1 & 2),

The Champion, May 1986, at 29, June 1986, at 16

13.

14.

15.

App. 9

(The National Association of Criminal Defense Law-

yers).

Tova Indritz, Representing a Non-Citizen Client in a

Criminal Case (training materials prepared for the

annual Federal Judicial Center orientation seminar

for Assistant Federal Defenders in Nov. 1994)

Katznelson, Conley & Martin, Non-U.S. Citizen

Defendants in the Federal Court System, 8 Fed. Sentenc-

ing Rptr. 259 (1996).

Dan Kesselbrenner & Lory D. Rosenberg, Immigra-

tion Law And Crimes (West Group, 1984-1999).

Kowalski, Sentencing Options for the Deportable Non-

Citizen, 8 Fed. Sentencing Rptr. 259 (1996).

Ira J. Kurzban, The Immigration Act of 1990, The

Champion, Apr. 1991, at 5 (The National Association

of Criminal Defense Lawyers).

McWhirter & Sands, A Primer for Defending a Crimi-

nal Immigration Case, 8 Geo. Imm. L. J. 23 (1994).

Norton Tooby, Criminal Defense of Noncitizens, 22

Immigration Newsletter, Nos. 3 and 4 (National

Immigration Project 1995).

Alan Vomacka, Immigration Considerations for the

Criminal Defense Lawyer, (pts. 1 & 2) The Champion,

‘Apr. 1982, at 9, May 1982, at 4 (The National Asso-

ciation of Criminal Defense Lawyers).

STATE MANUALS/TREATISES/PUBLICATIONS/

PRACTICE MATERIALS:

1.

Jan Bejar, Exclusion or Deportation based on Narcotics

and Alien Smuggling Offenses, Mar. 1990 (article writ-

ten for federal and state defenders practicing in San

Diego area).

10.

App. 10 os

Jan Bejar, Representing Aliens in Criminal Proceedings:

Some Pitfalls for the Criminal Practitioner to Avoid,

California Attorneys For Criminal Justice Forum,

Apr. 1994.

Jim Benzoni, Defending Aliens in Criminal Cases

(training materials prepared for criminal defense

lawyers attending Continuing Legal Education pro-

grams in Iowa from 1994-1997).

Katherine A. Brady, et al., California Criminal Law

And Immigration (Immigrant Legal Resource Center,

1990-1999).

Katherine A. Brady & Hon. Dana Marks Keener, Ch.

“48, Representing a Noncitizen Criminal Defendant in

California Criminal Law Procedure And Practice 1285

(Continuing Education of the Bar of California, 3rd

ed., 1994 — 1996).

Katherine A. Brady & David S. Schwartz, Public

Defenders Handbook On Immigration (California Public

Defenders Association, 1988).

Katherine A. Brady, New Developments in Representa-

tion of Non-Citizen Defendants, 19 California Attor-

neys For Criminal Justice Forum, No. 2, at 30 (1992).

Jeffrey N. Brauwerman & Stephen E. Mander,

IMMACT 90 Revisions Regarding Immigration Conse-

quences Of Criminal Activity, 66-May Florida Bar

Journal 28 (1992).

Sarah M. Burr, Immigration Consequences of Criminal

Convictions for Non-Citizen Clients, 1990, 1991 (train-

ing materials prepared for Criminal Defense Divi-

sion of The Legal Aid Society of the City of New

York).

Robert Frank, Criminal Defense Of Foreign Nationals,

167-Mar. N.J Law. 36 (1995).

. De aaa see seh Bie acig Ee a

11.

12.

13.

14.

15.

16.

ae:

18.

19.

App. 11

Josie Gonzalez, Immigration Consequences of Criminal

Convictions for “Amnesty” Applicants and Other Immi-

grants, Jan. 1988 (training materials prepared for the

Los Angeles Public Defender’s Office).

J. Gonzalez, Representing Accused Non-Citizens, Cali-

fornia Attorneys for Criminal Justice, Statewide

Criminal Law Seminar Syllabus (May 6, 1978).

Immigration Issues for Criminal Defense Lawyers, Ch.

17, in Deborah T. Creek Criminal Practice Institute Trial

Manual (Public Defender Service for the District of

Columbia, 1995).

D. Kanstroom, Immigration Consequences of Criminal

Convictions (training materials prepared for the 1996

Annual Statewide Training Conference of the Com-

mittee for Public Counsel Services (Massachusetts

Public Defender)).

Daniel Kanstroom, Immigration Consequences of Crim-

inal Offenses in Massachusetts Criminal Defense 106 —

115 (Eric Blumenson & Stanley Z. Fisher ed., Butter-

worth Legal Publishers, 1992; 1993 update).

Daniel M. Kowalski & Daniel C. Horne, Defending the

Noncitizen, 24 Colo. Law. 2177 (Specialty Law Col-

umn, 1995).

John J. LaCava, Immigration Consequences of Criminal

Convictions: A Primer for the Criminal Lawyer, Nov.

1990 (training materials disseminated to all the Con-

necticut Public Defender offices by the Criminal Jus-

tice Section of Connecticut Bar Association).

Margaret McManus, Immigration Consequences of

Criminal Conduct, Sept. 1985 (training materials pre-

pared for Criminal Defense Division of The Legal

Aid Society of the City of New York).

Robert Pauw & Jay Stansell, Immigration Conse-

quences of Criminal Convictions, 1992, 1995 update

20.

21.

ae.

23.

App. 12

(training materials prepared by Northwest Immi-

grants Rights Project for criminal defense attorneys

in Washington).

Mary L. Sfasciotti, Representing Aliens in Criminal

Cases — Recent Amendments to the Immigration and

Naturalization Act, 79 Ill. B.J. 78 (1991).

Dennis M. Sullivan, Immigration: The Consequences of

A Criminal Conviction, 63-Apr. Wis. Law. 16 (1990).

Tarik H. Sultan, Immigration Consequences of Criminal

Convictions: A Guideline for the Criminal Defense Attor-

ney, 30-Jun Ariz. Att’y 15 (1994).

The Legal Aid Society Criminal Appeals Bureau,

Representing Clients Who are not United States Citizens:

Immigration Consequences of Convictions and Appellate

Considerations, (1992).

Alfred Zucaro, Jr. & Beth L. Mitchell, Criminal Con-

victions: The Immigration Consequences, 63-May Fla.

B.J. 36 (1989). ‘

App. 13

APPENDIX C: EXAMPLES OF PRE-APRIL 1996 TRAIN-

INGS FOR CRIMINAL DEFENSE LAWYERS ON THE

IMMIGRATION CONSEQUENCES OF CRIMINAL

CONVICTIONS

NATIONAL

The National Immigration Project of the National Law-

yers Guild sponsored the following Continuing Legal

Education (CLE) seminars for criminal defense lawyers:

e Jan. 28, 1984, Boston, MA, “Immigration

Consequences of Criminal Convictions”

e Feb. 4, 1984, San Francisco, CA, “Immigra-

tion Consequences of Criminal Convictions”

e Feb. 11, 1984, Los Angeles, CA, “Immigration

Consequences of Criminal Convictions”

e Mar. 17, 1984, Sacramento, CA, “Immigration

Consequences of Criminal Convictions”

e May 11, 1984, New York, NY, “Immigration

Consequences of Criminal Convictions”

e June 25, 1984, Portland, OR, “Immigration

Consequences of Criminal Convictions”

e June 25, 1984, Seattle, WA, “Immigration

Consequences of Criminal Convictions”

e Nov. 18, 1985, Washington, D.c.,' “Immigra-

tion Consequences of Criminal Convictions”

e Dec. 6, 1985, Miami, FL, “Immigration Con-

sequences of Criminal Convictions”

e Sept. 29, 1989, South Padre Island, TX,

“Immigration Consequences of Criminal

Convictions”

e Jan. 19, 1990, Albuquerque, NM, “Trial Prac-

tice Skills: Drug Conviction 212(c) Waivers”

App. 14

e May 30, 1990, Austin, TX, “Immigration Con-

sequences of Criminal Conduct: Drug Con-

victions, Weapons Offenses, Aggravated

Felonies and Crimes Involving Moral Turpi-

tude”

ae

e Nov. 10, 1990, San Francisco, CA, “Trial Tac-

tics, Practice and Substance: 212(c) Waivers

of Excludability”

e July 31, 1991, Seattle, WA, “Specialized

Issues in the Immigration Act of 1990”

[includes waivers and criminal grounds of

deportability]

e Jan. 31, 1992, Chapel Hill, NC, “Defending

Against Deportation . . . ” [includes discus-

sion of grounds of deportation and forms of

relief]

e Aug. 4, 1993, New York City, NY, “Justice for

Respondents in Immigration Proceedings:

Contesting Deportability and 212(c) Waivers

for Criminal Offenders”

Federal Judicial Center (FJC) is the research and educa-

tion agency of the federal judicial system. It has been

training federal defenders across the country since 1971.

The FJC conducts a national seminar for Assistant Federal

Defenders every year, which often includes a segment on

the immigration consequences of criminal convictions.

For example, in Nov. 1994, the FJC conducted a training

on “Considerations in Representing a Non-Citizen Cli-

ent” at the “Orientation Seminar for Assistant Federal

Defenders” in Phoenix, Arizona.

App. 15

STATES

Jan Bejar, an immigration attorney in San Diego, Califor-

nia, has routinely provided annual updates of the immi-

gration consequences of criminal convictions to the

Federal Defenders of San Diego since 1990. He has also

conducted immigration seminars for at least three of the

annual Criminal Justice Act (CJA) Seminars inSan Diego,

a seminar required for admission to the San Diego CJA

panel of court-appointed criminal defense attorneys. One

such presentation was on June 4, 1991 on “The 1990

Changes in Immigration Consequences for a Criminal

Defendant.”

Anne Benson, while employed at the Northwest Immi-

grants Rights Project in Seattle, Washington, often trained

Seattle public defenders about the immigration conse-

quences of criminal convictions. For example, on Mar. 21,

1996, she provided training to The Defender Association

(the largest public defender agency in Seattle-King

County) on “Immigration Law & Crimes.”

Jim Benzoni, an adjunct professor for immigration law at

Drake University Law School in Iowa and one of the main

attorneys doing immigration and criminal work in that

state, has given numerous CLE’s on the subject, partic-

ularly between 1994-1996. For instance, on Aug. 3, 1994,

he conducted a CLE presentation on “Defending Aliens

in Criminal Cases,” which was sponsored by the Iowa

Association of Criminal Defense Lawyers.

Katherine Brady is a national expert on the interplay of

criminal and immigration law and has authored many

: publications on the subject. A partial list of CLE semi-

nars, sponsored or co-sponsored by the Immigrant Legal

ON faerie

App. 16

Resource Center, that she has given to train criminal

defense attorneys in California to advise properly noncit-

izen clients of the immigration effect of criminal convic-

tions follows:

——— =

e Sept. 1991, San Francisco, “Immigration Con-

sequences of Crimes”

e Sept. 1991, Davis, “Immigration Conse-

quences of Crimes” .

e Oct. 1991, Los Angeles, “Immigration Conse-

quences of Crimes”

e Nov. 1991, San Diego, “Immigration Conse-

quences of Crimes”

e Mar. 1993, Davis, “Immigration Conse-

quences of Criminal Convictions”

e Mar. 1993, San Diego, “Immigration Conse-

quences of Criminal Convictions”

e Apr. 1993, San Francisco, “Immigration Con-

sequences of Criminal convictions”

e Apr. 1993, Los Angeles, “Immigration Conse-

quences of Criminal Convictions”

e Feb. 1995, San Francisco, “Immigration and

Crimes”

e Apr. 1995, San Francisco, “Immigration Con-

sequences of Crimes”

e May 1995, Los Angeles, “Immigration Conse-

quences of Crime”

e May 1995, Fresno; “Immigration Conse-

quences of Crimes”

e June 1995, San Diego, “Immigration Conse-

quences of Crimes” '

App. 17

Victor Castro, an immigration attorney in Santa Clara,

California, regularly provides training on the immigra-

tion consequences of criminal convictions for the Santa

Clara County Public Defender’s Office. In 1992, he also

conducted a trainer for the Santa Clara criminal bar on

the “Immigration Consequences of Criminal Convictions,

Relief available to Noncitizens, and How to Strategize to

Provide a Legal Defense.”

Federal Defenders of San Diego sponsors the annual

Criminal Justice Act Seminar in San Diego, which is

required for admission to the San Diego CJA panel of

court-appointed attorneys. The seminar often includes a

segment on the immigration consequences of criminal

convictions. The Federal Defenders of San Diego also

sponsors other immigration seminars for the criminal

defense bar in San Diego and \the surrounding areas such

as the “Crime Control Act of 1994,” part of which focused

on “Aliens and Immigration Enforcement” on Dec. 7,

1994.

Daniel Kanstroom, the Director of the Boston College

Immigration and Asylum Project and an Associate Clini-

cal Professor at Boston College Law School, has for years

provided training for public defenders about the inter-

play of criminal law and immigration law. One such

presentation was on “Immigration Consequences of

Criminal \ Offenses,” on Mar. 8, 1995, for the Dorchester

Bar Association.

The Legal Aid Society of the City of New York, Crimi-

nal Defense Division, has periodic in-house immigration

training for all its staff attorneys on the immigration

consequences of criminal convictions. Specifically:

App. 18

e In 1985, Margaret McManus conducted an

office-wide training on the “Immigration

\ Consequences of Criminal Conduct.”

e From 1989-present, The Legal Aid Society

has had a city-wide training for the new staff

attorneys on the immigration consequences

of criminal convictions.

e In 1991, 1993, and 1994, The Legal Aid Soci-

ety had a several-day-long advanced training

for lawyers on “The Preparation and Trial of

a Narcotics Case,” which included a specific

lecture on the immigration consequences of

drug convictions.

Los Angeles County Public Defender provides in-house

training for its staff attorneys every few years on the

immigration consequences of criminal convictions. For

instance on Jan. 13, 1988, Josie Gonzalez conducted an

oftice-wide training on the “Immigration Consequences

of Criminal Convictions for “Amnesty” Applicants and

other Immigrants,” and on Mar. 30, 1994, Gilbert Lopez

conducted an office-wide seminar on the “Immigration

Consequences of Criminal Convictions, Criminal Pleas,

Diversion and Post-Conviction Remedies.”

San Francisco City and County Public Defender has

provided an in-house training for all of its staff attorneys

every year on the immigration consequences of criminal

convictions since 1990.

Professor James Smith, the Directing Attorney of the

Immigration Law Clinic of the School of Law of the

University of California at Davis, and the Davis Immigra-

tion Law Clinic have sponsored an average of 5 training

App. 19

sessions each academic year and many individual consul-

tations since 1987 for criminal defense counsel on the

immigration consequences of crime.

Jay Stansell, while employed at Northwest Immigrants

Rights Project in Seattle, Washington, conducted approxi-

mately two trainings per year for local defender agencies

on the “Immigration Consequences of Crime,” highlight-

ing the availability of 212(c) relief for many clients. He

also spoke at the following specific CLE trainings:

e Apr. 11, 1992, University of Washington

School of Law, “Immigration Consequences

of Crime”

e Oct. 21, 1993, Seattle, “Immigration Conse-

quences of Crime,” sponsored by Seattle-

King County Bar Association

e Jan. 18, 1994, Seattle, “Immigration Conse-

quences of Criminal Convictions,” sponsored

by Northwest Immigrants Rights Project

e Oct. 21, 1994, Seattle, “Importance of Immi-

gration Considerations when Representing

Juvenile Non-citizen Offenders,” sponsored

by Washington Defenders Association

e Mar. 31, 1995, Seattle, “Firearm Offenses and

212(c) Relief,” sponsored by Washington

Association of Criminal Defense Lawyers

Norton Tooby is a California attorney who specializes in

the representation of non-citizens in criminal courts and

the author of many publications on strategies to amelio-

rate the immigration consequences of convictions. A par-

tial list of CLE seminars he has given to criminal defense

lawyers on the immigration effects of criminal convic-

tions follows:

App. 20

Sept. 18, 1990, San Francisco, “Post-Convic-

tion Relief and Its Impact on Immigration

Cases,” sponsored by the Immigrant Legal

Resource Center (IRLC) and Golden Gate

Law School

Sept. 25, 1990, San Jose, “Post-Conviction

Relief and Its Impact on Immigration Cases,”

sponsored by ILRC and Golden Gate Law

School

Oct. 5, 1991, San Francisco, “Immigration

Consequences of Crimes,” sponsored by the

ILRC

Oct. 26, 1991, Davis, CA, “In:migration Con-

sequences of Criminal Offenses,” sponsored

by the ILRC; State Bar Association; National

Lawyers Guild; American Immigration Law-

yers Association; and the U.C. Davis Immi-

gration Law Clinic

Mar. 6, 1993) Davis, “The Immigration Con-

sequences of Criminal Convictions,” spon-

sored by the ILRC and the California Bar

Association, Criminal Law Section

Apr. 3, 1993, San Francisco, “The Immigra-

tion Consequences of Criminal Convictions,”

sponsored by the ILRC and the California

Bar Association, Criminal Law Section

June 12, 1993, Los Angeles, “The Immigra-

tion Consequences of Criminal Convictions,”

sponsored by the ILRC and the California

Bar Association, Criminal Law Section

App. 21

APPENDIX D: INDEX OF DOCUMENTS LODGED

WITH THE SUPREME COURT

PROFESSIONAL STANDARDS CITED IN BRIEF

ABA Standards for Criminal Justice, Pleas of Guilty

(2d ed.), Standard 14-3.2, commentary (1982)..... L-1

ABA Standards for Criminal Justice, Pleas of Guilty,

(3d ed.), Standards 14-1.4 & 14-3.2, commentary

(RUNES bo ah at haden bee eee eee eee L-2

NLADA Performance Guidelines for Criminal Defense

Representation, Guideline 6.2, 6.3, commentary

(OPED ++ pnb eucankueghicndea ssa been eae ee L-3

AFFIDAVITS/DECLARATIONS CITED IN BRIEF

Declaration of Cristina C. Arguedas, filed in Jun Li

Tam v. Reno, No. C-98-2835 MHP (9th Cir.) on

PO. 28, TORR 6 sks decease ea faares L-4

Declaration of Katherine A. Brady, filed in In re

Resendiz, No. S078879 (Cal.) on Jan. 7, 1999...... L-5 |

Declaration of Nancy L. Clarence, filed in Jun Li

Tam v. Reno, No. C-98-2835 MHP (9th Cir.) on

Ws Mle SOs $onkeisda) ee ee L-6

Declaration of Susan L. Hendricks, filed with

amici curiae brief of The Legal Aid Society of the

City of New York, et al., in Calcano-Martinez v.

INS, No. 98-4033, 98-4214, 98-4246 (2d Cir.) on

FOO. SF, PeORkiaiadcatcn se ee ice Ururcia L-7

\

Affidavit of Daniel Kanstroom, filed with amici

curiae brief of the National Legal Aid and

Defender Association & New York State

Defenders Association in Bonhometre v. Reno,

No. 98-12333-NG (D. Mass.) on Feb. 1, 2000 ..... L-8

App. 22

Declaration of Larry Kupers, filed in Jun Li Tam v.

Reno, No. C-98-2835 MHP (9th Cir.) on Feb. 22,

1999. ncccctcvanccesuddegensecs seaukeveeneusnees L-9

Affidavit of Dennis R. Murphy, filed with amici

curiae brief of the National Association of Crim-

inal Defense Lawyers & the National Legal Aid

and Defender Association before the Attorney

General in Matter of Soriano, Int. Dec. 3289 on

Ape. 30, 1906. sccccccscietssassucvaneyceeeunest L-10

Declaration of James F. Smith, filed in In re Resen-

diz, No. S078879 (Cal.) on Jan. 7, 1999.......... L-11

Declaration of Norton Tooby, filed in In re Resen-

diz, No. S078879 (Cal.) on Jan. 7, 1999.......... L-12

UNPUBLISHED PRACTICE AIDS/TRAINING MATE-

RIALS CITED IN BRIEF

Larry Ainbinder, updated by Hilary Hochman,

Ch. 17, Special Considerations in Representing the

Non-Citizen Defendant, in Defending A Federal

Criminal Case 837, 838, 853 (Federal Defenders

of Sam Theme, T9056 OG). oss sdcwrosccvsaswecucesss L-13

Jan Bejar, Representing Aliens in Criminal Proceed-

ings in Criminal Justice Act Seminar materials,

June 4, 1991 (pp. 1, 42-45, 61-62) «2. cescviccess L-14

Jim Benzoni, Defending Aliens in Criminal Cases

(training materials prepared for criminal

defense lawyers attending CLE programs in

Iowa from 1994-1997) (pp. 1-2, 13-15)........... L-15

Katherine A. Brady & David S. Schwartz, Public

Defenders Handbook On Immigration 1-4 (Califor-

nia Public Defenders Association, 1988)......... L-16

App. 23

John J. Lacava, Immigration Act of 1990 and its

Effect on Criminal Aliens (Immigration Law Bul-

letin included in Memorandum to All Attorneys

of the Division of Public Defender Services of

the State of Connecticut, Mar. 12, 1991).........