Amicus Curiae Brief — Ferguson v. Holder

No. 09-263

In The

Supreme Caurt of the Anited States

¢

SANDRA FERGUSON,

Petitioner,

v.

ERIC HOLDER, ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent.

ca

On Petition For A Writ Of Certiorari

' To The United States Court Of Appeals

For The Eleventh Circuit

©

BRIEF OF AMICI CURIAE IMMIGRANT

DEFENSE PROJECT, IMMIGRANT LEGAL

RESOURCE CENTER, NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS GUILD,

AND NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

S

NANCY MORAWETZ

Counsel of Record

WASHINGTON SQUARE LEGAL

SERVICES, INC.

245 Sullivan Street, 5th Floor

New York, NY 10012

(212) 998-6451

Attorney for Amici

a

tena

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Interests of the Amici Curiae.........0:.c0ccccscsccesseeeees 1

Summary of the Argument..................c.ccsssseeceeeeeees 3

Reasons for Granting the Writ............. amanonae 6

I.

Increasingly Pervasive Methods Of Immi-

gration Enforcement Will Continue To

Lead To Removal Proceedings Against

Individuals With Pre-1996 Criminal Con-

WEED ovccicvencssnsvesseccsseiceniecsanalaneneenemnians

A. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings After Return To The

United States From Travel Abroad.......

B. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings After Applying For United

SSemtSS CANMONIGTIED cee cnscnesincesevssscveseceseoeses

C. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings After Renewing Their

CO Civ iciieccdsateecdicnin ee

D. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings Because Of Increased

Communication Between Local Law

10

TABLE OF CONTENTS - Continued

Page

E. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings Because Of ICE’s Practice

Of Carrying Out Raids.......................... 12

II. Eligibility For §212(c) Relief Remains

Critice! For Lawful Permanent Residents

Placed In Removal Proceedings Based On

Tee ccnewensoneesece 13

III. Availability Of § 212(c) To Lawful Per-

manent Residents With Old Convictions

Is Arbitrarily Determined Because The

Government May Commence Removai

Proceedings In Any Circuit.......................... 21

IV. Even If Reliance Were A Critical Factor In

The Retroactivity Analysis, The Eleventh

Circuit Erred Because Immigrants Who

Decide To Go To Trial, Just As Those Who

Plead Guilty, Rely On The Relief Available

recon sccaseceenvensksuesesnonveceess 22

Conclusion

ill

TABLE Of AUTHORITIES

Page

CASES |

Amendariz-Montoya v. Sonchik, 291 F.3d 1116

CEI Se. SII a cdi nckscncdcescencussapeenchoesteeneubiinadinbbaacsss 17

Esquivel v. Mukasey, 543 F.3d 919 (7th Cir.

ST ccviisusinsnuskisbicuaxenstndcaiclukasesipaaaumenouseitoec 17

Garcia v. Shanahan, 615 F.Supp. 2d 175

Sie omer iE nrO nS: LR RO 12

Hem v. Maurer, 458 F.3d 1185 (10th Cir. 200$) ........ 17

In re Yanez-Garcia, 23 I. & N. Dec. 390 (BIA

SEE Ack inivedcsusaciinsnicceaciicsainamimmiacecciaeman tte eaanicaee 21

INS v. St. Cyr, 5383 U.S. 289 (2001) ................... passim

Kelava v. Gonzales, 434 F.3d 1120 (9th Cir.

OI ssvniveussisiareicitiukocinide iaeiasauaiacenn die edna aaa aasihasiec 9

Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009)....... 9,16

Matter of Marin, 16 I. «: N. Dec. 581

CHR BOT? covciscsiccsevens al acade ated adatedaceses vncebouadl 4,14, 18,19

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007)........... 8

Molina-De La Villa v. Mukas.,, 306 F. App’x

I IIE SN hai arc ceiveaicrcdaauatiiabe 8,18

Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir.

REE RE rT enn EN ad <A OPE 8

Perriello v. Napolitano, No. 05-2868, 2009 U.S.

App. LEXIS 19595 (2d Cir. Sept. 1, 2009)....8, 16, 17

Ponnapula v. Ashcroft, 235 F.Supp. 2d 397

GH Ps OE, BR sicacenshscccounsacenscacasinnsconsesscanaabcee 24, 25

1V

TABLE OF AUTHORITIES — Continued

Page

Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir.

ERE EA OD aT RRO a ee ORME ten 16, 21, 25

Saravia-Paguada v. Gonzales, 488 F.3d 1122

ERR FAO arene CF Se CRON 16

Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006).....17, 21

Zamora v. Gonzales, 240 F. App’x 150 (7th Cir.

MESES ERO ana ely PR a pete em 8, 16, 17

Zuluaga Martinez v. INS, 523 F.3d 365 (2d Cir.

NS ede ener ere re a 16

STATUTES AND REGULATIONS

ee no eckecsmemssavennnmenael 23

ee ie a os usasneansonsenenonsh 15, 16

S UTES. © Re et) CLO) cn cceccccsecccesescoessensesass 23

8 U.S.C. § 1251(aX 2X BXi) (1994)..............cccrcccrccrsseess 23

a eT a iaisceisicis cos cessddcasscntosneconencvers 10

Immigration Act of 1990, Pub. L. No. 101-649,

cs sacndeiaveuneiscaemeaes 23

re ie Be ee I viconcnicecstickciceseosccceccensas omelets 10

ee ii ccs tiiesaiceroncnsdncsceceisatoncssoms 8

S CPE. F ARASH ROM) (BOD)... cccscscverscsceseassscnesees 23

Vv

TABLE QF AUTHORITIES - Continued

Page

JUDICIAL MATERIALS

Brief of Petitioner-Appellant, Appel v. Gonzales,

146 F. Appx 175 (9th Cir. 2005) (No. 03-

ORR ERR Reena e nee e ao See ae Or pee on Sere 17

Brief of Petitioner-Appellant, Chambers v. Reno,

307 F.3d 284 (4th Cir. 2007) (No. 00-6364) ...... 16, 17

Brief of Petitioner-Appellant, Gallardo uv.

Mukasey, 279 F. App’x 484 (9th Cir. 2008)

I sckniais chiens claadasssisaicdsenmmgudcswationinavie 16

Brief of Petitioner-Appellant, Haque v. Holder,

312 F. App’x 946 (9th Cir. 2009) (Nos. 05-

Fe EE So iid enciécesatsteicickainiesscecucsnmvesess 16, 17

Brief of Petitioner-Appellant, Manzo-Garcia v.

Gonzales, 225 F. App’x 631 (9th Cir. 2007)

a ee ee 17

Brief of Petitioner-Appellant, Martinez-Murillo

v. Mukasey, 267 F. App’x 519 (9th Cir. 2008)

fA RR oye ele A a ed oA RNID Se 11, 16

Brief of Petitioner-Appellant, Molina-De La

Villa v. Mukasey, 306 F. App’x 389 (9th Cir.

2009) (Nos. 04-71033, 05-74126) ................ 16, 17, 18

Brief of Petitioner-Appellant, Prieto-Romero uv.

Mukasey, 304 F. App’x 512 (9th Cir. 2008)

II tin cndindcun as cisasuicarceauecieadanuenieaes 17, 18

Brief of Petitioner-Appellant, Walcott v. Chertoff,

517 F.3d 149 (2d Cir. 2008) (No. 06-5516-ag)......... 17

vi

TABLE OF AUTHORITIES — Continued

Page

Brief for the Respondent in Opposition, Zamora

v. Mukasey, 128 S. Ct. 2051 (2008) (No. 07-

a TEEPE SERIES ae eel te Sen aes Svea > Oe OO 7

Petition for Writ of Certiorari, Ferguson uv.

Holder, No. 09-263 (Aug. 28, 2009) ...............seeeeenee 22

Certified Administrative Record, Ferguson uv.

Att’y Gen., No. 08-10806-G (A35 730 532)

SN Mi PIII casts ealssseside- dea tisceasind<asssensanerenteabdens passim

OTHER AUTHORITIES

American Civil Liberties Union, Prolonged

Immigration Detention of Individuals Who

Are Challenging Removal 3 (2008), http://

www.aclu.org/images/asset_upload_file766_

Emily Bazar, Some Travelers Criticize Border

Patrol Inspection Methods, USA Today,

Sept. 30, 2008, http://www.usatoday.com/news/

nation/2008-09-30-border-patrol-inside_N.htm ....... 12

Nina Bernstein, Immigration Officials Often

Detain Foreign-Born Rikers Inmates for De-

portation, N.Y. Times, Aug. 24, 2009, at Al7......... 12

Nina Bernstein, Immigrant Workers Caught in

Net Cast for Gangs, N.Y. Times, Nov. 25,

I i I diac acca kanes weeneladaneennssonrnven 12

Editorial, The Shame of Postville, Jowa, N.Y.

Times, July 13, 2008, at WK11.......................ceeceeee 12

Vil

TABLE OF AUTHORITIES — Continued

Executive Office for Immigration Review, U.S.

Dep’t of Justice, FY 2008 Statistical Year

Book R3 (2009), http:/;www.usdoj.gov/eoir/

statspub/syb2000main. htm ............ ee eeeeeeeeeee

Charlies Gordon, Stanley Mailman & Stephen

Yale-Loehr, Immigration Law and Procedure

Fe I eisiveines is pnvnierenereenstsnnaianncanaciapeecsons

Spencer S. Hsu, U.S. to Expand Immigration

Checks to all Local Jails, Wash. Post, May

Be a SD hance nnccicsiecivintaseubinninnniasssinthanninens

Immigration & Customs Enforcement, U.S.

Dep’t of Homeland Security, Secure Commu-

nities Fact Sheet (2009), http://www.ice.gov/

doclib/pi/news/factsheets/secure_communities.

Immigration & Naturalization Serv., U.S. Dep’t

of Justice, HQOPP 50/4, Memorandum to

Regional Directors, District Directors, Clief

Patrol Agents, and Regional and District

Counsel, Exercising Prosecutorial Discretion

(2000), reprinted in ® Bender’s Immigration

Bulletin 995 (Dec. 1, 2000) ..............0....cce eee.

Migration Policy Inst., Behind the Naturali-

zation Backlog: Causes, Contexts, and Con-

cerns 1 (2008), http:/Awww.migrationpolicy.org/

pubs/FS21_NaturalizationBacklog _022608.pdf..

Page

Vill

TABLE OF AUTHORITIES — Continued

Page

U.S. Dep’t of Homeland Security, Office of

Immigration Statistics, Population Esti-

mates, Estimates of the Legal Permanent

Resident Population in 2007 3 (2009),

http://www.dhs.gov/xlibrary/assets/statistics/

publications/Ipr_pe_2007.pdf.............ccccccccccrerereeeeeees 9

1

INTERESTS OF THE AMICI CURIAE'’

Amici are organizations that provide legal ser-

vices to immigrants and advise defense attorneys

whose clients could face deportation. This case

involves the deep and growing split among the courts

of appeals over the continued availability of a critical

form of equitable relief from deportation for lawful

permanent residents (LPRs) with pre-1996 convic-

tions. As organizations concerned with the proper and

consistent understanding of the immigration con-

sequences of criminal convictions, amici urge the

Court to grant certiorari in this case to resolve this

important issue.

The Immigrant Defense Project (IDP) pro-

vides defense attorneys, immigration attorneys, and

immigrants with expert legal advice, publications,

and training on issues involving the interplay

between criminal and immigration law. This Court

has accepted and relied on amicus curiae briefs

submitted by IDP in cases involving the proper

application of federal immigration law to immigrants

with past criminal adjudications, including this

Court’s recent decisions in Lopez v. Gonzales, 549

* The parties have consented to the filing of this brief, and

letters of consent have been lodged with the Clerk of the Court,

in accordance with Supreme Court Rule 37.2(a). Pursuant to

Rule 37.6, no counsel for any party has authored this brief in

whole or in part, and no person or entity, other than amici and

their counsel, made a monetary contribution intended to fund

the preparation or submission of this brief.

2

U.S. 47 (2006), Leocal v. Ashcroft, 543 U.S. 1 (2004),

and INS v. St. Cyr, 533 U.S. 289 (2001).

The Immigrant Legal Resource Center (ILRC)

is a national clearinghouse that provides technical

assistance, training, and publications to low-income

immigrants and their advocates. Among its other

areas of expertise, the ILRC is known nationally as a

leading authority on the intersection between immi-

gration and criminal law. The ILRC provides daily

assistance to criminal and immigration defense

counsel on issues relating to citizenship, immigration

status, and the immigration consequences of criminal

adjudications.

The National Immigration Project of the

National Lawyers Guild (NIP) is a non-profit

membership organization of immigration attorneys,

legal workers, grassroots advocates, and others

working to defend immigrants’ rights and to secure

a fair administration of the immigration and

nationality laws. NIP provides legal training to the

bar and the bench on the immigration consequences

of criminal conduct and is the author of Immigration

Law and Crimes and three other treatises published

by Thomson-West. NIP has participated as amicus

curiae in several significant immigration-related

cases before this Court.

The National Association of Criminal De-

fense Lawyers (NACDL) is a non-profit corporation

with more than 13,000 affiliate members in 50 states,

including private criminal defense attorneys, public

3

defenders, and law professors. The American Bar

Association recognizes the NACDL as an affiliate

organization and awards it full representation in the

ABA’s House of Delegates. NACDL was founded in

1958 to promote criminal law research, to advance

and disseminate knowledge in the area of criminal

practice, and to encourage integrity, independence,

and expertise among criminal defense counsel.

NACDL is particularly dedicated to advancing the

proper and efficient administration of justice, in-

cluding issues involving the role and duties of

lawyers representing parties in administrative, regu-

latory, and criminal investigations.

®

SUMMARY OF THE ARGUMENT

Under former § 212(c) of the Immigration and

Nationality Act, lawful permanent residents (LPRs)

with criminal convictions could seek relief from

deportation on the basis of equitable factors and

strong ties to the United States. In JNS v. St. Cyr,

533 U.S. 289 (2001), this Court held that applying the

repeal of §212(c) to LPRs convicted before its

enactment had an impermissible retroactive effect.

The courts of appeals are now deeply divided over

whether applying the repeal of § 212(c) to LPRs who,

prior to 1996, were convicted after a decision to go to

trial would result in an impermissible retroactive

effect, just as it does for LPRs who pled guilty before

1996. The continued availability of § 212(c) relief

remains critical for thousands of individuals and

4

their families. Amici urge this Court to grant

certiorari in the present case for the following four

reasons.

First, because no statute of limitations restricts

when the government can commence removal pro-

ceedings based on criminal convictions, LPRs with

pre-1996 convictions will continue to be put into

removal proceedings, and cases involving § 212(c)

relief will emerge for years to come. As the present

case demonstrates, the government can initiate

removal proceedings long after an LPR has re-

established a productive life following a conviction.

Furthermore, the government’s systems for initiating

removal proceedings against immigrants with

potentially-deportable offenses are becoming increas-

ingly expansive. LPRs with pre-1996 convictions may

find themselves in removal proceedings after

returning from brief trips abroad, applying for

naturalization, or renewing their permanent resi-

dency cards. Additionally, the integration of data-

bases and increased communication with local law

enforcement raises the likelihood that LPRs with old

convictions will end up in removal proceedings.

Second, in addition to being of utmost importance

to affected immigrants and their families, § 212(c)

ensures that immigration judges can exercise dis-

cretion under well-established standards designed to

promote “the best interests of this country.” Matter of

Marin, 16 Il. & N. Dec. 581, 584 (BIA 1978). The

individuals impacted by the retroactive application of

the repeal of § 212(c) are all long-time LPRs with

5

convictions that are at least 13 years oid. As Sandra

Ferguson, the petitioner in this case, illustrates,

these LPRs often have substantial ties to the United

States, such as strong employment records, com-

munity involvement, and family ties, including

United States citizen spouses, children, and other

family members.

Third, because the government can commence

removal proceedings in any circuit, the circuit split at

issue creates inconsistent application of the law to

similarly situated individuals. The Department of

Homeland Security’s (DHS) practice of transferring

immigrant detainees far from their place of residence

for removal proceedings leads to arbitrary differences

in eligibility for relief under § 212(c). Individuals are

transferred to jurisdictions that apply different rules

than the jurisdictions in which they reside or where

their convictions took place. Similarly, after traveling

abroad, LPRs may be placed in removal proceedings

based upon their port of entry to the United States,

which may not be where they reside.

Fourth, as our experience counseling immigrant

defendants and defense attorneys indicates, there is

no justification for distinguishing between LPRs who

pled guilty and those who were convicted after a trial,

as the Eleventh Circuit has done. While amici believe

that the opinion below gives too much weight to

reliance in the retroactivity analysis, even if this

Court concludes that reliance is a necessary factor,

the Eleventh Circuit’s opinion is flawed. Both the

decision to plead guilty and the decision to go to trial

6

require an LPR to consider the impact on her

immigration status and rely upon the relief available

at the time. Thus, the retroactive application of the

repeal of § 212(c) relief disrupts equally the reason-

able expectations of an immigrant who is convicted at

trial as those of an immigrant who accepted a plea

agreement prior to 1996.

For these reasons, amici request that this Court

grant certiorari to resolve the critica! issue in this

case.

wm

Vv

REASONS FOR GRANTING THE WRIT

I. INCREASINGLY PERVASIVE METHODS

OF IMMIGRATION ENFORCEMENT WILL

CONTINUE TO LEAD TO REMOVAL

PROCEEDINGS AGAINST INDIVIDUALS

WITH PRE-1996 CRIMINAL CONVIC-

TIONS.

Because no statute of limitations restricts when

the government may commence removal proceedings

based on potentially deportable criminal convictions,

an LPR with a prior conviction may face removal

proceedings at any point during her lifetime.’ This

possibility becomes a reality in routine situations,

such as when immigrants travel, apply for nat-

uralization, or seek renewals of identification. In

* See Charles Gordon, Stanley Mailman & Stephen Yale-

Loehr, Immigration Law and Procedure § 71.01 (2009).

7

addition, immigration authorities’ increasingly wide-

spread enforcement efforts and communication with

local law enforcement lead to removal proceedings

against LPRs with old convictions. Accordingly, con-

trary to the government’s assertion in previous cases,”

the question presented by the petition will continue

to recur for a long time to come.

A. Lawful Permanent Residents With Old

Convictions Are Piaced In Removal

Proceedings After Return To The

United States From Travel Abroad.

LPRs with pre-1996 convictions are placed into

removal proceedings upon returning to the United

States from trips abroad. Returning LPRs are

screened by DHS officials for previous convictions.

Because DHS believes it cannot exercise discretion

when screening individuals for admission to the

United States,“ LPRs find themselves facing depor-

tation because of decades-old convictions.

Savario Perriello, for example, was returning

from a brief trip to Italy in 2000 when immigration

authorities charged him with inadmissibility and

* E.g., Brief for the Respondent in Opposition at 13, Zamora

v. Mukasey, 128 S. Ct. 2051 (2008) (No. 07-820).

* See Immigration & Naturalization Serv., U.S. Dep't of

Justice, HQOPP 50/4, Memorandum to Regional Directors,

District Directors, Chief Patrol Agents, and Regional and

District Counsel, Exercising Prosecutorial Discretion (2000),

reprinted in 5 Bender’s Immigration Bulletin 995 (Dec. 1, 2000).

8

initiated proceedings. Mr. Perriello, an LPR, had

resided in the United States since 1961, when he was

13 years old. In the 23 years between his conviction

by trial and the initiation of proceedings, Mr.

Perriello married a United States citizen, operated a

restaurant, and raised four United States citizen

children. He was denied § 212(c) relief because his

past conviction was by trial.’

B. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings After Applying For United

States Citizenship.

Second, LPRs applying for citizenship are put

into removal proceedings after disclosing prior con-

victions on naturalization applications. Applicants for

naturalization must disclose prior convictions and

undergo fingerprint checks. ° If an applicant has a

deportable conviction, United States Citizenship and

Immigration Services (USCIS) can refer that indi-

vidual to Immigration and Customs Enforcement

(ICE) for removal proceedings. In 2007, there were

° Perriello v. Napoliteno, No. 05-2868, 2009 U.S. App.

LEXIS 19595, at *3 (2d Cir. Sept. 1, 2009). See also Nadal-

Ginard v. Holder, 558 F.3d 61, 64 (1st Cir. 2009) (longtime LPR

placed into proceedings after brief trip abroad); Mbea v.

Gonzales, 482 F.3d 276, 278 (4th Cir. 2007) (same); Zamora v.

Gonzales, 240 F. App’x 150, 151 (7th Cir. 2007) (same); Molina-

De La Villa v. Mukasey, 306 F. App’x 389, 391 (9th Cir. 2009)

(same).

* 8C.F.R. § 103.2(e) (2009).

9

almost 1.4 million applications for naturalization

filed, nearly twice as many applications as the

previous year.’ Still, an estimated additional 8.2

million LPRs are eligible to naturalize.® Any of these

LPRs with an old conviction faces removal pro-

ceedings when he or she seeks to naturalize.

Chanh Lovan, for instance, came to the United

States as a refugee from Laos in 1981 and later

became an LPR. In 2002, Mr. Lovan applied for

naturalization, 11 years after his trial conviction. Mr.

Levan’s application was denied and he was placed

into removal: proceedings, threatening to tear him

away from his United States citizen wife and

children. The government argued that he should be

denied a § 212(c) hearing because he took his case to

trial.”

" Migration Policy Inst., Behind the Naturalization Backlog:

Causes, Contexts, and Concerns 1 (2008), http://www.

migrationpolicy.org/pubs/FS21_NaturalizationBacklog_022608.

pdf.

* U.S. Dep’t of Homeland Security, Office of Immigration

Statistics, Population Estimates, Estimates of the Legal Perma-

nent Resident Population in 2007 3 (2009), http://www.dhs.gov/

xlibrary/as:uets/statistics/publications/pr_pe_2007.pdf

° Lovan v. Holder, 574 F.3d 990, 992 (8th Cir. 2009). See

also Kelava v. Gonzales, 434 F.3d 1120, 1122 (9th Cir. 2006)

(longtime LPR placed into proceedings after applying for

citizenship).

10

C. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings After Renewing Their

Green Cards.

Third, LPRs may end up in removal proceedings

after renewing their permanent residency cards,

commonly known as “green cards.” LPRs require a

green card to return to the United States after

traveling abroad. Many LPRs need a green card to

prove work eligibility. Additionally, LPRs are required

by law to carry proof of their immigration status at

all times.” Because individuals applying for green

card renewal are fingerprinted as part of the process,

the renewal process can result in LPRs with old

convictions being placed in removal proceedings.

Gerardo Martinez-Murillo, for example, applied

for a replacement green card in 2004. Shortly

thereafter, immigration authorities placed Mr.

Martinez-Murillo inte proceedings based on his 1992

conviction by trial. Mr. Martinez-Murillo came to the

United States as a child. When he was placed in

removal proceedings, he had lived here for 30 years

with his mother and eieven s.wlings, one of whom was

a member of the United States military. He was

* 8 U.S.C. § 1304(e) (2006). However, an expired green card

has no effect on a person’s lawful status. 8 C.F.R. § 1.1(p) (2009).

11

denied a hearing under § 212(c) because his con-

viction was by trial."

D. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings Because Of Increased

Communication Between Local Law

Enforcement and Immigration Author-

ities.

Moreover, in addition to these standard practices

that often result in removal proceedings, increased

communication between local law enforcement and

immigration authorities and the integration of infor-

mational databases is likely to result in even more

widespread mechanisms for identifying individuals

with old convictions. A new program called Secure

Communities, for example, is designed to have all

jails run fingerprints against immigration data-

bases,” and pass matches along to ICE. ICE predicts

nationwide expansion of Secure Communities by the

year 2013." Government officials predict this initia-

tive will increase tenfold the numbers of individuals

" Brief of Petitioner-Appellant at 5-6, Martinez-Murillo v.

Mukasey, 267 F. App’x 519 (9th Cir. 2008) (No. 06-73562).

* Immigration & Customs Enforcement, U.S. Dep't of

Homeland Security, Secure Communities Fact Sheet (2009),

http://www. ice.gov/doclib/pi/news/factsheets/secure_communities.

pdf.

* Id.

12

identified for deportation. Similar programs operate

out of local prisons, where ICE has offices.” These

programs have been used to place LPRs with old

criminal convictions in removal proceedings. See e.g.,

Garcia v. Shanahan, 615 F. Supp. 2d 175 (S.D.N.Y.

2009).

E. Lawful Permanent Residents With Old

Convictions Are Placed In Removal

Proceedings Because Of ICE’s Practice

Of Carrying Out Raids.

Other methods of expanding enforcement include

home raids,” raids on Amtrak trains and Greyhound

buses,” and workplace raids.” The petitioner in this

case, Sandra Ferguson, illustrates how workplace

raids can sweep up those authorized to work in the

United States. Immigration agents visited her

workplace searching for an individual suspected of

“ Spencer S. Hsu, U.S. to Expand Immigration Checks to

all Local Jails, Wash. Post, May 19, 2009, at Al.

Many correctional facilities also provide office space to

ICE to interview suspected non-citizens. Nina Bernstein,

Immigration Officials Often Detain Foreign-Born Rikers Inmates

for Deportation, N.Y. Times, Aug. 24, 2009, at A17.

“ Nina Bernstein, Immigrant Workers Caught in Net Cast

for Gangs, N.Y. Times, Nov. 25, 2007, at sec. 1, p. 41.

" Emily Bazar, Some ‘Travelers Criticize Border Patrol

Inspection Methods, USA Today, Sept. 30, 2008, http://www.

usatoday.com/news/nation/2008-09-30-border-patrol-inside_N. htm.

* Editorial, The Shame of Postville, lowa, N.Y. Times, July

13, 2008, at WK11.

13

working without authorization. (R. at 351-53.)

Although Ms. Ferguson was authorized to work,

immigration agents questioned her, leading to the

initiation of her removal proceedings. (R. at 351-52.)

Such enforcement methods, combined with the

lack of a statute of limitations, means LPRs with pre-

1996 convictions will inevitably, and increasingly,

come to the attention of immigration authorities.

Because of this issue’s importance to the affected

individuals, it will continue to be litigated at the

administrative agency level and in lower courts. Until

this Court clarifies whether § 212(c) relief was

retroactively repealed for LPRs convicted after trial,

the courts of appeals will continue receiving petitions

for review, and the Supreme Court will continue

receiving petitions for certiorari.

Il. ELIGIBILITY FOR § 212(c) RELIEF RE-

MAINS CRITICAL FOR LAWFUL PERMA-

NENT RESIDENTS PLACED IN REMOVAL

PROCEEDINGS BASED ON OLD CON-

VICTIONS.

The continued availability of § 212(c) relief and

the opportunity to present one’s equities is of utmost

importance to LPRs with pre-1996 convictions as well

as to their families and communities. For LPRs

applying for § 212(c) relief, the opportunity to present

their equities means the difference between “facing

possible deportation and facing certain deportation.”

INS v. St. Cyr, 533 U.S. 289, 325 (2001).

14

To obtain § 212(c) relief, an LPR must show that

favorable considerations outweigh adverse factors

such as criminal records, violations of immigration

laws, or indications of bad character. Matter of Marin,

16 I. & N. Dec. 581, 584-85 (BIA 1978). Such relevant

favorable considerations include:

family ties within the United States,

residence of long duration in this country

(particularly when the inception of residence

occurred while the respondent was of young

age), evidence of hardship to the respondent

and family if deportation occurs, service in

this countrys Armed Forces, a history of

employment, the existence of business ties,

evidence of value and service to the com-

munity, proof of genuine rehabilitation if

criminal record exists, and other evidence

attesting to a respondent’s good character.

Id. at 584-85. Immigration judges are allowed to

grant § 212(c) relief when the balance of factors

promotes “the best interests of this country.” Jd. at

584.

The equities of LPRs affected by the question

presented in this case will be especially strong

because only those convicted before 1996 are at issue.

Thus, their convictions will be at least 13 years old.

Some have convictions that are decades old. Most of

these LPRs served their sentences long ago and have

since rehabilitated themselves. The deep roots these

LPRs have established and their contributions to

15

their communities make them strong candidates for

equitable relief.

Although § 212(c) was repealed 13 years ago,

statistical evidence illustrates its continued im-

portance. Ms. Ferguson is but one of many LPRs put

into removal proceedings annually based on an old

conviction who could benefit from § 212(c) relief.

Immigration judges still hear thousands of applica-

tions for § 212(c) relief every year” and, historically,

the rate of granting § 212(c) relief has been very

high.” In the past five years, for example, tens of

thousands of LPRs have been granted equitable relief

from removal, and § 212(c) waivers constituted a full

third of the equitable relief granted to LPRs in that

time period.”

'* See Executive Office for Immigration Review, U.S. Dep't

of Justice, FY 2008 Statistical Year Book R3 (2009), http://www.

usdoj.gov/eoir/statspub/syb2000main.htm [hereinafter FY 2008

Statistical Year Book).

* An LPR applying for § 212(c) relief had a greater than

50% chance that relief would be granted. See St. Cyr, 533 U.S. at

296 n.5. Considering that immigration judges grant § 212(c)

relief in over a thousand cases a year, it is likely that somewhere

between two and three thousand § 212(c) cases come before

immigration judges annually.

" The remaining two thirds of grants of equitable relief to

LPRs during the last five years were in the form of “cancellation

of removal.” See FY 2008 Statistical Year Book, supra note 18, at

R3. Congress replaced §212(c) relief with cancellation in

ITRIRA. LPRs convicted of any aggravated felony — even if they

served no jail time ~— are ineligible for cancellation. 8 U.S.C.

§ 1229b (2006). In addition, I.PRs must meet a seven-year

(Continued on following page)

16

Recent circuit court cases demonstrate that LPRs

with pre-1996 convictions by jury trial often have

strong equities. The continued availability of § 212(c)

relief remains critical for these individuals. Cases

involving LPRs convicted by trial include LPRs with

strong family ties to the United States, such as

United States citizen children, spouses, parents,

siblings, grand-parents, aunts, uncles, and friends;”

continuous residence requirement. Jd. For LPRs with old

convictions, however, some courts have held that the clock

stopped when they committed a deportable offense even if that

offense was long before the passage of IIRIRA. See e.g., Zuluaga

Martinez v. INS, 523 F.3d 365 (2d Cir. 2008), cert. denied, 129

S. Ct. 1314 (2009).

™ See e.g., Perriello v. Napolitano, No. 05-2868, 2009 U.S.

App. LEXIS 195965, at *3 (2d Cir. Sept. 1, 2009) (U.S. citizen wife

and four U.S. citizen children); Ponnapula v. Ashcroft, 373 F.3d

480, 485 (3d Cir. 2004) (U.S. citizen wife, two children, and

brothers); Brief of Petitioner-Appellant at 5, Chambers v. Reno,

307 F.3d 284 (4th Cir. 2007) (No. 00-6364) (U.S. citizen mother

and grandmother); Zamora v. Gonzales, 240 F. App’x 150, 151

(7th Cir. 2007) (two U.S. citizen children and two U:S. citizen

grandchildren); Lovan v. Holder, 574 F.3d 990, 992 (8th Cir.

2009) (U.S. citizen wife and children); Brief of Petitioner-

Appellant at 7, Molina-De La Villa v. Mukasey, 306 F. App’x 389

(9th Cir. 2009) (Nos. 04-71033, 05-74126) (U.S. citizen wife and

three children); Brief of Petitioner-Appellant at 2, Gallardo v.

Mukasey, 279 F. App’x 484 (9th Cir. 2008) (No. 05-76739) (wife,

two children, and five grandchildren are U.S. citizens); Brief of

Petitioner-Appellant at 5, Martinez-Murillo v. Mukasey, 267 F.

App’x 519 (9th Cir. 2008) (No. 06-73562) (twelve siblings in

lawful status); Saravia-Paguada v. Gonzales, 488 F.3d 1122,

1124 (9th Cir. 2007) (U.S. citizen child and mother and siblings

with LPR status); Brief of Petitioner-Appellant at 5, Haque v.

Holder, 312 F. App’x 946 (9th Cir. 2009) (Nos. 05-74825, 06-

71433) (U.S. citizen parents and seven U.S. citizen siblings);

(Continued on following page)

17

LPRs who have lived almost their entire lives in the

United States; LPRs with strong employment

records; LPRs who are successful small business

owners and employ others in their communities;”

Brief of Petitioner-Appellant at 7, Prieto-Romero v. Mukasey,

304 F. App’x 512 (9th Cir. 2008) (No. 07-35458) (two U.S. citizen

children).

™ See e.g., Brief of Petitioner-Appellant at 3, Walcott v.

Chertoff, 517 F.3d 149 (2d Cir. 2008) (No. 06-5516-ag) (became

an LPR at age 11); Hem v. Maurer, 458 F.3d 1185, 1187 (10th

Cir. 2006) (entered U.S. at age 7); Wilson v.. Gonzales, 471 F.3d

111, 113 (2d Cir. 2006) (entered as an LPR at age 4); Esquivel v.

Mukasey, 543 F.3d 919, 920 (7th Cir. 2007) (entered U.S. at age

6); Brief of Petitioner-Appellant at 2, Chambers, 307 F.3d 284

(No. 00-6364) (entered U.S. at age 2); Brief of Petitioner-

Appellant at 4, Manzo-Garcia v. Gonzales, 225 F. App’x 631 (9th

Cir. 2007) (No. 05-72660) (entered U.S. at a very young age);

Amendariz-Montoya v. Sonchik, 291 F.3d 1116, 1118 (9th Cir.

2002) (entered U.S. at age 3).

“ See e.g., Brief of Petitioner-Appellant at 6, Prieto-Romero,

304 F. App’x 512 (No. 07-35458) (worked fourteen years as a

counselor for the State of Oregon Department of Human

Services and nine years at a second job at Northwest Human

Services); Zamora, 240 F. App’x at 151 (worked as a machinist

since 1989); Brief of Petitioner-Appellant at 7, Molina-De La

Villa, 306 F. App’x 389 (Nos. 04-71033, 05-74126) (immigrant

was family’s primary breadwinner).

* See e.g., Perriello, 2009 U.S. App. LEXIS at *3 (operates

restaurant in New York); Brief of Petitioner-Appellant at 3,

Appel v. Gonzales, 146 F. App’x 175 (9th Cir. 2005) (No. 03-

56986) (owns a business with assets more than one million

dollars, employs 20 people, and contracts with an additional 40

people); Brief of Petitioner-Appellant at 5, Haque, 312 F. App’x

946 (Nos. 05-74825, 06-71433) (owned and ran two carwashes,

earned over $100,000 per year, and employed approximately 70

employees).

18

LPRs who are very involved with their churches and

faith communities” and who participate in com-

munity service;” and LPRs who served in the United

States military.” All these individuals will be

ineligible for § 212(c) relief if the repeal is applied to

their old convictions solely because they took their

cases to trial.

Ms. Ferguson’s case demonstrates the equities

presented by LPRs with old convictions. From her

testimony at a § 212(c) hearing on February 2, 2006,

it is clear that Ms. Ferguson has made a strong case

for an award of relief under § 212(c).”

Ms. Ferguson has substantial family ties in the

United States. See Matter of Marin, 16 1. & N. Dec. at

584. Her entire family lives in the United States,

including her three American-born children, as well

* See e.g., Brief of Petitioner-Appellant at 7, Molina-De La

Villa, 306 F. App’x 389 (Nos. 04-71033, 05-74126) (immigrant is

active member of his church community).

" See e.g., Brief of Petitioner-Appellant at 6, Prieto-Romero,

304 F. App’x 512 (No. 07-35458) (works as an on-call shelter

worker at the Homeless Outreach and Advocacy Project).

” The petitioner in Molina-De La Villa v. Mukasey, 306 F.

App’x 389 (9th Cir. 2009), was a former serviceman in the U.S.

Navy. American Civil Liberties Union, Prolonged Immigration

Detention of Individuals Who Are Chailenging Removal 3 (2008),

http://www.aclu.org/images/asset_upload_file766_40474. pdf.

” Initially, the government conceded Ms. Ferguson's

§ 212(c) eligibility, and the immigration judge scheduled a

hearing to evaluate her § 212(c) application. (R. at 67-68.) At

that hearing, Ms. Ferguson took the stand to answer questions

about her conviction and her equities.

19

as her mother, three brothers, two sisters, three

aunts, and great grandmother, most of whom are also

United States citizens. (R. at 98.) She has lived in the

United States for the vast majority of her life, having

entered as an LPR at the age of 13 in 1977, and has

only returned to Jamaica once for a brief trip. (R. at

83-84.)

Ms. Ferguson showed evidence of a _ strong

employment history. See Matter of Marin, 16 I. & N.

Dec. at 585. Ms. Ferguson has worked consistently

since 1993 (R. at 226), and she has been employed as

a certified nursing assistant and a medical assistant

since 2002 (R. at 98). In her words, her duties include

“[taking] care of elderly patients ... [providing] love

and comfort to them in their home[s] on a daily

basis.” (R. at 96.) She has never received welfare

assistance and has always paid her taxes. (R. at 97.)

Beyond her employment record, Ms. Ferguson

also produced additional “evidence of value and service

to the community.” See Matter of Marin, 161 & N.

Dec. at 585. She volunteers at a food pantry where she

distributes food to the needy and attends church twice

a week with her children. (R. at 102.) Moreover, she

has never had any subsequent convictions since her

single 21-year-old drug conviction. (R. at 80-81.)

She also established that her family, particularly

her children, would suffer hardship in the event of

her Jeportation. See Matter of Marin, 16 I. & N. Dec.

at 585. Two years ago, at the time of the hearing, her

sons were sixteen, ten, and five years old. (R. at 93.)

20

Ms. Ferguson raised her three sons as a single

mother and only received child support for her eldest

son. (R. at 100.) Under Ms. Ferguson’s care, her sons

have flourished at school and have built strong social

ties to the United States. (R. at 101, 156, 192-93.)

Acesmpanying their mother to Jamaica would be a

traumatic experience: her sons have no friends or

family in Jamaica, and only the eldest son has ever

even visited the country. (R. at 101.)

Indeed, Ms. Ferguson’s equities are so strong

that the immigration judge in her case believed

§ 212(c) relief was warranted. Immigration Judge

Pedro Miranda noted that Ms. Ferguson is a “long-

time person” with “a very old conviction” and that

“hopefully there will be something” to indicate her

§ 212(c) eligibility. (R. at 131.) Yet, based on the fact

that Ms. Ferguson was convicted by trial rather than

by plea, the immigration judge felt bound to grant the

government’s motion to pretermit her application for

§ 212(c) relief. (R. at 126.) This Court should grant

certiorari in the present case so that Ms. Ferguson

and other similarly-situated LPRs who were con-

victed at trial can present their equities for § 212(c)

relief just as this Court, in St. Cyr, allowed LPRs

convicted by plea to do.

21

Ill. AVAILABILITY OF § 212(C) TO LAWFUL

PERMANENT RESIDENTS WITH OLD

CONVICTIONS IS ARBITRARILY DETER-

MINED BECAUSE THE GOVERNMENT

MAY COMMENCE REMOVAL PROCEED-

INGS IN ANY CIRCUIT.

DHS subjects individuals facing removal pro-

ceedings to detention in the location of the govern-

ment’s choosing without regard to where the

individual resides or where the conviction occurred.

Also, an LPR returning to the United States from a

brief trip overseas may be placed into removal

proceedings based on where she was inspected by

immigration authorities, irrespective of whether this

place of entry is in fact where she resides.

Because immigration judges apply the law of the

circuit in which they sit,” the law applied in any one

case depends on arbitrary facts, such as where the

person is detained or where the person entered the

country after a trip. This arbitrary application frus-

trates the expectations of immigrants and their

lawyers.” Transfers of LPRs for removal proceedings

will continue to play a role in the enforcement of

* In re Yanez-Garcia, 23 I. & N. Dec. 390, 394-96 (BIA

2002).

" See, e.g., Wilson v. Gonzales, 471 F.3d 111, ‘14 (2d Cir.

2006) (New York resident transferred to immigration detention

in Louisiana); Ponnapula v. Ashcroft, 373 F.3d 480, 485 (3d Cir.

2004) (New York resident transferred to immigration detention

in Pennsylvania).

22

immigration laws, and so the confusion and unpre-

_ dictability created by the present circuit split will

remain a problem for a large number of LPRs with

old convictions.

IV. EVEN IF RELIANCE WERE A CRITICAL

FACTOR IN THE RETROACTIVITY ANAL-

YSIS, THE ELEVENTH CIRCUIT ERRED

BECAUSE IMMIGRANTS WHO DECIDE

TO GO TO TRIAL, JUST AS THOSE WHO

PLEAD GUILTY, RELY ON THE RELIEF

AVAILABLE AT THE TIME.

As our extensive experience counseling immi-

grant defendants indicates, immigrants who chose to

go to trial — like those who pled guilty — often relied

on the availability of § 212(c) relief when making the

decision. Demonstrable reliance is only one of severa

factors in the retreactivity analysis,” but even if it

were essential, the Eleventh Circuit erroneously

concluded that LPRs who went to trial before 1996

did not rely on the availability of § 212(c) relief.

Prior to IIRIRA, a variety of scenarios existed in

which a defendant could choose to stand trial for a

deportable offense while preserving § 212(c) eligi-

bility. Before 1996, an LPR was ineligible for § 212(c)

* As the Petitioner in this case points out, the Eleventh

Circuit places excessive weight on reliance in the retroactivity

analysis. Petition for Writ of Certiorari at 22-24, Ferguson v.

Holder, No. 09-263 (Aug. 28, 2009).

23

relief only if she (1) had been convicted of an

“aggravated felony,” and (2) had served five or more

years in prison.” 8 U.S.C. § 1182(c) (1994) (emphasis

added). Many deportable offenses were not classified

as “aggravated felonies."“ Consequently, an immi-

grant could go to trial for a deportable offense and

still maintain § 212(c) eligibility. Furthermore, an

LPR could be charged with an aggravated felony that

did not carry, or probably would not result in, a

sentence of more than five years. Indeed, because the

five-year ban was only enacted in the Immigration

Act of 1990, someone convicted before then, such as

Ms. Ferguson, could have maintained § 212(c) eligi-

bility even if she served more than five years.” In

these cases prior to ITRIRA, and with even more

certainty prior to the Immigration Act of 1990, we

could and often did counsel the immigrant defendant

that the conviction and sentence received at trial

would probably not affect her right to seek § 212(c)

relief.

* This five-year bar was enacted in the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, effective November

29, 1990.

“* See, eg., 8 U.S.C. §1251(aX2MAXi) (1994) (crimes of

“moral turpitude”); 8 U.S.C. § 1251(aX2\B)(i) (1994) (“controlled

substances” violations).

* The regulations provide that a person remains eligible for

§ 212(c) relief, even if she served a sentence of five or more

years, if the conviction was entered by guilty plea before

November 29, 1990. 8 C.F-.R. § 1212.3(f K4Xii) (2009).

24

Many LPRs relied on our advice that going to

trial would not hurt their eligibility for § 212(c) relief

and, thus, decided to stand trial. In cases where the

immigrant defendant was informed, either by her

lawyer or the court, that a conviction would probably

not endanger § 212(c) eligibility, the decision to go to

trial depended on considerations such as length of a

potential sentence, belief in her innocence, and the

strength of the government’s case. Indeed, in our

experience, cases in which defendants choose to stand

trial tend to be the cases in which the prosecution’s

evidence of guilt is the weakest. Even when the

prosecution’s “vidence is weak, however, a defendant

who knows that conviction could foreclose deportation

relief will often choose to plead to charges that carry

less risk cf deportation.

Murali Ponnapula’s case, which our experience

indicates is typical, demonstrates how immigrant

defendants who chose trial still relied on the

availability of § 212(c) relief. After Mr. Ponnapula

was indicted for two felony charges, the District

Attorney’s office offered him a plea to a misdemeanor

with a probationary sentence. Mr. Ponnapula’s

counsel advised him that, if convicted after trial, he

would likely receive a sentence of less than five years,

and so he would still be eligible for § 212(c) relief.

Relying on that information, Mr. Ponnapula turned

down the plea offer and went to trial. Ponnapula v.

Ashcroft, 235 F. Supp. 2d 397, 399 (M.D. Pa. 2002). As

the Third Circuit noted in upholding the district

court’s finding that ITRIRA’s repeal of § 212(c) should

25

not apply retroactively to individuals such as Mr.

Ponnapula, “(t]he advice »f Ponnapula’s counsel, and

his reliance thereon, is easily understandable, for

the evidence at trial barely established criminality.”

Ponnapula v. Ashcroft, 373 F.3d 480, 484 (3d Cir.

2004).

Although Mr. Ponnapula was convicted at trial,

his counsel’s advice on sentencing proved correct: he

was sentenced to no more than three years. As the

District Court explained, “[Mr. Ponnapula] conformed

his conduct — his decision to go to trial, rather than

plead guilty — to his settled expectation that dis-

cretionary relief would be available in the event he

were convicted.” Ponnapula, 235 F. Supp. 2d at 405.

It is hard to imagine he would have turned down the

plea offer if he had known that going to trial posed

the risk of mandatory deportation.

Immigrant defendants such as Mr. Ponnapula,

who are facing the possibility of deportation, make

the decision whether to go to trial or to enter a plea,

and if so, to what offense, witk the utmost care. See

INS v. St. Cyr, 533 U.S. 289, 322 (2001). Our

experience indicates, and courts have confirmed, that

“(a] defendant who goes to trial believing that his

opportunity to seek § 212(c) relief is secure, is as

equally disrupted in his reasonable and settled

expectations as is a defendant who accepts a plea

believing it to confer such a benefit.” Ponnapula, 235

F. Supp. 2d at 404.

26

CONCLUSION

For the foregoing reasons, amici respectfully

submit that the petition for the writ of certiorari

should be granted.

Dated: September 30, 2009

New York, NY

Respectfully submitted,

NANCY MORAWETZ

Counsel of Record

WASHINGTON SQUARE LEGAL

SERVICES, INC.

245 Sullivan Street, 5th Floor

New York, NY 10012

(212) 998-6451

Attorney for Amici