# Amicus Curiae Brief — Ferguson v. Holder

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0941%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 991

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0941%3A5. Public record. Not legal advice.