Friday, November 21, 2014

Resources for Understanding New Executive Actions on Immigration

President Obama made his announcement yesterday expanding Deferred Action for Childhood Arrivals and creating Deferred Action for Parents as well as detailing other initiatives. 

Here are some links to information available online to help you understand the knew programs and how they can help your clients.  Keep in mind defense attorneys' duty to advise immigrant clients of the immigration consequences of their pleas and convictions. 

USCIS Website on the Actions Announced 11/20/14 (pretty reader-friendly): http://www.uscis.gov/immigrationaction#2

USCIS Website for DACA (pre-changes, includes criminal history that renders someone ineligible): http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

DHS Website on Executive Action (collects the memos related to the 11/20 announcement): http://www.dhs.gov/immigration-action?utm_source=hp_feature&utm_medium=web&utm_campaign=dhs_hp

DHS Memo on Prosecutorial Discretion (DACA & DAP) (describes the changes to DACA and the eligibility requirements for DAP): http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf

DHS Memo on the New Removal Priorities (details what would make someone ineligible for DAP): http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf

DHS Memo on Discontinuing Secure Communities: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf

White House on Fixing the Immigration System: http://www.whitehouse.gov/issues/immigration/immigration-action

Applications for the expanded DACA should be accepted within 90 days.  Applications for the new DAP should be accepted within 180 days.  Typically, the USCIS website is a great resource for the most up-to-date information regarding programs such as these - the eligibility requirements and application procedure.

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Monday, November 17, 2014

Is the Supreme Court Too Smart for Our Own Good?

Interesting article in the New Republic by Dahlia Lithwick explaining that she believes the rightward shift of the high court is based in more than just ideology:

"But having covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good."

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Friday, October 17, 2014

AUSAs Will Not Ask for Waiver in Plea Agreement of Ineffective Assistance of Counsel Claims

Attorney General Eric Holder announced a new policy that "the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."  Deputy Attorney General James Cole authored the memo instructing assistant U.S. attorneys to follow this new policy.  Prior to this policy, "35 of the department's 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel."

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Wednesday, October 15, 2014

Driver on Cross-Country Trip Did Not Have Authority to Consent to Search Passengers’ Luggage in Trunk


The panel affirms suppression of drugs found during a traffic stop in Louisiana.  The car with a California license plate was occupied by three people on a cross-country trip from California to Miami.  Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented.  Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.
Typically, consent to search a vehicle applies to any unlocked containers within it.  However, “[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.”  “Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.”  The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk. 
While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it.  Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

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Tuesday, October 14, 2014

Certificate of Service for Anders Brief Must Specify that Non-English Speaking Defendant Was Informed of Brief and Rights in Language He Understands



Upon receiving a certificate of service for an Anders brief that just noted that a hard copy of the brief would be served on Moreno-Torres, a defendant who did not speak English according to the record, the Fifth Circuit asked for an amicus brief regarding what it should do to ensure that Moreno-Torres’s due process rights are protected.  The amicus recommended that the court direct counsel to file an amended certificate of service indicating that counsel communicated to Moreno-Torres, in a language Moreno-Torres understands, both the substance of the Anders brief and his rights pursuant to Anders, including the right to file a pro se response to the Anders brief.

Counsel then filed an affidavit stating that he communicated the substance of the brief and Moreno-Torres’s rights under Anders to Moreno-Torres via telephone through an interpreter.  Counsel also filed an affidavit by the interpreter attesting to the communication.

The panel “commend[s] these supplemental clarifications confirming that Moreno-Torres received due process” and concurs with counsel that the appeal presents no nonfrivolous issue for appellate review. 

So, be sure to file an adequate certificate of service that explains that the client received adequate notice of the substance of the Anders brief and his rights under Anders in a language he understands!

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Tuesday, September 30, 2014

Search & Seizure Update from Oregon Federal Public Defender

The Oregon Federal Public Defender issued its latest version of Developments of Search and Seizure Law.  Read more about it on the Ninth Circuit Blog.

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Monday, September 22, 2014

Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules



First, the background to this case concerning civil commitment pursuant to 18 U.S.C. § 4243.  Washington was found not guilty by reason of insanity at a bench trial in 2009 for the charged offense of robbery by force and violence (a threat to stab the teller with a non-existent knife in exchange for $2,711).  The district court committed him to a mental health facility for evaluation and treatment.  In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect.  The district court held a hearing in April 2012 and conditionally released Washington “based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another.”  One of the conditions of Washington’s release was that he reside at a group home, and this condition was an express component of the FMC Butner release plan.

In July 2013, the probation office filed a petition for a warrant for Washington’s arrest alleging that he violated the condition of residing at the group home.  Testimony at the revocation hearing established that Washington refused to sign a commitment to follow the group home’s rules, knowing that his refusal would result in an eviction notice.  One letter written by the group home’s program director that was admitted into evidence indicated that she “supported Washington’s exploration of less-restrictive housing options.”  Another letter indicated that Washington was becoming more aggressive to others, telling them not to report his breaking of house rules.

The probation officer testified that Washington was in compliance with his medicines, completed his GED, was enrolled in community college, was not mentally unstable, and had not been involved in any physical assaults or criminal charges while on conditional release.  The probation officer also testified, however, that she believed Washington tried to physically intimidate her at one point and that—while she could recommend a transitional home if an appropriate facility could be found—Washington could not be safely maintained in the community because he was not willing to follow the rules at any facility.

Based on this evidence, would you find that Washington “failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, and that his continued release will create a substantial risk of bodily injury to another person or serious damage to the property of another”?  See § 4243(g).

Well, the district court did, and the panel affirms “[b]ecause the doctors who crafted Washington’s release plan included residence in a group home as an express element, and because the district court’s substantial-risk finding was not clearly erroneous[.]”  The panel tries to curb what could “appear to lower the bar for re-commitment proceedings insofar as . . . earlier precedents generally have addressed individuals who refused to follow their doctors’ advice” by emphasizing that “every substantial-risk assessment must turn on the unique factual circumstances of each case rather than on an attempt to compare one individual to another.” 

Still, a record that simply reflects that Washington “was not getting along well with the people around him” without any professional medical opinion as to any risk posed by Washington’s release seems a little skim for a judicial “infer[ence] that his increasingly verbal aggressiveness was a sign of dangerousness, or even potential illness, rather than a sign of recovery and attendant resurgence of his desire for autonomy.”  Given district judges’ “awesome responsibility to protect the public and to strike the difficult balance with individual liberty,” however, the panel does not disturb the district judge’s order.

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