Archive | February, 2013

Will Reform Address the Backlog in Immigration Courts?

22 Feb

The Texas Tribune reports that Comprehensive Immigration Reform is more than about building a border fence and creating a legalization program. There are less prominent, but still very important, other problems that reform could address. For example, the Tribune points to the backlog of cases in immigration courts around the country, which leads to cases dragging on for months or years. This makes it hard for people to move on with their life and is especially tough for people in detention. The article says:

“What the draft does contain, however, is language that would add 140 additional immigration judges to alleviate the backlog in the current system. Data obtained through open records requests filed by the Transactional Records Access Clearinghouse at Syracuse University shows that almost 324,000 immigration cases are currently awaiting a resolution. The caseload in Texas courts is the third-largest in the country, with about 41,760 outstanding.”

The TRAC data is interesting. It shows that of the 41,760 cases pending in Texas, both Houston and San Antonio have over 10,000 cases pending in their courts. There are several thousand more pending in Dallas, El Paso, and Harlingen. The average case in a Texas immigration court has been pending for over one year — 393 days — meaning many cases have been pending much longer. Broken down by court location, the average days pending are 490 in Houston, 472 in El Paso, 396 in Dallas, and 318 in San Antonio.

While hiring more immigration judges is a necessary response, a better response would be giving judges more power to dismiss cases involving minor criminal conduct. In the article, David Leopold, past president of the American Immigration Lawyers Association, points that prior to the 1996, judges had much more discretion to dismiss cases and we did not face the same kind of backlog. He advocates returning more discretion to immigration judges.

Cancellation of removal for lawful permanent residents is a good example of this. LPR cancellation is only available to LPRs who have been continuously present for at least seven years, have been LPRs for at least five years, and do not have a conviction for an aggravated felony. These additional requirements are unnecessary because they are already factored into the discretionary decision. The judge is already asked to factor in length of presence, immigration violations, and criminal record. For example, if someone had a severe aggravated felony, such as murder, it is very unlikely he would be granted cancellation anyway. But there may be some people with less serious crimes, still classified as aggravated felons, who are good candidates for cancellation but are not permitted to apply due to this categorical ineligibility. LPR cancellation should be more broadly available, allowing judges to weigh all the factors and make individual determinations.

For immigration reform to truly be comprehensive, it needs to deal with all of the problems in the system, including the backlog of cases in immigration courts.

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Overturning Old Convictions After Chaidez

21 Feb

Yesterday, the Supreme Court ruled that Padilla does not apply retroactively to convictions that were final at the time of the Padilla decision. In other words, there is no basis for arguing that a pre-2010 criminal conviction should be overturned on the grounds that the alien was not advised of the immigration consequences of a guilty plea by his defense attorney as required by Padilla. This will naturally make it much harder to get out of old convictions that make someone deportable.

However, it is not impossible to overturn old convictions. Remember that, long before the Padilla decision was handed down, immigrants were getting convictions overturned in order to stop deportations or make them eligible for immigration benefits. Those options are still in place.

For example, I had a client in removal proceedings because she had two convictions for crimes involving moral turpitude in Ohio. These were theft by check convictions from the early 1990s. Ohio had a law at the time that judges were required to advise any non-citizen that a guilty plea could have immigration consequences. Moreover, if there was no record of this advisal being given in the court transcript, it is presumed that the advisal was not given and the conviction in invalid. We found the transcripts and were able to show that there was no record of the client being so advised. Accordingly, the convictions were overturned and the removal proceedings terminated.

The lesson is that old convictions can still be overturned for all sorts of reasons. There may be statutory or case law in a particular state that required immigration warnings even before Padilla. Additionally, convictions can be void for reasons having nothing to do with immigration. Or, a sentence can be modified if the immigration consequences are severe.

Chaidez is a bad result for immigrants because it takes away one argument that could be used to overturn old convictions. But it would be a mistake to think this is the only argument, or that there is no hope in overturning prior convictions that are creating immigration problems today.