April 27, 2010
Interesting Padilla echo in Second Circuit rulingThe Second Circuit has an interesting ruling today in US v. Cerna, No. 09-1170 (2d Cir. Apr. 27, 2010) (available here), which seems to reflect the echoes of the Supreme Court's important recent ruling in Padilla concerning effective assistance to noncitizen defendants. Here is how the Cerna opinion begins:
This case gives us occasion once again to take note of the exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law. See Aris v. Mukasey, 517 F.3d 595, 596 (2d Cir. 2008). Here, despite the fact that the immigration judge (“IJ”) specifically found that the defendant was eligible for relief from deportation in the form of a waiver of inadmissibility under former § 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (repealed 1996), and despite the fact that the defendant’s counsel indicated that he would file an application for such relief, no application was ever filed. We hold today that the district court committed clear error when it found that the defendant knowingly and intelligently waived his right to contest the deportation order that was subsequently issued. Because the district court’s determinations that the defendant did not meet the requirements of § 1326(d)(2) and (3) either were predicated on this erroneous factual conclusion or were legally erroneous, its decision cannot stand on these additional findings. We further hold that ineffective assistance of counsel may be grounds to excuse the requirement of 8 U.S.C. § 1326(d)(1) that a defendant charged with illegal reentry who brings a collateral challenge to the prior deportation order must have exhausted administrative remedies in the immigration proceeding.
For non-citizens at risk of deportation the consequences of inadequate counsel can be devastating. Because such incompetence undermines the fair and effective administration of justice, courts must be ever vigilant. We cannot countenance the circumstance in which the failure of counsel to meet the most basic professional standards denies the alien a meaningful opportunity for judicial review. Cf. Padilla v. Kentucky, No. 08-651, 559 U.S. ___, slip op. at 6 (2010) (“The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”). Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.
April 27, 2010 at 02:08 PM | Permalink
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I wonder how much of this immigration-attorney bashing is just Monday-morning quarterbacking?
Posted by: s.cotus | Apr 27, 2010 4:42:31 PM
Well, when you say in court "I will file [fill-in-the-blank imporant pleading to preserve clients' rights]," and then you inexplicably fail to file that document, and your clients' rights are forfeited, I don't really think it is "Monday morning quarterbacking" to criticize that action. And a shocking number of these cases are actually that simple.
Posted by: Anon | Apr 28, 2010 1:02:29 PM