Saturday, December 21, 2013

Recent Post-Conviction Relief Cases Provide Mix of Good and Bad for Foreign Nationals Facing Immigration Consequences for their Crimes

Post-conviction relief ("PCR") refers to the eliminating or otherwise the reducing of the effects of a criminal conviction. Certain criminal convictions carry immigration consequences for foreign nationals. Whether there are any such consequences and how severe they are depend on a number of factors relating to a certain conviction's specifics, which usually may be negotiated during the plea-bargaining phase of a foreign national's criminal proceedings. Oftentimes, however, the foreign national at the time s/he is in such criminal proceedings is only concerned with whether s/he will have to serve jail or prison and for how long. The issue of immigration consequences may escape the plea-bargaining discussion. Nevertheless, that issue unfortunately may arise thereafter only when the foreign national is being placed in removal proceedings before a United States Immigration Court, denied Lawful-Permanent-Resident status ("Green Card") or another type of lawful immigration-related status, or deemed ineligible to naturalize as a United-States citizen. At that time, PCR may be the only avenue to resolve the foreign national's immigration matter.

However, while eliminating or reducing the effects of a certain criminal conviction may have been easy to accomplish during the plea-bargaining phase of a foreign national's criminal proceedings, PCR is usually not as simple because of the reluctance of both the relevant district attorney's or city attorney's office and the conviction-issuing criminal court to reexamine a closed criminal matter. A foreign national typically needs to prove some type of substantive defect in his/her criminal proceedings that led to his/her mistakenly accepting a plea bargain. Moreover, the foreign national typically has to prove that if such defect did not exist, s/he would not have accepted that plea bargain and instead would have either continued to negotiate with the relevant district attorney's or city attorney's office or taken the case to trial.

In the past several years, there have been some notable cases that have swung the pendulum in both ways regarding how easily one can obtain PCR. The differing decisions have made it difficult for one to know whether pursuing PCR is worth his/her time, energy, and money. For example, one of the most famous cases in this area is Padilla v. Kentucky, wherein the United States Supreme Court recognized how important the issue of one's immigration matter is in relation to his/her willingness to accept a proposed plea bargain in a criminal proceeding and found that the United States Constitution mandates criminal-defense attorneys to provide on their own initiative, as opposed to waiting simply to be asked, accurate advice to their foreign-national criminal-defendant clients relating to the immigration consequences of a proposed plea bargain. Nevertheless, a few years later in Chaidez v. United States, the same United States Supreme Court limited its holding in Padilla v. Kentucky to convictions that were issued only on or after March 31, 2010, which is the publication date of the decision in Padilla v. Kentucky.

Similarly, the California Supreme Court a little more than four months ago in People v. Martinez held that to establish eligibility for PCR based on not being advised as required by California law of the immigration-related consequences of criminal conviction, a foreign national need only prove that s/he would have rejected a previously accepted proposed plea bargain and not also that s/he would actually have had a more successful outcome by doing so. That same decision holds relating to the issue of prejudice, i.e., whether the outcome would have been different had the substantive defect not existed, that such a foreign national need prove only that s/he would have attempted to negotiate a better plea bargain following such rejection rather than that s/he would actually have gone to trial.

However, that same California Supreme Court issued a separate decision earlier this month in People v. Palmer holding that in a felony case a criminal-defense attorney's stipulation to a factual basis, rather than to a specific document establishing the factual basis, for a person's guilty or no-contest plea in a criminal proceeding is enough to satisfy the legal requirement that there actually be a real reason for that person's acceptance of such a plea. Because the decision finds a criminal-defense attorney's stipulation alone to be sufficient, it effectively removes a previously available potential avenue of PCR based on the conviction-issuing criminal court's not noting on the record that a particular document reflects the facts necessary to show that the person in criminal proceedings actually committed the elements of the crime for which s/he's being convicted.

While navigating the dueling decisions in both the federal and state courts may appear impossible, skilled legal analysis combined with attention to detail should reveal the possible avenues of PCR, if any, for a foreign national in need of it.

Tuesday, December 10, 2013

Court Bails DHS Out of Otherwise Accepted Evidentiary Requirements in Asylum Hearings

Many people understand the concept of hearsay from various courtroom-drama television shows and movies. The legal definition of hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. In layman's terms, if someone were testifying in court as to what someone else told him/her out of court to try to support the truth of that very statement, then that would be hearsay. For example, if I were in court testifying that I knew the person on trial committed the crime for which s/he's being charged because my friend who is not in court but who saw it told me so, then that would be hearsay. One could see that it would be more reasonable for my friend to come into court and testify himself/herself rather than relying on my recollection of what my friend told me.

Hearsay is not limited to spoken words but also applies to documents where the writer of the document is not available in court but the document is being used anyway to prove the truth of the statements within the document. Not taking into account various exceptions, hearsay, whether spoken or written, generally is not accepted in court because of the original statement's not being made under oath, the inability of the opposing party to cross-examine the original speaker or writer, and the judge's or jury's lack of observation of the original speaker or writer as the statement is being spoken or read into evidence. Instead, courts tend to require the original speaker or writer to come into court to testify.

Even though the evidentiary rules in the various United States immigrations courts are more relaxed, several federal courts nationwide have held, at least in the context of asylum applications heard in a United States immigration court, that, "[U]nsworn, unauthenticated, hearsay letters–prepared for litigation by the government and not subject to any form of cross-examination–cannot form the sole basis for denying asylum to an otherwise qualified applicant." Nevertheless, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, explicitly refused last week to follow that trend and held that such letters are acceptable in United States immigration court. The case Angov v. Holder bails out the United States Department of Homeland Security ("DHS") from abiding by otherwise long-accepted almost-universal evidentiary standards within the United States relating to hearsay by effectively permitting DHS to have manufactured the very evidence it uses to prove its position in an immigration-court case.

The issue in the case was the acceptance by the Immigration Judge of a letter prepared by a United States Department of State ("DOS") investigator at the United States Embassy in Sofia, Bulgaria. The letter specifically addressed the Bulgarian-foreign-national asylum applicant's contention that he had been subpoenaed twice to appear in a Sofia, Bulgaria police station. The investigator's letter concludes, among other assertions, that the subpoenas offered by the Bulgarian man were fraudulent based on the investigator's communication with a police officer allegedly posted at the very police station at which the subpoenas required the Bulgarian man to appear. The Bulgarian man submitted evidence to contradict the letter and argued against the acceptance of the letter, in part, on fairness grounds.

Possibly perceiving an issue of unfairness, the Immigration Judge requested DHS to have a DOS employee testify in court regarding the letter. In response, DHS produced yet another letter from a DOS employee who in part wrote in the letter that it is against DOS policy to provide more details about an overseas investigation. Instead of dismissing both letters as inadequate, the Immigration Judge made an adverse-credibility finding against the Bulgarian man and denied his asylum application, a decision that the BIA affirmed and that the Ninth Circuit refused to review because of the fraudulent basis of the Bulgarian man's asylum application.

By refusing to review the BIA's affirmation, the Ninth Circuit accepted as truth the statements made within the first DOS letter without requiring the letter writer, or any DOS employee for that matter, to testify in court regarding the statements, thereby permitting not only hearsay but also double hearsay (the first layer of hearsay being the alleged statement from the Sofia, Bulgaria police officer to the DOS investigator and the second layer being the DOS investigator's words written on the letter) prepared solely for the purpose of the asylum hearing to be accepted as the truth. The Ninth Circuit ducks this otherwise clear violation of any reasonable idea of fairness in part by using the all-encompassing argument that it is the Bulgarian man's burden, and not DHS's, to prove that he merits asylum, thereby requiring all asylum applicants effectively to move mountains to overcome the slightest doubts of legitimacy raised by manufactured hearsay evidence.

Despite this recent decision, it is unsurprising to see a backlash by a federal court regarding evidentiary rules pertaining particularly to asylum applications given the incredible amount of fraud that has been perpetrated against DHS concerning such applications and, relatedly, the great dependence such applications have on the credibility of the applicant. The Ninth Circuit's solution may not be ideal, but it exposes a long-existing frustration within the judiciary relating to immigration cases. The decision is also instructive to asylum applicants moving forward to be more diligent and careful in the preparation of their asylum cases.

Wednesday, December 4, 2013

Court Provides Asylum Seekers a Reason to Give Thanks this Holiday Season

As many American families, including several families that only recently immigrated to the United States, were preparing to celebrate Thanksgiving Day last week, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, reaffirmed that the United States remains a shelter for foreign nationals persecuted in their home countries. The case Doe v. Holder held that a foreign national applying for asylum is not required to show either that his/her home government sponsored or condoned the persecution of the group of which the foreign national is a part or that the government was unwilling for that reason to control the persecution.

The case concerned a gay Russian man who ethnically is of a minority in Russia given his birth in an Eastern Russian area north of Mongolia. Although the Immigration Judge found that the Russian man did suffer harm while living in Russia, the Immigration Judge nevertheless denied the man's asylum application based on the perceived lack of required evidence that such harm resulted from either an unwillingness or inability of law-enforcement authorities within Russia to protect the man from such harm. The BIA agreed with the Immigration Judge in holding that the Russian man had "not shown that there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government."

Fortunately, the Ninth Circuit reversed the BIA's holding by finding that the Russian man did meet his burden of proving the unwillingness-or-inability requirement through his submitted testimony and documents, that the United States Department of Homeland Security ("DHS") submitted nothing to discredit such evidence, and that the BIA despite accepting the Immigration Judge's conclusion that the Russian man is credible nevertheless held the man to an impermissibly high and consequently unlawful unwillingness-or-inability standard. Specifically, the Ninth Circuit found that the man, in order to meet the unwillingness-or-inability requirement, did not need to show that law-enforcement authorities actually sponsored or condoned the persecution of homosexuals or that such authorities were unwilling for that reason to control the persecution. The case represents not only a continuation of the trend I have discussed previously regarding protections of homosexuals and others within the LGBT community but also a broader understanding of how United States Asylum Law errs on the side of caution in protecting sufferers of persecution.

Nonetheless, as the Ninth Circuit giveth, it taketh away. Less than a week later in Taggar v. Holder, the Ninth Circuit held that Immigration Courts are permitted to establish deadlines by which even mandatory forms of relief, e.g. applications for withholding of removal and/or for deferral of removal, must be filed within one's removal proceedings. In that case, an Indian woman was given multiple opportunities to file applications for relief but simply failed to do so but then argued that the Immigration Judge was without authority to deny her the opportunity to file an application for protection under the Convention Against Torture. The BIA affirmed the Immigration Judge's removal order and refusal to consider the Indian woman's applications for relief, and the Ninth Circuit upheld the BIA's affirmation by agreeing that the Indian woman simply abandoned any forms of relief for which she may have been eligible because she did not comply with the Immigration Judge's filing deadline(s).

Therefore, as the Ninth Circuit has shown in its last couple of decisions, even those without a great deal of indisputable evidence may receive asylum, but they still need to follow the rules.