No. 09-60

Supreme Coud, U.S.FILED

OFFICE OF THE-.~LEEK

IN THE

JOSE ANGEL CARACHURI-ROSENDO,

v.Petitioner,

ERIC HOLDER, ATTORNEY GENERAL,Respondent.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Fifth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OFCRIMINAL DEFENSE LAWYERS, THE NATIONAL

LEGAL AID AND DEFENDER ASSOCIATION,THE NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS, THE IMMIGRANT DEFENSEPROJECT, THE IMMIGRANT LEGAL RESOURCECENTER, THE NATIONAL IMMIGRANT JUSTICE

CENTER, AND THE NATIONAL IMMIGRATIONPROJECT OF THE NATIONAL LAWYERS GUILDAS AMICI CURIAE IN SUPPORT OF PETITIONER

Counsel for Amici Curiae

JIM WALDENRICHARD A. BIERSCHBACH*GIBSON, DUNN & CRUTCHER LLP200 Park Ave.New York, NY 10036(212) 351-4000

*Counsel of Record

B|snk PaOe

QUESTION PRESENTED

Under the Immigration and Nationality Act, alawful permanent resident who has been "convicted"of an "aggravated felony" is ineligible to seek cancel-lation of removal. 8 U.S.C. § 1229b(a)(3). The courtsof appeals have divided 4-2 on the following questionpresented by this case: Whether a person convictedunder state law for simple drug possession (a federallaw misdemeanor) has been "convicted" of an "aggra-vated felony" on the theory that he could have beenprosecuted for recidivist simple possession (a federallaw felony), even though there was no charge or find-ing of a prior conviction in his prosecution for posses-sion.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................................i

TABLE OF AUTHORITIES ...............................................iv

INTERESTS OF AMICI CURIAE ........................................

SUMMARY OF ARGUMENT .............................................5

ARGUMENT ....................................................................8

[. CERTIORARI IS WARRANTED TO RESOLVE

THE CIRCUIT SPLIT DUE TO THE LARGE

NUMBER OF LEGAL PERMANENT RESIDENTS

WHO ARE CONVICTED OF LoW-LEVEL

POSSESSION OFFENSES, OFTEN WITH

MINIMAL PROCEDURAL PROTECTIONS ................8

|[. CERTIORARI IS WARRANTED BECAUSE THE

SEVERE CONSEQUENCES OF THE

AGGRAVATED FELONY LABEL ARE

DISPROPORTIONATE TO THE LoW-LEVEL

AND SUMMARY NATURE OF THE SIMPLE

POSSESSION DISPOSITIONS AT ISSUE .................13

III. CERTIORARI IS WARRANTED BECAUSE THE

GOVERNMENT MAY COMMENCE REMOVAL

PROCEEDINGS AGAINST ANY NON-CITIZEN

IN ANY CIRCUIT, LEADING TO THE

ARBITRARY APPLICATION OF THE

AGGRAVATED FELONY LABEL ..............................16

111

IV. CERTIORARI IS WARRANTED BECAUSE THE

DISUNIFORMITY, PARTICULARLY COUPLED

WITH DHS’s POLICY OF TRANSFERRING

DETAINEES, MAKES IT IMPOSSIBLE FOR

CRIMINAL COUNSEL TO EFFECTIVELY

ADVISE CLIENTS .....................................................18

CONCLUSION ...............................................................20

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Alsol v. Mukasey,548 F.3d 207 (2d Cir. 2008) .................................18

Carachuri-Rosendo v. Holder,No. 09-50 ................................................................8

Carachuri-Rosendo v. Holder,570 F.3d 263 (5th Cir. 2009) ..........................6, 8, 9

Erazo-Villatoro v. United States,No. 09-5589 ............................................................8

Escobar v. Holder,No. - (filed Aug. 17, 2009) .............................8

Fernandez v. Holder,No. 09-5386 ............................................................8

Fernandez v. Mukasey,544 F.3d 862 (7th Cir. 2008) ..................................6

In re Adenji,22 I. & N. Dec. 1102 (BIA 1999) ..........................14

In re Jose Angel Carachuri-Rosendo,24 I. & N. Dec. 382 (BIA 2007) ......................16, 17

In re Yanez-Garcia,23 I. & N. Dec. 390 (BIA 2002) ........................1, 16

INS v. St. Cyr,533 U.S. 289 (2001) ................................................4

Leocal v. Ashcroft,543 U.S. 1 (20041 ....................................................4

V

Lopez v. Gonzales,549 U.S. 47 (2006) ..............................................3, 4

STATUTES

8 U.S.C. § 1101 ..................................................6, 8, 14

8 U.S.C. § 1158 ..........................................................14

8 U.S.C. § 1226 ..........................................................14

8 U.S.C. § 1227 ..........................................................13

8 U.S.C. § 1228 ..........................................................14

8 U.S.C. § 1229b ................................................i, 8, 14

8 U.S.C. § 1427 ..........................................................14

N.Y. Penal Law § 220.03 ...........................................10

N.Y. Penal Law § 221.05 ...........................................15

N.Y. Crim. Proc. Law § 170.56 ..................................15

OTHER AUTHORITIES

Juanita Bing Newton, William H.Etheridge III, Criminal Court of theCity of New York, Annual Report 2007 ...............11

Robert C. Boruchowitz et al., MinorCrimes, Massive Waste: The TerribleToll of America’s Broken MisdemeanorCourts (2009) ..................................................12, 13

Department of Homeland Security AnnualReport, Immigrant Enforcement Actions(2008) ......................................................................9

Nat’l Right to Counsel Comm., JusticeDenied: America’s Continuing Neglect ofOur Constitutional Right to Counsel(2009) ....................................................................12

vi

N.Y. State Bar Ass’n, The Courts of NewYork: A Guide to Court Procedures(2001) .................................................................... 11

N.Y. State Defenders Ass’n, Analysis ofNew York State Division of CriminalJustice Services Misdemeanor DrugOffense Statistics for the Years 1995Through 2004 (2005) ............................................10

N.Y. State Div. of Criminal Justice Servs.,Adult Dispositions of Adult Arrests2004-2008: N.Y. State by County andRegion ...................................................................10

Alison Siskin, Congressional ResearchServ., Immigration-Related Detention:Current Legislative Issues (2008) ..........................9

Testimony of Corey Stoughton, StaffAttorney at the New York CivilLiberties Union before JudiciaryCommittee of the New York StateAssembly regarding Proposals toReform the New York State JusticeCourts (Dec. 14, 2006) ..........................................11

U.S. Dep’t of Homeland Security, Responseto FOIA Case No. 09-FOIA-1243 (Feb. 6,2009) .....................................................................17

INTERESTS OF AMICI CURIAE1

Amici are organizations of defense attorneys ororganizations that advise defense attorneys whoseclients could face removal and other severe immigra-tion consequences following a guilty plea or convic-tion at trial. This case presents a mature and en-trenched split among the courts of appeals concern-ing a critically important issue that has significantlyhampered amici’s ability to effectively advise non-citizens and impacts the lives and families of immi-grants throughout the United States: whether twodisparate, unconnected, low-level possession adjudi-cations can be combined to be deemed a conviction of"illicit trafficking in a controlled substance," andtherefore an "aggravated felony," for purposes of fed-eral immigration law. The "aggravated felony" labelcarries drastic consequences, triggering bars to asy-lum, citizenship, and relief from removal. The circuitsplit makes it essentially impossible for amici to ef-fectively advise immigrants and their defense coun-sel about the immigration consequences of second orsubsequent drug possession charges during eithercriminal proceedings or subsequent immigration pro-ceedings.2 Amici are also unable to properly traincounsel and judges about the immigration conse-quences of low-level drug possession adjudications.

J Letters of consent have been filed with the Clerk ofthe Court. Pursuant to Rule 37.6, amici state that no counselfor a party authored any part of the brief, and no person or en-tity other than amici and their counsel made a monetary con-tribution to the preparation or submission of this brief.

2 Immigration judges are bound to apply the rule of the

circuit in which they sit. In re Yanez-Garcia, 23 I. & N. Dec.390, 394-96 (BIA 2002).

2

As organizations concerned with the proper and con-sistent interpretation of the intersection of immigra-tion and criminal law, amici respectfully urge theCourt to resolve the important issues raised in thiscase.

The National Association of Criminal De-fense Lawyers (NACDL) is a non-profit corporationwith more than 13,000 affiliate members in 50states, including private criminal defense attorneys,public defenders, and law professors. The AmericanBar Association recognizes the NACDL as an affili-ate organization and awards it full representation inthe ABA’s House of Delegates. NACDL was foundedin 1958 to promote criminal law research, to advanceand disseminate knowledge in the area of criminalpractice, and to encourage integrity, independence,and expertise among criminal defense counsel.NACDL is particularly dedicated to advancing theproper and efficient administration of justice, includ-ing issues involving the role and duties of lawyersrepresenting parties in administrative, regulatory,and criminal investigations.

The National Legal Aid and Defender Asso-ciation (NLADA), a non-profit corporation, works tosupport indigent defender services and civil legal as-sistance to those who cannot afford lawyers. Throughits Defender Legal Services division, NLADA pro-vides training, information, and technical assistanceto public defender offices and others who provide le-gal services to indigent criminal defendants.NLADA’s American Council of Chief Defenders is aleadership council that is dedicated to promoting fairjustice systems and ensuring that citizens who areaccused of crimes have adequate legal representa-tion. NLADA has approximately 680 program mem-bers, representing 12,000 lawyers, including non-

profit organizations, government agencies, legal aidorganizations, and law firms; NLADA also has ap-proximately 1,000 individual members. NLADAtraces its roots to the National Alliance of Legal AidSocieties, which was formed by 15 legal aid societiesin 1911. It is the oldest and largest national non-profit membership association that devotes its re-sources exclusively to serving the equal justice com-munity. NLADA is a leading voice in public policydebates on equal justice issues. In pursuit of that ef-fort, NLADA has filed amicus curiae briefs in majorconstitutional cases before the United States Su-preme Court and other federal and state courts in-volving the administration of the criminal justicesystem and the right to counsel.

The National Association of Federal De-fenders (NAFD) was formed in 1995 to enhance therepresentation provided to indigent criminal defen-dants under the Criminal Justice Act, 18 U.S.C.§ 3006A, and the Sixth Amendment to the UnitedStates Constitution. The NAFD is a nationwide, non-profit, volunteer organization whose membership iscomposed of attorneys who work for federal publicand community defender organizations authorizedunder the Criminal Justice Act.

The Immigrant Defense Project (IDP) pro-vides defense attorneys, immigration attorneys, andimmigrants with expert legal advice, publications,and training on issues involving the interplay be-tween criminal and immigration law. This Court hasaccepted and relied on amicus curiae briefs submit-ted by IDP in key cases involving the proper applica-tion of federal immigration law to immigrants withpast criminal adjudications, including this Court’srecent decision in Lopez v. Gonzalez, 549 U.S. 47, 127S. Ct. 625 (2006). See Brief for Amici Curiae New

4

York State Defenders Association Immigrant De-fense Project, et al., Lopez v. Gonzales, 549 U.S. 47(2006) (No. 05-547), available athttp://www.immigrantdefenseproj ect.org/webPages/drugLitigationInit.htm; see also Brief for Amici Cu-riae New York State Defenders Association Immi-grant Defense Project, et al., Leocal v. Ashcroft, 543U.S. 1 (2004) (No. 03-583); Brief for Arnici CuriaeNew York State Defenders Association ImmigrantDefense Project, et al., INS v. St. Cyr, 533 U.S. 289(2001) (No. 00-767) (cited at INS v. St. Cyr, 533 U.S.289, 322-23 (2001)).

The Immigrant Legal Resource Center(ILRC) is a national clearinghouse that providestechnical assistance., training, and publications tolow-income immigrants and their advocates. Amongits other areas of expertise, the ILRC is known na-tionally as a leading authority on the intersection be-tween immigration and criminal law. The ILRC pro-vides daily assistance to criminal and immigrationdefense counsel on issues relating to citizenship,immigration status, and the immigration conse-quences of criminal adjudications.

Heartland Alliance’s National Immigrant Jus-tice Center (NIJC) is a Chicago-based organizationworking to ensure that the laws and policies affect-ing non-citizens in tlhe United States are applied in afair and humane manner. NIJC provides free andlow-cost legal services to approximately 8,000 non-citizens per year, and represents hundreds of non-citizens who encounter serious immigration obstaclesas a result of enteri.ng guilty pleas in state criminalcourt without realizing the immigration conse-quences. For nearly ten years, NIJC has offered no-cost trainings and consultation to criminal defenseattorneys representing non-citizens, to advise them

on the likely immigration consequences resulting fortheir clients from various potential dispositions inthe criminal case; NIJC also publishes manuals de-signed for criminal defense attorneys who defendnon-citizens in criminal proceedings. Because of theseverity of the immigration consequences for non-citizens, NIJC has a strong interest in ensuring thatcriminal convictions have consequences which arereasonable, predictable, and publicly known.

The National Immigration Project of the Na-tional Lawyers Guild (National Immigration Pro-ject) is a non-profit membership organization of im-migration attorneys, legal workers, grassroots advo-cates, and others working to defend immigrants’rights and to secure a fair administration of the im-migration and nationality laws. The National Immi-gration Project provides legal training to the bar andthe bench on the immigration consequences of crimi-nal conduct and is the author of Immigration Lawand Crimes and three other treatises published byThomson-West. The National Immigration Projecthas participated as amicus curiae in several signifi-cant immigration-related cases before this Court.

SUMmArY OF A~Gt~EN~

The circuit courts now apply the aggravated fel-ony label to simple drug possession offenses in dra-matically different ways. The Fifth Circuit below hasjoined the Seventh Circuit in rejecting the consideredposition of the government’s own Board of Immigra-tion Appeals (BIA) and reaffirmed its commitment toone of the most sweeping and aggressive interpreta-tions of the term "aggravated felony"--explicitly re-jecting the holdings of four other circuit courts (theFirst, Second, Third, and Sixth Circuits)--when itopted to treat petitioner’s misdemeanor conviction

6

for possession of one tablet of Xanax, with its ten dayjail sentence, as a crime within the meaning of 8U.S.C. § l101(a)(43)(B) ("illicit trafficking in a con-trolled substance"), and therefore an "aggravated fel-ony."3

The discord among the circuit courts impactslarge numbers of immigrants nationwide. The De-partment of Homeland Security (DHS) often detainsa non-citizen with a low-level drug possession convic-tion in a jurisdiction outside the circuit in which theadjudication occurred, and often transfers the non-citizen several times from one detention facility toanother. Non-citizens with New York adjudications,for example, are regularly transferred to detentionfacilities in various circuits outside the Second Cir-cuit including facilities in Pennsylvania (Third Cir-cuit), Louisiana and Texas (Fifth Circuit) and NewMexico (Tenth Circuit). Because immigration judgesapply the law of the circuit in which they sit, thecombination of the circuit split and these routinetransfers have rendered non-citizens and their coun-sel entirely unable to determine what law will applyto determine the immigration effect of low-level drugpossession convictions.

Virtually all non-citizens, including lawful per-manent residents, are deportable if they have beenconvicted of a drug-.related offense. When that drugoffense is labeled an "aggravated felony," however,immigration judges are barred from granting cancel-lation of removal for certain lawful permanent resi-

3 Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.2009). Accord Fernandez v. Mukasey, 544 F.3d 862 (7th Cir.2008), reh’g and reh’g en banc denied, unpublished order, Nos.06-3476, 06-3987, 06-3994 (Apr. 16, 2009).

dents, asylum, or several basic forms of relief fromremoval, no matter how harmful removal may be forthe non-citizen or her family. There is no exceptionfor lawful permanent residents who have spent mostof their lives in the United States, asylum seekerswho have experienced persecution in their homecountries, members of the U.S. Armed Forces, orimmigrants with U.S. families.

The Fifth Circuit’s interpretation of the "illicittrafficking" definition sweeps low-level and non-criminal simple possession offenses within its ambit,amounting to a bait-and-switch for non-citizens fac-ing such charges. In some states, limited proceduralsafeguards exist for these low-level adjudications,which may result in no more than a small fine andmay leave a defendant with no "criminal record" asdefined under state law. In New York State, for ex-ample, many such possession offenses are defined asnon-criminal violations. The relatively perfunctoryprocessing of low-level drug charges is rooted in theunderstanding that these defendants face less seri-ous direct and collateral consequences. Essentiallyduped into believing that these charges were re-solved with a quick plea, many non-citizens now findthemselves subject to U.S. immigration law’s mostsevere penalties, despite the fact that they werecharged with the most minor drug possession of-fenses that exist within state penal codes.

Given the severity of the penalties that follow theapplication of the aggravated felony label, the uncer-tainty created by the circuit courts’ divergent appli-cations of the "aggravated felony" term should nowbe speedily resolved. The circuit split undermines therule of law by making it impossible for counsel to ad-vise their clients accurately about the potential con-sequences of a disposition because that disposition

can lead to vastly different consequences dependingon where DHS elects to commence removal proceed-ings in immigration court.

Amici request that the Supreme Court grant cer-tiorari to resolve this important issue, which impactsthe lives and families of many legal permanent resi-dents. The circuit split will continue to affect a grow-ing number of non-citizens until the Supreme Courtintervenes. Indeed, other similarly affected petition-ers have already sought certiorari on this issue sincethe filing of the certiorari petition in this case. SeeEscobar v. Holder, No. - (filed Aug. 17, 2009),Fernandez v. Holder, No. 09-5386; Erazo-Villatoro v.United States, No. 09-5589.

ARGUMENT

I. CERTIORARI IS WARRANTED TO RESOLVE

THE CIRCUIT SPLIT DU~ TO THE LARGENUMBER OF LEGAL PERMANENT RESIDENTS

WHO ARE CONVICTED OF LoW-LEVEL POS-SESSION OFFENSES, OFTEN WITH MLNIMALPROCEDURAL PROTECTIONS.

The split among the circuit courts of appeals con-cerns how to determine whether a state-law drugpossession offense tits the aggravated felony defini-tion of "illicit trafficking in a controlled substance.’’4

The circuits are divided over whether, under 8 U.S.C.§§ 1229b(a)(3) and l101(a)(43)(B), immigrationcourts can transform two disparate, low-level con-trolled substance possession offenses into a "drug

4 For a complete summary of the circuit split, see Peti-

tion of Petitioner-Appellant for a Writ of Certiorari, Carachuri-Rosendo v. Holder, 570 F.3d 263, 2009 WL 1492821 (5th Cir.2009), petition for cert. filed, No. 09-50 (June 15, 2009).

trafficking" aggravated felony, dictating essentiallymandatory removal from the United States.

Large numbers of legal permanent residentsacross the country are affected by the circuit split.The Fifth Circuit’s decision in Carachuri-Rosendo v.Holder holds that a second or subsequent low-levelstate drug possession offense can qualify as an ag-gravated felony in immigration proceedings, becausethe immigration judge can refer back to prior con-duct not covered by the actual statute of conviction.5

This rule visits extremely harsh consequences onlawful permanent residents who may have quicklypled guilty to a low-level drug possession offense andreceived a small fine or several days in jail.

DHS apprehends and detains a large and grow-ing number of non-citizens on the basis of low-leveldrug possession offenses. Over the past fifteen years,the size of the daily population in DHS detention fa-cilities more than quadrupled, from 6,785 in 1994 to31,244 in 2008.6 In 2008, DHS detained approxi-mately 379,000 non-citizens, removing approxi-mately 97,100 due to alleged criminal convictions.7

Drug related offenses accounted for 35.9% of theseremovals,s

5 570 F.3d 263 (5th Cir. 2009).6 ALISON SISKIN, CONGRESSIONAL RESEARCH SERV., IM-

MIGRATION-RELATED DETENTION: CURRENT LEGISLATIVE ISSUES(2008), available at http://bibdaily.comJpdfs/CRS%20detention%201-30-08.pdf.

7 DEPARTMENT OF HOMELAND SECURITY ANNUAL RE-

PORT, IMMIGRANT ENFORCEMENT ACTIONS (2008), available athttp://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement ar 08.pdf.

s ~d.

10

Across the country, low-level drug possession of-fenses are processed in great numbers and withgreat speed, placing’ severe demands on a strainedindigent defense system. The New York criminal jus-tice system illustrates this principle. The New Yorkexample is particularly relevant because non-citizenswith New York convictions are regularly detainedand placed in removal proceedings in other jurisdic-tions, including the Fifth Circuit. These New Yorkersface dramatic immigration consequences despiteNew York State’s minimal procedural protections forlow-level drug offenders.

Between 1995 and 2004, there were 258,655 con-victions for Criminal[ Possession of a Controlled Sub-stance in the Seventh Degree, a misdemeanor underNew York law. Of this number, almost sixty percentresulted in sentences of time served, probation only,conditional discharge, or fines. Of the remainder, themedian length of sentence imposed was betweennineteen and twenty days.9 In 2008, of the total226,267 convictions following all misdemeanor ar-rests in New York State, less than twenty percentreceived jail or prison sentences.1°

9 N.Y. STATE DEFENDERS ASS’N, ANALYSIS OF NEW YORK

STATE DIVISION OF CRIMINAL JUSTICE SERVICES MISDEMEANORDRUG OFFENSE STATISTICS FOR THE YEARS 1995 THROUGH 2004(2005), available at http://www.immigrantdefenseproject.org/docs/05_Analysis.pdf. A person is guilty of Criminal Possessionof a Controlled Substance in the Seventh Degree when heknowingly and unlawfillly possesses a controlled substance.N.Y. PENAL LAW § 220.03.

lO N.Y. STATE Dry. OF CRIMINAL JUSTICE SERVS., ADULT

DISPOSITIONS OF ADULT ARRESTS 2004-2008: N.Y. STATE BY

COUNTY AND REGION, available at http://criminaljustice.state.ny.us/crimnet/oj sa/dispo s/index.htm.

11

Not surprisingly, most low-level drug offensesare processed quickly and without substantial proce-dural protections because of the understanding thatserious direct and collateral consequences will notfollow from a conviction. Defendants facing suchcharges often plead guilty at arraignment, and arearraigned, plead, and sentenced on the same day.11

Because judges in New York Criminal Court handleapproximately eighty criminal cases a day, judgescan often spend only minutes per case.12 Likewise,neither the defense nor the prosecution has the timeto investigate the merits of each case. In New YorkCity, indigent defendants may speak to a defense at-torney for the first time only minutes before ar-raignment. Outside of New York City, the cases maybe heard before Town or Village justices or policecourt judges, many of whom are not lawyers andhave only minimal training.13

New York is not alone in processing huge num-bers of low-level misdemeanor cases with minimalprocedural protections. An April 2009 report ofamicus National Association of Criminal Defense

11 See N.Y. STATE BAR ASS’N, THE COURTS OF NEW YORK:

A GUIDE TO COURT PROCEDURES 17-18 (2001).12 JUANITA BING NEWTON, WILLIAM H. ETHERIDGE III,

CRIMINAL COURT OF THE CITY OF NEW YORK, ANNUAL REPORT2007, available at http://www.nycourts.gov/courts/nyc/criminal

/NYCCC%20Annual%20Report%20Final%20072508.pdf.Criminal possession in the 7th degree is the second most ar-raigned charge in 2007 in New York City. Id.

13 TESTIMONY OF COREY STOUGHTON, STAFF ATTORNEY AT

THE NEW YORK CML LIBERTIES UNION BEFORE JUDICIARY COM-

MITTEE OF THE NEW YORK STATE ASSEMBLY REGARDING PROPOS-

ALS TO REFORM THE NEW YORK STATE JUSTICE COURTS (Dec. 14,2006), available at http://www.nyclu.org/node/748.

12

Lawyers found that "[t]he vast majority of jailablemisdemeanor cases in Texas are resolved by uncoun-seled guilty pleas," with three-quarters of Texascounties appointing counsel in fewer than twentypercent ofjailable misdemeanor cases.14 In one Texascounty, amicus NACDL’s researchers observed courtstaff routinely directing uncounseled misdemeanordefendants to confer directly with the prosecutor re-garding a possible plea; in some cases defendantspleaded to jail sentences without being informed oftheir right to counsel.15

Even when misdemeanor defendants are repre-sented by counsel, crowded dockets and limited de-fender resources place enormous pressures on manycriminal defendants to quickly enter guilty pleas tominor charges after only minimal consultation withcounsel. The Knox County Public Defender in Ten-nessee reported that in 2006, six misdemeanor at-torneys handled over 10,000 cases, averaging slightlyunder one hour per case.16 Similarly, the AtlantaCity Public Defender Office averaged 2,400 cases perattorney in 2008, calculating that each case receivedon average fifty-nine minutes of counsel’s time; in2009 that figure is projected to fall to forty-two min-

14 ROBERT C. BORUCHOWITZ ET AL., MINOR CRIMES, MAS-

SIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDE-MEANOR COURTS 15 (2009) (internal quotation marks and cita-tion omitted), available at http://www.nacdl.org/public.nsffdefenseupdates/misdemeanor/$FILE/Report.pdf.

15 Id. at 15-16.16 NAT’L RIGHT TO COUNSEL COMM., JUSTICE DENIED:

AMERICA’S CONTINUING NEGLECT OF OUR CONSTITUTIONAL

RIGHT TO COUNSEL 68 (2009), available athttp://tcpjusticedenied.org/.

13

utes.17 Under these pressures, amicus NACDL hasconcluded, "[i]ndigent defenders . . . almost alwaysprioritize felony cases, to the detriment of personsaccused of misdemeanors.’’is As a result, misde-meanor prosecutions, including low-level drug pos-session offenses, are especially likely to be disposedby "meet-and-plead" guilty pleas at an initial courtappearance.19

The current confusion among the circuits as tothe appropriate application of the aggravated felonylabel will subject non-citizens with low-level statedrug possession dispositions to consequences farmore serious than are merited by the perfunctorytreatment their cases receive.

II. CERTIORARI IS WARRANTED BECAUSE THESEVERE CONSEQUENCES OF THE AGGRA-VATED FELONY LABEL ARE DISPROPOR-TIONATE TO THE LoW-LEVEL AND SUMMARYNATURE OF THE SIMPLE POSSESSION DIS-POSITIONS AT ISSUE.

The exceptionally harsh direct and collateralconsequences that flow from the drug trafficking ag-gravated felony determination are wholly dispropor-tionate to the low-level and summary nature of mostsimple drug possession adjudication proceedings.

Virtually every non-citizen convicted of a drug of-fense is deportable.2° Congress has chosen to lessen

17 Boruchowitz, supra note 14, at 26.

Id. at 31.20 8 U.S.C. § 1227(a)(2)(B) ("Any alien who at any time

after admission has been convicted of a violation of... any lawor regulation of a State, the United States, or a foreign country

14

the exceptionally broad impact of this law by allow-ing immigration judges to find that certain deport-able non-citizens are eligible for cancellation of re-moval or asylum upon a showing of sufficient posi-tive equities or a threat of persecution in their coun-try of origin, respectively.21 The aggravated felonydetermination acts as a per se bar to these forms ofrelief,22 preventing immigration judges from grantingrelief even for those non-citizens who served in theArmed Forces, who have U.S. citizen family mem-bers, or who would face extreme hardship or per-sonal danger in their country of origin. Most personswhose convictions are deemed "aggravated felonies"are also barred from obtaining U.S. citizenship.~3 Fornon-citizens other than lawful permanent residents,an aggravated felony conviction triggers administra-tive removal without the right to a hearing in immi-gration court before a neutral judge;~4 for all respon-dents in removal proceedings who have been re-leased from custody for an aggravated felony convic-tion after October 9 of 1998, the law requires manda-tory detention while in proceedings, regardless of theactual degree of flight risk or danger to the commu-nity posed by the individual.~5

relating to a controlled s~bstance.., other than a single offenseinvolving possession for one’s own use of 30 grams or less ofmarijuana, is deportable ").

8 U.S.C. §§ ll5.~(b)(1)(A), 1229b(a).8 U.S.C. §§ l158(b)(2)(B)(i), 1229b(a)(3).8 U.S.C. §§ l101(f)(8), 1427(a)(3); Immigration Act of

1990 § 509(b), Pub. L. No. 101-649, 104 Stat. 4978, 5051 (Nov.29, 1990).

24 8 U.S.C. § 1228(b).2~ 8 U.S.C. § 1226(c)(1)(B); In re Adenji, 22 I. & N. Dec.

1102, 1107-11 (BIA 1999).

15

The case of Jerry Lemaine, whose final order ofremoval is currently before the Fifth Circuit, exem-plifies the harsh consequences of the Fifth Circuit’sapproach. In 2000, Mr. Lemaine received an ad-journment in contemplation of dismissal (known asan "ACD") under N.Y. Crim. Proc. Law § 170.56 fol-lowing a charge of non-criminal possession of mari-juana. The government has argued that, even thoughthe charges were ultimately dismissed, the issuanceof an ACD qualifies as a "conviction" under federallaw. In 2007, Mr. Lemaine pled guilty to non-criminal possession of marijuana under N.Y. PenalLaw § 221.05. The maximum penalty for this viola-tion was $100. Nevertheless, he was subsequentlyarrested by DHS, denied bail, and has been shuffledfrom one detention facility to another, thousands ofmiles from New York, awaiting deportation to Haiti,a country he has not seen since age three.

At the time of his second conviction, Mr. Lemainewas attending the Hunter Business School NursingProgram and caring for his U.S. citizen sister, whosuffers from hydrocephaly. Mr. Lemaine could nothave anticipated that, as a result of a quick plea to anon-criminal violation, the severe consequences ofthe aggravated felony label would prevent him frompresenting any of these positive equities to an immi-gration judge and would mandate a lengthy deten-tion.

16

III. CERTIORARI IS WARRANTED BECAUSE THEGOVERNMENT MAY COMMENCE REMOVALPROCEEDINGS AGAINST ANY NON-CITIZENIN ANY CIRCUIT, LEADING TO THE ARBI-TRARY APPLICATION OF THE AGGRAVATEDFELONY LABEL.

The circuit split does far more than simply sub-ject individuals with similar dispositions to differentlaw in different parts of the country. DHS’s practiceis to detain non-citizens, and to commence removalproceedings against them, in the location and circuitof DHS’s choosing--regardless of the non-citizen’sresidence or the location of her alleged offense. TheBIA has held that, in determining whether a drugconviction constitutes an aggravated felony, immi-gration judges must defer to the interpretation givento the phrase "illicit trafficking in a controlled sub-stance" by the circuit in which they sit.2~ BecauseDHS detainees may be held anywhere in the countryand are frequently transferred multiple times beforeproceedings are commenced by filing of the Notice toAppear with the immigration court, amici are unableto provide effective advice and guidance concerningthe eligibility for relief of noncitizens convicted ofsecond and subsequent possessory offenses.

Recognizing the grave problems created by thisdisuniformity, the BIA sought to provide "guidance"to the circuit courts that had not yet ruled on the is-sue by choosing the Carachuri "appeal as the vehiclefor articulating our analytical approach.’’27 The BIAflatly rejected the Fifth Circuit’s approach as "an ex-

2~ Yanez-Garcia, 23 I. & N. Dec. at 396.27 In re Jose Angel Carachuri-Rosendo, 24 I. & N. Dec.,

382,391 (BIA 2007).

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pansive, and apparently noncategorical, inquiry,"that "would authorize Immigration Judges to collecta series of disjunctive facts about the respondent’scriminal history, bundle them together for the firsttime in removal proceedings, and then declare theresulting package to be ’an offense’ that could havebeen prosecuted as a Federal felony.’’2s Yet roughlytwenty-nine percent of all non-citizens detained areheld in the Fifth Circuit, subject to its harsh minor-ity rule regarding second and subsequent possessionoffenses.2~ Many of these detainees resided and wereprosecuted, convicted, and taken into DHS custody incircuits that apply a different rule.

Mr. Lemaine’s case again provides a vivid illus-tration of the effects of DHS’s common practice oftransferring detainees between circuits. Mr. Lemaineresided in New York from his original immigration in1985. He was initially detained in New York, thentransferred to a Monmouth County facility in NewJersey, and then to a facility in Los Fresnos, Texas,where he was finally issued a Notice to Appear be-fore an immigration judge. Mr. Lemaine applied for,inter alia, cancellation of removal. However, underthe Fifth Circuit rule, the immigration judge con-cluded that he was an aggravated felon, thereby pre-termitting his claim for cancellation of removal andconcluding that detention was mandatory.

Had DHS filed Mr. Lemaine’s Notice to Appearwith the immigration court in New York, where heresided and where his alleged offenses occurred, he

2s Id. at 393.29 U.S. DEP’T OF HOMELAND SECURITY~ RESPONSE TO

FOIA CASE NO. 09-FOIA-1243 (Feb. 6, 2009) (on file with coun-sel).

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would have been able to present his claims for relieffrom removal. The Second Circuit made this clear inits decision in Alsol v. Mukasey, where it held "that asecond simple drug possession conviction is not anaggravated felony for immigration purposes,’’3° rea-soning: "[I]f one who was not convicted as a recidivistnonetheless faced removal as a recidivist, the [immi-gration judge] would have to determine, for the firsttime, that an alien was a recidivist. This is inappro-priate not only because of the [immigration judge]’slack of expertise in the criminal law but also becausethe alien cannot challenge the validity of his priorconviction in the removal proceedings.’’31 However,simply because DHS elected to transfer Mr. Lemaineto the Fifth Circuit, he was subjected to mandatorydetention and his claims for relief from removal werebarred.

CERTIORARI IS WARRANTED BECAUSE THEDISUNIFORMITY, PARTICULARLY COUPLEDWITH DHS’s POLICY OF TRANSFERRINGDETAINEES, MAKES IT IMPOSSIBLE FORCRIMINAL COUNSEL TO EFFECTIVELY AD-VISE CLIENTS.

The circuit spli’t, coupled with DHS detentionand transfer policies, presents an extreme difficultyto criminal defense attorneys attempting to counseltheir clients as to the consequences that might flowfrom a guilty plea. As a result of the circuit split, anon-citizen with a low-level drug possession offensemay be subject to drastically different consequences

3o Alsol v. Mukasey, 548 F.3d 207,219 (2d Cir. 2008).31 Id. at 217.

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depending upon where she is detained and placed inproceedings.

Amici are organizations composed of defense at-torneys or that advise defense attorneys whose cli-ents could face removal and other severe immigra-tion consequences following a guilty plea or convic-tion at trial. Part of amici’s mission is to train attor-neys to give sound legal advice to their clients, in-cluding non-citizen clients. To properly counsel im-migrant clients about the consequences of taking aplea, criminal defense attorneys and the immigrationlaw experts who train and advise them need theguidance of the Court in order to be able to predictreliably and accurately the impact of a drug posses-sion disposition on the non-citizen’s immigrationstatus. The split among the circuits makes it all butimpossible for amici to provide reliable advice whenthere is no guarantee that non-citizens will face re-moval proceedings in the same jurisdiction wherethey reside or their criminal charges are adjudicated.

The defense attorneys, prosecutors, and judgesdealing with indigent defendants all carry massivecaseloads. The over-burdened criminal court systemusually depends on most cases, especially the sort ofminor drug possession offenses at issue in this case,being disposed of quickly through plea bargains. Ad-vocates frequently have only minutes to talk to theirclients before a hearing. Thus, it is essential for at-torneys to have clear rules to guide the immigrationadvice they provide, especially when the potentialimmigration consequences are likely to dwarf thecriminal sanctions imposed for a low-level offense.

In short, a stable and uniform definition of theterm "aggravated felony" is necessary for defense at-

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torneys and immigrant advocates to advisecitizens who are making life-altering decisions.

CONCLUSION

non-

For the foregoing reasons, amici respectfullysubmit that the petition for the writ of certiorarishould be granted.

Respectfully submitted.

JIM WALDENRICHARD A. BIERSCHBACH*GIBSON, DUNN & CRUTCHER LLP200 Park Ave.New York, NY 10036(212) 351-4000

*Counsel of RecordCounsel for Amici Curiae

August 17, 2009