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The United States Supreme Court Grants An Emergency Stay Of Deportation, And Then Changes Its Mind, In A Challenge To The Legality Of In re Blake

by Peter Reed Hill

      During the last week of September 2005, and just before the conclusion of the October Term of the United States Supreme Court for 2004, the author experienced the pleasure, the accompanying high, and then the low from gaining, and then losing a stay of deportation and removal from the United States Supreme Court. A.R. v. Gonzalez, U.S. Supreme Court Case No. 05A286. On Wednesday, September 28, 2005, the U.S. Supreme Court granted my client a temporary stay of deportation and removal pending receipt of a response and further order of the undersigned or of the Court! The case involved a challenge to the Board of Immigration Appeals having stretched the already tortured reasoning of In re Blake, 23 I. & N. Dec. 722 (BIA: 2005) to find that my client was ineligible for a Special Motion to Reopen under 212(c) for a guilty plea to burglary which preceded the abolition of Section 212(c) relief. My client had previously been granted a stay from the Board of Immigration Appeals pending adjudication of the Special Motion to Reopen under St. Cyr. The administrative stay was granted about two weeks after my client was picked up by the Immigration & Customs Enforcement fugitive squad in a raid on his private home at 5:00a.m. A.R. waited in jail for a little more than one year for a hearing on his Section 212(c) hearing. Since he came to the U.S. at age 3 from El Salvador, had performed several years of military service in the U.S. Naval Reserves, had fathered three children in the U.S., and nine years had passed since his guilty plea for serving as a lookout in a burglary. Due to these outstanding equities, I advised my client to tough it out in custody awaiting what I believed was a near certain 212(c) hearing with a strong possibility of success. At the end, my client was having trouble tolerating the substandard and isolated conditions in Waterproof, Louisiana. In fact, a hunger strike took place in the facility shortly after A.R.’s ordeal in the U.S. Supreme Court although the Government likely did not want inmates to know what had taken place.

      The stage for this ‘supreme battle’ began in early August 2005 when the Board of Immigration Appeals dismissed his appeal by claiming that In re Blake, supra, extended to burglary convictions since there was no comparable ground of inadmissibility for a burglary offense, adopting the firearms test for comparability for grounds of excludability and deportability from Cato v. I.N.S., 84 F.3d 597, 600 (2d Cir. 1996) which was adopted by the Board in In re Blake, supra. This was perhaps the most unfair immigration decision I had received in my 17 year career with deportation defense “as the specialty of the house” of my law practice. I simply could not let the Government get away with this one without a fight. Events would dictate how much of a fight would really take place. Within 30 days of the denial of the Special Motion to Reopen by the Board, I decided as a matter of strategy to file both a Petition to Review in the Eleventh Circuit Court of Appeals, and to file a comprehensive Motion to Reconsider at the Board of Immigration Appeals. Once my client informed me that his deportation was imminent, I then filed an emergency stay with the Eleventh Circuit Court of Appeals on Tuesday, September 20, 2005. For those who have not yet been anointed in this type of lawyering, suffice it to say that an emergency stay of deportation is a tremendous amount of work. It must be drafted, compiled, assembled, filed and served under extreme time pressure. This is not a job to be taken lightly, or to be performed in a shoddy fashion. Emergency motions in the Federal Courts require very difficult teamwork, intense concentration and stressful work for all involved. It forces the attorney and his staff to assemble the previous proceedings in a mechanical fashion and to make numerous copies for service on the required parties in a short period of time. I admit to having filed several of these emergency stays previously so at least I had a template from which to start for this case. For those who practice in other circuits, the national rule for emergency stays of agency decision is FRAP 18(a)(2)(D). You should also read the local court rules again to make sure that you don’t miss anything. For example, the Eleventh Circuit required me to attach all prior opinions of the agency. Although prior decision of the agency were not relevant to the challenge inherent in the denial of the Special Motion to Reopen under St. Cyr, I made the quick decision that I had better attach the original decision of the Immigration Judge and by the Board of Immigration Appeals. All Justice Department judges had rejected my original argument in 1998 that my client had not been convicted of an aggravated felony because he received a probated sentence which, under Georgia criminal case law, is mutually exclusive from a sentence to imprisonment. It later turned out that the requirement of having to attach copies of the outcome of this litigation later gave the Government an easy opportunity to engage in some “Monday morning quarterbacking” in its response my U.S. Supreme Court petition. I decided to add these decisions to the stay request at the last minute because I did not want the stay application to be denied by the Eleventh Circuit for failure to comply with the local rule.

      To be fair, it is acknowledged that the judges of the Eleventh Circuit Court of Appeals are frequently called upon to stop the imposition of death sentences upon inmates in the ‘Death Belt’ states of Florida, Georgia and Alabama. This task sometimes ruins Eleventh Circuit judges’ weekends, and otherwise interrupts their work on other meritorious cases during the weekdays. In other words, it is human nature that these judges do not really want to add ‘deportation’ to their list of horrible sanctions which various Governments can impose on people, and which have the power to stop.

      As I had expected based upon prior experience, the Eleventh Circuit denied a stay of deportation for my client 3 to 0 in four hours without stating any reason why they denied the stay. I had previously prepared a draft of a stay of deportation in the Eleventh Circuit for this same client for emergency use on the Monday of Labor Day weekend 2004 but when I received a stay of deportation from the Board of Immigration Appeals on October 18, 2004, we were never forced to file the stay we prepared. When I prepared this stay the second time around, I had a lot of revision to accomplish. It was almost as if I had to draft and prepare the stay all over again, not to mention making the approximate 1000 copies and organization of previous decisions in the case which need to be organized in a logical fashion in order to have a chance at success. Simply put, the publication by the Board of Immigration Appeals of In re Blake, supra, altered my theory about why my client deserved a stay which is the equivalent of injunctive relief, at least in immigration cases arising in the U.S. Court of Appeals for the Eleventh Circuit. I had to think fast and clearly to redraft and to adapt my previously drafted petition, and to meet all of the requirements of the Court’s various rules for emergency review of agency decisions. It is no wonder that death penalty defense attorneys burn out so quickly. I had to thank my two staff members profusely, and even to apologize for having to deal with a boss under so much stress for a five hour clip. We even had a ‘meltdown’ lunch together the next day. The frantic exercise of drafting a second, even more concise emergency stay petition was to be repeated the next week, although none of us realized it at the time.

      Luckily, my client was not deported the day after the Eleventh Circuit denied my stay application due to the onset of Hurricane Rita. With the aid of my client’s wife, we then decided the following week that we had nothing to lose and we decided to go ahead and seek relief from the U.S. Supreme Court. I had already drafted and filed an emergency petition in the Eleventh Circuit so I had a solid basis to start the draft of the Supreme Court petition. Before I started I read U.S. Supreme Court Rule 23 and all the other rules which relate to an emergency stay application. I made sure that I pleaded all which Rule 23 requires in the petition. Rule 23 requires that you exhaust every alternative before you ask the Supreme Court to stay a decision pending appeal in the lower courts. Accordingly, I contacted the Board for a decision on the stay which had already been requested in writing together with the Motion to Reconsider. Finally, I made sure that I served all the parties as prescribed by the U.S. Supreme Court rules. Once we completed the work, I then filed the petition and all required previous decisions, as well as a copy of the opposition to the stay filed by the Justice Department’s Office of Immigration Litigation in the U.S. Court of Appeals, in the U.S. Supreme Court on Tuesday night, September 27, 2005. Filing the stay application means that one delivers the finished documents to the overnight courier’s delivery office. It is located four miles from my office. I got there at 8:00p.m., or about one half hour before the office closed.

      The Supreme Court petition which I settled upon was an even shorter and more concise petition than petition which was filed in the Eleventh Circuit Court of Appeals. If one does not count the paragraphs which demonstrated full compliance with U.S. Supreme Court Rule 23, the U.S. Supreme Court petition was substantially shorter that the lower court application. In the key paragraph of the petition, I described the legal issue as follows: “the U.S. Supreme Court’s express holding required that the agency, i.e. the Board of Immigration Appeals, apply the established case law and the statutory scheme which existed at the time Petitioner pled guilty, not the ‘new law’ which the Board created in In re Blake, 23 I. & N. Dec. 722 (B.I.A.: 2005), and which the Board now implies, but never actually says, was the law in effect at the time of Petitioner’s guilty plea. In I.N.S. vs. St. Cyr, supra, however, the U.S. Supreme Court squarely held ”that §212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for §212(c) relief at the time of their plea under the law then in effect.” St. Cyr., 533 U.S. at 326.” Elsewhere in the petition, below in the Motion to Reconsider filed with the Board, and in the emergency filing with the Eleventh Circuit, I had emphasized that burglary had never been held by the Board or the Federal Courts not to be a waivable offense by Section 212(c) under the theory of ‘congruence’ adopted by the Board in In re Blake, supra. This argument and my client’s plight given his youthful conviction for burglary both seemingly fell on deaf ears below, but at least the Circuit Justice was willing to consider this argument, albeit for only a few days. As a practicing lawyer, the author opines that of the hardest things to master in practicing law is how to make an argument as simple and as persuasive as possible without putting the reader, or sometimes the jury, to sleep. In this endeavor, I think that events demonstrated that I succeeded in the U.S. Supreme Court, at least temporarily.

      The stay was finally granted by the Circuit Justice at 5p.m. on Wednesday, September 28th, or about three hours before my client was told by Immigration & Customs Enforcement agents that he was to be deported. The Solicitor General’s Office was ordered to respond by noon on Friday, September 30, 2005. The Solicitor General’s response was little short of brilliant. I have faced the Solicitor General’s office twice in my career. The lawyers employed by the Government’s mouthpiece in the Supreme Court seem to understand immigration law from the Government’s “throw ‘em all out without a hearing” perspective in ingenious ways which fortunately I do not have to deal with in the lower courts, and before the two agencies who now adjudicate deportation litigation. I was aided in this case by the fact that I had already drafted and filed a petition for certiorari in the U.S. Supreme Court in a case arising out of the Eleventh Circuit in 2000. Even though cert was denied in my 2000 case, the novelty of the U.S. Supreme Court experience was not quite as intimidating the second time around as it was in my first case. Unfortunately for my client’s interests, and to the detriment of the future of the lives of his three U.S. born children, the Solicitor General proceeded to provide Justice Kennedy with what amounted to be veritable law review quality response at the last minute on Friday at noon. The Government’s response in opposition totaled 19 pages. It set forth everything factually wrong with my client’s past, it criticized my past performance in the defense of my client, and it also emphasized that A.R. ‘absconded.’ I believe that if a hearing is ever held in A.R.’s case, the true facts would be that he joined the U.S. Naval Reserves sometime after he was ordered deported but while his case was still on appeal to the Board. However, this fact and his U.S. military service were craftily ignored in the Government’s response. The Solicitor General’s response also suggested that I should have included a retroactivity challenge back in 1998. However, the Solicitor General failed to mention in his critique of my performance that Matter of Soriano, 21 I. & N. 516 (A.G. 1997) was the law established by the Attorney General at that time. I also doubt that he considered the fact that I practice primarily in probably the most deferential Circuit Court of Appeals, the Eleventh Circuit Court of Appeals, see Jaramillo v. I.N.S., 1 F3d 1149 (11th Cir. 1993)(en banc)(Chevron deference to agency interpretations adopted as the law of the circuit). At that time of my client’s original defense, I had not yet filed a single petition for cert to the U.S. Supreme Court. In short, the idea in my mind in 1998 of obtaining a reversal on any retroactivity argument was no more than a Quixotic dream. Finally, I had no idea that a St Cyr retroactivity type challenge would actually succeed elsewhere. I truly thought that my probation argument was the winner if there was one, based my interpretation of the Board of Immigration Appeals case law which existed at that time, and based upon the U.S. Supreme Court rule of statutory construction that ambiguities in a deportation statute are to be resolved in favor of the alien. I do admit, however, that I was not aware of the language of two U.S. Supreme Court cases regarding the heavy burden of the Government to demonstrate ‘clear and convincing’ Congressional intent to apply a statute retroactively which laid the predicate foundation for the retroactivity holding in I.N.S. v. St. Cyr, supra: Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Hughes Aircraft Company v. United States ex rel Schumer, 520 U.S. 939 (1997). Finally, the Solicitor General attacked the main premise of my argument by arguing that my client would not suffer irreparable harm by being deported even though the Motion to Reopen would be abandoned by regulation. I think that the Government lawyers are simply wrong about this, but we may receive an answer as to who is correct in the resolution of this case before the Eleventh Circuit Court of Appeals if the petition to review should survive A.R.’s deportation. The Government also argued in its brief that the Board’s act of the application of a general rule to new circumstances through adjudication has never been regarded as impermissibly retroactive. This argument was based upon another U.S. Supreme Court case, Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 94 (1993) which I admit that I had never read of when I received their response. However, this case does not cover the argument I had made in this case but this partial distortion of my argument may have worked. I had maintained consistently in the litigation since the publication of In re Blake, 23 I & N. Dec. 722 (B.I.A.: 2005) was applied to render my client ineligible for relief that burglary had never been questioned as a waivable offense under Section 212(c) in any prior reported litigation. In my Motion to Reconsider to the Board of Immigration Appeals, a copy of which was attached as an exhibit to the Supreme Court petition, I had cited one particular precedent 212(c) cases involving the standards for applying discretion, Matter of Edwards, 20 I. & N. Dec. 191 (BIA: 1990). Mr. Edwards, as some readers might recall, was convicted of burglary three times. Nevertheless, there was never any discussion or controversy in the Board’s opinion in that case, or in any other precedent decision prior to the abolition of Section 212(c) by Congress, of whether Mr. Edwards or any other convicted burglar was statutorily eligible for Section 212(c) relief. It was assumed that all were eligible. Despite the Government’s refusal to acknowledge this in this litigation, it simply was not in issue at that time - this is a legal fact which the Board has conveniently ignored in its subsequent cursory two sentence denial of the Motion to Reconsider. The Solicitor General followed suit. The best the Solicitor General could come up with was in terms of a ‘similar controversy’ was Komarenko v. I.N.S., 25 F.3d 432, 435 (9th Cir. 1994) which involved a whether an alien with a violent firearms conviction which was arguably a crime involving moral turpitude was eligible for Section 212(c) relief. The litigation veterans of the era which ended with the abolition of Section 212(c) may recall that firearms offenders were treated differently. In the Eleventh Circuit, a number of firearms offenders were actually bunched together in one opinion, and found to be ineligible for Section 212(c) relief. Should the Eleventh Circuit actually decide this controversy, they will clearly be reminded of this important distinction.

      As a solo practitioner, I was overwhelmed by the scope and depth of the Solicitor General’s response given the short time the Circuit Justice allowed for the Government lawyers to complete and file their response. Before I received the Circuit Justice’s second order, I asked my contact in the United States Supreme Court for time to file a short response by Monday morning. I was told that I could file one, but you might receive a decision earlier. As most attorneys and many laymen have probably read or have heard, the Supreme Court of the United States is famously mysterious and secret in its inner workings. Unfortunately, I received a call from my contact in the clerk’s office about 4:40p.m. on Friday afternoon. I was advised of the Circuit Justice’s change of position and the denial of the stay. If I had to fight for a stay all over again, I would have absolutely dropped everything else in the office in order to prepare a very brief response and I would have sent it back to the Supreme Court immediately. Unfortunately, I am the only lawyer in my office at this time. I had other client’s affairs to return to. I also wanted my response to be at least remotely similar in quality to the comprehensive response which I received from the former judicial law clerks employed by the Solicitor General’s office. Unfortunately, it was not meant to turn out this way.

      The stay was lifted before I had a chance to see if the Solicitor General’s response was all show, or whether it was rock solid. My instincts tell me that the Solicitor’s response contained a bit of ‘puffing’ and some real substance but until I am able to retreat to a law library to read and check the current validity of all of the cases cited in the response I will not be sure one way or another. I guess that Justice Kennedy thought that either the Government represented the more correct position on the issue, or he wanted to wait until there was a conflict among the various circuit courts of appeals before the issue was ripe to be resolved by the U.S. Supreme Court, as the Solicitor General’s brief had vigorously urged. Maybe the Circuit Justice saw the case as a Constitutional separation of powers challenge since the main argument in my challenge boiled down to the fact that the Board of Immigration Appeals was usurping the U.S. Supreme Court’s ultimate authority over immigration matters by deviating in Blake, supra, from former case law interpretations of what offenses were waived by Section 212(c). The doctrine of constitutional avoidance could be used to skirt this issue.

      Despite the temporary setback for my client as well as those hundreds of long term residents who will be denied a hearing under the outstretched tentacles of In re Blake, supra, I assume that the challenges to In re Blake, supra, will continue because client like A.R. have their whole prior life and family in the U.S. to lose. My client’s dilemma will not be heard by the entire Supreme Court, unless cert is granted in another case in the future, or if we proceed up again if the Eleventh Circuit does not agree with me and the Circuit Justice is joined by three other justices. I note for the reader’s benefit that in preparing my first petition for certiorari to the U.S. Supreme Court in the spring of 2000 I endeavored to review summaries of all the grants and denials of certiorari to the U.S. Supreme Court in immigration cases which I could find from the previous ten year period. The vast majority of grants of certiorari to the U.S. Supreme Court in immigration cases originate with Government dissatisfaction with opinions from the various courts of appeals, rather than from an alien making successful, last ditch pitch to remain in the United States as A.R. had done, and as more of those adversely affected by Blake will likely do in the future.

      I do wish to take the time to thank the Circuit Justice and his law clerks for their time and consideration is attending to my client’s emergency matter without an expedited denial. The argument on my client’s behalf that In re Blake, supra, exceeded the mandate of I.N.S. v. St Cyr merited at least a few hours of the Circuit Justice’s and his law clerks’ time. The challenge also sparked an absolutely comprehensive response from the Solicitor General’s office in less than forty-four hours. I frankly admit that I was overmatched in this case without having at least a weekend to dissect the Solicitor General’s response with the benefit of a quiet law library, no telephone to answer, and no new clients to meet. Unfortunately, my immigrant client base does not permit me to hire former Supreme Court and U.S. Courts of Appeals law clerks to work at my side although such individuals do toil for the Solicitor General. I simply cannot afford such help without running a charitable operation. Finally, I am humbled by the thought that I may never again have a chance to file another case, much less to seek a temporary stay of deportation, from this country’s Highest Court. I filed this stay application both to help my client stay in this country but also because I truly believe that the essence of the challenge to In re Blake, i.e. that the current Justice Department had exceeded the mandate of I.N.S. v. St. Cyr, supra, in publishing Blake, is a sufficiently important question to merit the U.S. Supreme Court’s very limited time and attention. In other deportation cases, the individual’s plight would usually be the bigger loss but it would probably not command the Court’s attention. Death penalty cases are undoubtedly the greatest consumer of the Court’s time spent on emergency cases, and will continue to be so as long as the Federal Government, and about 38 states, are matched by a handful or two of other countries which still imposing the penalty of death on fellow human beings. The U.S. Supreme Court has not yet considered deportation to be a criminal penalty although maybe it is time for this outdated doctrine to change. Imagine having the right to a jury trial in a deportation hearing!

      My second U.S. Supreme Court experience was one of the most rewarding, but also one of the most disappointing sojourns in my career as an attorney. I urge others to file similar challenges, on an emergency basis and otherwise as petitions for certiorari, in the U.S. Supreme Court for truly meritorious cases. However, you should only engage in this type of work if you are willing to put in the effort, to exert yourself in the courts and before the agency below, and to expect to clash with a most worthy and talented adversary when you get there. The saddest thing about the aftermath of this case for me is that I am forced to contemplate the fact that the outcome of this case will be a hundred times more disappointing for my client and for his entire family if he is ultimately deported. As of this writing, A.R. is still in custody in the U.S. but he has finally been removed from isolation in Waterproof, Louisiana where he was sent shortly after the Supreme Court vacated the stay order. His fate is very uncertain as of this writing.

      As a frequent trial lawyer I rarely write about cases which I lose. I have authored quite a few articles and blurbs about the various victorious cases in my career as a trial lawyer. However, this case is different. I think, or at least I hope in my still mildly optimistic heart, that this case will contribute albeit in a miniscule way, to the Federal Courts ultimately rejecting In re Blake, to the Board of Immigration Appeals deciding to withdraw from it, or even better, that Congress will see the error of its IIRIIRA96 ways and restore 212(c) in its entirety, or to create a similar discretionary waiver without the ‘aggravated felony’ bar to any consideration of what aliens like A.R. bring to the table, or more importantly, what they have to lose if denied relief. Any contribution toward such an achievement, or at least recognition by “the powers that be” would allow deserving, long term residents who first came to the U.S. as near infants to have a hearing on the merits of their fervent hopes to remain in the United States. I do not think that this case was a total loss, although my client may think so if he has to live the balance of his natural life outside the U.S. Despite the contention of the Solicitor General’s office to the contrary, there will undoubtedly be many more aliens’ cases whose cases will wind up in the Federal Court system and who like A.R., have been “Blaked” out of a Section 212(c) hearing. Other similarly situated foreign nationals will have gotten into trouble with the law in their youth, pled guilty to crimes which were waivable under Section 212(c) under the law as it existed before the abolition of Section 212(c) but who under the Blake test do not have sufficiently comparable statutory counterparts of excludability and deportability, and who have turned around their lives enough since conviction to merit a second chance. All of these ‘nearly American’ human beings are going to be permanently kicked out of the United States without a hearing, unless more Federal judges see and act upon what the Circuit Justice apparently saw in this case as being meritorious of further consideration by the High Court.

      My client gambled away what amounted to more than a year of his life in jail based upon my original advice, only to have his hopes dashed by the designation of In re Blake, supra, as a precedent and the extension of its holding to encompass a burglary conviction. In re Blake, supra, is, with all due respect to Board of Immigration Appeals members who have a difficult job in promulgating precedent decisions, an extension of the unnecessary cruelty visited upon long term legal permanent residents by Congress but which was then ameliorated for many successful 212(c) grantees by the U.S. Supreme Court’s holding in I.N.S. vs. St. Cyr, supra. After all, there are many legal permanent residents and citizens who have not always been perfect residents of the U.S. but who due to sound legal advice, due to an Executive pardon, due to re-sentencing procedures in state courts, or due to having managed to live under the Government’s ever expanding radar despite their convictions, are still residing in this country freely. In conclusion, I ask that the reader contemplate the fact that the current President was not always a perfect, law abiding resident of the U.S. either!


About The Author

Peter Reed Hill is a solo practitioner in Atlanta, Georgia. He graduated from Reed College in Portland, Oregon in 1979 with a B.A. in International Studies. He subsequently graduated from the Thunderbird Graduate School of International Management in Glendale, Arizona in 1982 with a Masters in International Management, now an M.B.A. Finally, he graduated from Emory Law School in 1988. He has practiced primarily in immigration law but he also has extensive experience in criminal defense and in accident litigation, particularly since the Illegal Immigrant and Immigrant Reform and Immigrant Responsibility Act prohibited the legalization of the status of the vast majority of illegal immigrants present in the U.S. Mr. Hill studied in high school in Barcelona, Spain on the School Year Abroad program. He later in college in the former Soviet Union. He speaks Spanish every day at work. He used to be fluent in Russian after his summer in the U.S.S.R. and once worked as a Russian interpreter. While on trips to his wife's native Taiwan, the author manages to make everyone laugh with his broken Mandarin. The opinions in this article are solely those of the author.


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