Tenth Circuit Finds no Prejudice to Noncitizen Forced to Apply for Adjustment before IJ Rather than USCIS

The Tenth Circuit, in assuming that DHS violated certain regulations during their apprehension of a non-citizen, determined that the non-citizen did not suffer any prejudice by being required to litigate his adjustment of status application before an immigration judge rather than before U.S. Citizenship and Immigration Services.

“Mr. Aguayo emphasizes adjustment hearings in immigration court are procedurally different from non-adversarial USCIS interviews because a petitioner appears in front of the IJ ‘in a pastel jumpsuit’ and is ‘cross-examined in an adversarial courtroom by trained government lawyers, while in confinement apart from family.’ As a general matter, we are sympathetic to Mr. Aguayo’s contention. But whether the adversarial nature of immigration court potentially affected or actually affected the outcome of removal proceedings is not self-evident. As the government points out, Mr. Aguayo had ‘a full opportunity to present his case for adjustment of status before the IJ,’ and he does not argue ‘he would have submitted more or different evidence to USCIS than he presented to the IJ.’ The BIA correctly determined Mr. Aguayo ‘speculates’ but ‘provides no evidence that USCIS would have approved his adjustment application.’”

The full text of Aguayo v. Garland can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905064.pdf

CA Supreme Court Discusses Prejudice Prong of Motion to Vacate

The California Supreme Court has published guidance on how to establish prejudice for a motion to vacate under section 1473.7 of the California Penal Code.

The Court started by evaluating whether Espinoza Espinoza lacked a meaningful understanding of the consequences of his plea, and looked to the fact that he traveled abroad as evidence that he did. “[H]e took an international commercial flight to the United States, which predictably required subjecting himself to the scrutiny of United States immigration officials, which is not consistent with the behavior of a person who understood that his convictions effectively ended his lawful resident status.”

Turning to prejudice, the Court noted that a totality of the circumstances analysis must be applied. “Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he had rejected the plea, as well as the difference between the bargained-for term and the likely term if he were convicted at trial. These factors are not exhaustive, and no single type of evidence is a prerequisite to relief. A defendant must provide ‘objective evidence’ to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.”

The Court acknowledged that ties to the United States are probative evidence of a defendant’s immigration priorities. Long-standing residency and strong family ties demonstrate that the prospect of deportation may be an integral (or even the most important) part of the calculus when accepting a plea. “Community ties may be established by length of residence; immigration status; lack of connection to the country of origin; connections to family, friends, or the community; work history or financial ties; or other forms of attachment. Objective evidence of a defendant’s community ties includes facts provided by a defendant’s declaration or declarations from family members, friends, colleagues, community members, or other acquaintances.”

“After Espinoza accepted the plea and served jail time, he returned home to care for his family and community. He became the caregiver for his elderly parents who suffer from severe medical conditions. He ran his own business to provide for his family. He volunteered, went to church, and took part in numerous community organizations. These facts lend credence to Espinoza’s assertion that his community ties were important to him at the time of his plea.”

“Another consideration is whether alternative, immigration-safe dispositions were available at the time of the defendant’s plea. Factors relevant to this inquiry include the defendant’s criminal record, the strength of the prosecution’s case, the seriousness of the charges or whether the crimes involved sophistication, the district attorney’s charging policies with respect to immigration consequences, and the existence of comparable offenses without immigration consequences.”

“Espinoza had no prior criminal history at the time of his plea. This fact is relevant because a defendant without an extensive criminal record may persuasively contend that the prosecutor might have been willing to offer an alternative plea without immigration consequences. Additionally, Espinoza presented evidence from an immigration attorney that there were alternatives the prosecution could have offered that would not have resulted in mandatory deportation.” “Espinoza’s lack of a criminal record, combined with the declaration of the immigration attorney, support his assertion that he had reason to expect or hope for a plea bargain without immigration consequences.”

The Court made several other valuable observations. First, a defendant is not required to have expressed contemporaneous confusion about immigration consequences at the time of the plea. Second, a defendant is not required to obtain a statement from defense counsel.

The full text of People v. Espinoza can be found here:

http://sos.metnews.com/sos.cgi?0123//S269647

CA Ct. of Appeal Denies 1473.7 Motion for Lack of Corroborating Evidence of Prejudice

The California Court of Appeal, Fourth Appellate District, has denied a motion to vacate under section 1473.7 of the Penal Code for failure to provide sufficient evidence of prejudice. The court noted that there was no contemporaneous evidence to support the defendant’s assertion that he would not have taken the plea if he had been properly advised of the immigration consequences of the plea. “Defendant could have provided contemporaneous evidence to support his claim that he had not been understandably admonished as to his immigration consequences. Such evidence could have included a declaration or testimony by his then defense counsel, David Ross, or the interpreter who signed the plea bargain form, Elias Uribe, or the hearing transcript from the June 24, 1997 hearing on his plea. He produced none of these, nor offered any explanation for not doing so.”

“Defendant’s declaration does contain statements to be considered in the context of contemporaneous evidence. Chief among these are his assertions of his family in the United States and his need to support them.” “[T]hese statements do not avail defendant. They simply emphasize that he elected to take the plea bargain to obtain release and return to his girlfriend and son and resume his job.”

The full text of People v. Bravo can be found here:

http://sos.metnews.com/sos.cgi?1220//E072782

Sixth Circuit Addresses Prejudice Standard for IAC

The Sixth Circuit has emphasized that a petitioner need only show a reasonable probability that but-for his counsel’s substandard conduct, he would have received a different outcome in his removal proceedings. The Board of Immigration Appeals (Board) “required that Kada prove prejudice by showing that his claims necessarily would have succeeded or that he has actually been tortured rather than asking whether he demonstrated a reasonable probability that, but for his counsel’s ineffective assistance, he would have been entitled to remain in the United States. And it failed to treat Kada as it has similarly-situated individuals. As a result, the Board abused its discretion by denying Kada’s motion to reopen.”

The full text of Kada v. Barr can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0014p-06.pdf

Seventh Circuit Addresses Prejudice Standard for Ineffective Assistance of Counsel

The Seventh Circuit reversed the denial of a motion to reopen based on ineffective assistance of counsel.  The BIA indicated that the evidence presented in support of the IAC claim was not likely to have changed the outcome of the case.  The Seventh Circuit that the BIA erroneously applied a standard of probability, rather than possibility.  "The Board’s 'would likely have altered the outcome' language suggests that it was requiring Sanchez to show it was more likely than not (i.e., a probability of more than 50 percent) that the outcome of the removal proceeding would have been favorable to Sanchez but for his counsel’s alleged missteps. But in actuality, Sanchez needed only to establish that he would have had a reasonable chance of prevailing had his counsel provided him with competent representation."  

The full text of Sanchez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0