Scholars Sidebar: Immigration judges write “Immigration Law 101”

Two immigration judges recently found time in their overcrowded schedules to give crImmigration law aficionados their take on the basics of this convoluted area of law. Hon. Dana Leigh Marks and Hon. Denise Noonan Slavin, A View Through the Looking Glass: How Crimes Appear from the Immigration Court Perspective, 39 Fordham Urb. L.J. 91 (2012). Written by Judge Dana Leigh Marks, the president of the National Association of Immigration Judges, and Judge Denise Noonan Slavin, the NAIJ’s vice president, this article is a great starting point for criminal defense attorneys with limited immigration law knowledge and provides crImmigration law specialists with hard-to-come-by insight into how leading IJs view recent legal developments.

For lawyers without an immigration law background, the article identifies a number of common misconceptions, key government actors, basic information about crime-related removal and relief from removal.

Unlike most articles, the authors’ special perspective provides those of us who are intimately familiar with crImmigration law some interesting tidbits as well. When discussing the “groundbreaking” analytical framework for determining whether an offense is a crime involving moral turpitude, Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), for example, the judges explain that it’s currently unclear what evidence IJs may consider under Silva-Treviño’s third step—the step that I’ve previously described as the “anything goes” provision and that the authors describe more politely as allowing IJs to consider evidence outside the record of conviction. Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 105.

“While it is clear that immigration judges may not go behind the conviction to reassess guilt or innocence,” they write, “the question of what evidence is necessary and appropriate to consider remains a wide open question at this juncture.” Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 105. In other words, there’s plenty of room for lawyers to contest the admissibility of certain types of evidence that the government offers under Silva-Treviño step three. Unfortunately, they don’t hint at what types of evidence might be inadmissible.

Another interesting comment concerns their view of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court’s decision announcing that the Sixth Amendment right to counsel requires that a criminal defense attorney advise a noncitizen defendant about the potential immigration consequences of conviction prior to pleading guilty or nolo.

The judges provide a list of interesting possibilities they think Padilla raises: “Surprisingly, one of the first questions that may be created by Padilla is whether it imposes any additional duties on an immigration judge….Could this duty require immigration judges to advise noncitizens of relief that may be available to them if they are able to set aside a conviction based on a claim of ineffective assistance of counsel?…[And] if an unrepresented respondent advises the court of a potential ineffective-assistance-of-counsel claim, does the immigration judge have a duty to advise a respondent of relief which would be available if the conviction were to be set aside by the appropriate criminal court?” Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 114-15. Again, they identify interesting and tricky questions, but leave the answers to the attorneys and IJs grappling with Padilla in immigration courtrooms across the country.

The judges then contemplate the possibility that Padilla suggests that IJs must grant a continuance when a respondent is trying to vacate a conviction in the relevant criminal court. Though IJs have broad discretion to grant or deny a continuance, the judges advise that “in seeking a continuance based on a motion to vacate a criminal conviction, a noncitizen should present prima facie evidence regarding the motion—i.e., the motion itself, affidavit of criminal counsel regarding misadvise or failure to advise regarding immigration consequences of the plea, or a plea colloquy.” Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 116. In addition, “a noncitizen…may want to submit a copy of the application for relief that he wishes to pursue with supporting documents to show he or she is a worthy candidate for that relief,” and “should seek the concurrence of the DHS.” Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 117.

As a final comment, the IJs suggest that Padilla offers some hope to individuals who were already removed due to a conviction obtained in violation of Padilla. Under the sua sponte authority granted to IJs and the BIA to reopen cases “there may be a willingness to address motions to reopen based on vacated convictions” even where the noncitizen is no longer in the United States. Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 118-19. If Marks and Slavin prove correct on this point, this would mean that individuals who are not within the strict limits on filing a motion to reopen (usually only one motion to reopen is allowed and it must be filed within 90 days of the original decision) may be able to erase a removal order after vacating a conviction.