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  1. IER Stays Busy Under Its New Name

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

    Click image for larger version. 

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    On January 18, 2017, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) changed its name to Immigrant and Employee Rights Section (IER), Civil Rights Division of the Department of Justice. The newly – named government agency has been busy in its first months of existence.

    Since January 18, 2017, the IER has entered into seven settlement agreements and collected over $300,000 in penalties and $75,000 in backpay.

    Besides these settlement agreements, IER has issued 11 Letters of Resolution to employers. IER issues a Letter of Resolution when after an investigation of a charge, there is insufficient evidence of a violation of the anti-discrimination provision, but there is evidence of the employer having deficiencies in their I-9 form and/or E-Verify compliance. Letters of Resolution may also be issued when an employer quickly resolves an issue by hiring or reinstating the individual in question with backpay. In resolving these investigations, employer often agree to participate in IER-sponsored training and to ensure their Human Resources Staff becomes better trained on I-9 and E-Verify compliance.
  2. SCOTUS Rules on Ineffective Assistance of Counsel

    by , 06-23-2017 at 10:00 AM (Matthew Kolken on Deportation And Removal)
    JAE LEE v. UNITED STATES, 582 U. S. ____ (2017)

    Held: Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice. Pp. 5–13.(a) When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S.52, 59.

    Lee contends that he can make this showing because he never would have accepted a guilty plea had he known the result would be deportation. The Government contends that Lee cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal. Pp. 5–8.

    (b) The Government makes two errors in urging the adoption of a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. First, it forgets that categorical rules are ill suited to an inquiry that demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor,529 U. S. 362, 391 (internal quotation marks omitted); Strickland,466 U. S., at 695. More fundamentally, it overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

    The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U. S. 289, 322–323. When those consequences are,from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial. Pointing to Strickland, the Government urges that “[a] defendant has no entitlement to the luck of a lawless decision maker.”466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected the defendant’s decision making. Pp. 8–10.

    (c) Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation: Both Lee and his attorney testified that “deportation was the determinative issue” to Lee; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to South Korea.

    The Government argues that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances,” Padilla v. Kentucky, 559 U. S. 356, 372, since deportation would almost certainly result from a trial. Unlike the Government,this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. Pp. 10–13.825 F. 3d 311, reversed and remanded.

    ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined except as to Part I. GORSUCH, J., took no part in the consideration or decision of the case.

    Updated 06-23-2017 at 10:06 AM by MKolken

  3. Immigration Court Backlog Nears 600,000

    by , 06-23-2017 at 09:37 AM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC:

    (16 Jun 2017) The latest data from the Immigration Courts show that the number of cases waiting for a decision continues to climb. As of May 31, 2017, the Court's backlog had risen to 598,943, whereas one year ago, at the end of May 2016, the backlog stood at 492,978. This is an increase of more than 100,000 cases just in the past 12 months.

    Most new cases filed in Immigration Court this fiscal year involve noncitizens charged by DHS with committing an immigration violation rather than involved in any criminal activity. For example, in only 1.7 percent of all cases were individuals charged as having committed an aggravated felony, while an additional 4.1 percent were charged with engaging in less serious criminal activity that allegedly made them deportable. Not a single person so far this year has been charged as being deportable because the individual endorsed or espoused terrorist activity, or were alleged likely to engage in terrorist activities.

    So much for Trump's pledge to deport bad hombres.

    Updated 06-23-2017 at 09:42 AM by MKolken

  4. Warning Advisory to Border Patrol of Gunbattles and Grenades on Southern Border

    by , 06-23-2017 at 09:33 AM (Matthew Kolken on Deportation And Removal)
    Via the National Border Patrol Council:

    Recent events in Tamaulipas, Mexico, specifically in and around the city of Reynosa, pose a special risk to U.S. Border Patrol agents working in the region.

    The Reynosa faction of the Mexican Gulf Cartel recently lost its leader and the group is engaging in open warfare with Mexican authorities and possibly with rival factions or other transnational criminal groups. Open source reports indicate gunbattles and use of grenades and other explosives in the fighting.


    Border Patrol agents working the line in any station's area of operations immediately across the largely open border from Reynosa, Mexico, are advised to employ extra caution in the performance of their duties. Stray rounds from firearms have previously injured U.S. law enforcement personnel on the border.
  5. Federal Court Blocks Deportation of Iraqi Nationals

    by , 06-23-2017 at 08:13 AM (Matthew Kolken on Deportation And Removal)
    Via the ACLU:

    June 22, 2017


    DETROIT — A federal court has blocked the immediate deportation of Iraqi nationals arrested by Immigration and Customs Enforcement earlier this month.

    The American Civil Liberties Union successfully sought the temporary restraining order, arguing those individuals should have an opportunity to prove their lives would be in danger if they were returned to Iraq.

    “The court took a life-saving action by blocking our clients from being immediately sent back to Iraq,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “They should have a chance to show that their lives are in jeopardy if forced to return.”

    The ACLU challenged the government after ICE agents arrested more than 100 Iraqis —including many who’ve been in the U.S. for decades — in recent raids throughout metropolitan Detroit. Those arrested include Christians and Muslims, all at risk of persecution in Iraq.

    “We are thankful and relieved that our clients will not be immediately sent to Iraq, where they face grave danger of persecution, torture or death. It would be unconstitutional and unconscionable to deport these individuals without giving them an opportunity to demonstrate the harm that awaits them in Iraq,” said Michael Steinberg, legal director of the ACLU of Michigan.

    The case was argued in the U.S. District Court/Eastern Michigan District.

    Updated 06-23-2017 at 10:05 AM by MKolken

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