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Thursday, December 5th, 2024

En Banc Second Circuit: A Naturalized U.S. Citizen Has A Sixth Amendment Right To Be Advised By Defense Counsel That He May Be Denaturalized And Deported As A Result Of His Guilty Plea.

In United States v. Farhane, No. 20-1666 (2d Cir. Oct. 31, 2024), the en banc Second Circuit (Carney, joined by Wesley, Lee, Robinson, Perez, Nathan, Merriam, and Kahn) held that “a naturalized U.S. citizen” charged with a crime “has a Sixth Amendment right to be advised by counsel that he may be denaturalized and deported as a result of his entry of a guilty plea.” Slip op. 13. Consequently, “criminal defense attorneys have a Sixth Amendment obligation to inquire into and advise a naturalized citizen client of any risk of deportation following denaturalization proceedings that accompany the client’s guilty plea, just as they do for a deportation risk facing a noncitizen client.” Slip op. 6.

As discussed in the practice points below, just as with noncitizen clients, Farhane requires defense counsel representing naturalized U.S. citizen clients to inquire into the client’s status and advise about risks to that status …

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Categories: denaturalization, immigration, Padilla

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Categories: denaturalization, immigration, Padilla

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Friday, October 7th, 2022

BIDEN’S MARIJUANA PARDONS MISS THE MARK FOR NONCITIZEN DEFENDANTS

The White House announced yesterday that President Biden would grant “full, complete, and unconditional” pardons to U.S. citizens and lawful residents previously convicted of simple possession of marijuana under 21 U.S.C. § 844(a) and D.C. Code 48-904.01(d)(1).  The move is intended to “help relieve the collateral consequences arising from these convictions,” and will doubtless help eligible individuals facing bars to employment, public housing, and some other civil disabilities.  But because of the Kafka-esque tangle that is immigration law, a presidential pardon may do little or nothing to relieve noncitizen defendants of what is likely the gravest consequences they face from a marijuana conviction—deportation or ineligibility for immigration status.  Clients who are eligible for the pardons should be advised that they may still face adverse immigration consequences even after a pardon is granted, and should consult an attorney expert in criminal-immigration issues prior to seeking one.  Read on for the gory …

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Categories: immigration, marijuana

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Categories: immigration, marijuana

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Tuesday, December 17th, 2019

A district court’s order granting a criminal defendant bail under the Bail Reform Act (“BRA”), doesn’t preclude immigration authorities from then detaining that person under the Immigration and Naturalization Act (“INA”). United States v. Lett, No. 18-749-cr, __ F. 3d__, 2019 WL 6752763 (Dec. 12, 2019).

The Second Circuit joins the Third, Sixth, and D.C. Circuits and holds “that immigration authorities may lawfully detain a criminal defendant ordered to be released under the BRA  pursuant to their authority under the INA to detain aliens seeking admission into the United States who are not ‘clearly and beyond a doubt entitled to be admitted[.]’”United States v. Lett, 2019 WL 6752763 at *1, *2 (2d Cir. Dec. 12, 2019) [18-749_Documents] (quoting 8 U.S.C. § 1225(b)(2)(A)); see also 18 U.S.C. § 3142 (bail reform act); 8 U.S.C. § 1101, et seq. (immigration and naturalization act).

Several district courts in this Circuit and around the country had held “that pretrial release under the BRA forecloses detention under the INA” — including the district court in Lett’s case.  2019 WL 6752763 at *3.  But the Circuit holds to the contrary. It rejects the argument that a person granted …

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Categories: bail, detention, immigration, INA

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Categories: bail, detention, immigration, INA

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Friday, June 14th, 2019

Second Circuit defines when it is illegal for an immigrant to possess a firearm

On June 13, 2019, the Second Circuit affirmed the gun possession conviction in US v. Balde.

The story of this case began in 2006, when Mr. Balde’s temporary permission to be in the United States legally was revoked while he was visiting his mother in Guinea during her final illness. He returned by way of JFK airport, where he was informed for the first time that his legal status had been cancelled. He was detained, and the government, alleging that he was inadmissible, initiated removal proceedings. Eventually he was ordered removed, but was then released while he challenged his removal.

To make a long story short, in 2015, over seven years after he received a final order of removal, Mr. Balde was involved in a fight in a Bronx delicatessen and allegedly pulled out a gun. He pleaded guilty to one count of unlawful possession of a firearm by …

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The Second Circuit has withdrawn its opinion in Thompson v. Barr

On May 30, 2019, the Second Circuit withdrew the per curiam opinion in Thompson v. Barr, #17-3494, that was issued on May 13. The opinion found that NY assault in the second degree (NYPL § 120.05(1)) is an aggravated felony crime of violence for immigration purposes under the force clause of 18 USC § 16(a).

The panel opinion in Thompson did not discuss whether the fact that a crime can be committed by omission as well as by commission affects whether that offense “has as an element the use, attempted use, or threatened use of physical force.” 18 USC § 16(a). The pro se petitioner did not raise that issue, and it is pending before the Second Circuit in US v. Scott, #18-163 (argued Jan. 10, 2019). This probably accounts for the decision to withdraw the Thompson opinion.…

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Categories: crime of violence, immigration

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Categories: crime of violence, immigration

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Tuesday, December 4th, 2018

Ninth Circuit Holds Statute Barring “Encouraging and Inducing an Alien” Abridges Constitutionally-Protected Speech

Something to look out for on the immigration front:

The Ninth Circuit held that 8 U.S.C. 1324(a)(1)(A)(iv) which prohibits “encouraging and inducing an alien to remain in the United States” abridges constitutionally-protected speech. Because “[a]t the very least, it is clear that the statute potentially criminalizes the simple words . . . “I encourage you to stay here,” the statute “criminalizes a substantial amount of constitutionally-protected expression” and therefore is unconstitutionally overbroad in violation of the First Amendment.

The case is United States v. Sineneng-Smith, and you can access the opinion here.…

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Categories: immigration

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