NYSDA Immigrant Defense Project - Litigation

IDP Litigation – Other

Amicus Briefs: Zamudio-Ramirez v. Holder (March 2010) (131K PDF) (9th Circuit) and Castruita-Gomez v. Holder (April 2010) (347 K PDF) (9th Circuit): IDP, with other organizations that assist and counsel immigrants accused or convicted of crimes, submitted these briefs arguing that the Ninth Circuit should join the Third Circuit in rejecting prior Attorney General Michael Mukasey's decision in Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008). The briefs highlight the severe procedural and substantive flaws in the Silva-Trevino decision, which abandons the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replaces it with an unprecedented inquiry into facts outside the criminal court record of conviction. Because of the different issues covered in the respective party briefs in these two cases, each amicus brief focuses on different aspects of the Silva decision. (For previous amicus briefs IDP and allies have submitted to the Department of Justice explaining the problems with Silva Trevino at greater length, see the documents below captioned "Silva-Trevino.") These amicus briefs were prepared and submitted on behalf of amici by IDP and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.

Amicus Brief: Garcia v. Shanahan (December 2009) 2d Circuit: This government appeal from the grant of habeas corpus to a long-time lawful resident is the first Second Circuit case raising the issue of whether the BIA’s decision in Matter of Saysana, 24 I. & N. Dec. 602 (BIA 2008) represents a correct interpretation of the mandatory detention statute. Federal courts have so far uniformly rejected Saysana’s reasoning, which subjects certain deportable immigrants to mandatory detention on the basis of any criminal custody occurring after the detention statute’s effective date, whether or not the arrest results in a conviction of any kind. IDP filed an amicus brief to highlight the real-world import of this drastic view, which requires detention without bond of long-term immigrants who have been living and working in the community for ten years or more. The brief also explains how, given ICE’s well-documented practice of transferring detainees far from their place of initial detention, the Saysana rule also affects immigrants’ ability to contest their removal and seek relief for which they are eligible. Shortly after this brief was submitted, the First Circuit also rejected the BIA's Saysana ruling in the habeas brought by Mr. Saysana himself.

Amicus Brief: Cardenas-Abreu v. Holder (October 2009) (307K PDF) 2d Circuit: In this case reviewing the BIA’s recent precedent decision in Matter of Cardenas-Abreu, 24 I. & N. Dec. 795 (BIA 2009), IDP and NYSDA filed an amicus brief to inform the Court of the reasons why the BIA erred in holding that a conviction on appeal pursuant to New York’s late-noticed appeal procedure, CPL 460.30, is sufficiently “final” to trigger deportation. The brief raises important fairness, due process and practical problems with the BIA’s rule and demonstrates that the policy considerations cited by the BIA are based on a misunderstanding of the reality of New York criminal practice.

Amicus Letter Brief: Matter of Silva-Trevino (June 2009) (16K PDF).
On June 12, 2009, IDP and the other amici in this case followed up their prior submissions by filing a letter brief renewing amici's request that new Attorney General Eric Holder withdraw prior Attorney General Michael Mukasey's decision in this case (see below). The letter urges vacatur of Attorney General Mukasey's decision in light of Attorney General Holder's recent decision in Matter of Compean, 25 I&N Dec. 1 (A.G. 2009), which vacated another decision issued in Attorney General Mukasey's last days as Attorney General based on lack of a full and fair process in the adjudication and deliberation of the legal issue in the case. The letter brief points out the even greater lack of a full and fair process prior to the former Attorney General’s similar last days’ opinion in Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008). The letter brief was prepared and submitted on behalf of amici by the Immigrant Rights Clinic at New York University Law School.

Amicus Brief: Padilla v. Commonwealth of Kentucky (June 2009) (217K PDF).
On June 2, 2009 IDP joined the National Association of Criminal Defense Lawyers, National Legal Aid and Defender Association and thirteen other criminal defense and immigrant defense organizations in filing an amicus curiae brief asking the U.S. Supreme Court to reverse the judgment of a state appeals court that refused to allow an immigrant to withdraw a guilty plea made based on incorrect legal advice that the plea would not trigger deportation. The brief points out that standards of conduct long accepted by defense lawyers require correct advice regarding immigration consequences of a criminal conviction, and that complying with this duty does not impose an undue burden upon defense counsel. IDP and the other amici were represented by Iris Bennett and Matthew Hersh of Jenner & Block LLP.

Amicus Brief: Matter of Silva-Trevino (Feb. 2009) (775K PDF)
On February 9, 2009 IDP joined other immigrant advocacy organizations in filing a legal letter brief asking new Attorney General Eric Holder to withdraw prior Attorney General Michael Mukasey's decision in Matter of Silva-Trevino, 24 I &N Dec. 687 (AG 2008), which overturned a century of established precedents for determining deportability/inadmissibility based on past encounters with the criminal justice system. Specifically, Attorney General Mukasey's opinion dated November 7, 2008 abandoned the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replaced it with an unprecedented inquiry into facts outside the criminal court record of conviction. The February 2009 amici letter brief to AG Holder follows upon an earlier amici submission that had asked AG Mukasey to reconsider his opinion.

Amicus Brief: Flores-Figueora v. United States (Dec. 2008) (147K PDF)

On December 22, 2008, IDP joined other immigrant advocacy organizations and religious-based relief organizations in filing a legal brief challenging overbroad federal criminal prosecutions of immigrant workers picked up in immigration workplace raids under federal aggravated identity theft statute (18 U.S.C. Section 1028A).

Amicus Brief: Matter of Silva-Trevino (Dec. 2008) (292K PDF)
On December 5, 2008, IDP joined other immigrant advocacy organizations in filing a legal brief challenging the outgoing Attorney General's decision overturning a century of established precedents for determining deportability/inadmissibility based on past encounters with the criminal justice system. This amicus curiae brief was filed in support of reconsideration of Matter of Silva-Trevino, 24 I &N Dec. 687 (AG 2008) – an Attorney General decision dated November 7, 2008 abandoning the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replacing it with an unprecedented inquiry into facts outside the criminal court record of conviction.

As the brief explains, outgoing Attorney General Mukasey’s opinion in this case seeks to overturn a century of established precedent and purports to apply its new rule to immigrants who reasonably relied on that past precedent. The opinion also sets up a completely unfair and unworkable rule that will cause havoc for both immigration courts and the criminal justice system. Furthermore, the opinion was issued without any meaningful process. Amici ask that the decision be withdrawn immediately or, in the alternative, that it be withdrawn pending a fair process that allows for meaningful deliberation of these important issues.

Amicus Brief: McKenzie v. Mukasey (July 2008) (285K PDF)
2nd Circuit: In this case, IDP filed an amicus brief to apprise the Court of the important fairness, due process and practical considerations that support continued recognition of the long-held rule that a criminal disposition does not trigger the adverse immigration consequences of certain convictions until the conviction is final, i.e., direct appeal rights have been exhausted or waived.

Amicus Brief: Nolan v. Holmes (November 2002)
2nd Circuit: This brief addresses the question of whether immigrants who serve the United States during time of war and who are honorably discharged are required to meet the Immigration and Nationality Act Section 316 good moral character requirement before they may naturalize as U.S. citizens under the special INA Section 329 naturalization procedure for wartime veterans. Amici, including IDP, were represented by Nancy Morawetz, Abigail S. Hendel and Katharine J. Knaus of the NYU Law School’s Immigrant Rights Clinic.



	IDP Litigation – Other Amicus Briefs: Zamudio-Ramirez v. Holder (March 2010) (131K PDF) (9th Circuit) and Castruita-Gomez v. Holder (April 2010) (347 K PDF) (9th Circuit): IDP, with other organizations that assist and counsel immigrants accused or convicted of crimes, submitted these briefs arguing that the Ninth Circuit should join the Third Circuit in rejecting prior Attorney General Michael Mukasey's decision in Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008). The briefs highlight the severe procedural and substantive flaws in the Silva-Trevino decision, which abandons the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replaces it with an unprecedented inquiry into facts outside the criminal court record of conviction. Because of the different issues covered in the respective party briefs in these two cases, each amicus brief focuses on different aspects of the Silva decision. (For previous amicus briefs IDP and allies have submitted to the Department of Justice explaining the problems with Silva Trevino at greater length, see the documents below captioned "Silva-Trevino.") These amicus briefs were prepared and submitted on behalf of amici by IDP and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law. Amicus Brief: Garcia v. Shanahan (December 2009) 2d Circuit: This government appeal from the grant of habeas corpus to a long-time lawful resident is the first Second Circuit case raising the issue of whether the BIA’s decision in Matter of Saysana, 24 I. & N. Dec. 602 (BIA 2008) represents a correct interpretation of the mandatory detention statute. Federal courts have so far uniformly rejected Saysana’s reasoning, which subjects certain deportable immigrants to mandatory detention on the basis of any criminal custody occurring after the detention statute’s effective date, whether or not the arrest results in a conviction of any kind. IDP filed an amicus brief to highlight the real-world import of this drastic view, which requires detention without bond of long-term immigrants who have been living and working in the community for ten years or more. The brief also explains how, given ICE’s well-documented practice of transferring detainees far from their place of initial detention, the Saysana rule also affects immigrants’ ability to contest their removal and seek relief for which they are eligible. Shortly after this brief was submitted, the First Circuit also rejected the BIA's Saysana ruling in the habeas brought by Mr. Saysana himself. Amicus Brief: Cardenas-Abreu v. Holder (October 2009) (307K PDF) 2d Circuit: In this case reviewing the BIA’s recent precedent decision in Matter of Cardenas-Abreu, 24 I. & N. Dec. 795 (BIA 2009), IDP and NYSDA filed an amicus brief to inform the Court of the reasons why the BIA erred in holding that a conviction on appeal pursuant to New York’s late-noticed appeal procedure, CPL 460.30, is sufficiently “final” to trigger deportation. The brief raises important fairness, due process and practical problems with the BIA’s rule and demonstrates that the policy considerations cited by the BIA are based on a misunderstanding of the reality of New York criminal practice. Amicus Letter Brief: Matter of Silva-Trevino (June 2009) (16K PDF). On June 12, 2009, IDP and the other amici in this case followed up their prior submissions by filing a letter brief renewing amici's request that new Attorney General Eric Holder withdraw prior Attorney General Michael Mukasey's decision in this case (see below). The letter urges vacatur of Attorney General Mukasey's decision in light of Attorney General Holder's recent decision in Matter of Compean, 25 I&N Dec. 1 (A.G. 2009), which vacated another decision issued in Attorney General Mukasey's last days as Attorney General based on lack of a full and fair process in the adjudication and deliberation of the legal issue in the case. The letter brief points out the even greater lack of a full and fair process prior to the former Attorney General’s similar last days’ opinion in Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008). The letter brief was prepared and submitted on behalf of amici by the Immigrant Rights Clinic at New York University Law School. Amicus Brief: Padilla v. Commonwealth of Kentucky (June 2009) (217K PDF). On June 2, 2009 IDP joined the National Association of Criminal Defense Lawyers, National Legal Aid and Defender Association and thirteen other criminal defense and immigrant defense organizations in filing an amicus curiae brief asking the U.S. Supreme Court to reverse the judgment of a state appeals court that refused to allow an immigrant to withdraw a guilty plea made based on incorrect legal advice that the plea would not trigger deportation. The brief points out that standards of conduct long accepted by defense lawyers require correct advice regarding immigration consequences of a criminal conviction, and that complying with this duty does not impose an undue burden upon defense counsel. IDP and the other amici were represented by Iris Bennett and Matthew Hersh of Jenner & Block LLP. Amicus Brief: Matter of Silva-Trevino (Feb. 2009) (775K PDF) On February 9, 2009 IDP joined other immigrant advocacy organizations in filing a legal letter brief asking new Attorney General Eric Holder to withdraw prior Attorney General Michael Mukasey's decision in Matter of Silva-Trevino, 24 I &N Dec. 687 (AG 2008), which overturned a century of established precedents for determining deportability/inadmissibility based on past encounters with the criminal justice system. Specifically, Attorney General Mukasey's opinion dated November 7, 2008 abandoned the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replaced it with an unprecedented inquiry into facts outside the criminal court record of conviction. The February 2009 amici letter brief to AG Holder follows upon an earlier amici submission that had asked AG Mukasey to reconsider his opinion. Amicus Brief: Flores-Figueora v. United States (Dec. 2008) (147K PDF) On December 22, 2008, IDP joined other immigrant advocacy organizations and religious-based relief organizations in filing a legal brief challenging overbroad federal criminal prosecutions of immigrant workers picked up in immigration workplace raids under federal aggravated identity theft statute (18 U.S.C. Section 1028A). Amicus Brief: Matter of Silva-Trevino (Dec. 2008) (292K PDF) On December 5, 2008, IDP joined other immigrant advocacy organizations in filing a legal brief challenging the outgoing Attorney General's decision overturning a century of established precedents for determining deportability/inadmissibility based on past encounters with the criminal justice system. This amicus curiae brief was filed in support of reconsideration of Matter of Silva-Trevino, 24 I &N Dec. 687 (AG 2008) – an Attorney General decision dated November 7, 2008 abandoning the traditional approach for evaluating crime involving moral turpitude deportability or inadmissibility based on what was found in the criminal proceedings and replacing it with an unprecedented inquiry into facts outside the criminal court record of conviction. As the brief explains, outgoing Attorney General Mukasey’s opinion in this case seeks to overturn a century of established precedent and purports to apply its new rule to immigrants who reasonably relied on that past precedent. The opinion also sets up a completely unfair and unworkable rule that will cause havoc for both immigration courts and the criminal justice system. Furthermore, the opinion was issued without any meaningful process. Amici ask that the decision be withdrawn immediately or, in the alternative, that it be withdrawn pending a fair process that allows for meaningful deliberation of these important issues. Amicus Brief: McKenzie v. Mukasey (July 2008) (285K PDF) 2nd Circuit: In this case, IDP filed an amicus brief to apprise the Court of the important fairness, due process and practical considerations that support continued recognition of the long-held rule that a criminal disposition does not trigger the adverse immigration consequences of certain convictions until the conviction is final, i.e., direct appeal rights have been exhausted or waived. Amicus Brief: Nolan v. Holmes (November 2002) 2nd Circuit: This brief addresses the question of whether immigrants who serve the United States during time of war and who are honorably discharged are required to meet the Immigration and Nationality Act Section 316 good moral character requirement before they may naturalize as U.S. citizens under the special INA Section 329 naturalization procedure for wartime veterans. Amici, including IDP, were represented by Nancy Morawetz, Abigail S. Hendel and Katharine J. Knaus of the NYU Law School’s Immigrant Rights Clinic.







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