Catholic Legal Immigration Network, Inc.

By: Ann Atalla
Advocacy Attorney, CLINIC

Immigration advocates have been down in the dumps lately, with news reports pronouncing the death of immigration reform in 2010.  As the nation’s largest network of legal service providers for immigrants, CLINIC has felt the pain as vividly as other immigrant advocacy organizations.  Although the lack of action in Congress can be discouraging, not all is wrong with the immigration landscape these days.  In three recent decisions, the U.S. Supreme Court has provided immigration advocates with reassuringly good law. 

This January, in Kucana v. Holder, the Court ruled that immigrants who wish to reopen their deportation orders can appeal to the federal court system if the Board of Immigration Appeals (BIA) refuses their request.  Previously, many immigrants had to accept the BIA’s final word because federal courts in some areas of the country did not believe they had authority to review these cases.

More recently, in Padilla v. Kentucky, the Supreme Case decided that criminal attorneys are required under the Constitution to advise noncitizen clients of the immigration consequences of their guilty pleas.    Criminal defense attorneys often wisely advise clients to plead guilty to a crime in exchange for a reduced jail sentence or other benefit.  This plea can be a great bargain if the client is a U.S. citizen.  Noncitizens, however, may wish to take a prison sentence over a guilty plea that can get them deported. Immigration advocates have praised the Padilla decision because it addresses the fact that many deportations following guilty pleas are unnecessary.  It also provides a solution: criminal defense attorneys now must inform the client whether the crime to which they plead guilty could get them deported. 

The third case, Carachuri –Rosendo v. Holder, involved a lawful immigrant who pleaded guilty in 2004 to possession of less than two ounces of marijuana and was convicted in 2005 of possessing one tablet of Xanax without a prescription.  The Immigration Judge, Board of Immigration Appeals, and Fifth Circuit Court of Appeals had found that Mr. Carachuri-Rosendo was not eligible for cancellation of removal because his possession of the Xanax™ tablet made him a repeat offender, and therefore an aggravated felon.  In a unanimous decision, the Supreme Court disagreed, finding that lawful immigrants with two minor drug possession convictions are not automatically deportable.

Each of these recent cases has positive implications for immigrants fighting their cases in court.  And the fact that Supreme Court justices across the ideological spectrum have largely agreed on the outcome of these cases is just as encouraging.   The Supreme Court has a well-known ideological division between its moderate to liberal and conservative justices, which can result in sweeping decisions and bitter dissents.  However, as partisanship becomes more extreme in Congress, the justices have demonstrated through these three cases that it is possible to transcend the divide between philosophically conservative and liberal approaches to the law. 

Not all cases before the Supreme Court go our way.  Just last week the Supreme Court found that the First Amendment does not protect humanitarian groups that advise groups considered to be terrorist organizations.  Although the opinion focused on promoting national security, the holding could make it harder for immigration attorneys to represent some immigrants.  For example, asylum applicants who worked with organizations in their country to promote democracy and other worthy goals, and later discover that the organization had interacted in some way with a terrorist organization, will continue to face strong suspicion about their own identity as terrorists.

The Supreme Court is considering an additional topic later this year, in Flores-Villar v. U.S.  This case will address whether it is Constitutional that fathers, but not mothers, must live in the United States for five years before they can pass on citizenship to children who were born outside of their marriage.  However this case comes out, there is reason to hope for favorable changes in the law that facilitate the work of CLINIC and its affiliates.  Or, at the very least, we can expect that our immigration laws will have more clarity in the near future, despite the lack of movement in Congress.