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IN THE SUPREME COURT OF FLORIDA
Case No. SC12-2504
BERNARD A. STOREY
Petititioner,
vs.
STATE OF FLORIDA,
Respondent
AMICUS CURIAE BRIEF IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
TO THE SECOND DISTRICT COURT OF APPEAL
MICHAEL S. VASTINE
Associate Professor of Law and Director, Immigration Clinic
St. Thomas University School of Law
16401 NW 37th
Avenue
Miami Gardens, Florida 33054
Tel. (305) 623-2340
Fax. (305) 474-2412
Counsel for Amicus Curiae
Catholic Charities Legal Services, Archdiocese of Miami, Inc.
Electronically Filed 08/05/2013 11:16:56 AM ET
RECEIVED, 8/5/2013 11:18:33, Thomas D. Hall, Clerk, Supreme Court
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TABLE OF CONTENTS
Page
TABLE OF CITATIONS ......................................................................................... iv
INTERESTS OF AMICI CURIAE ............................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 1
ARGUMENT ............................................................................................................. 3
ARGUMENT ……………………………………………………………………... 3
I. Equal Protection of Law Applies to Citizens and Immigrants ………….…. 3
II. Overview of removal proceedings ……………………………………... ….5
a. Proceedings before the Immigration Court ………………………………... 5
b. Proceedings before the Board of Immigration Appeals …………………… 6
c. Motions before the Immigration Court and Board ………………………… 6
d. Petitions for Review with the United States Court of Appeals ……………. 8
e. Execution of Orders of Removal …………………………………………... 8
III. Execution of a Removal Order Does Not Strip the Deported ………........ 10
Immigrant of Their Ability to Exhaust all Process Rights
Conferred by Statute
IV. The Federal Government has Procedures in Place for the Return ……….. 14
of Deportees in the Event that they Prevail in their Litigation That is
Concluded Post-Deportation.
V. Florida Criminal Procedure Must Make Post-Removal Remedies ……… 15
Consistently Available to All Litigants
a. Intersection of Florida Criminal Procedure and Agency …………………. 16
Removal Proceedings
iii
b. Removal Proceedings Account for Due Process Following a ……………. 18
State Conviction Being Vacated
c. Due Process in Removal Proceedings After a Sentence is ……………….. 19
Vacated
CONCLUSION …………………………………………………………………. 20
CERTIFICATE OF COMPLIANCE ……………………………………………. 22
CERTIFICATE OF SERVICE ………………………………………………… 22
iv
TABLE OF CITATIONS
Source Page(s)
FEDERAL CASES
Avila-Santoyo v. U.S. Att’y Gen., 2013 U.S. App. LEXIS 7417 …………………. 7
(11th Cir. Apr. 12, 2013)
Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc) …….. 11
Dada v. Mukasey, 554 U.S. 1 (2008) …………………………………………... 10
INS v. Abudu, 108 S.Ct. 904 (1988) ……………………………………………… 7
Jian Le Lin v. United States AG, 681 F.3d 1236 (11th Cir. 2012) …………........ 11
Judulang v. Holder, 132 S. Ct. 476 (2011) …………………………………… 2, 12
Kucana v. Holder, 130 S. Ct. 827 (2010) ……………………………………….. 10
Lari v. Holder, 697 F.3d 273 (5th Cir. 2012) …………………………………… 11
Lucas v. Jerusalem Café, No. 12-2170 (8th Cir. 2013) …………………………... 4
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) …………………………………….. 11
Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) ……………………... 11
Nken v. Holder, 556 U.S. 418 (2009) ………………... 2, 10, 11, 14, 15, 17, 18, 19
Nyquist v. Mauclet, 432 U.S. 1 (1977) …………………………………………… 4
Padilla v. Kentucky, 130 S.Ct. 1473 (2010) …………………………….. 16, 17, 19
Patel v. Quality Inn, 846 F.2d 700 (11th Cir. 1988) ……………………………... 4
Plyler v. Doe, 457 U.S. 202 (1982) ………………………………………………. 4
Prestol Espinal v. AG of the United States, 653 F.3d 213 (3d Cir. 2011) ………. 11
Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) ………………………………... 11
Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011) ………………………… 11
v
Ruiz-Turcios v. United States AG, 2013 U.S. App. LEXIS 10511………………... 7
(11th Cir. May 24, 2013)
Strickland v. Washington, 466 U.S. 668 (1984) …………………………….. 16, 19
William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) ……………………………... 11
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ………………………………….. 3-4, 13
STATE CASES
Hernandez v. State, 37 Fla. L. Weekly S 730 (Fla. 2012) …...………………….. 17
State v. Green, 944 So. 2d 208 (Fla. 2006) ……………………………………... 16
AGENCY DECISIONS
Matter of Coelho, 20 I&N Dec. 464 (BIA 1992) ……………………………… 7, 8
Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998) …………………………………… 8
Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) …………………………………. 8
Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) ……………………………………..8
Matter of Lok, 18 I&N Dec. 101 (BIA 1981) aff’d, 681 F.2d 107 (2d Cir. 1982). 17
Matter of Muniz, 23 I&N Dec. 207 (BIA 2002) ……………………………….. 7, 8
Matter of Sotelo-Sotelo, 23 I&N Dec. 201 (BIA 2001) ………………………….. 8
Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998) …………………………………. 8
FEDERAL STATUTES
8 U.S.C. §1101(a)(43)(F) ……………………………………………………….. 19
8 U.S.C. § 1101(a)(43)(G) ………………………………………………………. 19
vi
8 U.S.C. § 1182(a)(2) …………………………………………………………….. 5
8 U.S.C. §1182(a)(2)(A)(i) ……………………………………………………… 19
8 U.S.C. § 1182(a)(2)(A)(ii)(II) …………………………………………………. 19
8 U.S.C. § 1227(a)(2) …………………………………………………………...... 5
8 U.S.C. § 1229a(c)(4) …………………………………………………………… 5
8 U.S.C. § 1229a(c)(5) …………………………………………………………… 5
8 U.S.C. § 1229a(c)(6) ……………………………………………………………. 6
8 U.S.C. § 1229a(c)(7) ……………………………………………………………. 7
8 U.S.C. § 1252 …………………………………………………………………... 9
FEDERAL REGULATIONS AND AGENCY GUIDANCE
8 C.F.R. §1003.2(b) ……………………………………………………………. 6, 7
8 C.F.R. § 1003.2(d) …………………………………………………………….. 10
8 C.F.R. § 1003.23(b)(1) ……………………………………………………… 6, 7
8 C.F.R. § 1003.23(b)(1)(v) ………………………………………………………. 9
8 C.F.R. § 1003.38 ………………………………………………………………... 6
8 C.F.R. § 1003.39 ………………………………………………………………... 6
8 C.F.R. § 1003.6 …………………………………………………………………. 9
“Frequently Asked Questions” on Facilitating Return for Certain ……….....15, 18
Lawfully Removed Aliens, posted on the ICE website at
Immigration and Customs Enforcement Policy Memo 11061.1: …………… 15, 18
Facilitating the Return to the United States of Certain Lawfully Removed
Aliens, by John Morton, Director, ICE, February 24, 2012.
vii
Letter from Office of the Solicitor General, U.S. Department of Justice, ………. 15
to William K. Suter, Clerk, The Supreme Court of the United States,
April 24, 2012
STATE RULES OF PROCEDURE
Fla. R. Crim. Proc. 3.850 ……………………………………………………...… 16
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INTEREST OF AMICUS CURIAE
Catholic Charities Legal Services, Archdiocese of Miami, Inc (“CCLS”) is a
not-for-profit corporation with the express mission of providing: “Legal
Representation and Immigration Services for those who come to South Florida
from foreign lands.” Currently, it is the largest provider of pro bono and low-cost
immigrations services in the State of Florida. Nearly two thousand migrants and
refugees seek the services of CCLS each month. Among them, mothers longing to
be reunited with their children; political and religious refugees seeking security;
religious workers offering their ministry to our faith communities; battered spouses
and their children seeking safety. Many of these include foreign nationals who
face deportation, or have been deported, based on invalid and unconstitutionally
obtained convictions they have challenged in post-conviction and appellate
proceedings.
SUMMARY OF ARGUMENT
Amicus curiae urges the court to reverse the decision below barring pursuit
of post-conviction motions and appeals thereof in instances where the defendant
seeking this relief is deported from the United States during the period in which
they are legally entitled to litigate their cause in the Florida Courts. Among other
objections, amicus curiae avers that such a scheme is an unconstitutional denial of
equal protection under law based on alienage.
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Amicus curiae further presents its familiarity with the Department of
Homeland Security (DHS) practice of executing lawful orders of removal on a
wildly inconsistent basis. Some removal proceedings and physical deportations
occur immediately after a criminal conviction. Other proceedings and removals
take place years later. There is often a delay of years between the proceedings and
the physical removal. Petitioner Storey presents an example of an expedient
removal that interfered with Mr. Storey’s post-conviction rights in the Florida
courts, including the right to appeal. If the Court upholds the decision below, it
will endorse a scheme where random execution of orders by DHS officials is
dispositive of enumerated State due process rights. In doing so, the Court will be
affirming an unconstitutionally arbitrary and capricious scheme analogous to that
recently struck down by the United States Supreme Court in Judulang v. Holder,
132 S. Ct. 476 (2011).
Next, amicus curiae presents the court with legal precedent from
immigration practice that would dictate that Mr. Storey’s Petition be granted.
Specifically, the U.S. Supreme Court in Nken v. Holder, 556 U.S. 418 (2009),
affirmed the principle that deportations do not strip the federal courts of appellate
jurisdiction of claims and that a physical deportation need not be delayed while the
immigrant seeks relief beyond the agency proceedings. Specifically, the Court was
satisfied that DHS has in place adequate safeguards to easily return a deportee to
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the United States in the event of their success in proceedings that were concluded
after the deportee’s removal. Additionally, all U.S. Circuit courts that have
considered the issue have found that deportation does not bar an immigrant’s
statutorily enumerated right to bring forth a motion to reconsider or reopen an
order of removal.
Finally, the bulk of the presentation of amicus curiae serves to summarize
the relevant aspects of immigration procedure that have direct interplay with the
issue presented by Mr. Storey. As an agency familiar with the intricacies and
minutiae of immigration practice, amicus curiae hopes that its expertise and the
materials presented herein prove useful to the Court’s understanding of the issues.
The consistent application of the federal scheme of immigration proceedings is
dependent upon the State realizing that a fair interplay of state law and federal
immigration procedure requires that deportees such as Mr. Storey be permitted to
fully litigate the merits of their post-conviction relief and appeals.
ARGUMENT
I. Equal Protection of Law Applies to Citizens and Immigrants
It is a core principle of our democracy that citizens and immigrants are
entitled to equal protection under law and that the protections of the Constitution
“are universal in their application to all persons within the territorial jurisdiction,
without regard to any differences of race, of color or of nationality.” Yick Wo v.
4
Hopkins, 118 U.S. 356 (1886). Whereas a federal policy with disparate treatment
based on alienage may only be subject to intermediate scrutiny or “rational basis”
scrutiny, depending on the actor, state classifications based on alienage are
generally subject to “strict scrutiny.” See Nyquist v. Mauclet, 432 U.S. 1 (1977);
see c.f. Plyler v. Doe, 457 U.S. 202 (1982). For example, undocumented children
cannot be discriminated against in their access to education schooling. See Plyer.
Undocumented employees and citizens alike are protected under the Fair Labor
Standards Act. See Lucas v. Jerusalem Café, No. 12-2170 (8th Cir. 2013); Patel v.
Quality Inn, 846 F.2d 700 (11th Cir. 1988).
It is concerning that Mr. Storey has been barred from litigating his
application for post-conviction relief – itself relating to his Sixth Amendment right
to counsel - not because of a defect in his case theory, but because he has been
physically deported from the United States during the period for bringing his
claim. A similarly situated United States citizen would not be subject to such a
restriction. Even if this policy was subject to the lowest level of scrutiny, the State
would be challenged to show a “rational basis” for this distinction. The one
argument is that if Mr. Storey was successful, re-prosecution would be
inconvenient if the criminal case was reopened. However, this argument is
undermined by a federal program in place, discussed infra, that would permit his
return to the United States if he prevailed in his post-conviction relief and
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subsequently reopened his removal proceedings. Thus if successful, the logical
result is that Mr. Storey would become re-available for prosecution. There is no
argument for the finding that Mr. Storey’s deportation bars his pursuit of the due
process underlying the deportation.
II. Overview of Removal Proceedings
a. Proceedings before the Immigration Court
In removal proceedings, a non-citizen may be charged as either
“inadmissible” to the United States pursuant to 8 U.S.C. § 1182(a)(2) or
“deportable” from the United States, pursuant to 8 U.S.C. § 1227(a)(2), for one or
more enumerated categories of criminal offenses (herein collectively referred to as
“grounds of removal”). The non-citizen may contest whether the criminal
conviction necessarily triggers the alleged immigration consequence. See 8
U.S.C. § 1229a(a). If the non-citizen wins this argument, the immigration judge
issues an order terminating removal proceedings. See 8 U.S.C. § 1229a(c)(1).
If an immigration judge finds that the non-citizen is deportable, the non-
citizen may apply for a form of discretionary relief from removal, if they are not
disqualified from such relief by the nature or timing of the criminal conviction.
See 8 U.S.C. § 1229a(c)(4). At the conclusion of the proceedings addressing the
merits of the application for discretionary relief, the judge either grants the
requested relief or issues an order of removal. See 8 U.S.C. § 1229a(c)(5).
6
The decision of the immigration judge becomes final unless a party exercises
their appellate rights within thirty (30) days of the decision. See 8 C.F.R. §§
1003.38., 1003.39.
b. Proceedings before the Board of Immigration Appeals
At the conclusion of proceedings before the Immigration Judge, either party
has the right to appeal the decision to the Board of Immigration Appeals
(“Board”). They do so by filing a notice of appeal within thirty (30) days of the
order of the immigration judge. See id. Later, the Board issues the parties a
briefing schedule. Ultimately, the Board issues its decision regarding the merits of
the appeal. Appellate issues typically include a challenge to the merits of the
judge’s finding regarding the sustainability of a “ground(s) of removal” or a
challenge to the positive or negative exercise of discretion in an application for
relief from removal.
c. Motions before the Immigration Court and Board
Pursuant to statute, the immigrant possesses the right to file a motion to
reconsider the outcome of the proceedings, either before the immigration court or
the Board. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. §§ 1003.2(b) and 1003.23(b)(1).
A motion must specify errors of fact or law contained in the previous order. See
7
id. The motion must be filed with the court or Board within thirty (30) days of the
order being challenged. See id.
The immigrant also possesses the statutory right to file a motion to reopen
proceedings. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. §§ 1003.2(b) and
1003.23(b)(1). This motion must allege and document new facts that will be
proven in reopened proceedings. See id; see also INS v. Abudu, 108 S.Ct. 904
(1988). Most typically, this motion must be filed within ninety (90) days of the
final decision. In other circumstances, at any time if the non-citizen may show that
the deadline was subject to equitable tolling in an instance tainted by ineffective
assistance of counsel. See Ruiz-Turcios v. United States AG, 2013 U.S. App.
LEXIS 10511(11th Cir. May 24, 2013); Avila-Santoyo v. U.S. Att’y Gen., 2013
U.S. App. LEXIS 7417 (11th Cir. Apr. 12, 2013). The motion is generally not
granted unless it appears that the evidence sought to be introduced is material and
was not previously available or could not have been discovered or presented at the
former hearing. See id. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
In the alternative, an Immigration Judge may exercise sua sponte authority
to reopen and reconsider a case. See 8 C.F.R. § 1003.23(b)(1), Matter of Muniz, 23
I&N Dec. 207, 208 (BIA 2002) (declining to address moving party’s timeliness
arguments and reconsidering the case on its own motion). Despite the time limits
for filing motions, the immigration court and Board of Immigration Appeals retain
8
power to reopen or reconsider sua sponte in exceptional circumstances. Matter of
J-J-, 21 I&N Dec. 976, 984 (BIA 1997).
The BIA has held that such exceptional circumstances exist where there has
been a significant development in the law. See, e.g., Matter of Muniz, supra, at
207-08 (sua sponte reopening a case where Ninth Circuit interpreted meaning of
crime of violence differently from BIA); Matter of G-D-, 22 I&N Dec. 1132, 1135-
36 (BIA 1999) (declining to reopen or reconsider sua sponte where caselaw
represented only “incremental development” of the law and respondent’s case did
not turn on cited authority); Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998)
(statutory change in definition of “refugee” warranted sua sponte reopening).
Similarly, in cases of where the post-conviction relief relates to tainted
convictions that required showings of “prejudice” to the defendant, the materiality
of the new evidence to removal proceedings is self-evident. See Coelho, supra.
By definition, where there is “prejudice,” the vacatur alters either a finding of
deportability or the availability of discretionary relief. It further fundamentally
alters the balancing test for a favorable exercise of discretion, as Respondent is no
longer guilty of the same culpable conduct as when previously before the
Immigration Judge. See generally Matter of Sotelo-Sotelo, 23 I&N Dec. 201 (BIA
2001); Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998).
d. Petitions for Review with the United States Court of Appeals
9
The immigrant may also seek review in the United States Court of Appeals
with jurisdiction over the region where the immigration court sits. See 8 U.S.C. §
1252. The jurisdiction of the court is limited by statute, but typically includes
review of the interpretation of the Board regarding statutory issues, such as
“grounds of removal.”
e. Execution of Orders of Removal
The order of removal may be executed by United States Immigration and
Customs Enforcement (ICE) when the order becomes “final.” See 8. C.F.R. §
1003.6. An order of the immigration judge becomes final if it is not directly
appealed to the Board within thirty (30) days. A motion to reconsider with the
immigration judge, filed within thirty (30) days, neither stays the execution of the
order nor renders the decision “non-final.” See 8 C.F.R. § 1003.23(b)(1)(v).
Similarly, a motion to reopen filed within ninety (90) days of the issuance of the
order does not stay the execution of the order or render the decision non-final, even
if the motion alleges changes in fact or law that facially disturbs the finding of an
existent “ground of removal.” See id. Immigrants are regularly deported while
their meritorious motions are pending before an immigration judge.
Orders of the Board of Immigration Appeals render agency proceedings
“final” upon issuance. See 8 C.F.R. § 1003.6. ICE may affect the execution of the
physical removal of the immigrant as soon as the Board issues its decision,
10
notwithstanding the immigrant’s statutory right to file for reconsideration or
reopening within the respective statutory deadlines. See 8 C.F.R. § 1003.2(d)
(commonly referred to as the “departure bar” to reopening, a limitation that has
been rejected by nine U.S. Courts of Appeals, as discussed, infra). Thus,
immigrants are regularly deported while their meritorious post-order motions are
pending before the Board.
Similarly, filing a Petition for Review with the U.S. Court of Appeals does
not render the Order of Removal non-final. This means that ICE regularly
executes the orders of removal, physically removing immigrants while their cases
remain pending on appeal at the federal appellate level. See Nken, supra.
III. Execution of a Removal Order Does Not Strip the Deported Immigrant of
Their Ability to Exhaust all Process Rights Conferred by Statute
Although there is likelihood that the execution of a removal order occurs
while the immigrant seeks legal remedies, all is not lost upon the physical
deportation. In Dada v. Mukasey, the Supreme Court held that “[t]he purpose of a
motion to reopen is to ensure a proper and lawful disposition” of a case. 554 U.S.
1, 18 (2008). Further, the Court admonished any alternate interpretation that
would “nullify a procedure so intrinsic a part of the legislative scheme.” Dada, 554
U.S. at 18-19. See also Kucana v. Holder, 130 S. Ct. 827, 834, 838-39 (2010)
11
(protecting judicial review of motions to reopen in light of the importance of such
motions).
DHS has sought to bar motions filed or adjudicated after a noncitizen is
removed or departs from the United States. This position has been uniformly
rejected by the nine Courts of Appeal to consider the issue, finding the so-called
“departure bar” to violate to statutory authority. See Luna v. Holder, 637 F.3d 85
(2d Cir. 2011); Prestol Espinal v. AG of the United States, 653 F.3d 213 (3d Cir.
2011); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007); Lari v. Holder, 697 F.3d
273 (5th Cir. 2012); Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin-
Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010); Reyes-Torres v. Holder, 645
F.3d 1073 (9th Cir. 2011); Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th
Cir. 2012) (en banc); Jian Le Lin v. United States AG, 681 F.3d 1236 (11th Cir.
2012).
It is thus well-established that the act of DHS executing an order of removal
cannot nullify an immigrant’s process rights conferred by statute. See id. Any
other conclusion would put arbitrary power in the hands of ICE to manipulate the
outcomes of state and federal litigation merely by expediently deporting the
immigrant, either before a motion (or Petition) was filed or while such an action
was pending. See id, see also Nken, supra.
12
It is useful to view the rejection of the “departure bar” through the lens of
Judulang, supra. There, in the context of assessment of a related immigration
scheme, the U.S. Supreme Court recently rejected as unconstitutional a scheme
where the outcome of a case (eligibility for a discretionary waiver of removal
under former 8 U.S.C. § 1182(c)) was determined by arbitrary (i.e. inconsistently
applied) action of the DHS official. See Judulang at 464. Writing for the
unanimous court, Justice Kagan cited Judge Learned Hand for the proposition that
“deportation decisions cannot be made a “sport of chance,”” dependent on
decisions of enforcement officers, attenuated from the merits of the substantive
inquiry before the court. See id (internal citations omitted).
Similarly, if a “departure bar” applied to Mr. Storey or similarly situated
immigrants, the Florida courts would endorse a scheme of arbitrary results. As
held below, physical deportation strips the Florida courts of jurisdiction to review
claims regarding statutory procedural rights. There is an inherent failure of equal
protection where one class of defendants had access to process to vacate their
convictions, but others did not, not because of a material difference in guilt,
innocence, or distinctions in whether their process was constitutionally-
satisfactory, but because a law enforcement agency such as DHS affected a
removal prior to the defendant asserting his State-granted statutory rights to
challenge the constitutionality of his conviction.
13
If the decision below stands, there will be a constitutionally-suspect
distinction in the Florida courts of the treatment of citizen and non-citizen
defendants. Citizens will always eligible to pursue post-conviction relief. Non-
citizens are only eligible for that relief insofar as they are fortunate enough to
avoid immigration prosecution and deportation during the pendency of the period
in which they can pursue post-conviction remedies in the Florida courts. Of
course, it is ancient doctrine that disparate application of procedural rights
depending on alienage is inherently suspect. See e.g. Yick Wo, supra.
Further, within the class of non-citizens there will be arbitrary results, with
some immigrants being able to access post-conviction relief while others are
barred, not by distinction in the merits of their claims, but by the happenstance of a
DHS officer to elect to execute removal during the period for the immigrant to
permissibly seek post-conviction relief and any appeal thereof, thus usurping the
role of the Florida courts to review the lawfulness of the underlying conviction that
triggered deportability.
Some immigrants are granted stays of removal (by the court or by DHS)
while litigation concludes. Others have applications for stays rejected. In some
instances, the removal charges are litigated immediately after a criminal
conviction. In others the removal charges are lodged years after the act and/or
conviction that triggers removability. For immigrants in DHS detention, physical
14
removal tends to take place shortly after conclusion of proceedings, where the final
order of removal is issued by the immigration judge or the Board. For non-
detained immigrants, the wait for physical removal may take years. In all of these
instances, the non-citizens’ presence in the United States is subject to the whim of
DHS to lodge removal charges or to elect to execute an outstanding order of
removal.
IV. The Federal Government has Procedures in Place for the Return of
Deportees in the Event that they Prevail in their Litigation That is Concluded
Post-Deportation.
As discussed above, there are myriad ways that a non-citizen may be
deported prior to fully accessing their State procedural rights and appeals thereof.
The United States Supreme Court has been confronted with the fact that litigation
of the basis for a deportation order continues after the immigrant is removed, and
addressed whether stays of removal should systematically be granted to prevent
“irreparable harm” to the non-citizen litigant. See Nken, supra. The Court found
that removal mid-litigation was permissible, because the court was satisfied that in
the event of a successful appeal the deportee could easily return to the United
States with the assistance of the federal government, pursuant to procedures and
policies implemented by DHS.1 See id.
1 Specifically, in 2009, the Solicitor General represented to the Supreme Court that
the Department of Homeland Security (DHS) had procedures in place for
15
To facilitate their return to the United States, an eligible deportee follows the
agency guidance contained in “Frequently Asked Questions” on Facilitating
Return for Certain Lawfully Removed Aliens, posted on the ICE website at
http://www.ice.gov/about/offices/enforcement-removal-operations/ero-
outreach/faq.htm. This webpage implements the procedures described in U.S.
Immigration and Customs Enforcement Policy Memo 11061.1: Facilitating the
Return to the United States of Certain Lawfully Removed Aliens, by John Morton,
Director, ICE, February 24, 2012. See
https://www.ice.gov/doclib/foia/dro_policy_memos/11061.1_current_policy_facilit
ating_return.pdf. This guidance was specifically developed for resolving cases
where the non-citizen’s removal was legal at the time of execution of the order, but
the basis thereof was successfully challenged post-deportation.
facilitating the return of aliens who prevail in post-removal motions and judicial
review. This was a fallacy, as evidenced by the Solicitor General’s extraordinary
subsequent letter to the U.S. Supreme Court conceding to the misrepresentation
within the Nken litigation. See Letter from Office of the Solicitor General, U.S.
Department of Justice, to William K. Suter, Clerk, The Supreme Court of the
United States, April 24, 2012, available at:
http://www.nationalimmigrationproject.org/legalresources/NIPNLG_v_DHS/OSG
%20Letter%20to%20Supreme%20Court,%20Including%20Attachments%20-
%20April%2024%202012.pdf.
However, subsequent to Nken, on February 24, 2012, DHS did implement
extensive procedures to facilitate return of deportees who were successful in their
post-deportation litigation, discussed infra.
16
V. Florida Criminal Procedure Must Make Post-Removal Remedies
Consistently Available to All Litigants
The instant case illustrates the necessity and ease for the Florida criminal
and appellate courts to dispose of immigrants’ cases for post-conviction relief,
while maintaining constitutionally-sufficient processes that provide equal
protection under law.
The primary vehicle for seeking post-conviction relief is Fla. R. Crim. Proc.
3.850. A 3.850 motion must generally be brought within two years of the
conviction becoming final and must allege a procedural or constitutional defect in
the underlying proceedings. See State v. Green, 944 So. 2d 208 (Fla. 2006).
In the event of a denial of a post-conviction motion, the Florida rules
establish a scheme for appeals and the potential for reversal or remand in the event
of a successful appeal. Of course, there is no distinction in the rules for superior
rights to process for U.S. citizens to pursue and exhaust post-conviction relief and
appeals of related decisions, as such would be facially unconstitutional.
a. Intersection of Florida Criminal Procedure and Agency Removal
Proceedings
The most common type of post-conviction relief involving immigrants
involves allegations of ineffective assistance of counsel that rendered the criminal
proceedings unconstitutional. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the
Supreme Court held that the appropriate test for resolving immigrant defendant’s
17
claims is that of Strickland v. Washington, 466 U.S. 668 (1984). Strickland
requires a two-pronged analysis. The defendant must establish both that their
counsel’s conduct fell below acceptable professional norms and that this
ineffectiveness prejudiced the outcome of the case. The Florida courts have
defined the state application of Padilla in Hernandez v. State, 37 Fla. L. Weekly S
730 (Fla 2012).
The decision below needlessly harms meritorious cases. But for the decision
below, defendants that are likely to establish both ineffectiveness and prejudice
would be able to physically attend their reopened criminal proceedings if their
appeal is sustained and the case remanded. This is because if truly prejudiced,
once the conviction and/or sentence is vacated the deportee should be able to
successfully reopen immigration proceedings, restore their prior immigration status
and return to the United States to defend both their criminal and immigration cases.
See Nken, 556 U.S. at 435 (stating that persons who prevail on their petition for
review “can be afforded effective relief by facilitation of their return, along with
restoration of the immigration status they had upon removal”) (emphasis added);
Return Policy, at 1 (“ICE will regard the returned alien as having reverted to the
immigration status she or he held, if any, prior to the entry of the removal order . .
.”); see also Matter of Lok, 18 I&N Dec. 101, 105-06 (BIA 1981) aff’d, 681 F.2d
107 (2d Cir. 1982). The State is not prejudiced in any way by letting the merits of
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a deportee’s case be litigated, knowing that ultimately if the deportee prevails in
post-conviction relief they will return to court, just as any non-deportee or U.S.
citizen would, to resume the reopened criminal proceedings.
b. Removal Proceedings Account for Due Process Following a State
Conviction Being Vacated
In the event that the Florida courts vacate a conviction, the deportee still
must navigate through agency procedures to assure their return. The deportee must
file a motion to reopen to reopen with the Immigration Court or the Board of
Immigration Appeals. If the motion is timely, and the conviction did in fact have a
“prejudicial” effect on the Removal Proceedings, the motion will likely be granted
and proceedings reinstated. In the event that proceedings are reinstated, the
immigrant resumes the same immigration status that they held prior to their
deportation. See Nken. The immigrant then returns to the United States through
the means described in Nken and implemented via the DHS Memorandum and
“FAQ” on February 24, 2012.
Upon their return, the immigrant will be subject to further removal
proceedings, even if the deportation case is ultimately terminated as a consequence
of the vacated conviction. Alternately, the vacated conviction may have removed a
bar to discretionary relief, so the application for the relief will be the subject of the
resumed immigration proceedings. Simultaneously, the criminal proceeding may
recommence upon the return of the deportee.
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c. Due Process in Removal Proceedings after a Sentence is Vacated
In other instances where the post-conviction relief only targets the sentence
imposed, the Stickland/Padilla “prejudice” test will also be dispositive of both
criminal relief and the possibility of reopening the immigration case. The length of
a criminal sentence is relevant only to a limited number of “grounds of removal”
easily identified by the court. For example, “theft offenses” and “crimes of
violence” with a sentence of a year or more are considered “aggravated felonies”
and trigger deportability, whereas felony “crimes involving moral turpitude” only
trigger inadmissibility if they result in a sentence of over six months. See 8 U.S.C.
§§1101(a)(43)(F), 1101(a)(43)(G), 1182(a)(2)(A)(i), 1182(a)(2)(A)(ii)(II). In
cases involving these “grounds of removal,” vacating a sentence renders the
“ground” inapplicable.
In the event that the deportee is successful in proving to the Florida court
(trial or appellate) that they warrant post-conviction relief for purposes of re-
sentencing, the immigrant may also file a motion to reopen removal proceedings
by showing a fundamental change in fact that affects their deportability. If the
sentence was, in fact, prejudicial to the underlying removal proceedings, the
Immigration Judge or the Board may reopen proceedings, thereby permitting the
deportee to return to the United States, pursuant to Nken, supra. Upon their return,
20
the deportee may proceed with the re-sentencing in the criminal court.
Subsequently, the immigration court will address the impact of the new sentence, if
any, on the immigration proceedings.
CONCLUSION
For the foregoing reasons, amicus curiae urges the Court to recognize that
the decision below is needlessly hostile to the due process rights and equal
protection of immigrant deportees. By discriminating against those deportees who
are eligible for timely state remedies relating to their deportability, the court below
has endorsed a system at odds with the U.S. Constitution, recent decisions of the
U.S Supreme Court, nine U.S. Courts of Appeal, and dissonant with the basic
concepts of immigration procedure contained within the federal immigration laws.
For these aggregate reasons, amicus curiae prays that the Court reverse the court
below and implement guidance wherein deportees are not stripped of their
procedural rights and where the Florida courts comply with constitutional norms.
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Respectfully submitted,
MICHAEL S. VASTINE
Counsel for Amicus Curiae Catholic Legal Services of Greater Miami, Inc.
Associate Professor of Law and Director, Immigration Clinic
St. Thomas University School of Law
16401 NW 37th Avenue
Miami Gardens, Florida 33054
Tel. (305) 623-2340
Fax. (305) 474-2412
/s/
By: ________________________
MICHAEL S. VASTINE
Florida Bar No. 16280
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the font requirements of
Florida Rule of Appellate Procedure 9.210(a)(2).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
emailed this 2nd day of August, 2013, to: Andrew Crawford, 5200 Central
Avenue, St. Petersburg, FL 33707, [email protected]; and AAG
Helene Parnes, Attorney General’s Office, 3507 E. Frontage Road, Suite 200,
Tampa, FL 33607, email [email protected]; and Benjamin S.
Waxman, FACDL Amicus Committee, Robbins, Tunkey, Ross, et al., 2250 S.W.
3rd
Avenue, 4th
Floor, Miami, FL 33129, [email protected].
/s/
By:___________________________
MICHAEL S. VASTINE
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