Friday, April 06, 2007

Romero-Feyeros (not precedential): New Meaning To "Rob Me Blind"

In Romero-Fereyros v. Gonzales, No. 05-3925 (3d Cir. April 5, 2007) (not precedential), the Third Circuit gave new meaning to the phrase "rob me blind." What happens if immigration folks at ICE take away someone's eyeglasses, handcuff a guy, take him away from his lawyer, and get him to check off a box that waives his right to contest deportation charges? The answer -- the Third Circuit will do nothing even if all of that is proven, unless you can somehow prove that if the guy had his eyeglasses, the result would have been different.

Why? Because the Third Circuit believes that even if there are clear violations of substantive due process, it will not do anything unless you can show substantial prejudice. It is not clear why the Third Circuit did not view an unfair waiver of the right to contest charges as substantial prejudice.

The burden of proof for allegations is initially on the government. Robbing someone of the ability to force the government to prove its case should be seen as substantial prejudice. The Third Circuit said but anyway, the guy admits on appeal that he was convicted of aggravated felonies. But the government had the burden to prove that at the beginning -- well before we reached the appeal phase. What about the possibility ICE counsel may have bungled the case, not meet its burden of proof, and the case would be dismissed with prejudice?

The appeal sheds light on the ugly practices alleged -- USCIS forcing someone to start an interview without his lawyer present, ICE taking away a guy's eyeglasses, ICE pressuring someone without his glasses to check off long, complex paragraphs on forms. As the Third Circuit said, "These allegations are serious."

Perhaps what immigration lawyers need to do is rehearse the following with clients before a USCIS adjustment interview:
  • Do not enter the waiting area without your lawyer.
  • Refuse to start the interview without your lawyer even if they say you will lose your time.
  • Practice looking at long forms in English without your eyeglasses.
  • Practice reading over long forms that waive your rights so you will know what to do if confronted with them.
  • Practice exercising your good judgement even if you are handcuffed, kept alone with several ICE officers, and deprived of your eyeglasses.
Has the practice of immigration law really come down to this?


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