Thursday, September 11, 2008

Rranci: Lozada Possible Without Bar Complaint and Protection For Immigrant Informants

Rranci v. Mukasey
No. 06-3327
August 22, 2008
540 F.3d 165
Judges Sloviter and Ambro with Chief Judge of the US Court of International Trade Restani
Opinion by Judge Ambro

Can a case be reopened for the ineffective assistance of counsel by the first attorney even though you did not file a complaint with the disciplinary authorities? The Third Circuit ruled that it is possible, even if you neither filed the bar complaint nor had a decent explanation for not filing it. You can prove that the policies behind generally requiring a bar complaint are satisfied. Those policies include:
  1. Identifying, policing, and correcting immigration lawyer misconduct,
  2. Deterring meritless accusations
  3. Highlighting the expected standards for immigration lawyers
  4. Reducing the need for an evidentiary hearing
  5. Avoiding collusion between the first lawyer and the immigrant
In this case, those policies were satisfied. The accusation was that the first attorney did not raise protections for informants and improperly threatened the immigrant to make him agree to voluntary departure. The policies were satisfied in this case -- the new attorney identified how the first attorney did not raise the state-created danger doctrine or other ideas for protecting informants, the accusations were not meritless, this case highlights the need for immigration lawyers to keep up in new developments such as international law treaties, the new attorney called the first attorney and developed the factual record, and there was no collusion in the claim.

The Third Circuit also reached a groundbreaking and innovative argument -- whether United States law protects immigrants who are informants against international criminal organizations. The Third Circuit concluded that those protections exist, just as President Bush and the Senate promised when the United States ratified the United Nations Convention Against Transnational Organized Crime. When they ratified the convention, they said there did not need to be implementing legislation because the protections already existed. The Third Circuit remanded the case for the BIA to determine how US law provides the protections. This seems to be the first case where any court has addressed this argument and most immigration attorneys have not been aware of the Convention.

The Third Circuit's decision breaks new ground by emphasizing the need for immigration lawyer to follow developments in international law. In this case, the legal protections do not derive from the international treaty -- instead, the United States has emphasized that the protections already exist in US law. Therefore, the treaty obligations already come from US law and the courts must allow immigrants to seek all of the protections that exist in US law. There are developments among immigration lawyers to research international law issues and use them in immigration court, such as a working group that presented the issue at the National Migration Conference in the summer of 2008.

It is disappointing that the Third Circuit has stuck to its position (which the Ninth Circuit diverges from) that the state-created danger doctrine does not operate to stop a deportation even if the United States government acts in such a shocking manner that it violates an immigrant's due process rights.

From a public policy standpoint, it does not make sense that ICE and the Justice Department is fighting so hard to deport people who help make America safer by risking their lives and helping the police fight organized crime.

Rex Chen at Catholic Charities of the Archdiocese of Newark represented Mr. Rranci.

Meetali Jain and Maura Caroselli did extensive research and writing of the amicus brief, Baher Azmy conducted oral argument, and Bassina Farbenblum and Lori Nessel at Seton Hall Law School's Center for Social Justice represented amici.

Andrew MacLachlan conducted oral argument and worked with Richard M. Evans and Susan K. Houser (with Gregory G. Katsas and David V. Bernal) for OIL in the Justice Department.


Anonymous Personal Injury Attorney Houston said...

Great post! the protection should be provided to immigration informants.

6:39 AM  
Blogger Jerald said...

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10:05 PM  

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