Saturday, January 31, 2009

Doe (not precedential): Evidently Strategic Waiver Overcomes Phone Obstacles To Finding A Lawyer

Doe v. Filip
Nos. 06-4953 & 07-1701
Not Precedential
January 22, 2009

Judges Scirica, Fuentes, and Hardiman. Opinion by Judge Fuentes

Pro bono counsel for Mr. Doe were Laura E. Neish (argued) and Charles E. Stewart of Zuckerman Spaeder of NY, NY. For the government, Kevin J. Conway (argued) and Richard M. Evans of OIL.

The Third Circuit affirmed the BIA and IJ Annie S. Garcy in ordering removal of a Haitian asylum-seeker.

Mr. Doe appeared in immigration court and did not have a lawyer. The court did not appoint a lawyer for him. He said he would waive his right to fight his case and waive his right to appeal. Two weeks later, he filed a motion in which he said he wished to fight his case and seek asylum. The Third Circuit concluded that even if Mr. Doe experienced problems trying to find an attorney due to restrictive phone rules where he was detained, that was nothing that would allow him to take back his initial decision not to fight the case. The Third Circuit quickly noted that its current view is that immigrants have no Sixth Amendment right to counsel and turned to the test for due process -- to show the obstacles to obtaining a lawyer violated due process, you must show you were prevented from reasonably presenting your case and substantial prejudice resulted.

In looking at whether the restrictive phone rules prevented Mr. Doe from reasonably presenting his case, the Third Circuit did not focus on what obstacles it posed or how it might have prevented him from a reasonable presentation. Instead, the Third Circuit focused on how evidently Mr. Doe had a motivation for giving up his case -- to try to get out of detention sooner by being deported quicker. It is not clear, though, how the Third Circuit's focus on alternative motivation is relevant to the issue of whether the telephone rules prevented him from reasonably presented his case. It seems like the alternative motivation merely suggests that if Mr. Doe had affirmatively insisted that the detention staff block his phone access as part of a grand strategy to seek deportation sooner, that would have been a knowing waiver as part of an intelligent strategy. Here, though, Mr. Doe did not ask for his phone access to be blocked. It's not clear how the Third Circuit's analysis matches the legal rule it stated.

The Third Circuit did note that if the telephone rules had interfered with his ability to find a lawyer and the immigration judge ignored repeated requests for time and a list to try to find a lawyer, that might have been a violation.

On another topic, the Third Circuit upheld the BIA's interpretation of the facts regarding legal proceedings one of his relatives more recently started against the people Mr. Doe believes will persecute him. The BIA concluded that the evidence did not prove how the adversaries might connect Mr. Doe to the legal proceedings his relatives started.


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