April 2020 Case Update

April 2020 Case Update

Detainer Case Headed to Ninth Circuit on Expedited Schedule:

Gonzalez v. ICE, No. 20-55175 (9th Cir. 2020)

ICE has appealed a district court order substantially restricting one of its main detainer-issuing facilities from continuing to issue certain categories of detainers. We previously wrote about the district court’s order in Gonzalez v. ICE. See our blog post below for more details about the district court’s order. The two principal holdings are that ICE violates the Fourth Amendment by:

  1. Issuing detainers based solely on electronic database information—where there is no removal order, no ongoing proceedings, and no prior interview—because the Court found that the databases relied upon are too error-ridden and incomplete to be reliable sources of information for probable cause determinations.
  2. Issuing detainers to states where no state statute expressly authorizes state and local law enforcement to make civil immigration arrests on detainers.

Both issues are now on appeal at the Ninth Circuit. The court has stayed the second part of the district court’s holding pending resolution of the expedited appeal. The first part of the district court’s order remains in effect. Briefing, after extensions granted, is set to be filed in June.

SCOTUS postpones an argument due to pandemic:

Pereida v. Barr, on the question of relief eligibility where inconclusive conviction records are at issue, will be argued in the fall due to pandemic

Earlier this year, we published a post in this blog regarding Pereida v. Barr, a case pending before the U.S. Supreme Court on the question of relief eligibility for noncitizens convicted under divisible statutes where the “record of conviction” does not establish conclusively whether the conviction is for a relief-disqualifying offense. See below for more details about the Pereida case. While the case was scheduled to be argued this spring, due to the pandemic the Court has postponed argument in this case until fall 2020.

In the Ninth Circuit, the rule on this issue continues to be favorable for removable noncitizens seeking relief. Under Marinelarena v. Barr, a noncitizen convicted under a statue that is overbroad and divisible, and the Taylor/Shepard record of conviction is inconclusive as to whether the conviction is relief-disqualifying, is not barred from applying for relief.

PCR at the California Supreme Court:

High court to hear appeal of denial Cal. P.C. § 1473.7 motion – People v. Vivar, S260270 (Cal. 2020)

On March 25, the California Supreme Court agreed to hear an appeal of a denial of a motion for post-conviction relief filed pursuant to Cal. P.C. 1473.7. The question presented in the appeal is:

“Did the trial court err in ruling that defendant failed to demonstrate prejudice within the meaning of Penal Code section 1473.7 from trial counsel’s failure to properly advise him of the immigration consequences of his plea?”

Mr. Vivar, a noncitizen who at the time of his guilty plea held lawful status, on the advice of counsel pleaded guilty to Cal. H&S § 11383, was placed on three years probation and as a condition of probation was to serve one year in county jail. He also received a referral to Residential Substance Abuse Treatment. He was not able to attend the RSAT program due to an ICE detainer, and when he was released from jail ICE arrested and deported him. He subsequently filed a motion for post-conviction relief pursuant to Cal. P.C. § 1473.7, which the trial court and appellate court denied. The appellate court found that trial counsel had failed to adequately advise Mr. Vivar of the immigration consequences of his plea, but that he had not established that he would have rejected the plea offer had he understood the immigration consequences. The court also found that the fact that an ICE detainer prevented Mr. Vivar from accessing and completing the RSAT program to which he was referred did not undermine the legal validity of the plea. Mr. Vivar is represented pro bono by Munger, Tolles & Olson.

2020-07-15T16:10:57+00:00Updated April 23rd, 2020|