My Masterpiece in Deportation Defense

As my masterpiece deportation case, I have chosen this one although there are several others which could qualify. This case, along with others, makes me proud to be a "little man's lawyer”. This case demonstrates how the current U.S. immigration laws are much too harsh and anti-family. In this particular deportation case, I was able to make the ultimate difference in my client's life, and in the lives of those around her. My client has given me permission to publish this story.
 
A client whom I will call Layla for the purposes of this story was born in the British Virgin Islands in the Caribbean. She was brought to the U.S. Virgin Islands apparently by her birth parents when she was less than two years old, and gained legal permanent residence in the U.S. at the age of 10. Layla grew up with her aunt. Her parents apparently abandonded Layla shortly after she was brought to the Virgin Islands. Layla's aunt eventually adopted her but she did not treat her very well either. Her aunt's husband apparently fathered a child with her aunt's oldest daughter, and then deserted everyone in the household, Layla testified about this sad fact of her early life later on in her hearing, and then broke down crying.
 
Layla was a good basketball player She won enough scholarship money in a series of 3 on 3 tournaments in St. Croix, the U.S. Virgin Islands, to be able to attend a private black college in North Carolina. Her aunt helped her with some of the first semester's tuition money although Layla 's aunt stopped sending Layla money during the first semester in college. Layla then was forced to drop out of school due to lack of funds after the first semester. Layla then had the misfortune to meet K..S. who was a young drug dealer, Layla did not know that he was a drug dealer at first. A few times she delivered packages wrapped up in manila folders to her boyfriend's sister's house. On the third trip, Layla peeked inside. She furiously confronted him later that day and he told her that his lawn service business was merely a front for his drug trafficking business. Nevertheless, Layla eventually joined K.S. in some of the drug sales. Predictably, Layla was arrested, and was sentenced to 14 years with all but five years suspended, and the balance of her sentence was to be served on probation. Her first probation officer did not pay much attention to her. She was then arrested for a drug offense a second time after her boyfriend himself got out of jail. The second time around L.S. was very lucky to avoid a prison sentence She had the good fortune of being assigned to a probation officer who treated her decently. He told her that she had one foot in prison, and one foot outside, and it was up to her as to which way she wanted to go with her life. Later on, she found herself wilh one foot on an airplane with a permanent one way ticket outside the United States, and the other foot inside the U.S. was about to sink into quicksand.
 
Layla managed to succeed at her probation the second time around. She avoided future brushes with the law, and took an interest in real estate, She fought and battled, and after a stint in a community college, was able to persuade the State of North Carolina to permit her to obtain a real estate broker's license despite her past criminal record of street level drug sales. She has since purchased investment properties, and is able to make a decent living with the rental income she receives.
 
In 1997 when Layla was about 25 years old, her world suddenly changed. This was about four years after her second and last drug selling conviction. Layla went to obtain a replacement 1-551 or "green card" from the former or U.S. Immigration & Naturalization Service in Charlotte, North Carolina. As it turned out, she was very lucky that the farmer or 'legacy I.N.S.' had instituted a pilot program in the Charlotte. North Carolina "sub-office" of running a criminal background check on each legal permanent resident who files for a lost green card. As the reader may have guessed, the I.N.S. detected Layla's criminal background which made her subject to deportation. Eventually she was referred to me to represent her,
 
When I decided to accept her case and seek a solution, I immediately struggled wilh the not so simple question of how to defend her from deportation. When I took her case, I knew that it was probably a loser case and I told her so. The reason for my feeling of desperation about her case was that one month before the 1996 Presidential elections, the conservative Republican controlled Congress literally shoved a Draconian overhaul of the Immigration & Nationality Act down President Clinton's throat by political force. President Clinton did not want to sign their bill but as was apparent at that time, the Democratic nominee Bob Dole was salivating and was just waiting for Clinton to veto the Republican's bill so Dole could accuse Clinton of being in favor of, or at least "soft on" illegal immigration. As can be expected of most incumbents who are facing re-election, Clinton took the path of political expediency and signed the harsh new immigration bill into law, albeit with reservations. This law is called the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996," or "IIR1IRA96” for short.
 
The "IIRIRA96" has a number of very harsh provisions for legal immigrants, for illegal immigrants, and finally for temporary visitors to the U.S. The relevant provision as applied lo Layla's case was that Section 212(0, the only "immigration pardon" or "waiver" for most drug offenses, was formally abolished, In Other words, there was no longer the possibility of forgiveness for her crimes by Congress. Period. I struggled with the approach to her case, Layla has lived her entire life in the U,S, since she was two years old. She has no recollection of the British Virgin Islands. In short, she is as American as most Americans but for the place of her birth.
 
I had concluded that Layla could possibly qualify for derivative U.S. citizenship, and thus not be subject to deportation as a U.S. Citizen, if she could find her birth father, and if her birth father bad somehow recognized her as his daughter in one of three ways. Unfortunately she never found her father. I took an intellectual interest in this case early on fueled primarily by my disgust at the intolerance of Republican congressional leaders. To cook up a defense, 1 went to the library at Emory University School of Law where I went to law school in order to look for something that could help her. I had remembered reading from a controversial deportation decision rendered by a now retired Judge named Paul Nejelski from Arlington, Virginia, I used to try immigration cases in front of Judge Nejelski in Atlanta. Judge Nejelski had ruled in a published but non-binding case that customary international law is binding in U.S. courts as international law, Lucky for my client, I discovered at the Emory law library a treatise written on the movement of people across borders in Western Europe. The treatise happened by chance lo be written by Thomas Buergenthal, a survivor of Auschwitz and a brilliant law professor under whom I was fortunate to have studied under at Emory Law School. The gist of the treatise, at least as far as Layla's ease was concerned, was that most Western European countries at least provided a hearing to those who immigrated lo a particular country at an early age and then face deportation for criminal convictions much later in life, as Layla did.
 
I needed u way to keep this case alive, i.e. to avoid a final and therefore executable order of deportation, as long as possible, hoping that Congress would change its mind about the harsh, unforgiving treatment of long term residents. Perhaps in the biggest case of my career, or more likely in my wildest dreams, I might persuade a higher court of my customary international law argument. I developed a two fold strategy, i.e. to attempt to defeat deportability, and to fashion relief based on customary international law as the Supreme law of the land. 1 did just this T decided to advise my client to assert her Fifth Amendment privilege against incrimination as lo her place of birth, and To assert that even if the Judge found her deportable, that discretionary relief to her should be available under customary- international law. Predictably, the Immigration Judge, bin employee of the U.S. Department of Justice, disagreed and ordered Layla deported..
 
The I.N.S. trial attorney, a long time adversary of mine, did not take kindly to my client not conceding that she was born abroad by asserting her Fifth Amendment privilege. The "admission" or concession of having been born abroad shifts the burden to the Defendant in a deportation proceeding - it requires (hat alien prove that he or she is a citizen if he or she is born abroad. By not conceding birth abroad and asserting her Fifth Amendment privilege against self incrimination, 1 created an appealable error of law. The prosecutor called the deportation officer and arranged to have Layla locked up in jail as an alleged flight risk., lie wanted to use hardball tactics to force her not to appeal so that her deportation order could be executed. Deportation cases arc somewhat like a death penalty case in that once your Client is deported, he Or she can never lawfully return in most criminal related cases, This is particularly true in a drug case. Congress has made "excludable," or now "inadmissible," any alien whom the INS or u Stale Department visa officer has reason to believe has aided assisted, or abetted in drug trafficking, as well as those convicted of drug offenses.
 
The only waiver is Section 212(t) which had been abolished about six months before. It had occurred to me that the application of the presumption against retroactive application of Section 212 (c) might create a Due Process problem. However, the Board of Immigration Appeals had rejected a version of this argument. I was also aware that the Eleventh Circuit Court of Appeals, the court which would review an administratively final order of removal by the Board of Immigration Appeals, has a history of deferring to the expertise of the Board of Immigration Appeals in immigration matters under the apparent authority of a Supreme Court case relating to environmental matters. It seems to me that the judges of the Eleventh Circuit Court of Appeals have a lot of experience in deciding actual death penalty cases so that deportation docs not seem lo them to be such an awful sanction. The law in this country is still that deportation is not even a penalty, just a civil sanction. This is one of the great myths in U.S. law today. It is also one of the crudest myths as well. Laws have myths just as the societies whom they are meant lo govern and regulate citizen and non-citizens' behavior.
 
Layla was cruelly locked up in the courtroom two days before Thanksgiving. Bond was set by I.N.S. officials on the Wednesday before Thanksgiving at $15.000 cash. Unlike criminal bonds, an immigration bond is payable only in cash, or by money order. This bond was thus the equivalent of a $ 150,000 criminal bond! The difference here is that when a deportation case is finally over, the obligor, or the person who posts the bond for the 'civil inmate' receives the principal back plus a very low treasury bill rate of interest on the full principal dating from the date the bond was posted.
 
As a result of the adverse bond decision, Layla spent Thanksgiving of 1997 in jail. This was the low point in her ordeal to stay in the only country she knew since early childhood. On the following Monday, one of her friends in Charlotte managed to pay the $ 15,000 in cash to gel her out of jail. We had held a bond reduction hearing on the Friday after Thanksgiving but the Immigration Judge refused to lower the bond from the SI 5,000 amount set by the former I.N.S. After full implementation of the IIRlRA's
 
Draconian custody provisions Layla now might have been subject to mandatory detention, and there would be no release from custody pending any appeal of her deportation order. In short, the Layla's of the United States simply can no longer stave off deportation unless the agency now called U.S.
 
I did not learn who the friend was who bailed Layla out of T.N.S. jail was until about five years later. hit rescuer turned out to he her future husband whom 1 will call William. William had just lost his first wife after a nine year battle with breast cancer, William's first wife gave birth to a daughter just before his first wife was diagnosed with breast cancer. The young daughter whom we will call Alice lost her mother at nine years old. Layla's future husband William works two jobs in Order to keep his family fed, sheltered and clothed. When they met as friends, William was still suffering from the loss of his wife. In turn, Layla was reeling from her deportation order and nearly a week in I.N.S. jail facing likely deportation from the only country she has ever known.
 
Layla and William connected us a couple, and eventually married several years ago. 1-ayIa quickly filled the void in the life of the then nine year old daughter of William, in a way that William could not. I.ayla took Alice to the hairdresser, she took her shopping for clothes and provided female discipline to a young girl who had just lost her mother to a slow and cruel death. Alice has become tin Honor Student from a predominantly low income A fro-American neighborhood. However, I personally have never met Alice. Layla and William made a parental decision not to involve Alice in this case. Alice did not know that her stepmother was involved in selling drugs 'in the hood' at an earlier era in her life. In fact, Alice looked up lo Layla so much that Layla and William decided that Layla's former life of crime would be a devastating revelation. Alice to this day does not know about this case. Her father and stepmother will decide when to tell her, if they ever do.
 
The big break in this case, finally came in June 2001. If the reader recalls, I had timely filed an appeal of the deportation older which thus put an automatic stay on my client's looming order of deportation. This particular deportation appeal lasted live years under the old system of handling appeals at the Board of Immigration Appeals in Arlington, Virginia. Under Attorney General John Ashcroft's procedural "reforms" and contemporaneous purges of the liberal leaning administrative law judges, victory in a case like this would no longer be possible today. To this day I am not sure why the Board of Immigration Appeals sat on this appeal for so long. I think that someone up there may have been hesitant to rule on this appeal because a victory in Federal Court based upon the customary international law theory would be a law enforcement headache from the perspective of the I.N.S. immigration policemen and women. As I mentioned above, it would have been my pipedream for the Courts to rewrite the immigration laws of the U.S. in contravention of obvious Congressional intent, it has never happened before. It will probably not happen in my lifetime although I may be one to try it with a decent set of facts.
 
The necessary break in the case came not from Congress bur rather from the United States Supreme Court in a ruling called I.N.S. v. St. Cyr. In St Cyr, the U.S. Supreme Court ruled or 'held' as we lawyers say that not honoring plea agreements entered into before the Section 2l2(c) waiver was abolished violated the rule that the law disfavors retroactive application of statutes to former decisions taken by parties to litigation. In other words, those who plead guilty to deplorable offenses which could have been waived under Section 2 12(c) as a mailer of administrative discretion were now entitled to seek a Section 212(e) hearing. Layla simply was not eligible for a hearing under the law in effect at the time of her hearing, unless you accepted my customary international law theory as controlling. She was eligible for forgiveness now, thanks to the U.S. Supreme Court!
 
Layla's appeal was still pending al the Board. However, a judge at the Board read Layla's appeal and remanded it without my having to file a Motion to Reopen the case. We finally had her "trial" or administrative hearing in October 2003. In a Section 2l2(e) hearing, the undesirability of a convicted {or in rare case accused) criminal alien's continued residence in the U.S. as the negative factor is balanced against all positive factors the criminal alien applicant for this discretionary relief can bring Lo the table, l.ayla's lifetime residence in the U.S., her strong family tics, her business ties, the hardship to her U.S. Citizen husband if she were deported, and finally her role in her stepdaughter's childhood and adolescence were found by the Immigration Judge lo outweigh Layla's role as the former lover and associate of a street level drug merchant. The I.N.S. , now the U.S. Department of Homeland Security, sent a different prosecuting attorney to try the case than the one who wanted to sec her locked up almost six years earlier. The new prosecutor did not have such a vendetta against my creative defense tactics. The new attorney did not appeal the same Immigration Judge's grant of relief. As a result of her victory. I.ayla will be permitted to live in the U.S. for the rest of her life unless she gets in trouble with the law again. However, she will not be allowed to become a I I.S. citizen unless the law of eligibility for citizenship should change, and permit reformed drug merchants to become citizens of the United States,
 
When Layla walked out of the I.N.S. building in Atlanta on the day of her trial one of the guards jokingly and flirtatiously said to her, "see you later!" Layla answered, "No you won't!" I had won a case which I didn't think- was remotely possible at the outset. In this type of ease, you have lo be patient, and to be more than a little lucky. Layla had benefited from both attributes in her case. The Government did not get to count one more deportee. The exception of not deporting certain long term lawful permanent residents worked, Layla was allowed to stay in the U.S. She will likely live the rest of her life in the only country she has over known.
 
Justice was served!