Interesting Simplifiation/Right to Counsel Argument from Justice Sotamayor in Immigration Case

Yesterdays immigration opinion, MONCRIEFFE v. HOLDER, from the Supreme Court, holding possession of small amounts of marijuana outside the definition of “aggravated felony” ineligible for discretionary relief from deportation, contains an interesting nugget for possible citation in simplification and right to counsel cases.

Justice Sotamoyor, in her 7-2 opinion used the lack of counsel in the procedures to support her decision in favor of simplicity in the law and process.  This could be used to cite either for the proposition that the lack of counsel requires a simple process, or that the complexity requires counsel.  Some of the language is below.

Moreover, the procedure the Government envisians would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesirable. The categorical approach serves “practical” purposes: It promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact. Cham- bers v. United States, 555 U. S. 122, 125 (2009); see also Mylius, 210 F., at 862–863. Yet the Government’s ap- proach would have our Nation’s overburdened immigra- tion courts entertain and weigh testimony from, for exam- ple, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of ” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigra- tion judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 601; see also Mylius, 210 F., at 863.

Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate witnesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory detention, §1226(c)(1)(B), where they have little ability to collect evidence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant Justice Center et al. as Amici Curiae 5–18; Brief for Immigra- tion Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Govern- ment’s suggestion that the CSA’s procedures could readily be replicated in immigration proceedings is therefore misplaced. Cf. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 14–15) (rejecting the Government’s argument that procedures governing determination of the recidivism sentencing factor could “be satisfied during the immigration proceeding”). (Bold added) (Slip Opinion at 15-16).

Lets hope this language is a precursor, and lets make it one by citing it.



About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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