Exile and the Right to Counsel

Hernandez v. Barr (1st Cir. June 15, 2020) (Lipez, J., writing for Barron and Stahl)

Lawyers are important to the administration of justice. The Founding Fathers included the right to counsel in criminal trials in their Bill of Rights in 1791 (almost half a century before Englishmen enjoyed the right): “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. In 1938, the Supreme Court held that if the accused in a federal case cannot afford counsel, he has the right to appointed counsel paid for by the government. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). And in 1963, the right to appointed counsel was extended to state court cases. Gideon v. Wainwright, 372 U.S. 335 (1963).

But it doesn’t apply to removal cases in immigration court. This is because they are “deemed to be civil, not criminal, proceedings.” Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975). There is, however, a statutory right to retained (not appointed) counsel in removal proceedings:

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

8 U.S.C. § 1362.

It is the law of the land that exile is sufficiently less bad than imprisonment that poor people facing it can be forced to defend themselves, often with disastrous consequences. But what happens when a detained respondent in a removal proceeding tries to retain counsel but, because of her detention, misses it by one day? The First Circuit, in Hernandez v. Barr, says the immigration court has to give her that extra day.

The IJ says Ms. Hernandez didn’t try hard enough to get counsel.

Ana Ruth Hernandez Lara entered the United States in the fall of 2013 without being admitted or paroled. She found her way to Portland, Maine, where she was arrested by immigration officers five years later. They transported her 60 miles south to Dover, New Hampshire, for detention. The removal proceedings were probably held in Boston, another 60 miles south of Dover. (The reader may be interested to note that El Salvador, the country she left, is only 191 miles long.)

Here is what happened after she was arrested:

  • September 20—Ms. Hernandez was arrested.
  • October 11—Ms. Hernandez appeared without counsel at her master calendar hearing. The immigration judge (“IJ”) advised her of her right to retained counsel and asked whether she wanted an opportunity to find one. She responded “that she had an attorney who was not aware of the hearing.” (Slip op. at 5.) Ms. Hernandez does not speak English and required the assistance of an interpreter at this and all subsequent hearings.
  • October 18—Ms. Hernandez appeared for her second hearing, the custody and bond proceedings. She appeared at this hearing with an attorney (“Laura the Bond Attorney”), but Laura requested a week “to decide whether she would continue to represent [Ms.] Hernandez.” (Slip Op. at 4–5.)
  • October 25—Ms. Hernandez appeared for her third hearing, this time without counsel. The IJ asked whether she had an attorney, and she said, “Yes, I have one.” Ms. Hernandez believed that Laura the Bond Attorney, would continue representing her. She was wrong. The IJ “confirm[ed] that [Laura’s] entry of appearance was limited to the bond hearing and that no other attorney had entered an appearance for the removal proceedings” and “informed [Ms.] Hernandez that she would have to ‘speak for herself and represent herself’ that day.” (Slip Op. at 7 (original revisions omitted).)
    The IJ then read her the allegations, asked her questions, and “found [her] removable as charged.” (Slip Op. at 7.) The IJ asked her some more questions and handed her a Form I-589, the application for relief from removal. He recessed the hearing for another eight days so she could “fill out the application completely in English.” (Slip Op. at 7.)
  • October 29—Laura the Bond Attorney told Ms. Hernandez that she can no longer represent Ms. Hernandez. Ms. Hernandez started looking for new counsel.
  • November 2—Ms. Hernandez appeared for her fourth hearing, again without counsel. The IJ asked whether she had counsel, and she explained that she had been trying to find new counsel since she found out that Laura the Bond Attorney would no longer represent her. “They say they cannot take my case from one day to another, so they asked me to ask the judge if they could give me another day for them to review my file to see if they can take my case.” (Slip Op. at 8.) The IJ informed her she would have to proceed without counsel and speak for herself.
    The IJ asked whether she had filled out Form I-589. Ms. Hernandez: “Well, the problem is that I can’t write in English and I can’t read it, so I couldn’t fill it out.” (Slip Op. at 9.) The IJ recessed for six more days so she could fill it out.
  • November 6—Laura the Bond Attorney asked for permission to turn Ms. Hernandez’s file over to a new attorney.
  • November 8—Ms. Hernandez appeared for her fifth hearing, again without counsel. She told the IJ about Laura asking for permission two days earlier to turn the file over to a new attorney, whom Ms. Hernandez “expected . . . to visit [with] at the Stafford County Jail either that day or the following day.” (Slip Op. at 9–10.) The IJ informed her that she would have to proceed without counsel and speak for herself.
    The IJ asked about Form I-589 again. Someone at the jail had helped her fill out part of it—but it was the wrong part. The IJ recessed the hearing again and gave her one last chance to get it right.
  • November 9—Ms. Hernandez met with her new lawyer, who agreed to take the case.
  • November 16—Ms. Hernandez appears for her sixth hearing, again without counsel. Laura the Bond Attorney still hadn’t turned over the file. Ms. Hernandez “asked the IJ for a continuance to allow her new attorney to be present.” The Government objected to a continuance “for attorney prep,” and the IJ agreed. The IJ told Ms. Hernandez she would have to proceed without counsel and speak for herself. The IJ then conducted the hearing on relief from removal and denied her request.

The Board of Immigration Appeals affirmed the IJ’s decision, and Ms. Hernandez petitioned the First Circuit for relief.

The First Circuit says she tried hard enough.

The First Circuit analyzed Ms. Hernandez’s petition for review for two elements: error and prejudice. For error, the First Circuit analyzed whether the IJ properly denied her last continuance request. There is a special standard for continuance requests based on the need to retain counsel: “absent an express waiver of the right to counsel, the IJ ‘must grant a reasonable and realistic period of time to provide a fair opportunity for a respondent to seek, speak with, and retain counsel’.” (Slip Op. at 18 (citing In re C-B-, 25 I. & N. Dec. 888, 889 (BIA 2012)).)

The Government had argued, and the IJ and BIA found, that Ms. Hernandez had had “five weeks” to find an attorney. But they measured the time period incorrectly. Rather than measuring it from the first hearing, they should have measured it from the moment she “knew that [her] retained counsel would no longer be representing [her].” (Slip Op. at 21 (citing Mendoza-Garcia v. Barr, 918 F.3d 498, 506 (6th Cir. 2019)).) Ms. Hernandez didn’t understand that Laura the Bond Attorney would not be representing her until October 29. It was only 18 days from then until her final hearing on November 16. During those 18 days, she successfully retained counsel, but that counsel failed to appear on November 16 because Laura the Bond Attorney failed to turn over the file in time. “Accordingly, we readily conclude that the IJ, by denying [the last request for more time so that her counsel could be present], failed to ‘meaningfully effectuate’ the statutory right to counsel.” (Slip Op. at 24.) I can’t help but wonder: Would the continuance have been granted if counsel had been present?

So the IJ erred. Who cares? Was it prejudicial? The court’s discussion of prejudice reminded this reader of Gideon’s Trumpet:

  • “That [Ms.] Hernandez raised this argument before the BIA when she was represented, but did not do so before the IJ when proceeding pro se, highlights the difference that the assistance of a lawyer can make.” (Slip Op. at 27.)
  • “Though an attorney would object to that kind of error in an oral decision, [Ms.] Hernandez understandably did not do so.” (Slip Op. at 27.)
  • “Here, the BIA . . . concluded that there was ‘insufficient evidence’ in the record . . . . But the record in this case was undeveloped precisely because [Ms.] Hernandez lacked counsel.” (Slip Op. at 27–28.)
  • “If [Ms.] Hernandez had been represented at her merits hearing, her attorney likely would have drawn that important connection, adduced other . . . evidence to support [Ms.] Hernandez’s testimony and . . . elicited more detailed testimony.” (Slip Op. at 28.)

In other words: of course she lost below—she’s not a lawyer, and she didn’t know how to defend herself. Therefore: prejudice and remand.

Can you fix a record broken by lack of counsel?

One last point bears emphasizing. The regulations expressly prohibit reopening removal proceedings “unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

The Fifth Circuit has repeatedly held that there are no do-overs if you could have done it right the first time. In Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993), for example, the Fifth Circuit refused to reopen removal proceedings where “All of this evidence [in favor of asylum] existed and was available at the time of the original deportation proceeding.” Ogbemudia, 988 F.2d at 600. Or, as the Fifth Circuit noted more recently: to show prejudice, an immigrant must “advance[] grounds for relief that were available at the time of the removal hearing that an attorney might have brought to the IJ’s attention.” Soto v. Holder, No. 12-60238, Slip Op. (5th Cir. Apr. 26, 2013).

In short, it is very difficult to fix a broken record in immigration court.

Avoiding Professional Discipline through Bankruptcy

Most debts are discharged in bankruptcy—but not all. In In re Albert-Sheridan, the Ninth Circuit addressed the issue of whether a cost assessment in disciplinary proceedings against a lawyer can be discharged.

The Ninth Circuit says “no.”

Lenore L. Albert-Sheridan was a lawyer in California specializing in consumer advocacy. She got into trouble with the California bar in 2015, and the state bar ordered her license suspended for 30 days in 2016. The suspension order conditioned her reinstatement on the payment of $18,714 to the state bar in ” ‘reasonable costs’ for the disciplinary proceedings under California Business and Professions Code § 6086.10(b)(3).” (Slip Op. at 6.) The order was affirmed on appeal and the suspension went into effect in December 2017.

Ms. Albert filed for bankruptcy in February 2018. Two months into it, she filed an adversary complaint against the state bar to determine whether the cost award in the suspension order would be discharged in her bankruptcy. The bankruptcy court found in favor of the state bar and held the cost award to be non-dischargeable. The bankruptcy appellate panel and the Ninth Circuit both affirmed.

In a chapter 7 bankruptcy, the basic rule of dischargeability is that all of a debtor’s prepetition debts will be discharged in bankruptcy, unless they fit into one of the exceptions in section 523. 11 U.S.C. § 727(b). Among other things, section 523 provides:

A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt . . . to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty . . . .

11 U.S.C. § 523(a)(7).

There are three elements to non-dischargeability under section 523(a)(7):

  1. the debt is a fine, penalty, or forfeiture,
  2. that is payable to and for the benefit of a governmental unit, and
  3. that does not constitute compensation for actual pecuniary costs.

(Slip Op. at 10.)

Section 6086.10(a) of the California Business and Professions Code requires that “Any order . . . imposing discipline . . . shall include a direction that the licensee shall pay costs.” Subsection (b) provides how to calcalute the costs:

(b) The costs required to be imposed pursuant to this section include all of the following:
(1) The actual expense incurred by the State Bar for the original and copies of any reporter’s transcript of the State Bar proceedings, and any fee paid for the services of the reporter.
(2) All expenses paid by the State Bar which would qualify as taxable costs recoverable in civil proceedings.
(3) The charges determined by the State Bar to be “reasonable costs” of investigation, hearing, and review. These amounts shall serve to defray the costs, other than fees for the services of attorneys or experts, of the State Bar in the preparation or hearing of disciplinary proceedings, and costs incurred in the administrative processing of the disciplinary proceeding and in the administration of the Client Security Fund.

Cal. Bus. & Prof. Code § 6086.10(b) (boldface added).

Your humble writer suggests that the cost award under section 6086.10(b) is tied to costs and expenses actually incurred by the state bar, and therefore should “constitute compensation for actual pecuniary loss.” That would seem to pull the cost award outside the scope of section 523(a)(7), rendering the cost award dischargeable in bankruptcy.

But case law said otherwise. The Ninth Circuit addressed this question head-on in 2010 in In re Findley, 593 F.3d 1048 (9th Cir. 2010). There, the court looked at the cost award in light of section 6086.10(e), which explains that “costs imposed pursuant to this section are penalties . . . to promote rehabilitation and to protect the public.” Cal. Bus. & Prof. Code § 6086.10(e). Apparently, calling a cost award a penalty does the trick: “we conclude that [subsection (e) is] sufficient to render attorney discipline costs imposed by the California State Bar Court non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(7).” Findley, 593 F.3d at 1054.

According to Judge Bumatay, “Findley stands on all fours with this case.” (Slip Op. at 9.) The cost award was non-dischargeable in Findley, so it is non-dischargeable in the case at bar.

The Fifth Circuit says “maybe.”

Things are not so simple in the Fifth Circuit: “Even where a debt bears a label that fits within § 523(a)(7)’s definition of dischargeable debts, we have looked to the nature and purpose of the debt and declined to declare it nondischargeable.” In re Schaffer, 515 F.3d 424, 428 (5th Cir. 2008).

In Schaffer, the Louisiana State Board of Dentistry disciplined a practicing dentist by revoking his license and ordering him to pay “all costs of the Committee Proceedings including, but not limited to, stenographer fees, attorneys’ fees, investigative fees and expenses, and witness fees and expenses and the per diem and expenses of the Committee members.” Schaffer, 515 F.3d at 426. The order also provided that the Board would not consider any re-applications by him untli he had paid the costs, with interest. Five years later, he filed for bankruptcy, and the board brought an adversary proceeding to have the cost award declared non-dischargeable.

The bankruptcy court and the district court held in favor of the Board, but the Fifth Circuit reversed. First, the cost award was not a “fine, penalty, or forfeiture.” The statute authorizing the cost award had authorized both fines and cost awards. It stands to reason, then, that a cost award is not a fine. Second, the language of the statute and the order made clear that the cost award “assessed costs to repay some of the Board’s expenses incurred in the proceeding.” Schaffer, 515 F.3d at 433–34. Therefore, the cost award constituted compensation for actual pecuniary losses.

In the Fifth Circuit, at least, a cost award assessed as part of professional disciplinary proceedings may be discharged in the right circumstances.

Answering and Not Answering Questions That Aren’t Asked

United States v. Staggers is a case out of New Orleans involving three defendants who were jointly indicted and tried on charges relating to a conspiracy to distribute heroin. One defendant (Morrison) was acquitted of the conspiracy charges, but found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His Guidelines range was 235 to 293 months in prison (or about 20 to 24 years), but the district court varied downward to the mandatory minimum of 15 years. On appeal, Morrison made two arguments for vacating his conviction:

  1. That the Government was required to but failed to prove that he knew he was a felon, in violation of Rehaif v. United States, 139 S.Ct. 2191 (2019);
  2. That the evidence supporting his conviction was obtained in violation of the Fourth Amendment because the police did not properly obtain consent to search his home.

The Fifth Circuit rejected his first argument, but accepted his second, vacating the conviction and remanding for a determination of whether the police had consent to enter his home without a warrant.

Rehaif and Knowledge of Felon Status

Section 922 defines a crime: “It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .” 28 U.S.C. § 922(g)(1). This is often short-handed to being a “felon in possession.” Section 924 provides for punishment: “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 28 U.S.C. § 924(a)(2). But if that person “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” the ten-year minimum is enlarged to fifteen years. 28 U.S.C. § 924(e)(1).

In Rehaif, the Supreme Court broke down the crime defined by sections 922(g) and 924(a)(2) and (e)(1) as having four elements:

  1. a status element (here, having been convicted of a crime punishable by imprisonment for a term exceeding one year),
  2. a possession element,
  3. a jurisdictional element (the part about “in or affecting commerce”), and
  4. a firearm element.

The Court then held that to prove that a defendant “knowingly violate[d]” section 922(g), and therefore is subject to punishment under section 924, the Government must prove that the defendant had knowledge of the first, second, and fourth elements. Rehaif, 139 S.Ct. at 2195-96.

In Morrison’s case, however, the jury was only asked whether Morrison had knowledge of the second and fourth elements — not whether he knew he had the relevant status. (This may sound like a dumb thing to ask a jury, but the relevant status is being convicted of a crime punishable by more than a year in prison, not whether he was actually punished by more than a year in prison. Someone sentenced to less than a year or even right at a year in prison might not know he could have been sentenced longer.)

That should be the end of the case, right? The Government failed to prove its case beyond a reasonable doubt on all the required elements. Not quite. Morrison didn’t raise the issue, so the Govenment’s failure to carry its burden is reviewed for “plain error.”

To obtain reversal under the plain error standard, an appellant must show three elements and convince the court of appeals to exercise its discretion to correct the error. Puckett v. United States, 556 U.S. 129, 135 (2009). Here, the Fifth Circuit declined to exercise its discretion for three reasons. First, Morrison never argued that he “actually lacked knowledge of his status as a felon.” Second, the “record before us . . . shows that Morrison must have known that he was a convicted felon.” And third, the panel is “confident” that if the knowledge-of-felon-status element had been in play, “Morrison would have stipulated” to it. In other words, if the jury had been asked to determine whether Morrison knew he had the relevant status, the jury would have said yes. No need to send this case back to the jury to ask a question we all know the answer to.

It seems unfair on some level to put the burden of objecting on Morrison. Rehaif came out after Morrison’s trial but before the appeal was decided. If Rehaif changed the rules, which it seemed to do, how could Morrison know he was supposed to object? On the other hand, if Rehaif did change the rules, how was the Government supposed to know what it had to prove under the new, not-yet-announced rules? It seems to me that the plain error standard is a bit of a compromise between the two positions. It allows the court of appeals to look at the issue in this case, in these circumstances, and decide whether it affected things in a fundamentally unfair way. Sometimes, it operates as a safety valve to let courts address deeply unfair situations. Usually, it lets the the court of appeals shrug and move on.

Consent to be Searched

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .

U.S. Const. amend. IV.

A search with a valid warrant is reasonable, but searching “a person’s home [without a warrant] is presumptively unreasonable, and it is the government’s burden to bring the search within an exception to the warrant requirement.” United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011). Here, the Government claimed to have consent — that Morrison or somebody with authority consented to the search of his home. To show consent, the Government had to prove (1) that it received consent, (2) that was voluntarily given, (3) by someone with actual or apparent authority to consent, and (4) that the search did not exceed the scope of the consent given. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Morrison denied each of the first three elements.

First, define the search.

The basic circumstances are these. One day, at 6 o’clock in the morning, two police officers (Bordelon and Biondolillo) knocked on the door of Morrison’s house. Morrison’s girlfriend (Shlonda Jupiter) answered the door. What happened next is what really matters.

According to the Government’s witnesses, the three talked for a minute, and Ms. Jupiter “stepped back and opened the door some more . . . kind of moving out the way . . . allowing us in.” At the same time, apparently from the doorway, the police saw Morrison “in the hallway behind” Jupiter, “call[ed] out to him” to ask “whether he could come inside and talk,” and Morrison “answered in the affirmative.” (Slip Op. at 5.)

But according to Ms. Jupiter, she “stood between the door and the doorframe while talking to Bordelon and Biondolillo,” but they “pushed the door open and came bumping in” anyway. Once inside, they waited in the living room until Morrison came out of the bedroom. (Slip Op. at 5-6.)

The police smelled marijuana, read Morrison his rights, and asked him to sign a consent-to-search form. Bordelon either “explained its contents” or threatened to take his kids away and Ms. Jupiter to jail. (Slip Op. at 5-6.) Either way, Morrison signed the form, and the police asked whether there were any guns in the house. Morrison told them about one in his bedroom. They found it, partially loaded. (Slip Op. at 4.) That firearm was the basis of his conviction under section 922(g)(1).

The search here occurred when the police entered the house and started asking questions and looking for things.

Then, look for the consent.

Unlike many other areas of life, consent to be searched by the police “does not need to be explicit” but “may . . . be inferred from actions that reasonably communicate consent,” including “silence or failure to object [that] follows a request for consent.” (Slip Op. at 15.) The Government argued that it received implied consent to enter the house when Ms. Jupiter “kind of mov[ed] out the way.” (Slip Op. at 5, 15.) The Fifth Circuit rejected this argument for two reasons.

First, there was a factual dispute about whether or not Ms. Jupiter in fact “kind of mov[ed] out the way.” The police said she did; she said she didn’t. The district court therefore had to make a credibility determination (i.e., decide whether it believed the police or Ms. Jupiter), which it did not do. Instead, it (wrongly) concluded that both accounts essentially showed consent. In other words, the Government had to prove (i.e., convince the district court) that it had consent to enter the home. Because it did not convince the district court, it did not prove consent.

Second, even if she did “kind of mov[e] out the way,” silence or failure to object can constitute implied consent “only if that silence follows a request for consent.” (Slip Op. at 15.) In other words, the case might be different if the police had asked Ms. Jupiter if they could come in and she had “kind of mov[ed] out the way.” But they didn’t, so her silence is not consent.

Even if consent is actually given, it must also be given voluntarily. This issue turns on the totality of the circumstances, described by a six-factor test. The Fifth Circuit noted that the conversation with Ms. Jupiter at the front door was “peaceful,” that the police “did not shout at or threaten [Ms.] Jupiter,” that their weapons were holstered, and that she had testified that “she ‘was about to shut the door’ on the officers when they barged in.” (Slip Op. at 18-19.) Thus, the Fifth Circuit concluded, assuming consent was in fact given, it was given voluntarily.

The last issue raised by Morrison was that Ms. Jupiter did not have authority to consent to the police entering the home. The Fifth Circuit made short shrift of this argument: “Because [Ms.] Jupiter lived with Morrison, the district court did not clearly err by concluding that she had actual authority” to consent. (Slip Op. at 20.)

No consent + no warrant = no evidence

In sum, the Fifth Circuit found that the Government had not carried its burden of proof on the first element, actual consent. Without actual consent, and without a warrant, the search was unreasonable and violated the Fourth Amendment. But because there was a factual dispute about whether consent was actually given, the Fifth Circuit remanded to the district court to make that determination.

Credits

Senior Circuit Judge Carolyn Dineen King authored the opinion, joined by Circuit Judges Edith Jones and Gregg Costa. It’s interesting to note that while the case came out of New Orleans, all three judges came from Houston.

Public defender Samantha Jean Kuhn signed the brief and made oral argument on behalf of Morrison.