No Right to Try

The Immigration and Nationality Act is a swampy mess of numbers, letters, and Roman numerals big and small. Trying to make sense of it is a challenge. For that reason, many people who have been served with a notice of removal retain counsel to guide them through the removal, a.k.a. deportation, proceedings.

When facing the possibility of deportation after serving one year in prison for being a drug user who possessed a firearm, Emilio Estrada decided to retain a lawyer to help him navigate the proceedings and to help interpret INA alphabet soup. Unfortunately, the lawyers he retained did not advise him that green-card holders who have been convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(E)(ii), can beg an immigration judge to allow them to remain in the United States, see id. § 1182(h) (INA § 212(h)). That provision of the INA permits an immigration judge to allow an immigrant to remain in the United States if his deportation would cause extreme hardship to his spouse, child, or parent who is a U.S. citizen or lawful permanent resident. The immigration judge did not inform Mr. Estrada of this fact. Mr. Estrada’s lawyer didn’t either. Instead, Mr. Estrada’s counsel admitted to all facts in the removal order, and Mr. Estrada was deported to Mexico.

Six years later, federal agents found Mr. Estrada in the United States, and he was charged with two counsel of illegal reentry following deportation. Mr. Estrada decided to put up a fight. He filed a motion to dismiss the indictment, collaterally attacking the fundamental fairness of his earlier removal proceedings.

To succeed, Mr. Estrada had to demonstrate all three of the following: (1) that he exhausted all available administrative remedies; (2) that the deportation proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). A fundamentally unfair removal hearing is one that deprives the deportee of due process, i.e., life, liberty, or property, and resulted in prejudice.

The Sixth Circuit held that Mr. Estrada could not prevail because the immigration judge and his attorney did not deprive him of any life, liberty, or property interest because the relief provided by § 212(h) is just discretionary. In essence, § 212(h) grants only an opportunity to try, not an affirmative right to remain. But, unlike the Second and Ninth Circuits, the Sixth Circuit does not believe the right to try is a constitutionally protected interest. Because Mr. Estrada was not deprived of life, liberty, or property, the court reasoned, the immigration judge did not deprive him of due process. The court also held that Mr. Estrada had no constitutional right to accurate and complete attorney advice either.

Unless the Supreme Court takes up this question that has caused a circuit split, Mr. Estrada will likely be convicted, sentenced to prison, and then deported. What hardship may befall his family members if he is deported remains unknown.