Brief of Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, National Association of Criminal Defense Lawyers, et al., in Support of Petitioner Upon Grant of Rehearing En Banc.

Argument: Young diverges from the rationale for the Categorical Approach, produces inconsistent immigration outcomes, and undercuts due process considerations. Young frustrates the underlying purpose of the Categorical Approach: to ensure efficiency and predictability in immigration outcomes. Young bars noncitizens from relief even when courts do not regularly maintain the necessary records or when records have been destroyed. Criminal records, especially in cases involving lower-level offenses are often poorly created and maintained. Criminal courts routinely destroy criminal records, creating unfair and inconsistent immigration outcomes. The government is in a far superior position to obtain records than noncitizens, who are often detained, unrepresented, and non-English speaking. Young’s divergence from the Categorical Approach unfairly affects noncitizens in a wide variety of immigration adjudications, both adversarial and non-adversarial.

Brief of Amici Curiae Immigrant Defense Project, American Immigration Lawyers Association, National Association of Criminal Defense Lawyers, and National Immigrant Justice Center in Support of Petitioner (on petition for a writ of certiorari).

Argument: The Court should intervene to establish a uniform rule governing the many contexts in which relief eligibility turns on a past conviction. Unless the Court intervenes, relief eligibility will vary based on differences and unreliability in state court record keeping practices. Many state courts do not regularly create criminal records, particularly in misdemeanor and other low-level cases. Criminal courts routinely destroy records, creating unfair and inconsistent immigration outcomes under the Tenth Circuit's rule. The deep circuit split on the issue means that noncitizens face non-uniform results depending on where DHS chooses to initiate proceedings. The Tenth Circuit's rule has a particularly harsh and unfair impact on noncitizens who are without counsel, detained, and have limited English proficiency.

Brief of Amici Curiae Immigrant Defense Project, Detention Watch Network, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild in Support of Petitioner’s Petition for Rehearing and Rehearing En Banc.

Argument: Amici urge the Court to grant rehearing or rehearing en banc because the panel’s decision is at odds with Moncrieffe v. Holder, 569 U.S. 184 (2013). Amici agree with Ms. Gutierrez that when the record of a prior conviction under a divisible statute is ambiguous, the conviction should not bar eligibility for relief from removal. Amici submit this brief to raise three additional points. First, the panel’s decision unfairly bases relief eligibility on the happenstance of whether a prior criminal court creates or maintains the records necessary to disprove a disqualifying conviction. The noncitizen has no control over these criminal court practices but, under the panel’s decision, could face ineligibility for relief because of them. Second, the panel’s decision ignores that noncitizens—who are often without counsel and detained—face far greater impediments to obtaining and submitting the required conviction records than the Department of Homeland Security (DHS). Third, the panel’s decision has a broad impact: it operates to categorically bar relief for asylum seekers, victims of crime, and those—like Ms. Gutierrez—with longstanding residence and deep family ties in this country.

Brief of Amici Curiae Immigrant Defense Project and National Association of Criminal Defense Lawyers in Support of Defendant-Appellee.

Argument: A non-citizen defendant suffers prejudice when defense counsel fails to advise of potential immigration consequences, even if the court notifies defendant that he or she “may” face immigration consequences. Judicial notifications cannot cure defense counsel’s foregone negotiations for an immigration-safe plea. The statutorily mandated language in Ohio, which states that the guilty plea “may” result in deportation, does not accurately advise a defendant whose deportation is virtually certain and mandatory. Judicial notifications given without regard to a defendant’s particular circumstances must be given little weight in the prejudice analysis. The roles and responsibilities of court and counsel are legally and practically distinct. Allowing court notifications to replace advice from defense counsel contradicts Padilla v. Kentucky, which placed the burden of giving the advice regarding immigration consequences squarely on defense counsel.