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Elena Kagan on Immigration
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Let deported immigrants appeal based on bad legal advice
As Solicitor General, Kagan issued an amicus brief in Padilla v. Kentucky. In the brief, the government agreed with Padilla that the KY Supreme Court erred in holding that a criminal defense lawyer giving incorrect advice about the immigration
consequences of the plaintiff's plea is not a sufficient reason to reopen a case. In other words, the Kentucky court argued that Jose Padilla, a lawful permanent resident who was charged with drug offenses, could not withdraw his guilty plea even though
his lawyer gave him bad immigration advice.According to Kagan, an attorney giving immigration advice "has a duty to avoid doing so incompetently."
"Professionally incompetent advice," according to Kagan, "can support an ineffective-assistance
claim." However, Kagan agreed that Padilla could not withdraw his own plea because the overwhelming evidence against him suggested "that a rational defendant would have pleaded guilty even after receiving correct information."
Source: Andrea Nill Sanchez on Think Progress, "Immigration"
, May 13, 2010
Let deported immigrants appeal based on administrative error
Kagan weighed in on Kucana v. Holder, a case aimed at resolving the question of whether courts have jurisdiction to review decisions made by the Board of Immigration Appeals (BIA). In her amicus brief, Kagan agreed with petitioner
Agron Kucana (an Albanian facing deportation who originally was ordered deported because he had overslept and missed his asylum hearing), that judicial review is available in such cases. Yet, Kagan still recommended that the Court deny review of
Kucana's case, arguing that his claim was baseless on the merits. Kagan did not support the specific case of the immigrant petitioner, but she did side with his underlying argument.
This is significant because administrative errors can often lead to a wrongful deportation that puts an asylum applicant in perilous danger.
Source: Andrea Nill Sanchez on Think Progress, "Immigration"
, May 13, 2010
Page last updated: Apr 29, 2013
