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Is the Fifth Circuit Attempting to Get a Case Before Itself for the Purpose of Setting a Future Precedent on Derivative Citizenship Claims and Ineffectiveness of Counsel Claims?

by Joseph Whalen

I do not claim to have "second-sight" but at the same time, I am not blind. When I read through USA v. Juarez, No. 09-20764 (5th Cir. February 29, 2012), I asked myself: "Is the fifth circuit ripening a case as a potential future precedent?" It could turn out that way depending on what follows the remand.

On the advice of his attorney, Juarez pled guilty to lying about his citizenship for the specific purpose of buying a gun. Later, Juarez filed a timely pro se, motion for post conviction relief alleging ineffective assistance of counsel for failing to recognize, investigate, and assert a derivative citizenship defense to the crimes charged. In hindsight, as of today, the citizenship claim is not viable. However, at the time of the plea, he might have actually reasonably thought that he might have derived citizenship from his mother's naturalization. That small possibility could have made him choose to fight it out in court in order to have the question settled definitively. At the time of that earlier case, his attorney admittedly did not even know that derivative citizenship existed. In that criminal case, his attorney was not fully effective nor was he diligent in preparing the case on his client's behalf.

The Fifth Circuit made a point that the ineffectiveness was within the context of a criminal case and that all that the Fifth Circuit precedents required was the fact that the accused would have insisted on going to trial instead of pleading guilty. The current case (USA v. Juarez) is really more important to the criminal defendants' ineffective assistance of counsel claims than to derivative citizenship claim case-law. However, if after remand, there should be any further arguments involving the Fifth Circuit's precedents pertaining to derivative citizenship claims, the Fifth Circuit could use any subsequently appealed case to update its precedential stance and bring it in line with its sister circuits.

The court stated, in pertinent part:

    "No Fifth Circuit case law interpreted 1432(a)(5) at the time Juarez pled guilty and today we decline to interpret the statute. Based on the legal authority available at the time [counsel] advised Juarez on his pleas, a derivative citizenship defense was plausible. ...." At p.7

Notwithstanding the reality (in my opinion) that this particular derivative citizenship claim is doomed to failure, a properly briefed challenge could ripen the issues under 8 USC 1432(a)(5) [INA 321(a)(5)] for the Fifth Circuit to actually go on record with an interpretation. I understand that if an issue need not be reached, the Courts should refrain from addressing it. That said, if a challenge is made, then the Fifth Circuit would be obliged to address it affirmatively. It is after all, the only avenue that Juarez appears to have left at this point. This case was reversed and remanded for further proceedings. What course of action is left but to brief the court on the derivative citizenship claim?

    "As Juarez's attorney, [counsel] had a duty to independently research the law and investigate the facts surrounding Juarez's case. Cabana, 764 F.2d at 1177-78. With respect to the deficiency prong of the Strickland test, '[t]he first prong-constitutional deficiency-is necessarily linked to the practice and expectations of the legal community." Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) (citing Strickland, 466 U.S. at 688). "We long have recognized that "[p]revailing norms of practice as reflected in American Bar Association standards... are guides to determining what is reasonable..." Id. at 1482 (citing various Supreme Court cases). The Padilla Court held that although standards such as those from the American Bar Association are "only guides" and not "inexorable commands," these standards can be "valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law." Id." At p. 8

Another potential point that the Fifth Circuit would be in a position to address is the need for there to be an entitlement to some form of defense or relief in order for there to be any need to remand a case when there has been a certain amount of ineffectiveness from counsel. When the underlying argument fails on the merits, I would call that particular ineffectiveness as mere harmless error not requiring remand. Why did the Fifth Circuit not follow that course of action in this case?

When the underlying "controversy" in the case below simply fails on the merits what is the point in a remand? It seems to me that the Magistrate Judge's fully examined the derivative citizenship claim and having found that it failed on the merits recommended denial of the request for post-conviction relief. The District Court agreed and adopted the Magistrate's report and recommendation. The final conclusion in this particular case baffles me. That is why I wonder aloud: "Is the Fifth Circuit assisting a case to ripen and to be suitably briefed in order for it to address the issues in a more meaningful way if and when the comes back again?

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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