No IN THE Supreme Court of the United States. IKE ROMANUS BRIGHT, Petitioner, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent.

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1 No IN THE Supreme Court of the United States IKE ROMANUS BRIGHT, Petitioner, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF AMICI CURIAE OF THE NATIONAL LEGAL AID & DEFENDERS ASSOCIATION ( NLADA ) AND PUBLIC COUNSEL IN SUPPORT OF PETITIONER EDWIN A. BURNETTE, ESQ. DEFENDER LEGAL SERVICES NATIONAL LEGAL AID & DEFENDER ASSOCIATION 1140 Connecticut Ave. NW Suite 900 Washington, DC JUDITH LONDON, ESQ. PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA CHRISTOPHER J. CLARK, ESQ. Counsel of Record JILL OTTENBERG, ESQ. ELIZABETH A. CATE, ESQ. DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY (212) February 21, 2012 Counsel for Amicus Curiae A (800) (800)

2 i TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITED AUTHORITIES Page i iii STATEMENT OF INTEREST SUMMARY OF ARGUMENT ARGUMENT I. TO BE CONSIDERED A FUGITIVE, AND THEREFORE DENIED THE RIGHT TO APPEAL, A PETITIONER MUST FLEE II. APPLICATION OF THE FUGITIVE DISENTITLEMENT DOCTRINE IN THE ABSENCE OF PETITIONER S FLIGHT IS UNFAIR IN LIGHT OF CHALLENGES FACED BY MANY CRIMINAL DEFENDANTS III. THIS COURT HAS REJECTED THE PER SE APPLICATION OF THE FUGITIVE DISENTITLEMENT DOCTRINE IN CRIMINAL CASES

3 ii Table of Contents Page IV. THE FIFTH CIRCUIT REVIEWS VARIOUS CONSIDERATIONS BEFORE APPLYING THE FUGITIVE DISENTITLEMENT DOCTRINE IN CRIMINAL CASES V. EVEN IF THE FUGITIVE DISENTITLEMENT DOCTRINE APPLIES TO IMMIGRATION PETITIONERS, THE COURT SHOULD REQUIRE A BALANCING OF EQUITABLE FACTORS AS IT DOES IN CRIMINAL CASES CONCLUSION

4 iii TABLE OF CITED AUTHORITIES FEDERAL CASES Page Degen v. United States, 517 U.S. 820 (1996) , 5 Delgadillo v. Carmichael, 332 U.S. 388 (1947) Estelle v. Dorrough, 420 U.S. 534 (1975) Fong Yue Ting v. United States, 149 U.S. 698 (1893) Garcia-Flores v. Gonzales, 477 F.3d 439 (6th Cir. 2007) Hemenway v. Hemenway, 339 A.2d 247 (R.I. 1975) Molinaro v. New Jersey, 396 U.S. 365 (1970) Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) , 4, 10 Padilla v. Kentucky, 130 S. Ct (2010) , 15 Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir. 2004)

5 iv Cited Authorities Page United States v. Delagarza-Villarreal, 141 F.3d 133 (5th Cir. 1997) , 13 United States v. Hanzlicek, 187 F.3d 1219 (10th Cir. 1999) United States v. Morgan, 254 F.3d 424 (2d Cir. 2001) United States v. Smith, 419 F.3d 521 (6th Cir. 2005) Wu v. Holder, 646 F.3d 133 (2d Cir. 2011) OTHER CASES Moscona v. Shenhar, 649 S.E.2d 191 (Va. Ct. App. 2007), aff d sub nom., Sasson v. Shenhar, 667 S.E.2d 555 (Va. 2008).. 3 FEDERAL STATUTES 18 U.S.C Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)

6 v Cited Authorities Page Sup. Ct. R Sup. Ct. R OTHER AUTHORITIES Black s Law Dictionary (9th ed. 2009) Daniel Kanstroom, Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev (2000) , 14 Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report (2006) Elena M. de Jongh, Court Interpreting: Linguistic Presence v. Linguistic Absence, Florida Bar Journal, July/Aug Erica J. Hashimoto, Class Matters, 101 J. of Criminal L. & Criminology 31 (2011) Hon. Lynn W. Davis et al., The Changing Face of Justice: A Survey of Recent Cases Involving Courtroom Interpretation, Harv. Latino L. Rev., Spring

7 vi Cited Authorities Page Maité Jullian, Shortage of Court Interpreters Worsening in U.S., USA TODAY, Nov. 19, 2008, court-interpreters_N.htm Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469 (2007) Teresa A. Miller, Blurring the Boundaries between Immigration and Crime Control After September 11th, 25 B.C. Third World L.J. 81 (2005), available at dam/files/schools/law/lawreviews/journals/ bctwj/25_1/04_txt.htm U.S. Census Bureau, American Community Survey Briefs, The Newly Arrived Foreign- Born Population of the United States: 2010 (2011), available at gov/prod/2011pubs/acsbr10-16.pdf U.S. Census Bureau, American Community Survey Reports, Language Use in the United States: 2007 (2010), available at census.gov/prod/2010pubs/acs-12.pdf U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal Justice Statistics, 2009-Statistical Tables (2012)

8 1 The National Legal Aid & Defenders Association ( NLADA ) and Public Counsel respectfully submit this amici curiae brief in support of Petitioner. 1 STATEMENT OF INTEREST Amicus curiae NLADA is a nonprofit association devoted to the delivery of legal services, including public defense, to those who cannot afford counsel. Since 1911, NLADA has facilitated access to justice at the national, state and local level through the creation of a public defender system, development of national standards for legal representation, and major legislation. As an association dedicated to protecting the rights of indigent criminal defendants by improving public defense services, NLADA has a profound interest in ensuring that a per se application of the fugitive disentitlement doctrine is not endorsed by this Court. Amicus curiae Public Counsel is the largest pro bono law office in the nation. Public Counsel s work affects a wide spectrum of individuals who live at or below the poverty level. Public Counsel s Immigrant s Rights 1. Pursuant to Rules 37.2 and 37.6 of the Rules of the Supreme Court, counsel of record for all parties received notice at least 10 days prior to the due date of this brief of amici curiae s intention to file the brief. All parties have consented to the filing of the brief and the parties consent letters are being filed herewith. No counsel for a party authored the brief in whole or in part, and no counsel for a party made a monetary contribution intended to fund the preparation or submission of the brief. No persons or entities other than amici curiae, their members, or their counsel made a monetary contribution to the preparation or submission of the brief.

9 2 Project provides legal services to vulnerable immigrant groups, including immigrant detainees who would have no access to attorneys without Public Counsel s assistance. The Fifth Circuit s broad interpretation of the fugitive disentitlement doctrine in immigration cases poses a threat to both criminal defendants and immigration petitioners. As practitioners representing these individuals, amici curiae seek to protect our clients rights to judicial review. If the Fifth Circuit s rule is allowed to stand, a criminal defendant who is also facing a deportation proceeding may be stripped of his right to appeal his criminal conviction if he misses one court date, regardless of whether the government was prejudiced by his absence and without consideration of the circumstances. Amici curiae have an interest in the Court s resolution of the questions presented by the Petition and encourage the Court to extend the equitybased principles established in its criminal fugitive disentitlement jurisprudence to immigration cases. SUMMARY OF ARGUMENT The scope of the fugitive disentitlement doctrine in criminal cases has been well-established by this Court. See Ortega-Rodriguez v. United States, 507 U.S. 234, 242 (1993); Degen v. United States, 517 U.S. 820 (1996). Recently, as noted in Petitioner s brief, lower courts have begun to apply this doctrine to strip petitioners of their appellate rights in other areas of law, including immigration and child custody. See, e.g., Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir. 2007) (applying the fugitive disentitlement doctrine to an unlawfully-

10 3 present foreigner who failed to report for deportation); Sapoundjiev v. Ashcroft, 376 F.3d 727, 730 (7th Cir. 2004) (applying the fugitive disentitlement doctrine to alien removal proceedings); Wu v. Holder, 646 F.3d 133, (2d Cir. 2011) (same); Moscona v. Shenhar, 649 S.E.2d 191, 199 (Va. Ct. App. 2007), aff d sub nom. Sasson v. Shenhar, 667 S.E.2d 555 (Va. 2008) (applying the fugitive disentitlement doctrine to a parent in a custody proceeding where he refused to reveal child s whereabouts and failed to appear for a hearing on his non-compliance with the court s order); Hemenway v. Hemenway, 339 A.2d 247, 250 (R.I. 1975) (deferring review of petitioner s request for review where petitioner refused to return with his children to the jurisdiction for a child custody proceeding). As attorneys for indigent defendants in the criminal and immigration systems, we believe that the fugitive disentitlement doctrine should be applied only when the petitioner has fled or escaped and his whereabouts are unknown. Based on our experience with the population that the Fifth Circuit s ruling will affect, we submit that courts applying this doctrine should also weigh equitable factors in deciding whether to deny a petitioner s appeal, including prejudice to the government, the reasons for the petitioner s absence, and effects of the petitioner s absence on the judicial process. The Court should resolve the questions presented by the Petitioner to ensure uniformity and fairness in the application of this doctrine, which affects the rights of our clients.

11 4 ARGUMENT As Petitioner notes, the questions presented by this case affect the rights of thousands of litigants, including a significant number of criminal defendants. See Petr s Brief at 23. We join Petitioner s arguments, and further contend that, if upheld, the Fifth Circuit s holding will unduly prejudice criminal defendants rights to judicial review. We further submit that the Fifth Circuit s application of the fugitive disentitlement doctrine flies in the face of this Court s established precedent applying the doctrine in the criminal context. I. TO BE CONSIDERED A FUGITIVE, AND THEREFORE DENIED THE RIGHT TO APPEAL, A PETITIONER MUST FLEE In support of the Petitioners arguments, we submit that it violates fundamental fairness to treat a petitioner as a fugitive, and therefore bar appellate review of his conviction under the fugitive disentitlement doctrine, when the government is aware of his whereabouts. We support Petitioner s argument that the defi nition and statutory usage of the word fugitive indicate that flight or escape is required. See Petr s Br. at 25; Black s Law Dictionary 741 (9th ed. 2009); 18 U.S.C ( Felony Fugitive Act ) (defining fugitive as one who moves or travels to escape judicial authority). As Petitioner notes, this Court has required flight or evasion in barring judicial access under the fugitive disentitlement doctrine in the criminal context. See Ortega-Rodriguez v. United States, 507 U.S. 234, 242 (1993) ( dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice ) (citation omitted);

12 5 Degen v. United States, 517 U.S. 820, 825 (1996) (reversing summary judgment against defendant under fugitive disentitlement doctrine, but noting that the doctrine could be properly applied where necessary to prevent actual prejudice to the Government from a fugitive s extended absence ). The Fifth Circuit s rule expands the definition of fugitive far beyond the boundaries established by this Court in its criminal jurisprudence. Under the Fifth Circuit s holding, a criminal appellant and an immigration appellant who have not fled, but who have remained at a known location for the pendency of their cases would face disparate outcomes in their appeals, with no legally compelling justification for the difference in treatment. II. APPLICATION OF THE FUGITIVE DISENTITLEMENT DOCTRINE IN THE ABSENCE OF PETITIONER S FLIGHT IS UNFAIR IN LIGHT OF CHALLENGES FACED BY MANY CRIMINAL DEFENDANTS As Petitioner notes, the questions presented by this case affect our clients, indigent defendants, with particular force. Therefore, the Court should resolve these questions in line with its prior fugitive disentitlement jurisprudence that is, narrowly applying the doctrine in situations where the rationales of the doctrine are fulfilled. Our experiences as attorneys for indigent litigants in the criminal and immigration systems inform our belief that, even if a litigant has failed to appear in court or respond to a judicial order, he should not face an automatic bar to his right to appeal. The U.S. court system is rife with opportunities for confusion and misunderstanding on the part of an indigent defendant. From their first appearance

13 6 in court, defendants face a system that, while routine for lawyers and judges, presents serial opportunities for misunderstanding on the part of a defendant. Often, a defendant may only briefly consult with even the most wellmeaning and dedicated assigned counsel before appearing before a judge. Further, assigned counsel may not be able to communicate the court s orders effectively to a non- English speaking or mentally impaired client. In addition, it is typical for assigned counsel to have large caseloads which can make it difficult to meet with a client immediately after a court proceeding to explain and clarify a client s obligations regarding their next appearance. Defendants often face packed and chaotic courtrooms, frequent adjournments, and brief appearances before a judge, all of which limits their ability to absorb complicated legal terminology that is inherently difficult for a layperson to comprehend. Under these circumstances, it is inevitable that defendants, unwittingly and with no intent to flee, fail to appear for court proceedings. It would be manifestly unfair, however, to apply the harsh consequences of the fugitive disentitlement doctrine in such cases. In addition to complicated nature of the court system, many individuals in the criminal justice system face challenges that affect their ability to understand court proceedings and their attendant obligations. These barriers include mental illness, minimal education, and lack of English proficiency. Although demographic data regarding criminal defendants is not formally collected, 2 2. Erica J. Hashimoto, Class Matters, 101 J. of Criminal L. & Criminology 31, 32 (2011) (noting that demographic information on defendants in the [criminal justice] system (with the possible exception of information regarding race and gender) is almost nonexistent ).

14 7 the following statistics are helpful to understand this population: Limited English proficiency: Criminal defendants may not speak or understand English fluently. According to the most recent U.S. Census data, approximately 13.5 million U.S. residents report that they do not speak fluent English. 3 Texas, Petitioner s home state, is among the states with the highest immigrant population. 4 If he does not speak English fluently, a defendant may not be able to communicate effectively with counsel or understand court proceedings. In recent years, state and federal courts have reported an increasing shortage of court interpreter services for non- English speaking litigants. 5 Cases challenging inadequate court interpretation are being brought in appellate courts with increasing frequency, 3. U.S. Census Bureau, American Community Survey Reports, Language Use in the United States: 2007 at 2 (April 2010), available at pdf. 4. U.S. Census Bureau, American Community Survey Briefs, The Newly Arrived Foreign-Born Population of the United States: 2010 at 1, 3 (2011), available at prod/2011pubs/acsbr10-16.pdf. 5. Maité Jullian, Shortage of Court Interpreters Worsening in U.S., USA TODAY, Nov. 19, 2008, available at usatoday.com/news/nation/ court-interpreters_n. htm; see also Elena M. de Jongh, Court Interpreting: Linguistic Presence v. Linguistic Absence, 82 The Florida Bar Journal 7 (2008).

15 8 indicating that defendants are often deprived of meaningful access to the justice system. 6 Limited education: The majority of individuals in the criminal justice system are not well-educated. In 2009, over half of all convicted federal offenders 7 had not completed high school. 8 While education level is not necessarily determinative of defendant s ability to understand a court proceeding, it stands to reason that an individual with limited education may be less able to understand the intricacies of formal court proceedings, and the often-complicated procedural requirements of an appeal. Poor mental health: Many individuals in the criminal justice system suffer from mental illnesses, further complicating their ability to understand their court-ordered obligations. According to the most recent comprehensive study of mental health in the U.S. prison population, 9 approximately 45% 6. Hon. Lynn W. Davis, et al., The Changing Face of Justice: A Survey of Recent Cases Involving Courtroom Interpretation 7 Harv. Latino L. Rev. 1, 5-6 (2004). 7. The number of Federal criminal defendants who have not completed high school may be even higher, as this is a broader population than convicted Federal offenders. 8. According to the U.S. Department of Justice, 51.3% of Federal inmates had not completed high school. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal Justice Statistics, Statistical Tables 21 (2012). 9. See note 7, supra, regarding the scope of these statistics.

16 9 of Federal inmates were reported to have a mental illness. 10 These obstacles make it easy for a defendant to misunderstand his court-imposed obligations. Our experience serving as counsel for this population has shown us that, especially in the absence of flight, a failure to appear or to comply with a court order is just as likely to result from confusion as from willful obstruction. Applying a per se bar to appellate review without considering all relevant facts and circumstances would be unduly prejudicial. III. THIS COURT HAS REJECTED THE PER SE APPLICATION OF THE FUGITIVE DISENTITLEMENT DOCTRINE IN CRIMINAL CASES This Court has consistently held that a fugitive criminal defendant should only be deprived of his right to appeal the merits of his conviction after a balancing of equitable factors. It is unclear from this Court s precedent whether the fugitive disentitlement doctrine is applicable to immigration cases. However, while the 10. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report 1, (2006). For the purpose of the report, a mental health issue was defined by a recent diagnosis or treatment of a mental illness or recent symptoms of a mental illness, as defined by the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV). Id. Statistical data on mental health of defendants in criminal cases (as opposed to inmates) is not publicly available.

17 10 Courts of Appeals are split regarding the appropriate application of the fugitive disentitlement doctrine for immigration cases, this Court has removed any ambiguity from the issue in the criminal context. In Ortega- Rodriguez v. United States, this Court rejected the per se application of the fugitive disentitlement doctrine without a review of equitable factors. 507 U.S. 234 (1993) (holding that the dismissal of fugitive appeals is always discretionary and subject to an equitable analysis by the court). The well-developed, equity-based jurisprudence of this Court 11 and the circuits 12 suggests a judicial consensus 11. In its evolving jurisprudence regarding this issue, this Court has expanded upon the rationales for the implementation of the fugitive disentitlement doctrine. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (holding that a defendant s escape should disentitle him from calling upon the resources of an appellate court to hear his claims); Estelle v. Dorrough, 420 U.S. 534, 537 (1975) (emphasizing that the fugitive disentitlement doctrine will encourage voluntary surrender and deter other defendants from fleeing, and promote the efficient operation of appellate courts). 12. Pursuant to Ortega-Rodriguez, the circuits weigh various considerations in their equitable analysis of fugitive disentitlement cases. These considerations include, but are not limited to, prejudice to the government caused by the defendant s escape; current status of the fugitive; and effect on the efficiency of the appellate process. United States v. Hanzlicek, 187 F.3d 1219 (10th Cir. 1999) (holding that policy considerations strongly weigh in favor of application of fugitive disentitlement doctrine where the criminal defendant remains a fugitive during the pendency of the direct appeal of her conviction); United States v. Morgan, 254 F.3d 424, 427 (2d Cir. 2001) (applying fugitive disentitlement doctrine where defendant had interfered with the efficient operations of the courts because he could not be returned to custody for six years); United States v. Smith, 419 F.3d 521, 527 (6th Cir. 2005) (applying fugitive disentitlement doctrine where

18 11 that it is in the interest of justice to apply the fugitive disentitlement doctrine with thought, discretion, and restraint in criminal cases. This jurisprudence should be extended to prohibit a per se application of the fugitive disentitlement doctrine to immigration petitioners as well. To permit the Fifth Circuit to ignore, in immigration cases, factors which this Court has found to be imperative for review in the criminal context would subject petitioners in that circuit to excessively punitive treatment. This Court s understanding of the rights of immigrant petitioners does not support such an application of the fugitive disentitlement doctrine. 13 Where a petitioner is not at large, and where his absence results in no prejudice to the Government, it is arbitrary and unfair to apply the fugitive disentitlement doctrine in a way that differs so significantly from its established use in criminal cases. The equity-based jurisprudence of this Court and the circuits in criminal cases highlights the Fifth Circuit s draconian standard for applying the fugitive disentitlement doctrine in immigration cases. defendant s 12-year absence made it impossible for government to retry their case, since defendant s co-defendants had died, an FBI agent who managed the case had retired, physical evidence had been destroyed, and it was probable that not all of the witnesses could be located). 13. See discussion infra of Padilla v. Kentucky, 130 S. Ct (2010).

19 12 IV. THE FIFTH CIRCUIT REVIEWS VARIOUS CONSIDERATIONS BEFORE APPLYING THE FUGITIVE DISENTITLEMENT DOCTRINE IN CRIMINAL CASES The Fifth Circuit s own precedent applying the fugitive disentitlement doctrine in criminal cases stands starkly in opposition to its per se application of the doctrine in this immigration matter. In United States v. Delagarza- Villarreal, the Fifth Circuit refused to deny the right to appeal under the fugitive disentitlement doctrine to a defendant who was recaptured and returned to custody after he failed to appear for sentencing. 141 F.3d 133 (5th Cir. 1997). The court employed a thorough, reasoned, and restrained analysis of various considerations in coming to this determination. The court found that the government was not prejudiced by the defendant s absence, since it failed to demonstrate that the contraband drugs would not have been destroyed absent the defendant s fugitive status. Id. at 138. Further, the court held that the delay caused by defendant s fugitive status did not significantly interfere with the judicial process, and therefore denied the government s motion to dismiss the appeal. Id. It is this same court that, fourteen years later, denied Mr. Bright whose address had always been known by the government, and who was not only reachable at the time of the appeal, but had been reachable for the prior ten years his right to appeal the Board of Immigration Appeal s decision. How the same court, implementing the same doctrine, could come to such disparate conclusions is baffling. What s more, barring the defendant s access to the courts in Delagarza-Villarreal after a balancing of equitable factors would arguably have been more appropriate. Mr. Delagarza absconded at a court recess

20 13 during his trial. Found guilty in absentia, he was recaptured and sentenced to two 120-month terms of imprisonment. By contrast, Mr. Bright never absconded his address has always been known to the government and as a result, the government had to expend no resources on his recapture. Yet, in Delagarza-Villarreal, the same court that refused to consider any factors other than Mr. Bright s alleged fugitive status in denying his right to appeal, carefully considered a number of factors, including prejudice to the government, in reasoning that defendant Delagarza was entitled to that same right. V. EVEN IF THE FUGITIVE DISENTITLEMENT DOCTRINE APPLIES TO IMMIGRATION PETITIONERS, THE COURT SHOULD REQUIRE A BALANCING OF EQUITABLE FACTORS AS IT DOES IN CRIMINAL CASES The increased criminalization of the immigration system in the United States highlights the unfairness of the Fifth Circuit s disparate treatment of criminal defendants and immigration petitioners. Over the past two decades, immigrants have been increasingly treated similarly to criminals in the United States. The passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has, in many cases, brought about a rather complete convergence between the criminal justice and deportation systems. 14 Scholars have noted that immigration law and 14. Daniel Kanstroom, Deportation, Social Control and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev. 1889, 1891 (2000). [hereinafter Kanstroom, Deportation, Social Control, and Punishment].

21 14 policy has, over time, become much less distinguishable from criminal law and punishment. 15 Such immigration policies include the retroactivity... use of mandatory detention, the automatic and often disproportionate nature of the deportation sanction, and the lack of statutes of limitation[s]. 16 Professor Daniel Kanstroom has argued that the deportation of lawful permanent residents for post-entry criminal conduct serves an incapacitating function, is a form of punishment, and may serve as a deterring factor to others. 17 Professor Kanstroom suggests that since punishment, incapacitation, and deterrence are all traditionally accepted as part of our criminal law, as opposed to our civil law, one might well assume that persons subject to these types of proceedings would at least have the most basic constitutional rights accorded to criminal defendants. 18 Professor Stephen Legomsky notes that while immigration law has taken many of its enforcement components from the criminal justice system, the law has not adopted the corresponding attributes regarding adjudication. 19 Legomsky cites the rise of preventive 15. Teresa A. Miller, Blurring the Boundaries between Immigration and Crime Control After September 11th, 25 B.C. Third World L.J. 81, (2005), available at dam/fi les/schools/law/lawreviews/journals/bctwj/25_1/04_txt. htm. 16. Kanstroom, Deportation, Social Control, and Punishment at Id. at Id. at Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469, 475 (2007).

22 15 detention and plea bargaining in immigration cases as examples of the specific aspects of the United States criminal enforcement machinery that has permeated immigration cases in recent years. 20 Furthermore, Professor Legomsky observes that government actors including state and local criminal enforcement officials and federal sentencing judges have become increasingly involved in the enforcement of immigration policy in the United States. 21 Expanding the responsibilities of those tasked with the enforcement of criminal laws to include similar enforcement mechanisms in the immigration context further blurs the line between these two areas of the law. This Court recognizes that although procedurally distinct immigration law has assumed many qualities of the criminal justice system. Stopping short of categorizing deportation as a criminal sanction, in Padilla v. Kentucky, this Court recognized the severity of the deportation penalty, and observed that deportation is... intimately related to the criminal process. 130 S. Ct. 1473, 1481 (2010) (citing Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)). In Padilla, this Court held that the Sixth Amendment right to counsel may be applied to deportation proceedings. Id. The need for effective assistance of counsel in immigration proceedings is underscored by [t] he severity of deportation the equivalent of banishment or exile.... Id. at 1486 (citing Delgadillo v. Carmichael, 332 U.S. 388, (1947)). Unlike the petitioner in Padilla, Mr. Bright is not asking this Court to extend a constitutional right to 20. Id. at Id. at 496.

23 16 immigration petitioners. Rather, Mr. Bright merely asks that if the Court finds that the fugitive disentitlement doctrine should apply to immigration cases, he not be subjected to the severe consequences of applying the doctrine without, at the very least, a balancing of equitable factors. This Court has long mandated such a balancing in the criminal context. 22 While distinctions between criminal and immigration proceedings endure, there is no justification for a lone circuit court to be permitted to enforce a per se application of the fugitive disentitlement doctrine when this Court has prohibited such an application in criminal cases, and when every other circuit rejects such an application for immigration cases. Where under our current immigration laws, deportation has become intimately related to the criminal process, it does not follow that those subject to deportation should be barred from judicial access when such a proposition has been universally rejected as applied to criminal defendants. If the fugitive disentitlement doctrine is applied to immigration cases, the standard set by this Court for applying the doctrine in the criminal context should be extended to this area of the law. 22. See supra note 11.

24 17 CONCLUSION For the foregoing reasons, the petition for writ of certiorari should be granted. Respectfully submitted, EDWIN A. BURNETTE, ESQ. DEFENDER LEGAL SERVICES NATIONAL LEGAL AID & DEFENDER ASSOCIATION 1140 Connecticut Ave. NW Suite 900 Washington, DC JUDITH LONDON, ESQ. PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA CHRISTOPHER J. CLARK, ESQ. Counsel of Record JONATHAN RICHMAN, ESQ. JILL OTTENBERG, ESQ. ELIZABETH A. CATE, ESQ. DEWEY & LEBOEUF LLP 1301 Avenue of the Americas New York, NY (212) February 21, 2012 Counsel for Amicus Curiae