• June 6, 2014

Liberty[Editor’s comment: If you or someone you know has to navigate to complexities of immigration law, get an affordable lawyer with knowledge and experience. Dealing with immigration issues can be difficult and mistakes can be disastrous. Call Mikael Merissa, Merissa Law Firm, 80 South 8th Street, 900 IDS Center, Minneapolis, MN 55402, telephone: (612) 349-5288.]

Twin Cities immigration attorney, Mikael Merissa, contributes these comments as we head toward Independence Day and consider our good fortune of living in the United States of America:

Even as Supreme Court jurisprudence acknowledges that deportation is not merely a “collateral consequence,” but is in fact a unique and “particularly severe ‘penalty,’” there is no constitutional right to court appointed counsel in immigration proceedings. One is entitled to an attorney so long as it is “at no expense to the Government.” Consequently, most immigrants proceed pro se (without a lawyer) before the United States Citizenship and Immigration Services (“USCIS”) or Immigration Court. And they face both complicated procedure and very harsh consequences if they make any mistakes, which begs this post’s eponymous question.

A recent decision before the Eighth Circuit Court of Appeals entitled, Fadhily Mshihiri v. Eric H. Holder, Jr., illustrates my point.

Although I’m sure Mr. Mshihiri was ably represented on appeal, my guess is that he represented himself in the proceedings below.  (The filings are not publicly available.)

These cases are often complex and take years to resolve and this case is no exception.

Mshihiri, a native of Tanzania and came to the U.S. on a n F-1 student visa to attend the Minneapolis Community Technical College. That same year, he married a U.S. citizen, who filed a Petition for Alien Relative form (“Form I-130”), a precursor to obtaining a green card, but later withdrew it after admitting to the USCIS that her marriage with Mshihiri was a sham intended to procure immigration benefits for him. (Section 204 of the Immigration and Nationality Act provides for lifetime bar to any immigration benefit if there is a conclusive finding of marriage fraud.) They eventually divorced.

By August 2004, Mshihiri was no longer enrolled in college, which was a violation of his student visa. As a result, the Department of Homeland Security commenced removal proceedings, issuing a Notice to Appear in November 2004. Mshihiri later conceded removability. Mshihiri also filed applications for asylum, withholding of removal, and relief under the Convention Against Torture.

In December 2005, while removal proceedings were pending, Mshihiri married a different U.S. Citizen, who filed a new Form I-130, which was inexplicably approved by the USCIS despite the previous sham marriage determination.  (The appellate record is not clear if the new immigrant petition contained evidence of the good faith nature of the first marriage sufficient to overcome the previous finding of fraud). This new approval made Mshihiri eligible for a green card in Immigration Court. But what the court’s decision details next is a series of errors like Mshihiri’s failure to get fingerprinted and strategic missteps like his request for a continuance even though the Immigration Judge warned him that continuing the immigration proceedings would give the USCIS time to reopen and possibly withdraw the second form I-130 approval, and refusing to proceed with other bases for relief in immigration court.  At the end of the day, Mshihiri was ordered removed from the United States because his applications for asylum, withholding of removal, and relief under the Convention Against Torture were deemed abandoned and the USCIS in fact withdrew the I-130 approval based on the second marriage.

With this decision by a three-judge panel and authored by Judge Kelly, it appears, that Mshirhi’s more than a decade-long labyrinthine road has come to an end.

It is a particularly draconian result because Mshiri had a number of opportunities to obtain legal permanent residence status. But he is bound by the earlier decisions he made, ostensibly without the advice of counsel and it appears that he is out of options.

Starting with In re Gault, 387 U.S. 1 (1967) (juveniles in delinquency proceedings facing civil confinement), the United States Supreme Court has recognized that some types civil proceedings may require  government appointed counsel, although it has been retreating from that position ever since.  See Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental termination); Turner v. Rogers, 131 S. Ct. 2507 (2011) (civil contempt for failure to pay child support). A threshold question for the courts in these cases is not the possibility of incarceration as punishment but the complexity of the case.

Immigration law is notoriously complex—comparable to the tax code, as federal judges have often observed. Castro O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987). And the twin recognition of its complexity and the draconian nature of its consequences may give doctrinal birth to a constitutional right to counsel in immigration proceedings.

Of course, with the Supreme Court’s current makeup, that is not likely to happen anytime soon. So the lesson for immigrants is to proceed with caution. I have had many cases where my clients thought they could do it on their own, pulled a form from the internet and voila……parade of horribles. . . .


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