Safe Havens

Professor Amsterdam’s advice to post-conviction counsel on how to win cases before judges who are “ill-disposed to criminal convicts and their claims” is also useful in the deportation-defense context.[7]  As in criminal court, immigration practitioners face many “judges who are powerfully motivated to avoid making rulings that they see as paving the way to relief for any large number of convicts.”[8]  Professor Amsterdam therefore concludes that “winning a . . . case . . . has become in no small part a matter of developing a bolt-hole theory of the case: a narrow argument through which your individual client can be slipped away to freedom, with a door somewhere in the passageway that can be slammed shut in the faces of all other prisoners seeking to follow. . . .  Unless the judge is satisfied that s/he can give relief in this case with no (or very little) prospect that other accused or convicted persons will escape punishment, the judge will simply not rule your way.”[9]

            One way to do this is to couple two different arguments together.  For example, counsel can couple an argument relating to the documents that form part of the record of conviction with an argument on the substance of the ground of deportation, in such a way that is rare to encounter the combination of the two arguments together in the same case, and the court can grant relief in the present case without opening the door to many others.  Another way is to frame the case to emphasize the fact that there are so many jurisdictions, different criminal statutes, and different grounds of deportation, each informed by an individual record of conviction, and that emphasizes the individual facets of each of these factors to come up with what is very plausibly a unique situation. 

            Unique facets of a case are therefore very valuable in persuading a court that a favorable ruling here will apply to virtually no one else.  For example, look for oddities in the charging paper to which a plea was entered.  In one case, the charge alleged the defendant had been “under the influence of *, a controlled substance.”  The prosecutor’s typist had failed to fill in the blank in the complaint form with the name of the particular drug, and had left an * instead.  This oddity was valuable in convincing the court to grant relief, since this type of error is very rare and there was no chance of a broadly applicable precedent emerging from the case.

[7] Anthony G. Amsterdam, Foreword, R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure v, viii (4th ed. 2001).

[8] Id. at ix. 

[9] Id. at ix-x (footnote omitted, emphasis in original).