Immigrant Justice Clinic Argues Case Before Virginia Supreme Court

           Pictured: Prof. Rathod, Nadas, and Seguin.

The Immigrant Justice Clinic (IJC) at American University Washington College of Law argued a case in January before the Supreme Court of Virginia.

The clinic represented Michael Z., a lawful permanent resident who accepted a plea deal that rendered him deportable. The issue before the Court involved the legal standard that a court must apply in determining whether a non-citizen was prejudiced by a trial attorney’s representation. 

Third year student Rachel Nadas argued the case, which was co-supervised by Professors Jayesh Rathod and Jenny Roberts.

“Having the opportunity to present oral argument at the Supreme Court of Virginia was an incredible experience," said Nadas. "Although I was nervous to argue before seven justices, I’m really happy with how the argument went."

Taking on Michael's Case

The clinic took on representation of Michael in 2013, after receiving the case by referral from the Capital Area Immigrants’ Rights Coalition (CAIR Coalition). He has been a lawful permanent resident since the age of eight. He pleaded guilty to petit larceny with a 365-day suspended sentence, and that single conviction meant that Michael was classified as an aggravated felon for immigration law purposes.

Not only did being an aggravated felon render Michael deportable, it also barred him from seeking various forms of immigration relief.  His criminal defense attorney never informed him of the severe immigration consequences of pleading guilty. He only learned that this offense made him deportable months after accepting the guilty plea when he was picked up by Immigration and Customs Enforcement. At the conclusion of his immigration proceedings, Michael lost his status as a lawful permanent resident and was ordered deported. 

Michael has remained in the U.S. because he was granted withholding of removal, a temporary form of immigration relief that allows him to remain in the U.S. due to fear of persecution or death if returned to Ethiopia.  Hoping that Michael could receive a more permanent form of immigration relief, the Clinic pursued a habeas corpus petition to challenge Michael’s petit larceny conviction. 

Sofia Vivero’14 and Joe McGlew-Castañeda‘14, student attorneys in the Immigrant Justice Clinic in 2013-14, filed for a writ of habeas corpus with the county court.  They argued that Michael received ineffective assistance of counsel due to failure to provide advice about the deportation consequences of the guilty plea under Padilla v. Kentucky, a 2010 U.S. Supreme Court case that requires criminal defense attorneys to advise their clients about clear deportation and potential immigration consequences of their criminal convictions.  In Michael’s case, his defense attorney had failed to meet his obligations under Padilla. The Fairfax County Circuit Court denied the habeas petition and held that Michael had not met the prejudice prong of his claim, a requirement for an ineffective assistance of counsel claim.  The student attorneys filed a petition to appeal the case to the Supreme Court of Virginia, arguing that the Fairfax County Circuit Court applied the incorrect legal standard for showing prejudice. 

"I’m thrilled I was able to have this experience as a law student."

In September, the Supreme Court of Virginia agreed to take the full case on the merits.  IJC student attorneys in 2014-15, Alia Al-Khatib and Rachel Nadas, along with co-counsel Scott Seguin from Calderon Seguin, filed opening and reply briefs in the Supreme Court of Virginia on behalf of Michael. 

“While writing the brief, it became incredibly clear how unfair such a sentence was for Michael,” said Al-Khatib. “For a minor, non-violent offense, he faced being separated from his family and the country where he had lived almost his entire life.  I was glad that the Clinic took on this case and pursued the habeas petition.” 

Both Al-Khatib and Nadas say they enjoyed working on such an important and interesting case.

"I was extremely well prepared after being mooted by several AUWCL faculty members and practitioners," said Nadas. "I’m thrilled I was able to have this experience as a law student and proud that the Clinic has done everything possible to advocate for Michael.”  

The clinic co-counseled this case with Scott Seguin from the law firm Calderon Seguin.

Seguin said he is optimistic that the Virginia Supreme Court will issue a favorable opinion, which is expected sometime in February.

“It has been an absolute pleasure collaborating with the students at the Immigrant Justice Clinic on Michael’s case," said Seguin. "The students have brought great enthusiasm and worked tirelessly trying to overturn Michael’s conviction."

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