Many of ICE concentration camps are run by for-profit corporations, so clearly some people are making lots and lots of money off the booming business of keeping human beings in cages See; [Ray Downs]. Among these human beings, it is a former military service men Domingos Jose de Oliveira who served this country honorably and most unfortunate, his being detain at one of the Core civic concentration camps in Otay Mesa despite the prevailing circumstances that his case that form the basic for his detention is on direct appeal. The Board of Immigration Appeals and many Federal Courts have long required that for a criminal conviction to trigger the criminal provisions of the immigration laws, all direct criminal appeals of right must be exhausted or waived. Only then can a criminal conviction render an immigrant deportable subject to civil immigration detention, or barred from applying for relief from deportation or for lawful status. (Matter of Ulices MONTIEL) Consequently, the Immigration Court seeks to undermine this finality rule as Oliveira still face a prolong civil detention hence his conviction is under direct appeal.
Oliveira is a 53 years-old year native of Portugal who was admitted into the United States as an immigrant in New York City on or about or about December 18, 1972. He became a lawful permanent resident (LPR) on March 16, 1973. Oliveira’s siblings have lawful statues in the United States and his children are United States citizens. He also owned a property in Spring Valley which was paid off in 1999, however due to prolong “civil detention”, he was forced to sell his property. Oliveira served in the United States Army in the 1980’s. While in service in 1983, he filed an application to obtain citizenship, however, he was ordered to Germany three days later. Upon his return, he contacted the Immigration and Naturalization Service (INS) about the status of his application and was informed that his application had been lost. Due to lack of funds, Oliveira was unable to reapply for citizenship at that time.
On July 1, 2011 following a jury trial, Oliveira was convicted of violating California Penal Code section 653f, subdivision (b), and section 422, with an additional enhancement under section 422.75, subdivision(a). He was sentenced to seven years and four months in state prison. After the guilty verdict and again after sentencing on August 01, 2011 Oliveira reminded his Counsel before leaving the court room to file the appeal for his conviction, at this moment his Counsel had promised to see Oliveira in a holding cell for further discussion but failed to show-up. His Trial Counsel later communicated to Oliveira’s daughter that he was in the process of filling the appeal, but it could take as long as long as two years to be resolved. Oliveira relied upon his counsel’s representations, although his repeated attempts to contact trial counsel were unsuccessful. On September 22, 2014 Oliveira on his earliest possible released date was released from state prison and taken into Immigration and Customs Enforcement custody and later was transferred to CCA Otay Mesa Detention Facility in San Diego (Core Civics). At some point in January of 2015, Oliveira learned that his appeal had never been filed. His Trial Counsel had filed a notice of appeal in state court after statutory period of 60 days (CalRule31); however, it was rejected as untimely.
Since is a duty of the trial Court to afford every defendant in criminal case a fair and impartial trial is duty of the Court to correct matters by granting a new Trial transcends statutory limitations (People v. Oliver) (1975) Cal. App 3d 747, 751 (120 Cal. Rptr. 368] in Strickland v. Washington. 466 U. S. 668 (1994) the Supreme Court held that criminal defendants have a Sixth Amendment right to “reasonably effective “legal assistance, and announced a now-familiar test; A defendant claiming ineffective assistance of counsel must show (1) that counsel’s representation “fell below an objective standard of reasonableness,” and (2) that counsel’s deficient performance prejudiced. A Notice of Appeal is generally a one -sentence document stating that the defendant wishes to Appeal from the Judgment moreover filing such notice is a purely ministerial task that imposes no great burden on Counsel. As here, at no point did Oliveira’s Trial Counsel attempt to remedy his mistake or even inform him about the error, rendering these critical stages constitutionally inadequate, in violation of state and federal rights to the effective assistance of counsel, due process, and a fair trial. This error was fatal to Oliveira’s right to appeal. ‘Thus, the trial counsel failed to fulfill the constitutionally-imposed duty to consult with Oliveira about appeal.
Under California Rule of Court, the reviewing Court for good cause may relieve a party from a default occasioned by any failure to comply. Oliveira used due diligence to pursue his right for appeal to which the courts should evoke excusable neglect doctrine. Delay in filing this petition should be deemed timely filed under the theory of “constructive filing. The Court in Benoit; the doctrine of constructive filing based upon a promise or representation made by each defendant’s attorney that he would timely file a notice of appeal on his client’s behalf. (Benoit, supra, 10 Cal.3d at pp. 86-87, 109 Cal. Rptr. 785, 514 P.2d 97.) We relied in part upon the circumstance that the assurances had been made by the defendants’ trial counsel, noting that “the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him …” (Id. at p. 86, 109 Cal. Rptr. 785, 514 P.2d 97.) In contrast to this present case, Oliveira did seek and receive assurances from his original trial counsel that he would prepare or file his appeal. On December 23, 2017, Oliveira through his Immigration Counsel; Attorney Jamahl C. Kersey filed for constructive notice of appeal which was granted by San Diego Superior Court on January 12, 2017. Meaning that Oliveira case it is on direct appeal not to be confuse with collateral attack.
OLIVEIRA STILL UNLAWFULLY DETAIN.
The Court in a precedent decision, decided that when an immigration judge is deciding whether to deport someone based on a criminal conviction, deportation cannot occur unless and until the direct appeal of that conviction has been resolved. (Orabi vs. Attorney General). During a bail hearing held on April 10, 2017 Immigration Court did not base its decision on its finding that Oliveira have a pending direct appeal, but rather on its determination that a conviction is final for immigration purposes. See: transcripts;
[U]nder section 101(a) (48) (A) of the Immigration and Nationality Act, 8 U.S.C.§ 1101(a) (48) (A), the term “conviction” means “a formal judgment of guilt of the alien entered by a court, however in this particular case, a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. In emphasis, prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it was “well established that a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review of the conviction has been exhausted or waived. (In-re-Ozkok) see also Planes, 686 F.3d at 1037 (Reinhardt, J., dissenting from the denial of rehearing en banc) (citing “the longstanding rule that a conviction is not final for immigration purposes until the immigrant has exhausted or waived his direct appeal as of right”). The IIRIRA defined the term “conviction,” for purposes of immigration removal as: a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where . . . (I) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (II) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a) (48) (A). Thus, the IIRIRA‟s amendment, which focuses solely on the term “conviction,” sought to broaden the scope of that term, but in so doing, it did not refer to, amend, change, or even mention doing away with the need for appeal to acquire finality of judgment. Understandably, 1196 Section 322 as recalled in the Conference Committee Report of the House of Representatives, addressed only adjudications that were “deferred” (a product of numerous state procedures) and instances in which the subject alien has violated a term or condition of probation. (104 Congress). The 1996 IIRIRA amendment was designed to correct a myriad of provisions for ameliorating the effects of a conviction” by giving effect to the “original finding or confession of guilt . . . to establish a conviction for purposes of the immigration laws. Moreover, the Court in Orabi did not agree that the IIRIRA eliminated a direct appeal from the finality rule in its definition of conviction.
While Congress “adopted almost verbatim” this definition of “conviction” in the IIRIRA, the statute explicitly eliminated the finality requirement for deferred adjudications. See 8 U.S.C. § 1101(a) (48) (A). That is, “for immigration purposes, a deferred adjudication [as distinct from a pending direct appeal] would be considered a conviction if three elements were met, the third of which consisted of a finality requirement.” Planes, 686 F.3d at 1040. Nothing in IIRIRA or its legislative history suggests that Congress intended the phrase “formal judgment of guilt” to be interpreted any differently from how it always had been interpreted prior to the enactment of the statute. . .. The elimination of the finality provision for deferred adjudications, along with the failure to make any change in the language regarding direct appeals as of right . . . demonstrates Congress‟ intent to retain the finality rule for the latter category of appeals. 686 F.3d at 1039-40 (Reinhardt, J., dissenting from the denial of rehearing en banc); (Reinhardt, J., dissenting from the denial of rehearing en banc) (emphasis added).
Given that Oliveira’s s appeal was one of right and that no deferred adjudication is at issue here, IIRIRA‟s elimination of the finality requirement in the case of deferred adjudications does not disturb the longstanding finality rule for direct appeals recognized in Ozkok. INS section 1228(c)(3)(A)(iii) (providing that before a district court may enter a judicial order of removal at the time of sentencing against an alien who is deportable, there must be a valid waiver of the right to appeal, the expiration of the period to file a petition for review, or the final dismissal of an appeal from such a conviction); The Court in precedent decision, Orabi v. Attorney General of the United States 738 F.3d 535 (2014) decided that when an immigration judge is deciding whether to deport someone based on a criminal conviction, deportation cannot occur unless and until the direct appeal of that conviction has been resolved. It is within our fundamental right to assert that due process guarantee of fundamental fairness derives from belief of uniform Federal Law and that Justice cannot be equal simply as result of Respondents Jurisdiction. Accordingly based on above contents of transcript, Immigration Judge decision should be reversed with instructions that the Government release Oliveira, particularly were public interest is implicated.
Credit: to Attorney Jamahl C. Kersey
No. Cal. Rules of Court, Rule 31 (a). n.d.
104 Congress. “H.R. Conf. Rep. No.828.” WL 563320 at 496-97. 1996.
In-re-Ozkok. No. 19 I&N. Dec.546,552 n.3. BIA. 1988.
Matter of Ulices MONTIEL. No. 26 I&N Dec. 555(BIA 2015). Board of Immigration Appeal. 17 04 2015.
Orabi vs. Attorney General. No. 738 F.3d 535. 3rd Circuit. January 2014.