For the second time this spring, a federal court has advanced the principle of effective assistance of counsel in deportation proceedings. Second Circuit Judge Robert Katzmann’s opinion in Cerna v. United States , finding a potential due process violation in a lawyer’s lax conduct, comes just four weeks after the U.S. Supreme Court, in Padilla v. United States, reversed a criminal conviction, noting the lawyer’s neglect and emphasizing the “severity of deportation” — “the equivalent of banishment or exile.”
Ten-year-old Jose Cerna arrived from El Salvador in 1983. He became a permanent resident alien but ran afoul of the drug laws early and repeatedly. But he was a sympathetic enough character that in 1996 an immigration judge found that although Cerna’s deportability had been established by clear and convincing evidence, Cerna was nonetheless eligible for relief from deportation in the form of a waiver of inadmissibility. His lawyer asked for 45 days to file the necessary administrative appeal. She never did and she never told her client. The removal order, unknown to her client, therefore became effective.
