McDermott’s advocacy on behalf of both Mr. Madrigal-Barcenas and Mr. Mellouli has significantly advanced the due process protections for immigrants facing deportation or removal proceedings following very minor convictions under state law.
Mr. Madrigal-Barcenas, a 35-year-old citizen of Mexico, has lived as an immigrant in the United States for over fifteen years. He supports his four young children (three of whom are U.S. citizens), his father (a U.S. citizen), and his mother (a legal permanent resident). During his first ten years in the United States, Mr. Madrigal-Barcenas remained free of any criminal convictions or arrests. But in January 2008, Mr. Madrigal-Barcenas was arrested and pleaded guilty to possession of drug paraphernalia, a misdemeanor under Nevada law. The “drug paraphernalia” Mr. Madrigal-Barcenas was charged with possessing was a glass pipe with “burnt residue,” but the charge and conviction did not specifically identify a controlled substance.
As a result of his conviction, the government initiated removal proceedings in an effort to send Mr. Madrigal-Barcenas back to Mexico. Mr. Madrigal-Barcenas fought to cancel the removal proceedings on the basis that his absence would cause hardship to his four young children and his aging parents. The government, however, argued that Mr. Madrigal-Barcenas’ misdemeanor drug paraphernalia conviction rendered him ineligible to seek cancellation of removal. The assigned Immigration Judge (IJ) agreed with the government, and the Board of Immigration Appeals (BIA) subsequently affirmed the IJ’s finding. When Mr. Madrigal-Barcenas initiated proceedings pro per in the Ninth Circuit Court of Appeals, McDermott was asked to handle the appeal through the court’s pro bono program.
After briefing and argument, the Ninth Circuit affirmed the BIA’s decision and concluded that Mr. Madrigal-Barcenas was ineligible for cancellation of removal. McDermott then filed a petition for writ of certiorari before the U.S. Supreme Court, arguing that under the plain text of Section 1182 of the Immigration and Nationality Act (INA), a drug paraphernalia conviction does not render a noncitizen ineligible for cancellation of removal unless it explicitly relates to a controlled substance listed in the federal Controlled Substances Act (CSA) – which Mr. Madrigal-Barcenas’ did not.
After McDermott filed its petition, the U.S. Supreme Court granted certiorari in Mellouli, an Eighth Circuit case that presented a similar statutory interpretation question under Section 1182, and held Madrigal in abeyance. Armed with the background legal research from the Madrigal case, McDermott’s pro bono team then filed an amicus brief in support of Mr. Mellouli as counsel for Heartland Alliance’s National Immigrant Justice Center (NIJC) and American Immigration Lawyers Association (AILA).
On June 1, 2015, the U.S. Supreme Court held, consistent with McDermott's argument, that "to trigger removal under [the INA], the Government must connect an element of the alien's conviction to a drug defined in [the CSA]." (Slip. Op. at 14.) In its opinion, the Court favorably cited the amicus brief McDermott filed on behalf of NIJC and AILA, which noted the differences in drug paraphernalia criminalization statutes on a state-by-state basis.
A week later, the Court granted certiorari in Mr. Madrigal-Barcenas’ case, vacating the Ninth Circuit’s decision and remanding with instructions to consider the decision in Mellouli. The McDermott team will now return to the Ninth Circuit and seek to persuade that court that Mr. Madrigal-Barcenas should be permitted to remain with his family in the United States. “We are pleased with the results in both Mellouli and Madrigal-Barcenas, and honored to have been a part of advancing the law in this area,” said Los Angeles partner Jon Dean. “We hope that Mr. Madrigal-Barcenas’s legal fight will soon come to a close, and he can resume his focus on supporting his family.”
About McDermott’s Commitment to Pro Bono Work
McDermott Will & Emery recognizes and appreciates the need to give back to the communities of which it is a part and to assist those who are unable to afford legal services. The Firm offers a comprehensive pro bono and community service program managed and led by its full-time pro bono counsel and the chair of our Pro Bono & Community Service Committee, which seeks to ensure that the same standards of quality, service and care that McDermott gives to its paying clients are also afforded to those it serves on a pro bono basis. The Firm strongly encourages its lawyers and staff to participate in pro bono initiatives, volunteer services and charitable activities, and it recognizes lawyer time dedicated to pro bono and community service as equivalent to billable hours for all purposes. For more about McDermott’s commitment to social responsibility, click here.
About McDermott Will & Emery
McDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Rome, Seoul, Silicon Valley and Washington, D.C. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai.