Arbitrary Arbiters: Evaluating the Right to Be Informed of Eligibility for Discretionary Relief in Removal Proceedings

TLDR: In a subsequent appeal, Estrada argued that the failure of his attorneys to inform him of his possible relief under section 212(h) violated his Fifth Amendment due-process rights.

Abstract: In 2007, Emilio Estrada, a lawful permanent resident, “pleaded guilty to possession of a firearm by an unlawful user of a controlled substance.” He was subsequently placed in removal proceedings and deported. While it was possible that Mr. Estrada had an avenue of relief from deportation under section 212(h) of the Immigration and Nationality Act, he was never informed of this possibility—either by the immigration judge (IJ) or his attorneys—despite the fact that the IJ is obligated under federal regulations to “inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter,” including “[r]elief from removal.” In a subsequent appeal, Mr. Estrada argued that the failure of his attorneys to inform him of his possible relief under section 212(h) violated his Fifth Amendment due-process rights. To succeed, Mr. Estrada had to show that his deportation proceeding was “fundamentally unfair,” or, in other words, he had to “show both a due process violation emanating from defects in the underlying deportation proceeding and resulting prejudice.” Further, to find a due-process violation, Mr. Estrada would