IMMIGRATION POLICY - Book of Interest

Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today. April, 2008, ISBN: 978-0-231-14129-1, For additional information, Columbia University Press.

PRISONS: Second Outbreak of Violence in Fed Prison

On March 28, 2008 one inmate was stabbed to death and 22 other inmates were injured at Three Rivers FCI south of San Anotnio. There was a report of other violence about two weeks ago at FDC Houston. In spite of the fact that a death occurred and so many inmates were injured, the BOP website has no information about the incident or current conditions at FCI Three Rivers.

The media portrays two separate events of prison violence in Texas as related to rivalries between Mexican and Mexican-American gangs. Link to New York Times article.

"In Houston, a gang-related brawl on March 11 involved up to 80 prisoners, injuring 9 inmates and 3 employees.Investigators said they had no evidence that the two incidents were related beyond antagonisms between powerful Mexican and Texas prison gangs. But the investigators were checking a report that the fights at Three Rivers were retaliation for an attack in California by a gang called Pisa against another called the Mexican Mafia."(NYT March 29, 2008.)

5TH AMENDMENT: Statements while in custody of foreign law enforcement

The Court in USA v Mendez-Mesquita, 2008 U.S. Dist. LEXIS 23586, the trial court denied the defendant's Motion to Suppress statements given to Paraguayan and US law enforcement. The Court ultimately ruled that the Paraguayan arrest and events thereafter were solely a Paraguayan operation. Defendant later agreed to speak to an American DEA agent.

Even a partial statement of the facts suggest a coercive environment, although ultimately rejected by the Court.

"The SENAD (Paraguayan law enforcement) surveillance consisted of a land team and an air team. The teams had prior information that a plane would be landing with a large cargo of cocaine. As soon as the landing team saw the plane approach the air strip, it contacted the helicopter team located not far away. Before the helicopter team arrived, the land team identified themselves as police to those involved in the cocaine delivery. A gun fight immediately broke out. One of the SENAD Special Agents was shot in the forehead. One of the Defendant's men was wounded and eventually died at the scene. Eight men were arrested, including the Defendant Mendes-Mesquita.

Shortly after the gun battle ended, the helicopter landed at the southern end of the airstrip. The helicopter contained eight individuals including the prosecutor in the case representing the Public Ministry. The Prosecutor spoke to the people who had been arrested by the members of the land team, identified himself, read them the Judge's order authorizing their arrest, and read them their legal rights under Paraguayan law. Defendant Mendes-Mesquita was sitting, hand-cuffed, looking down and crying. The Prosecutor calmed him down and then learned the reason for his crying was that the person killed in the gun fire was his brother-in-law and close friend. Although upset about his brother-in-law's death, the Defendant was lucid and had no wounds."

"One of the SENAD Special Agents at the scene, a member of the landing team, was Special Agent Luis Alberto Rojas, who was the coordinator of the air team. Upon arrival at the scene, Special Agent Rojas apparently recognized the Defendant and said "it's been a long time." The Defendant cried out in pain and told Special Agent Rojas that he had been assaulted. Special Agent Rojas promised the Defendant he would ensure his safety. However, the Defendant was assaulted again by the same person. That individual was a member of the Military Special Forces who had lost control of himself because of the wounding of one of his men. At that point, Special Agent Rojas ordered the attacker not to come near the Defendant, apologized to him for the attacks, moved him to a shady area, and stationed one or two men to protect the Defendant."


"Twenty minutes after the plane took off, Special Agent Dodd read the Defendant his Miranda rights. The Defendant was calm, did not appear to be under the influence of any illegal substance, and seemed to be in "good shape." Special Agent Dodd went through the Miranda rights, contained on Government Exhibit 4, reading them line by line in Spanish to the Defendant. At first, the Defendant was reluctant to sign the waiver of those rights. Special Agent Dodd explained that he needed to sign the waiver before Special Agent Dodd could talk to him about the drug transactions. Defendant Mendes-Mesquita then signed the waiver."

"Their conversation lasted only about 10 minutes, from 8:40 to 8:50 a.m. Special Agent Dodd was trying to enlist the Defendant's cooperation, in particular against Defendant Jose Maria Corredor-Ibague, aka "Chepe." The Defendant claimed that he was an enemy of Chepe, but vigorously denied that Chepe had been involved in the drug transactions of November 24, 2004. The Defendant admitted that he got cocaine from Colombia and sent it to Brazil, but denied sending it to the United States. When Special Agent Dodd said words to the effect that "I guess it doesn't matter to you whether they send it to Europe or the United States, so long as you get paid," the Defendant indicated that he did not wish to talk any further about the case. At that point, Special Agent Dodd ceased all questioning.

At about 1:00 p.m., the Defendant reopened the conversation about the case, denying again that Chepe was involved. 4 Special Agent Dodd asked the Defendant if he wanted to hear a tape recording of a telephone call which he had on his laptop computer. The Defendant assented and Dodd played a one to one .and a half minute telephone conversation between two men. The Defendant admitted that he was one of the people on that telephone call, but said words to the effect of "I don't know that that was Chepe I was talking to."

Special Agent Dodd testified credibly that the operation of November 24, 2004 was solely a Paraguayan effort and that the DEA did not even learn of it until after the Defendant's arrest. He did acknowledge that DEA shared information with the Paraguayan SENAD and cooperated with it, as it did with many other foreign governments' drug enforcement entities.
.....

The Court concludes that the Motion to Suppress the statements given by the Defendant to Special Agents Luis Alberto Rojas should be denied. As indicated in the facts set forth above, there is absolutely no indication whatsoever that the Defendant's statements were not given voluntarily. Even though the Defendant had been assaulted by one of the SENAD agents, it was Special Agent Rojas who stationed another special agent to protect the Defendant, who moved him to a more comfortable place in the shade, and who retrieved his medication and gave it to the Defendant.

"The law is settled that statements taken by foreign police in the absence of Miranda warnings are admissible if voluntary." United States v. Yusef, 327 F.3d 56, 145 (2d Cir. 2003). .....In this case, the facts do not reveal any prolonged or serious physical abuse, nor do they reveal coercion of any kind, much less pressure to extract a statement from the Defendant. In short, there is simply no evidence that the Defendant's statements to Special Agent Rojas were anything but voluntary."

DEPORTED IMMIGRANTS: Making a Home in an Unfamiliar Homeland, on NPR

Listen to Roeum Om, a young Cambodian, who was raised in the United States and then deported to Cambodia, where he knew no one. His mother still lives in the United States. NPR Morning Edition, March 27, 2008.

It is likely that Mr. Om was convicted of an aggravated felony. Immigration laws generally do not allow for relief from removal or deportation for immigrants convicted of aggravated felonies, even for the children of refugees who have lived almost their entire adult life in the United States.

VIENNA CONVENTION: More on Medellin

Here's language from the majority opinion clarifying what the decision is not about:

(footnote 4)

"The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U. N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself “self-executing” or whether it grants Medellín individually enforceable rights. See Reply Brief for Petitioner 5 (disclaiming reliance on the Vienna Convention). As in Sanchez- Llamas, 548 U. S., at 342–343, we thus assume, without deciding, that Article 36 grants foreign nationals “an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.”


Link to the analysis of expert Mark Warren, March 26, 2008.
"Medellin v. Texas: state law trumps treaty obligations... unless Congress acts"

IRAQI-AMERICAN CHARGED: Funding of Congressional Trip

The New York Times reports that the defendant is identified in the Indictment as a naturalized American citizen.

The defendant is Muthanna Al-Hanooti, who some consider a respected Iraqi-American activist, a leader and uniter trying to bridge the gap between the United States and the Middle East." Link to article in Detroit Free Press.

The Indictment alleges two counts of conspiracy and three counts of lying to the FBI about working for agents with the Iraqi Intelligence Service, the spy agency under Hussein's regime.

The allegations are that, "In September 2002, Al-Hanooti helped broker a fact-finding trip by Bonior and two other congressmen to Iraq. The Democratic representatives said the trip was a way to learn more about the Iraqi people. But Hussein's agents paid $34,000 for the trip's expenses, the indictment said. And the money went to a Southfield charity Al-Hanooti helped lead."

"Al-Hanooti, 48, was arrested Tuesday at Detroit Metro Airport after returning from a trip to the Middle East. Al-Hanooti received 2 million barrels of oil for his work, according to the indictment. The indictment does not name the congressmen, but Bonior and a spokesman for U.S. Rep. Jim McDermott, D-Wash., said Wednesday that it probably refers to their September 2002 trip with Rep. Mike Thompson, D-Calif., which they said was a mission to discover the condition of Iraqis under economic sanctions. All three were critics of the Iraq war, and after they returned from the trip, they voted against authorizing the use of force."

IMMIGRATION: Problems with VideoConferenced Removal Hearings

Videoconferencing in Removal Proceedings: A Case Study of the Chicago Immigration Court, August 2, 2005, may also be of interest for purposes other than considering the due process implications of video conferenced removal hearings; for example, the use of video conferencing to arraign or conduct bail hearings of criminal defendants who require interpreters; to conduct a video conferenced attorney-client interview with an interpreter.

VIENNA CONVENTION: US Supreme Court denies Relief

In Medellin v. Texas, the United States Supreme Court (March 25, 2008) upheld the dismissal of a habeas petition on behalf of a Mexican National, on the basis that the Petitioner had not been informed of his Vienna Covention right to notify the Mexican Consulate. Link to opinion.

In the Case Concerning Avena and Other Mexican Nationals (Mex. v.
U. S.), 2004 I. C. J. 12 (Avena), the International Court of Justice(ICJ) held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U. S. state-court convictions and sentences regardless of their failure to comply with generally applicable staterules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U. S. 331—issued after Avena but involving individuals who were not named in the Avena judgment—this Court held, contrary to the ICJ’s determination, that the Convention did not preclude the application of state default rules. The President then issued a memorandum (President’s Memorandum or Memorandum) stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.”

Relying on Avena and the President’s Memorandum, Medellín filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medellín’s application as anabuse of the writ, concluding that neither Avena nor the President’s Memorandum was binding federal law that could displace the State’s limitations on filing successive habeas applications.

Held: Neither Avena nor the President’s Memorandum constitutes directly
enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Pp. 8–37.

DRUG COURIER: Jury entitled to reject defendant's testimony

The First Circuit affirmed the conviction of a defendant Justina Ayala-Tapia who had traveled by overnight ferry from the Dominican Republic to Puerto Rico, arriving at the Mayaguez port on February 1, 2006. Customs officials searched her luggage after an x-ray scan raised their suspicions; they discovered four heavily wrapped packages which, according to a field test and a drug-sniffing dog, contained narcotics. Later testing confirmed the presence of approximately 3.5 kilograms of heroin. At trial a DEA agent testified regarding the street value of the drugs. She testified that she understood the packages to contain either coffee or four. The jury convicted the defendant and she was later denied the safety valve by the sentencing judge. United States v Ayala-Tapia, (1st Cir. March 19, 2008)

As is common in drug courier prosecutions, there was no direct evidence of what Ayala knew; whether the jury could reasonably infer knowledge depends, as common sense would suggest, on the surrounding facts and circumstances.

The government points to a number of factors that make the finding of guilty knowledge plausible in this case. As the government expert testified at trial, the drugs had a very substantial street value--approximately $300,000--and drug suppliers might be unwilling to entrust such valuable cargo to an ignorant courier, fearing that she might be insufficiently motivated to ensure that it safely reaches its destination. We have acknowledged that this is a reasonable inference. United States v. Thomas, 467 F.3d 49, 54 (1st Cir. 2006) (smugglers opt "for trusted and close associates . . . who are aware of the high stakes"), cert. denied, 127 S. Ct. 1850 (2007); see also United States v. Rodriguez, 192 F.3d 946, 950 (10th Cir. 1999) (collecting cases).

The opposite inference is also possible, see United States v.Del Aguila-Reyes, 722 F.2d 155, 158 (5th Cir. 1983) (Rubin, J.,dissenting) (noting that "dupes who are unaware that they carry valuable cargo are less likely to steal it"); but the jury has leeway in considering which inference is more persuasive on givenfacts.

Ayala acknowledged placing the packages in her luggage; this is not a case of a hidden compartment or the professed surprise discovery of items packed by another. See United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990). The heavy wrapping made it impossible to tell what was inside, but that could easily cut against Ayala's story in the jury's mind; why would flour or coffee be packaged in such a strange fashion? Here, it is the circumstances of this case that work against the defendant.
Further, Ayala testified at trial; and "the jury is permitted to draw an inference of guilt from a deliberate false alibi." United States v. Llinas, 373 F.3d 26, 37 (1st Cir. 2004) (concurring opinion). The prosecutor's cross examination gave the jury a series of reasons to believe that Ayala was lying:
● she had never met Miguel before but planned to meet him outside the port and accept a ride to San Juan;
● she did not know Miguel's last name or phone number, or Ivelisse's phone number;
● she initially claimed to have told the customs officials that the packages contained coffee, but later admitted that she had told them it was flour for baking cakes; and
● her explanation for her roundabout route between the Dominican Republic and New York was attacked as implausible for a variety of reasons.
The jury might also have been skeptical that anyone would bother to transport a few kilograms of coffee or flour to Puerto Rico, especially in light of that island's own famous, historic coffee industry. The jury is entitled to evaluate the witnesses, including Ayala, and could fairly have concluded that she lacked credibility. From that determination, especially in combination with the circumstantial evidence described above, an inference of guilt and a conviction may follow.

IMMIGRATION: Agent alleged to have coerced sex from LPR applicant

The New York Times today reports that a young woman from Colombia was coerced by an Immigration examiner, and finding no way to make a confidential complaint to the agency, went to the New York Times. For additional information, link to article.

So instead of calling the police, she turned on the video recorder in her cellphone, put the phone in her purse and walked to meet the agent. Two family members said they watched anxiously from their parked car as she disappeared behind the tinted windows of his red Lexus.

“We were worried that the guy would take off, take her away and do something to her,” the woman’s widowed sister-in-law said in Spanish.

As the recorder captured the agent’s words and a lilting Guyanese accent, he laid out his terms in an easy, almost paternal style. He would not ask too much, he said: sex “once or twice,” visits to his home in the Bronx, perhaps a link to other Colombians who needed his help with their immigration problems.

The article discusses the concern that immigrants are vulnerable to such threats and coercion, because of the power that examiners have over the adjudication of applications.

FOURTH AMENDMENT: Dishonesty about immigration status does not equal reasonable suspicion

Great new case from the Sixth Circuit reversing the denial of a Motion to Suppress, based on defendant having been less than candid about his immigration status. United States v Urrieta (6th Cir. 2008)

Excerpts:

"Jose Eduardo Urrieta appeals the district court’s denial of his motion to suppress evidence. During a routine traffic stop, Deputy Sheriff Lee Young detained Urrieta beyond the time reasonably necessary to issue a citation, primarily because the officer mistakenly believed that Urrieta was not allowed to drive in Tennessee with a Mexican driver’s license. Deputy Young claims that, during the course of the traffic stop, he became suspicious that Urrieta was transporting drugs. Eventually Urrieta gave Deputy Young written consent to search his vehicle. The deputy discovered no drugs, but found three handguns and several fraudulent identification cards. Finding that Deputy Young had a reasonable suspicion to extend the detention and that Urrieta’s consent was voluntary, the district court denied Urrieta’s motion to suppress."

"Finally, the government argues that although the above profile-related factors may not in and of themselves have supported Urrieta’s continued detention, they provided Deputy Young with a reasonable suspicion to detain Urrieta for further questioning when considered in the context of Urrieta’s dishonesty about his immigration status. At the heart of the government’s argument is the assertion that Urrieta might have been engaged in drug running because he lied to Deputy Young about his legal status in the country. Or, as the district court put it, Urrieta’s “general dishonesty” about his immigration status provided Deputy Young with a reasonable suspicion that “something else” illegal was going on in Urrieta’s car.

In 2006, however, as many as 12 million people in the United States lacked legal immigration status, 6.2 million of whom were from Mexico. See Pew Hispanic Center, The Size and Characteristics of the Unauthorized Migrant Population in the U.S., at 2 (March 7, 2006), available at http://pewhispanic.org/files/reports/61.pdf. Although false or evasive statements to a law enforcement officer might indicate criminal activity, see United States v. $67,220 in U.S. Currency, 957 F.2d 280, 286 (6th Cir. 1992), the fact is that very few undocumented immigrants are likely to
admit to law enforcement that they are in the country illegally. The government’s reasoning that dishonesty about one’s immigration status suggests drug running, therefore, opens the door to allowing millions of undocumented immigrants to be detained for further questioning on that basis. To hold that one’s illegal presence in this county is a sign of anything more than an immigration violation stretches the Fourth Amendment much too far.
Deputy Young’s testimony at the suppression hearing provides further confirmation that he was relying on an impermissible, ill-defined hunch that Urrieta, as a presumptively undocumented immigrant from Mexico, was likely to be transporting drugs. The Fourth Amendment prohibits detention based on an “inchoate and unparticularized suspicion or ‘hunch,’” and instead requires law enforcement to provide “specific and articulable facts” showing that a crime has occurred. Terry v. Ohio, 392 U.S. 1, 21, 27, 30 (1968). Yet Deputy Young explained at the suppression hearing that he knew that Urrieta was “up to something” illegal in the same way as “when I walk in the house and I look at my little boy, I know whether he has done something wrong.” The district court dismissed the officer’s statement as irrelevant to the reasonable-suspicion calculation. To the contrary, however, we find Deputy Young’s statement to be quite revealing as the very definition of a “hunch,” which strongly suggests that he lacked a reasonable suspicion that Urrieta was a drug courier. See id. at 27. The Fourth Amendment simply does not allow a detention based on an officer’s ‘gut feeling’ that a suspect is up to no good."

INTERPRETER- Inability to Locate Interpreter - Dismissal reversed

Maryland's highest appeals court reversed the dismissal of a sex abuse charges against defendant Mahamu Kanneh, which had previously been granted, due to an inability to locate an interpreter in the defendant's language of Vai.

"This case arises from a criminal proceeding in which Mahamu Kanneh was charged with sexual abuse of a minor and related offenses. Although Kanneh was arrested on August 18, 2004, his trial was repeatedly postponed for different reasons, mainly the time it took to process the DNA evidence, and the inability to secure a qualified interpreter in Kanneh's native language of Vai. Finally, on July 17, 2007, the court dismissed the case on the grounds that Kanneh's right to a speedy trial had been violated. The State appealed to the Court of Special Appeals, and before the intermediate appellate court could hear the case, we granted certiorari."

Link to Opinion.

Editor: Obviously the government and Court's interest in this case must be due to the nature of the charges and public complaints about the dismissal. CNN's Anderson Cooper reported on the case, with claims that the defendant in fact spoke English. Certainly the negative publicity about the dismissal, with the idea that the defendant "may have pulled a fast one", may have motivated the Court for a expeditious review of the case.

According to Anderson Cooper,"The more we investigated, however, the stranger it got. And the more details you hear tonight, the madder you will likely get. "

Cooper reported that Kanneh had graduated from high school in Maryland, and considered this as evidence that he had sufficient English language proficiency. Cooper also claims that they located an interpreter because someone living in the area, a fellow immigrant, said he would be happy to interpret.

Without having access to the complete record in this case, it is not possible to draw any conclusion as to whether either the defendant clearly required an interpreter in order to face such serious charges, and/or whether it had not been possible to find a qualified interpreter. At the end of the day, the erroneous idea that a defendant who has some English language proficiency is "faking it", when he/she claims to need an interpreter, or when counsel concludes that due process so requires, defense counsel must be prepared to face such skepticism.

Defense counsel should also be prepared for the use of annectodal evidence proffered by the government to rebut the claim of need for an interpreter, for example, neighbors, former girlfriends or boyfriends, etc. to say that they were able to converse with the defendant. Obviously some but limited proficiency is not necessarily sufficient for the demands of the courtroom.

CULTURAL DEFENSES: Makah tribal members face criminal charges

The Seattle PI reports that five Makah members face criminal charges in US District Court Tacoma for killing a gray whale on Sept.8, 2007. Link to article.

"At the time of the rogue hunt, the tribe was working to solidify its status as a whaling tribe. In Congress, an exemption to the Marine Mammal Protection Act that would allow whale hunts without so much red tape was in the works. And the National Marine Fisheries Service was making progress toward issuing a permit for the next hunt. But Johnson, the whaling captain, and his crew finally lost patience."

The article also reports, "Defense attorney Jack Fiander, a member of the Yakama Indian Nation, has sought to dismiss the charges on a variety of grounds revolving around the supremacy of the Makah treaty over federal laws. 'The case has politics all around the fringes of it,' he said. 'You are dealing with the political issue of what balance the government should reach in terms of upholding treaties and enforcing regular laws.This was a protest hunt,' Fiander added. 'It was civil disobedience.'"

The website Makah.com includes a history of the whaling tradition, as well as a Q&A on the "Makah Indians and Whaling".

IMMIGRATION: Cuban nationals and Repatriation

The Editor asked immigration attorney Sophie Feal*,

Q: "What is the status of Cuban nationals, and is it true that even Cubans convicted and ordered deported cannot be repatriated to Cuba?"

Ms. Feal writes,
A: "It is commonly believed that a Cuban can never be removed from the United States given the historical lack of diplomatic relations between the two countries. Even my Cuban clients over the years have told me this with absolute certainty. However, it is not entirely true, and immigration attorneys should be aware that some Cubans have been repatriated over the years. While most of those who are returned to Cuba appear to be individuals with criminal convictions who arrived in the U.S. as part of the 1980 Mariel boatlift, the fact that some Cubans have been successfully repatriated in the past, and more may be in the future, should at least be in the back of an advocate's mind when counseling a Cuban national on his/her legal options in a criminal case or removal proceedings. The possibility of repatriation should be considered when advising a Cuban in a criminal case or during removal proceedings on eligibility for relief.

It may not be in the best interest of a Cuban client to plead guilty to a criminal charge, resulting in rendering the client subject to removal as an aggravated felon, or quickly accept a removal order from the Immigration Court in the hope that s/he will be freed from immigration custody 90 days after the final removal order pursuant to a post-order custody review by Immigration and Customs Enforcement (ICE), or in 180 days pursuant to the U.S. Supreme Court's 2001 holding in Zadvydas v. Davis. Although a removal order is generally what most detained Cubans in removal proceedings want to obtain immediately in order to gain their freedom, s/he may be better off, for example, attempting to file for asylum, withholding of removal or U.N. Torture Convention relief. After all, most U.S. immigration judges are still receptive to a Cuban's fear of persecution. This may not always be the case as the regime in Cuba undergoes changes. “

Q: What is the history of Cuban repatriation?

A: “The history of Cuban repatriation began in 1984 when the Cuban government accepted to take back some 2000 "Marielitos" when they were ordered deported on account of criminal offenses. A list with the names of those who would be removed was created. According to press accounts, the seriousness of the criminal offense appeared to make little, or no, difference. Some critics of the program argued that some of the Cubans who were repatriated in the mid-1980's were actually convicted of minor crimes. It's hard to know for certain since the repatriation list is so secretive.

Q: What happens to Cuban nationals who have been repatriated?

A: " I'm not aware that any organization tracks what happens to the repatriated Cubans to determine why they were deported from the U.S. or whether they are persecuted when they return to their homeland. Of the 125,000 Cubans who made up the Mariel boatlift, there were individuals from Cuban prisons and psychiatric centers. It would be interesting to know if among those who were repatriated, there are some who were put back into prison in Cuba to finish their sentences, or placed in custody as a matter of precaution given a criminal history, the way we know that U.S. "criminal deportees" are imprisoned without charged when they are returned to Haiti. I would also point out, however, that the Cuban repatriation seems to include people who are inadmissible to the United States for medical reasons, including those who are HIV positive.”

“After that initial agreement in 1984, Cuba declined to repatriate any more of its nationals except once in 1987, which led to riots among detainees held in prisons in Louisiana and Atlanta. Then in 1993, the Clinton Administration, in secret talks with the government of Fidel Castro, agreed to repatriate more Cubans who had been ordered deported from the United States. By the time of the 1993 agreement, there were 1,500 names on the repatriation list according to the New York Times (September 30, 1993).

Most on the list do not know they are named and repatriation occurs quietly. Over the years since the last agreement was reached, I have personally heard from ICE officials that up to 300 Cubans per year have been sent back to their native land in a particular year. The New York Times reported that the former Immigration and Naturalization Service (INS) had planned to repatriate 50 Cubans every month during a two and half year period beginning in late 1993. In a 2005 article on Havanajournal.com, an ICE official specified that 1700 Cubans had been deported over the years, and that 1000 names remain on the repatriation list. In 2004, 60 Cubans were returned to the island.”

Q: Are there any new developments that practitioners should be aware of?

A: “ We are now hearing from immigration advocates that yet another group of Cubans may be repatriated in the near future. It is rumored that most of these individuals are currently free from immigration custody on orders of supervision, but they will be detained for removal when they next report to their deportation officers as required by the order of supervision."

Q: What resources are available to attorneys or clients?

A: For further information on this subject, visit:
www.cliniclegal.org (indefinite detainee project) or
http://www.cliniclegal.org/Programs/IndefiniteDetainees.html For many years, the Catholic Legal Immigration Network, Inc. publications on Mariels and other indefinite detainees supported advocacy efforts across the country on behalf of indefinites and garnered
significant media attention. CLINIC’s advocacy staff compiled a detailed set of charts on the location of Mariels and, for the largest states of Mariel detention, the distance and drive time from major population centers to the detention facilities. Similar information was compiled for non-Cuban “indefinites.” Some of these statistics were featured in a graphic for a New York Times front-page Saturday-edition story on indefinite detainees in June... CLINIC continues efforts to improve legal assistance for Mariel Cubans and other indefinite detainees who must press the government to review their cases. CLINIC, given its limited resources, can only provide a limited amount of direct representation to low-income indefinite detainees.
In 2005, CLINIC provided legal information workshops to 72 indefinite detainees, and represented 3 detainees in applications for release to both administrative authorities and federal courts.

About Ms. Feal

*Sophie Feal has been with the Erie County Bar Association Volunteer Lawyers Project (VLP), Inc. since it was created in 1999 except for three years from 2003 to 2006 when she was in private practice. Currently at VLP, she is the Supervising Immigration Attorney, and is responsible for giving legal orientations to individuals detained by the Department of Homeland Security, and recruiting, training and mentoring pro bono attorneys to represent these immigrants. Ms. Feal has co-authored articles on immigration law including: Overwhelmed Circuit Courts Lashing Out at the BIA and Selected Immigration Judges: Is Streamlining to Blame? (Interpreter Releases, December 2005) with Gerald Seipp; Two Steps Forward, One Step Back: The Future of Credibility Findings by Circuit Courts in Asylum Cases Under the REAL ID Act of 2005 (Bender's Immigration Bulletin, April 2006) and Not Just a Matter of Time: The Concept of Abandonment of Permanent Residency Under Immigration and Nationality Law (Bender's Immigration Bulletin, May 2007) both co-authored with Jill Apa, Esq. She has also updated several chapters of Matthew Bender's Lexis/Nexis legal treatise, Immigration Law Deskbook, and written a commentary for Lexis/Nexis on the BIA's decision, Matter of R-D-. Ms. Feal received her J.D. in 1988. She has also been employed in immigration law at La Raza Centro Legal, Inc. in San Francisco, CA, Catholic Charities Immigration Services in Washington, DC, and Farmworker Legal Services of New York in Rochester. Herself an immigrant, she was raised speaking French and Spanish.

Relief from Removal: National Security & New 3rd Cir case

In Yusupov v AG, the Third Circuit on March 14, 3008, clarified when an alien is excluded from certain protections of the Immigration and Nationality Act and Convention Against Torture:

“Is a danger” versus “may pose a danger”: Although we defer to the Attorney General’s interpretation of the phrases “reasonable grounds to believe” and (as discussed below)“danger to the security of the United States,” we do not defer to his reading of “is a danger.” “Is” does not mean “may,” as suggested by the Attorney General’s formulation that the national security exception “is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.” In re A–H–, 23 I.& N. Dec. at 789 (emphasis added). This interpretation accords with neither the plain wording nor the ordinary meaning of the statutory text, which does not refer to belief in a mere possibility. In other words, as noted below, courts in other countries also have interpreted the national security exception to require a serious danger that is actual, not theoretical.

...instead, we must take the statute to mean what it says: “is” indicates that Congress intended this exception to apply to individuals who (under a reasonable belief standard) actually pose a danger to U.S. security. It did not intend this exception to cover aliens who conceivably could be such a danger or have the ability to pose such a danger (a category nearly anyone can fit)."

VOLUNTARINESS: Language and Culture

The trial court in USA v Hoa Le Chen, 2008 U.S. Dist. LEXIS 18006 (E.D. Mich) denied a defendant's Motion to Suppress on claims of coercive conduct by ICE agents, language limitations and culture.

"....Defendant characterized her command of the English language as not bad,' and she testified that she could understand only some of what was said at the evidentiary hearing without the assistance of an interpreter. Defendant testified that she was born in Vietnam and had come to the United States about 30 years ago, when she was 13 or 14, that she had lived in this country since that time and had become an American citizen, and that she had obtained a high school degree in the United States. Defendant further testified that, as a result of growing up in Vietnam, she had learned to obey law enforcement officials and do 'whatever they say.'

On cross-examination, the Government elicited Defendant's testimony that one of her duties at the New Garden Buffet was to take food orders over the phone, that the callers frequently spoke English, and that she was able to understand these callers. The Government also introduced letters Defendant had written to government officials back in 1997 and 1998 concerning Mr. Chen's immigration and visa status, which evidence Defendant's apparent ability to communicate quite well in the English language. Defendant testified, however, that she took some time and had to consult a dictionary in writing these letters.

The Court reasoning included the conclusion that ".... while Defendant testified that she learned as a child in Vietnam to obey law enforcement officials and heed their instructions, she further stated that she has lived in the United States for 30years, that she is an American citizen, and that she obtained a high school degree in this country."

"The record also discloses that Defendant has worked in the United States for a number of years, that she owned her own business for several years, and that she handled bill payment, employee hiring, and insurance for this business. In addition, the letters produced by the Government -- particularly the letter Defendant sent in September of 1997 to a government official regarding her husband's visa application, -- evidence at least some willingness on Defendant's part to question or challenge governmental action or inaction. Under these circumstances, the Court deems it not credible that Defendant would have failed to review the "Statement of Rights" form before signing its waiver provision, in the absence of any evidence that the ICE agents prevented her from doing so or denied any request to read the document before signing it."

IMMIGRATION POLICY: Link to Report of UN Special Rapporteur

The Special Rappateur to the United Nations has issued a Report highly critical of the treatment of immigrants in the United States.

"In light of numerous issues described in this report, the Special Rapporteur has come to the conclusion that the United States has failed to adhere to its international obligations to make the human rights of the 37.5 million migrants living in the country (according to Government census data from 2006) a national priority, using a comprehensive and coordinated national policy based on clear international obligations. The primary task of such a national policy should be to recognize that, with the exception of certain rights relating to political participation, migrants enjoy nearly all the same human rights protections as citizens, including an emphasis on meeting the needs of the most vulnerable groups

TERRORISM TRIALS: Defendants Sentenced in Conspiracy to Smuggle Terrorists

According to DOJ, on February 29, 2008, five defendants were sentenced in a conspiracy to smmugle terrorists to the United States. "The five defendants Victor Daniel Salamanca of Bogota, Colombia; Jalal Sadat Moheisen a Palestinian national residing in Bogota; and Carmen Maria Ponton Caro of Bogota, were sentenced to 70 months in prison by Judge Joan A. Lenard after pleading guilty to one count of conspiracy to provide material support or resources to the Revolutionary Armed Forces of Colombia, or FARC, a State Department-designated foreign terrorist organization. All three received sentencing enhancements based on their roles as leaders of the criminal organization.

The five defendants were arrested along with five other co-defendants in Colombia in January and February of 2006, as the result of an Immigration and Customs Enforcement (ICE) sting operation. U.S. government informants posed as FARC operatives seeking illicit travel to Miami for the purpose of laundering FARC money from the United States to Colombia. The laundered funds, represented as drug proceeds, would finance additional drug and arms purchases in support of the FARC’s mission.

"From May 25, 2005, to Jan. 2, 2006, the alien smuggling organization, led by Salamanca, Sadat, and Ponton obtained fraudulent Colombian and Spanish passports and other identity documents for the purported terrorists. Using contacts including Tapasco and Ramirez – each of whom are former law enforcement officers with Colombia’s federal law enforcement agency – the organization circumvented Colombian airport immigration controls and smuggled the purported terrorists to the United States. In addition, Salamanca and his co-conspirator Lopez engineered a money laundering scheme intending to move up to $5 million per week of purported FARC drug money.

According to DOJ, the case was investigated by the Office of the ICE Attache in Bogota, Colombia, and received the assistance of the Department’s International Affairs’ Office of the Judicial Attache in Colombia, and support was provided by Colombian and Panamanian law enforcement authorities.

BOOK OF INTEREST: Conflicts over the Cultural Defense

Justice, Gender, and the Politics of Multiculturalism, Sarah Song, University of California, Berkeley, Cambridge University Press.
Paperback (ISBN-13: 9780521697590)

According to Cambridge University Press,"Justice, Gender, and the Politics of Multiculturalism explores the tensions that arise when culturally diverse democratic states pursue both justice for religious and cultural minorities and justice for women."..... Drawing on detailed case studies of gendered cultural conflicts, including conflicts over the “cultural defense” in criminal law, aboriginal membership rules, and polygamy, Song offers a fresh perspective on multicultural politics by examining the role of intercultural interactions in shaping such conflicts. In particular, she demonstrates the different ways that majority institutions have reinforced gender inequality in minority communities and, in light of this, argues in favor of resolving gendered cultural dilemmas through intercultural democratic dialogue. SARAH SONG is Assistant Professor of Law and Political Science at the University of California, Berkeley."

TERRORISM TRIAL IN AUSTRALIA: CULTURE AND LANGUAGE

Defense counsel in Australia accused the "Crown" of opening its case against the twelve men charged with terrorist activities, of using "Shock and Awe" designed to seduce them and lead them into pre-judging the accused. The men are accused of intentionally being members of a terrorist organisation involved in the fostering or preparation of a terrorist act. "Shock and awe. It's the President Bush doctrine. Whack," he said.

According to the Australian Herald Sun, one defense attorney argued, "You may form the view Mr Benbrika could not lead ants to sugar. Couldn't organise a booze-up in a brewery let alone organise a terrorist organisation."

Defense counsel told jurors that the prosecutor had presented a ""contrived and unreal analysis of the taped conversations between a group of men fascinated by their religion." According to the article, there are 482 taped conversations.

One of defense counsel argued that that his client was angry at what he saw happening in Iraq, Afghanistan, Chechnya and Palestine and it was natural for him to argue and comment on Muslim issues. He warned the jury not to be taken in by the sleight of hand in showing them photographs of people being beheaded by Muslim extremists. He said there was a cultural, religious and historical context to the dealings between the men and they might not understand their "mosque-centred world" that bonded them together as brothers."

IMMIGRATION: COURT COSTS $$= CONVICTION

A new opinion by the Board of Immigration Appeals, Matter of CABRERA, 24 I&N Dec. 459 (BIA 2008), addressed a Florida defendant charged with possession of controlled substance, who had received withholding of adjudication, pursuant to Florida state law. The court imposed a fine and court costs.

An Immigration Judge terminated removal proceedings, and ruled that the disposition did not constitute a conviction.

The Government appealed and the BIA ruled in favor of the Government, finding that: The imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction” within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).

"We conclude that the imposition of costs and surcharges in the criminal sentencing context constitutes a form of “punishment” or “penalty” for purposes of establishing that an alien has suffered a “conviction” within the meaning of section 101(a)(48)(A) of the Act. Consequently, we find that the respondent has been convicted of violating a law relating to a controlled substance and that he is removable as charged. We further conclude that the Immigration Judge erred in terminating the proceedings.