IMMIGRATION DETENTION: Feds admit negligence in death of detainee

According to the San Francisco Chronicle, the federal government has admitted that its negligence was responsible for the death of an illegal immigrant who pleaded during 11 months in custody for treatment for a condition that proved to be terminal penile cancer. "Government lawyers made the acknowledgement last week in a suit that Francisco Castaneda filed before he died at his Los Angeles-area home on Feb. 16 at age 36. Doctors had amputated Castaneda's penis a year earlier to try to stop the spread of the cancer. A lawyer for family members who have taken over the lawsuit said Monday the admission followed a government physician's sworn statements that she knew a biopsy was the only way to determine whether Castaneda had cancer but never authorized one - a decision that was approved by officials at the headquarters of U.S. Immigration and Customs Enforcement. "


See also the Business of Detention.

TERRORISM TRIALS: Attorneys concerned re Attorney Client Relationship

Lawyers representing defendants in terrorism trials have reason to believe their communications with clients are monitored, according to an article in the New York Times, April 28, 2008. Some attorneys are not willing to become involved in defending defendants charged with terrorism.

"Although the administration says it has shut down the security agency’s wiretapping program, lawyers involved in the Oregon case say they believe communication with their clients — and among themselves — is still being monitored. The lawyers went to federal court in Portland this month to ask a judge to intervene to defend the sanctity of the attorney-client privilege.
In a court hearing, Mr. Coppolino, the Justice Department lawyer dispatched here from Washington, refused to say if the government, in continuing to investigate the charity, was conducting electronic surveillance of the charity’s defense lawyers. “To confirm the latter, you would be confirming the former,” Mr. Coppolino said. "

IMMIGRATION AND BIG BUSINESS: The Business of Detention

The www.businessofdetention.com is a blog to look at the phenomenon of immigrant detention in the United States. The authors write, ...." the obvious step to take as investigative journalists was to follow the money. We found that the trail of taxpayer dollars led primarily to the Corrections Corporation of America, a company that had been on the brink of bankruptcy as recently as 2001. Our desire was to present a picture of how the nation’s largest private prison company had partnered with the federal government to detain close to a million undocumented immigrants until they were deported, and in the process fill their empty beds and increase revenue by X percent. CCA now has close to 10,000 new beds under development in anticipation of continued demand. "

IMMIGRATION POLICY: Recruiting Immigrants and Foreign Nationals is Proposed

At least one organization has proposed recruiting immigrants including the undocumented in the United States and foreign nationals abroad for military service, in exchange for citizenship. Link to story. Link also to CNA Report.

GANGS- - Transnational Investigation of Salvadorean Gangs

The following is an excerpt of the Remarks of Ambassador Charles L. Glazer IV at the Annual Gang ConferenceApril 8, 2008 in San Salvador El Salvador.

"The Transnational Anti-Gang Unit (TAG,) developed by the Federal Bureau of Investigation and based here in San Salvador, combines the expertise and resources of the participating countries and agencies to aggressively investigate, disrupt, and dismantle transnational gangs like MS-13 and 18th Street. In addition, identifying and tracking gang members in El Salvador and neighboring countries will be aided by the Central American Fingerprint Exploitation Initiative (CAFÉ). Under CAFÉ, criminal fingerprints and other biometric records from Mexico, El Salvador, Guatemala, Belize and Honduras are entered into the FBI’s fingerprint databases, which can be searched by law enforcement agencies of the participating countries.
In order to complement the work of the TAG and CAFÉ, we have also created the position of Regional Gang Advisor. This important State Department official, based in San Salvador has regional responsibilities. The Regional Gang Advisor will work with US and local law enforcement authorities to strengthen the institutions that will fight gangs throughout the region.

The Ambassador further asked for the following legislation to be passed in El Salvador:
....... the National Assembly should approve a revised criminal procedures code soon to ensure transparency and predictability in criminal courts. The police and fiscalía deserve to have criminal cases heard quickly and decided impartially according to the law. The legislature should also ratify a new bilateral extradition treaty so that people who have committed crimes in the US and have fled to El Salvador are returned to the US to face justice. Another key tool in the fight against crime is the wire tap. Wire tapping is critical to tracking down criminals, and to infiltrating and eliminating criminal organizations. In fact, the Director of the FBI has told me that the wire tap is THE most effective tool to fight organized crime.
Finally, the Assembly should enact an asset forfeiture law without delay, because the Government needs access to the ill-gotten assets of criminals.

Presidential elections in El Salvador are now scheduled for March 2009.

CONSULAR NOTIFICATION: Individual does not have civil cause of action

According to the Second Circuit, violations of the Vienna Convention are not actionable through the Alien Tort Statute. Mora v People of State of New York. Plaintiff, a foreign national who alleges that defendants violated Article 36 of the Vienna Convention on Consular Relations (“Vienna Convention”) by failing to notify him that he could contact his consulate after having been arrested, appeals from a judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge) dismissing his complaint, which sought $1 million in damages under the Alien Tort Statute (“ATS”). Pursuant to 28 U.S.C. § 1915A, which governs complaints filed by prisoners in civil actions, the District Court sua sponte determined that plaintiff failed to state a claim upon which relief can be granted because Article 36 does not confer individual rights that can be enforced in domestic courts.

On appeal, plaintiff argues that the requirement of Article 36 that States-parties inform an alien of the availability of consular notification and access creates individual rights that can be vindicated by an action for damages not only through the ATS, but also through 42 U.S.C. § 1983 and an implied private right of action provided for by the Vienna Convention itself. We conclude, however, that a State-party’s failure to fulfill its obligation to inform a detained alien of the prospect of consular notification and access, pursuant to Article 36, cannot form the basis for such a suit under the ATS, § 1983, or directly under the Vienna Convention. Affirmed.

TERRORISM TRIALS: Government seeks Third Trial- Liberty 7

Federal prosecutors have announced that they seek a third trial in the case of six men accused of conspiring to destroy the Sears Tower in Chicago. Seven men were arrested in June 2006, and became known as the Liberty City 7 because authorities say the men operated out of a warehouse in Miami's Liberty City housing project. One of the defendants was acquitted in the first trial, which resulted in a mistrial for the remaining defendants. The second jury was also deadlocked.

SENTENCING: 11th Circuit-Judge's comment on Release pending asylum appeal inappropriate

The Eleventh Circuit on April 21, 2008 vacated a defendant's sentencing on a de minimis supervised release violation, due to the Court's critique of the defendant's release pending disposition on his asylum case as a factor. USA v Velasquez.

"Velasquez’s sole argument on appeal is that his sentence was based on the district court’s disapproval of the fact that immigration officials had released him on bond pending the outcome of his asylum proceedings.1 Velasquez argues that the district court exceeded its statutory sentencing authority by basing his sentence on this fact. We agree.
Whether he should have been detained or released during the pendency of his immigration proceedings was a matter for an immigration judge to decide, and the district court lacks jurisdiction over immigration matters. We vacate his sentence and remand for resentencing.

"The district court stated that it appreciated “what [Velasquez] was saying in terms of the de minimus nature of the violation,” but then questioned why he was in the United States. Velasquez responded that he was awaiting the outcome of his appeal to the BIA regarding the denial of his asylum application. The district court inquired as to the time-frame for the disposition of Velasquez’s immigration proceedings, to which he responded that he did not know, but that his case had merit, as a friend from his hometown in Colombia had recently received asylum under similar circumstances. The probation officer informed the judge that until his pending appeal was resolved, the immigration authorities had permitted Velasquez to stay in the United States.

The district court stated: See . . . I’ll be candid with you. I mean, I appreciate the de minimus
nature of the violation, but I have a hard time accepting the notion that he should remain in the general population of the United States when . . . he’s already been denied at the lower level. My guess is that the odds are against overturning that decision.

Aside from this brief exchange, there is no evidence in the record that the district court was aware of any of the facts of Velasquez’s asylum case, or that he had any basis upon which to evaluate “the odds” of a favorable resolution. The judge then added that Velasquez now had more incentive “to kind of go under the radar, because he knows he’s facing” deportation, and, notwithstanding the probation officer’s assurance that Velasquez was at this point permitted by the IJ to be free on bond, inquired how Velasquez gets to work and whether he is working legally. Velasquez reiterated that he was not in the United States illegally, as his asylum claim still was pending. He asserted that he was unlikely to “overstay” and was respectful of court requirements, noting that he twice flew down to Florida to appear before this judge while out on bond. "

The district court then responded that Velasquez’s release on bond by the immigration judge could have been based on the merits or on the fact that “they don’t have the money or the space to put him somewhere.” Again, the record offers no support for the judge’s speculation. Velasquez contended that, if the district court were troubled by his immigration status, it could “rest assured that Immigration will do what . . . it does,” to which the district court responded:
Well, you may have more faith in them than I do.

But here’s my offer to you. I mean, I just don’t understand . . . the justification for him being at large in the general population in the United States. It doesn’t seem right to me. I understand it’s a de minimus offense, but I think he ought to be held until such time as this Immigration matter can get resolved. I mean his underlying offense is attempting to come or using apparently forged documents to get into the United States? But my offer to you would be this. Either he surrender to the custody of the marshal now, or he agree to return to Colombia and avoid incarceration now.

When Velasquez asked whether the district court would consider house arrest in New York so that he could continue working, the district court replied that he should not be working, as he was not in the United States legally.

The court ultimately vacated the defendant's sentence: "It is simply to say that a judge may not impose a more severe sentence than he would have otherwise based on unfounded assumptions regarding an individual’s immigration status or on his personal views of immigration policy.

U VISAS: Court intervention sought for Certification

A U-visa is an important method of preventing the deporation/removal of a victims of criminal activity. Practitioners interested in learning more about the requirements and some of the issues involved, might be interested in the case of Garcia v. Audubon Cmtys. Mgmt., LLC, 2008 U.S. Dist. LEXIS 31221 (E.D. La. 2008). The Plaintiffs are undocumented workers who have brought a civil action against a former employer alleging that the defendants imporerly withheld wages, and also claims vilations onder the Fair labor Standards Act, and the Victims of Traficking Protection Act.
The district court in Audubon, made the following findings regarding the substantial physical or mental abuse" that an applicant must show:

..... whether "abuse is substantial is based on a number of factors, including but not limited to: the nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.8 C.F.R. § 214.14(b)(1). In addition, the regulations state, "[p]hysical or mental abuse means injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim."

In this matter, the Plaintiffs have alleged mental and physical suffering because of the living conditions they were forced to endure. The Plaintiffs state that without steady pay, they had to find food "in the trash." Not only have the Plaintiffs alleged feeling "shameful" and "sad" because they could not afford to buy food; they also allege physical distress from the lack of nourishment. ...Therefore, the Court finds that the Plaintiffs have made a prima facie showing of substantial mental and physical suffering.Finally, the Defendants' contention that the Plaintiffs are not entitled to U-Visa certification because the allegations pertain to "the conduct of third parties," not the conduct of Audubon itself, is unconvincing. The regulations state that applicants for U-Visa certification must be victims of qualifying crimes. The regulations do not mandate that a specific entity be the alleged perpetrator of the qualifying crimes. Consequently, at this point in the proceedings, the Plaintiffs have made a prima facie showing that they are entitled to U-Visa certification.

CROSS EXAMINATION OF IMMIGRANT COMPLAINANTS

Editor: Are criminal defense attorneys cross examining complainants in domestic violence cases about the receipt of a U visa, based on status as crime victim, and whether she/he has lied or embellished for purposes of obtaining a visa? See "What is a U Visa".

According to a recent article, victims advocates are concerned about the possibility of abuse and discuss a recent case in the state of Maryland. Criminal defense attorneys, please tell us in our on-line poll if you have either cross examined on the U visa, or have decided that it would not be effective cross examination?

IMMIGRATION POLICY: DEPORTATIONS CREATING PROBLEMS IN RECEIVING COUNTRIES

The Caribbean organization, CARICOM complains that massive deportation of immigrants without support, is causing problems in the home country. At the 13th Special Meeting of CARICOM, a statement was issued seeking a MOU with the United States.

"With regard to Deportees, THE CONFERENCE:
Agreed –
(i) to pursue negotiation of standardised agreements/MOUs with United States of America, the United Kingdom, Canada and other states;
(ii) that such Agreements/MOUs should provide, inter alia, for
(a) adequate notification periods;
(b) the settlement of personal affairs prior to deportation of long-term residents;
(c) complete dossiers, including criminal antecedents and medical records where applicable;
(d) appropriate arrangements to reduce the financial burden on deported persons, and on receiving countries;
(e) support for programmes designed to aid the rehabilitation and reintegration of deported persons in the Region;
(iii) to the establishment of a mandatory requirement for the enforcement of monitoring orders where persons are deported in relation to convictions for specified major offences;
(iv) to the development of an information-sharing protocol to guide the transfer and dissemination of information related to deported persons between relevant law enforcement authorities throughout the Region;
(v) to collaboration in the establishment of transition centres in each country to facilitate short-term stays for deported persons without shelter and/or familial support.
With regard to Maritime and Airspace Cooperation and the Sharing

In making their decisions about the matter, CARICOM leaders considered a report from Dr. Annmarie Barnes, chief technical director of the Jamaica Ministry of National Security.


The following is an excerpt of the testimony of Dr. Barnes to the Congressional Sub Committee on the Western Hemisphere on July 24, 2007: “Deportees in Latin America and the Caribbean”

"The mass deportation of criminal offenders to the Caribbean and Latin America constitutes one of the greatest threats to security in the region. Each year, thousands of convicted felons are returned from the United States, and while the vast majority may have been stripped of their material possessions, for many, their propensity to criminality remains intact.

While deportation may solve a few problems within the deporting country, the removal of criminal offenders to another geographical location does not protect the United States from further criminal actions by those persons. Recent experience shows that in a global world, problems of in-security cannot be constrained by borders, particularly in nation-states that are less able to keep pace with globalized threats.

Indeed, the mass relocation of criminal offenders from relatively high security environments to less secure societies that are by definition more criminogenic, has merely shifted the responsibility for managing such persons to their country of birth. By expanding the locale for criminal enterprise, deportation poses serious challenges not only to national security interests in receiving countries, but also to the management and control of security globally.

Scale of Deportation to the Region
In an analysis of deportation data for Guyana, Jamaica, and Trinidad and Tobago, a recent CARICOM study found that almost 30,000 criminal offenders had been deported to those countries between 1990 and 2005. Over 17,000 had been deported for drug offences; almost 1800 for possession of illegal firearms, and more than 600 for murder. The United States is responsible for more than seventy-five percent of all criminal deportations to the region.

With a combined population of less than 5 million people in the countries studied, the impact of this relocation of criminal offenders would be roughly equivalent to the influx, into the United States, of more than one million convicted drug offenders, and close to 40,000 convicted murderers.

In one of the countries studied, the deportation of criminal offenders rivals the number of convicted persons released from local penal institutions annually, practically doubling the number of criminal offenders released into that society each year.

The study also found that many deported persons continue to engage in crime subsequent to their deportation. For example, deported persons in Trinidad and Tobago were over three times more likely to be arrested than the average for the general population, while in Jamaica, deported persons were just as likely to be convicted of a crime, with one in every 18 deported persons, compared to 1 in 17 in the general population, having been convicted of committing a crime.

In addition, data on self-reported offending patterns among deported persons also reveal that more than fifty percent had engaged in criminal activities that may have gone undetected by local law enforcement authorities.

Interviews with deported persons revealed that deportation has caused devastating socio-psychological effects, not only for deported persons, but for other family members, and in particular their children, the vast majority of whom have been left behind in the United States, and who have little or no contact with the deported parent.

Of 345 deported persons interviewed, the majority were parents whose children in the United States face extreme hardships, both emotionally and financially. Overall, 96% of parents had left their children when they were deported, and less than 20% provide any support for those children, who have become dependent on other relatives and welfare programmes for their primary means of support.

Procedural guidelines for deportation vary by country, but in general, receiving countries are beset by the following problems:
Inadequate period of notification prior to removal;
Incomplete information, such as the absence of criminal antecedents;
Insufficient time for the settlement of affairs; and
Pressure to issue an emergency travel document, which compromises the process of identity verification. "

JURY RACIAL PREJUDICE: Harvard Professor Testifies

Mahzarin Banaji, a Harvard University Professor who has conducted research into racial prejudice by whites against blacks, is currently testifying in a death penalty case in New Hampshire.

" A computer test designed to measure people's implicit racial biases was at the center of a pre-trial hearing yesterday in the Michael Addison case. The test's creator, Harvard professor Mahzarin Banaji, said because her test and others show most white people are biased toward black people, it would be impossible for a black man to get a fair trial in a predominantly white state such as New Hampshire.
Addison, a 28-year-old black man, is charged with capital murder in connection with the shooting death of Michael Briggs, a white Manchester policeman. If convicted, he could face the death penalty. " Link to article.

Link also to information on the Convention for the Elimination of All Forms of Racial Discrimination.

IMMIGRATION: Possession of Drug Paraphernelia = Crimes Relating to Controlled Substance

On April 16, 2008, the Eleventh Circuit in Alvarez Acosta v A.G. ruled that because (Florida) possession of drug paraphernalia is a crime relating to controlled substance; therefore, the Court did not have subject matter jurisdiction to review the alien's removal. Link to Opinion.

IMMIGRATION AND WITNESSES: What is a U Visa?

Criminal defense attorneys are aware that complaining witnesses might have received relief from possible removal, while a criminal case is pending. This press release, published on April 10, 2008 by USCIS (United States Citizenship and Immigration Services) might provide some insight into the U Visa process.


"WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that, until further notice, it will not terminate interim relief for aliens who have not yet filed for U nonimmigrant status, except in those cases where USCIS is aware of adverse factors. USCIS will continue to accept petitions for U nonimmigrant status at any time.
USCIS announced on Sept. 5, 2007 the publication of an interim final rule granting immigrant benefits to certain victims of crimes who assist government officials in investigating or prosecuting the criminal activity. That rule was effective Oct. 17, 2007 and established procedures for applicants seeking U nonimmigrant status, one of which encouraged aliens who had been granted interim relief to petition for U nonimmigrant status prior to Apr. 13, 2008 (180 days from the effective date of the rule). The rule states that USCIS will terminate interim relief for aliens who fail to petition for the “U” classification within the 180-day time period.
Today’s announcement supersedes that information and also clarifies that there is no deadline for filing the Petition for U Nonimmigrant Status (Form I-918). Until further notice, the agency will not reevaluate previous grants of deferred action, parole, and stays of removal. Aliens who originally received interim relief and who have filed the I-918 will see their interim relief status extended until their petition is adjudicated and USCIS will continue to consider the evidence previously submitted with the request for interim relief as part of the I-918 petition package. There is no fee for filing the I-918.
Applicants requesting U nonimmigrant status must be admissible to the United States; those who are inadmissible may apply for a waiver by filing an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192). There is a filing fee of $545 for Form I-192. While there is no fee waiver currently available for I-192, USCIS intends to publish a regulation in the future that will allow waivers of the I-192 fee for applicants filing for both U nonimmigrant status as well as T nonimmigrant status (victims of human trafficking). Meanwhile, applications for U nonimmigrant status filed with Form I-192 without the proper fee will be rejected. Applications filed with the Form I-192 and the proper fee, and those not requiring the Form I-192, will be accepted, processed, and adjudicated.
Individuals granted U nonimmigrant status may remain in the United States for up to four years, and may be accompanied by eligible family members (spouse, children, unmarried siblings under 18, and parents). Eligible petitioners obtain legal status to remain in the country, and are also provided referrals to nongovernmental organizations for assistance and additional resources, and automatic employment authorization. A total of 10,000 U-visas will be available each fiscal year; however, the congressionally mandated cap does not apply to eligible family members. "

IMMIGRATION: Legal Immigrants Placed in Removal after applying for Naturalization

The New York Times reports that approximately 12% of the lawful permanent resident aliens who have applied for naturalization, have been rejected. Some of these LPRs (Lawful permanent resident alients) have then placed into removal proceedings. "Legal Immigrants, Until they Sought Naturalization"describes cases, which sound all too common. LPRs who reported voting in American elections, have an old criminal conviction, violated a tehnical requirement re change of address, etc.

It’s no wonder there are so many illegal immigrants,” said Brad Darnell, an electrical engineer from Canada living in California who applied for citizenship but is also now fighting deportation. “The legal method is so intolerant and confusing.” A legal immigrant since 1991, Mr. Darnell is married to an American and has two American-born sons. But after he presented his naturalization application last year, Mr. Darnell discovered that a 10-year-old conviction for domestic violence involving a former girlfriend, even though it had been reduced to a misdemeanor and erased from his public record, made him ineligible to become a citizen — or even to continue living in the United States.

This article is also an important reminder to attorneys, why clients should be carefully counseled and screened before applying for naturalization. For example, the fact that DHS has not learned of a criminal conviction does not prevent a charge that the LPR is now subject to removal.


Link to full article.

BORDER MADNESS: Tommy Lee Jones

Tommy Lee Jones was recently asked about immigration policy and politics:

"The idea of a fence between El Paso and Brownsville bears all the credibility and seriousness of flying saucers from Mars or leprechauns. Or any manner of malicious, paranoid superstition. ... It's very destructive.Very, very destructive. And it's the perfectly wrong thing to do. First of all, it won't work.


You can't build a fence that I cannot get over, through,or under if I want to go to Mexico. In that [border] country, you cannot do it. It's a complete folly. Ecologically, it's a complete disaster, and sociologically, it's a complete disaster. It's an act of fascist madness."

02138 magazine, March/April 2008.

TORTURE: NLG Calls on Boalt Hall to Dismiss Law Professor John Yoo

NATIONAL LAWYERS GUILD CALLS ON BOALT HALL TO DISMISS LAW PROFESSOR JOHN YOO, WHOSE TORTURE MEMOS LED TO COMMISSION OF WAR CRIMES
Wednesday, April 9, 2008, 08:31 AM

Contact:Marjorie Cohn, NLG President, marjorie@tjsl.edu; 619-374-6923Heidi Boghosian, NLG Executive Director, director@nlg.org; 212-679-5100, x11

In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President's detention and interrogation of enemy combatants.

According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war. The federal maiming statute, for example, makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result; Yoo's definition contravenes the definition in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution's Supremacy Clause. Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances, even in wartime. This memo and another Yoo wrote with Jay Bybee in August 2002 provided the basis for the Administration's torture of prisoners.

"John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," said National Lawyers Guild President Marjorie Cohn. Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country's premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

The National Lawyers Guild was founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

IMMIGRANTS and CIVIL RIGHTS: Law Suit Resolved

On April 9, 2008, MALDEF and the ACLU announced the resolution of a civil rights law suit.

LAS CRUCES, NM— The Mexican American Legal Defense and Educational Fund (MALDEF) and the American Civil Liberties Union (ACLU) of New Mexico today announced a landmark settlement with the Otero County Sheriff’s Department that addresses what plaintiffs alleged were civil rights violations committed by county deputies during immigration sweeps last September in the southern New Mexico town of Chaparral. Civil rights advocates say the agreement will help restore community trust in local law enforcement and greatly improve the safety of all people living in the County.
The case settled after the Sheriff's Department agreed to revise Operational Procedures that are intended to ensure that the rights of all Latinos living in the County would be protected and that they would not become the targets of immigration-related investigations and detentions without justification. Otero County also agreed to pay the families who brought the case monetary damages and an amount to cover their attorney's fees and the costs of the suit.
ACLU Executive Director Peter Simonson said, “The sheriff’s department worked with us to draft a policy that draws clear boundaries around what are and what are not the responsibilities of local law enforcement officers when they encounter immigrants. It was drafted with one thing in mind: maximizing public safety. This is a smart policy that stands as an example to all other law enforcement agencies around the state.”
On behalf of five Latino families, MALDEF and the ACLU of New Mexico alleged in the lawsuit that sheriff’s deputies raided homes in Chaparral without search warrants, interrogated families without evidence of criminal activity, and targeted households on the basis of race and ethnicity.
The Sheriff's Department denied any wrongdoing, but agreed to revise policies in order to provide more effective law enforcement to its constituents and to focus its attention on persons suspected of committing crimes.
David Urias, MALDEF Staff Attorney and counsel in the case, said, “The agreement by the Sheriffs Department to revise their procedures means that Latinos in Otero County will be protected by local police from crimes, not randomly targeted for immigration enforcement.”
The Otero County Sheriff’s Department operational procedure regarding the legal complaint and other relevant documents can be found online.
For more information contact:Whitney Potter, ACLU of New Mexico: (505) 507-9898 Laura Rodriguez, MALDEF: (310) 956-2425 "

CULTURAL DEFENSES: Makah Trial Update

On April 9, 2008, the two remaining defendants waived jury and stipulated to facts, sufficient for the Court to find the defendants guilty. Such a procedure will preserve the defendant's right to appeal the Court's ordering excluding evidence of a religious defense. For additional information see Makah Trial to Begin.

CULTURE AND VICTIM BEHAVIOR: Trial court considers victim's culture

On April 9, 2008, An Ottawa judge convicted an immigrant charged with repeatedly beating his wife, and is quoted in the Canadian press as having considered the cultural and religious norms pertinent to the case. For additional information, Link to Article.


The court heard thatDefendant Abada, a PhD candidate, and his wife, a master's student in engineering, met online and he brought her from Egypt. " The wife did not leave in spite of the allegations of multiple beatings. However, the Court did not discount this testimony due to the cultural and fianancial constraints.


According to the Article , the woman testified that her husband controlled the money, including her student loans, and she has no family here. The woman was afraid her children would be taken by the CAS and she'd be deported if she called police. "This is a case where the cultural and financial restraints that this Muslim woman lived with are critical to the analysis of the evidence," (Judge) Nicholas wrote. "You simply cannot expect her to feel that she had the same self-autonomy that one might expect from an equally educated North American woman."

Judges must be sensitive to cultural differences in these difficult cases, she said.
"(Defendant) Abada may well have believed that it was his right to beat his wife," Nicholas wrote. "Whatever those cultural differences may be, and regardless of the dictates of the Koran, it is settled law in this country that the intentional application of force without consent constitutes an assault. The law applies to all residents."

IMMIGRATION ENFORCEMENT: NYT Editorial Scolds Congress

In an editorial April 9, 2008, the New York Times scolds Congress, for allowing the öutsourcing"of immigration enforcement. The editorial discusses the abusive tactics of Maricopa County, Arizona Sheriff, who has made it his raison détre to deport undocumented aliens, while ignoring human rights.


"Not content to botch immigration policy all by itself, Congress has handed large parts of the job to others to mishandle. It gave the homeland security czar the czarist powers to overturn any law and ignore any court to seal the border. Now Michael Chertoff is clear-cutting a forest of regulations to wall out Mexico by the end of the year. And through the program known as 287(g), his agency is parceling out duties to a growing number of local police and sheriff’s departments, raising an army of junior deputies in the war on illegal immigrants."


"To see how unhinged things have become, it pays to zero in on the squalid doings in Maricopa County, Ariz. It is home to Phoenix, the country’s fifth-largest city, and the largest 287(g) program anywhere. It is run by the county sheriff, Joe Arpaio, who has built a national reputation for toughness through years of cruelty to prison inmates and an insatiable appetite for publicity."


"For months now, Sheriff Joe has been sending squads of officers through Latino neighborhoods, pulling cars over for broken taillights or turn-signal violations, checking drivers’ and passengers’ papers and arresting illegal immigrants by the dozen."


Sheriff Joe, seemingly addicted to the buzz, has been filmed marching down the street shaking hands with adoring Minutemen. If this doesn’t look to you like a carefully regulated, federally supervised effort to catch dangerous criminals, that’s because it isn’t. It is a series of stunts focused mostly on day laborers, as Sheriff Joe bulldozes his way toward re-election." Link to the full editorial."

LATIN KINGS: Judge dismisses rackeering case due to informant misconduct

On April 7, 2008 a Hillsborough County judge dismissed rackeeterring charges against 23 individual defendants. The Order agreed that the outrageous conduct of a government informant, who was paid thousands of dollars to reactivate gang activity, and who committed crimes while working as an informant warranted dismissal. The CRI ordered and intimidated defendants to appear at a meeting, at which individual defendants were arrested.


"In December 2005, Agosto was in jail, charged with armed burglary and grand theft of a motor vehicle. Agosto had a long record with multiple felony convictions and was worried about a long prison sentence, according to court testimony and Sleet's written order. Tampa police and the FBI asked him to help look into possible drug and gun activity within the Tampa Latin Kings. In exchange, they dropped the burglary charge and gave Agosto 10 years' probation for the theft charge. He also was given a rent-free apartment, a cell phone, $2,400 a month for living expenses and the promise of a $100,000 bonus upon conviction of Latin Kings members.
The Tampa division of the Latin Kings, however, had been dormant since August 2005, Sleet's order said. Therefore, Sleet wrote, Agosto was "employed" by law enforcement to get the gang together. Agosto started to hold meetings with required attendance. At the final meeting, all were arrested." Link to Tampa Tribune article.

IMPERMISSABLE BOLSTERING: Reversible error

The Fifth Circuit Court of Appeals found plain error in a prosecutor's argument to the jury regarding the credibility of border patrol agents. In USA v Apolinar Gracia, the defendant had traveled across the border bridge between Matamoros and Brownsville as a passenger in a car driven by an older female friend. The car contained approximately fifty kilograms of cocaine hidden in a false floor. A jury convicted Gracia on four related drug counts.

"Convinced that, during rebuttal closing argument, the government improperly bolstered its key witnesses, the agents who heard Gracia’s unrecorded confession, and that this bolstering constituted reversible plain error, which seriously affected the fairness, integrity, and public reputation of those proceedings, we reverse Gracia’s conviction and remand his case for a new trial."

The defendant alleged that the prosecutor made improper arguments to the jury:

"Gracia points to four remarks by the prosecutor that bolstered the credibility of the agents who interviewed him.

First, the prosecutor expressed his opinion to the jury that the agents were "very, very credible" witnesses ("Statement One").

Second, the prosecutor asked the jurors rhetorically whether they thought that an agent "who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia"; and whether the agents "would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury" ("Statement Two").

Third, the prosecutor told the jury: "I'm going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered" ("Statement Three").

Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents "got out of bed" on the day they arrested Gracia and decided that this was "the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia" ("Statement Four"). Gracia insists that these remarks constituted reversible plain error. The government concedes that Statements One and Three may have been improper, but nevertheless contends that all four statements were harmless error."

The Fifth Circuit agreed: "The instant matter is distinguishable from the cases in which we have refused to reverse convictions, however, because of the degree of the prosecutor’s violations in comparison to the dearth of evidence of Gracia’s guilty knowledge. As Gracia could not have been convicted without the agents’ testimony, we cannot conclude that the prosecutor’s bolstering constituted an unprofessional but harmless attempt to right the scale and rebut defense counsel’s earlier veiled innuendo that the agents might be less than fully truthful.

"In this case, the jury’s determination of guilt or innocence hinged entirely on whether Gracia had knowledge of the hidden drugs and that, in turn, hinged entirely on the credibility of the agents. The relative strength of the government’s case is the telling. The prosecutor’s plainly erroneous statements led the jury to substitute the government’s credibility assessment of its own agents for the jurors’ independent credibility call, thereby casting serious doubt on Gracia’s guilty verdict. We are convinced that, under the discrete facts of this case, the prosecutor’s remarks affected Gracia’s substantial rights and seriously affected the fairness, integrity, and public reputation of his trial. "

CULTURAL DEFENSE: Makah Whaling Trial to begin

by Ashley Elmore Drew*

“If nobody exercises their treaty right—we don’t have one” says Wayne Johnson, the whaling captain and one of the two defendants who will stand trial on April 8, 2008 for killing a gray whale in September of 2007.

The Makah, or the Qwiqwidicciat, as they refer to themselves, are a Native American tribe which has resided in the Washington State area for almost four thousand years. Recently they have been embroiled in a whaling controversy that has potential repercussions for treaty rights well beyond the shores of Washington. On March 24th three men from the tribe, Frankie Gonzales, William Secor Sr., and Theron Parker agreed to plead guilty to one misdemeanor count of violating the Marine Mammal Protection Act (MMPA). They will be sentenced June 6th. Two other whalers, Andy Noel and whaling captain Wayne Johnson, will stand trial April 8, 2008 in United States District Court in Tacoma.

The Makah are an ocean-dependent tribe that has relied on seals, salmon, whales, and fish to provide food and clothing for millennia. The whales provide meat, oil, and various whale parts are used to create combs, spindles, weapons, and tools.

Contact with Europeans throughout the 18th century had tragic consequences for the Makah. Outbreaks of smallpox, influenza and the like killed thousands. The tribe continued their struggle to coexist with the Europeans through the 19th century. In 1855, the Makah signed a treaty with the United States hoping to protect their land and sea rights. The Makah traded title to 300,000 acres of their ancestral land in exchange for the retention of their whaling rights. The United States government then began a campaign of systematic and forcible assimilation. The US government passed laws against cultural ceremonies and even the Makah language itself. In spite of this effort, the Makah people have managed to retain their cultural heritage.

Though the treaty protected the Makah’s whaling rights, the government continued to regulate and legislate in order to restrict the whaling. In the 1920s the Makah voluntarily suspended the hunt of the gray whale in order to let the species recover from its over-hunting by commercial whalers. There was a rebound in gray whale population throughout the 1990s and in 1999 there was a federally sanctioned whale hunt.

While other Native American tribes have been able to create profit from casinos, the Makah are so remote that tourists rarely visit the reservation. A marina provides a little revenue during the fishing season but most of the tribal money has historically come from whaling. The Makah people are in a dire situation. The unemployment rate is 60% and their community has been wounded by prevalent drug abuse. The whale hunt in the 1999 created a cultural renaissance of sorts, and inspired the younger generation of Makah to learn their cultural history, language and religion. The Makah have been hindered in their attempt to continue whaling since the 1999 hunt. This has caused frustration among those tribe members who fear the disintegration of their culture.

On September 8, 2007 five men attempted to hunt a gray whale. Before they could kill the whale, they were arrested by the Coast Guard. The whale died some twelve hours later, sinking to the bottom of the ocean, unused. The prosecution argued that the whalers violated the MMPA. The Makah have historically worked within the system to preserve their hunting rights. As of last September, Congress was mulling over an exemption to the MMPA that would allow the tribe to hunt whales with less red tape. The defendants argue they had the right to hunt the whale and they were going to exercise it.

Reaction within the Makah tribe has been mixed. John McCarty, a former Makah whaler, was angry that the men went out and killed the whale while the tribe was on the verge of getting the congressional exemption. The general consensus is that the hunt was inappropriate, but that the hunters had every right to do it. The defendants have received a lot of support from their community.

In 2004, the 9th Circuit Court of Appeals held that the Fisheries Service must apply more rigorous environmental reviews to the Makah hunts. This meant that the executive branch must regulate the Makah’s right to hunt whales under the treaty without approval by Congress.
The implications of this precedent are serious. It can be applied to all the tribes who have treaties with the US government within the 9th Circuit. In 2004, the Makah decided not to appeal to the US Supreme Court because of fear that it could be applied nationally. However, if the 2 whalers left to stand trial lose, they could appeal it all the way to the US Supreme Court and there could be national implications on treaty rights. The attorney for the defense argues that the treaty has supremacy over the federal law. He considers the hunt civil disobedience. The prosecution is careful to say that the government isn’t seeking to pit the tribe’s treaty rights against whale conservation. He says the government is talking about regulating the treaty, not abrogating it.

The trial is expected to take a week. Magistrate J. Kelley Arnold denied the defendant's motion to reconsider dismissing charges against the whalers for violating the U.S. Whaling Convention Act (USWA), ruling that the USWA is a civil law and as such, cannot be used in a criminal case.

At the trial, the defense planned on arguing religious freedom and the importance of whaling to Makah culture. "These folks haven't been able to harvest a whale and conduct all the ceremonies that their whaling culture is tied to since 1999," said Jack Fiander, counsel for the defendants. "It's like someone telling you that you can't go to church for 10 years." However, that defense was quashed by Magistrate Arnold in a pre-trial motion. The prosecution argued that religious freedom did not give the whalers a right to violate the law. The judge agreed and held that the whalers had not proved that their religious activities were burdened by the MMPA. The defense responded by noting that a similar constraint on a different religious faith would be unlikely. The defense cites this ruling as a strong ground for appeal.
For more information on the Makah people and their culture, see http://www.makah.com/.

Ashley Elmore Drew is a second-year law student at Stetson University College of Law. She serves as the Research Editor for Stetson Law Review and the Programming Coordinator for Amnesty International Stetson Chapter. She received an MA in Applied Sociology from the University of Central Florida (UCF). Before coming to Stetson, she taught Sociology of Deviant Behavior, Sex Roles in Modern Society, and Race and Ethnic Minorities in the Sociology department at UCF.

FEDERAL COURT INTERPRETERS: Where to find information?

Do you have questions about what are the qualifications of a federal court interpreter? This information can be found on the website of US Courts.

This website also includes a Link to the Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts

IMMIGRATION: The words of Charlton Heston

On October 13, 1996, Charlton Heston wrote a Letter to the Editor of the New York Times.

Mr. Heston wrote in part," You write eloquently about the sorry plight of the families you detail, but seldom concede that many of them are in fact illegal. Does that word no longer have any meaning in our decaying culture? An even more important word not yet included in any of your articles is ''responsibility.'' Does that count for nothing? How could any couple plan to sneak into the country with several innocent children and no education and expect to thrive, or even survive here? Surely they are better off legally deported back to a culture they can at least understand. "

His position reflects the continuing division between the pro and anti-immigrant views, the concept that the undocumented immigrant has been ïrresponsible". Sadly, in more than ten years, not much seems to have changed in this "debate".

Editor's note: My letter to the Editor was published on the same day as Charton Heston's. I wrote in part, "Your article is a reminder that this is a choice driven by the desire to improve one's economic circumstances, made with great sacrifice and often resulting in isolation from one's family, culture and basic support system. It is not criminal behavior."

CUBAN NATIONALS: Must be released after 6 months

In Hernandez-Carrera and Hernandez-Arenado v Carlson, 2008 U.S. Dist. LEXIS 26934, a District Court in Kansas Court granted two Cuban immigrants habeas relief. Both petitioners were Cuban nationals who had previously been ordered excluded or removed from the United States to Cuba, and had not been released from custody of the Department of Homeland Security (DHS).

DHS had continued to detain the petitioners pursuant to a special provision pertaining to specially dangeous aliens, 8 C.F.R. § 241.14(f)(1), which provides that the Government shall detain an alien if the alien's release "would pose a special danger to the public" because (1) he previously committed one or more crimes of violence; (2) he is likely to engage in acts of violence in the future due to a mental condition or personality disorder and behavior associated with that condition or disorder; and (3) no conditions of release can reasonably be expected to ensure the safety fo the public. "
To determine whether an alien is "specially dangerous," 8 C.F.R. § 241.14(f)(2)-(3) requires the DHS to arrange for a report by a U.S. Public Health Service physician based on a full medical and psychiatric examination of the alien. If the DHS determines from this information that an alien's release would pose a special danger to the public, 8 C.F.R. § 241.14(g)-(h) requires the case to be referred to an immigration judge for a reasonable cause hearing to determine whether the evidence supporting the DHS's determination is sufficient to warrant a further hearing on the merits. If reasonable cause is found to conduct a merits hearing, 8 C.F.R. § 241.14(i)(1)-(2) requires the government to prove by clear and convincing evidence that the alien [*9] should remain in federal custody because his release would pose a special danger to the public. If an alien is ordered to remain in custody, 8 C.F.R. § 241.14(k) requires ongoing, periodic review of his continued detention.

The Court noted that Supreme Court precedent requires release although on conditions, and that there are criminal penalties for violations of such conditions.

"Nonetheless, the Supreme Court has unequivocally stated that its interpretation and reading of 8 U.S.C. § 1231(a)(6) in Zadvydas "applies without differential to all three categories of aliens that are its subject." Martinez, 543 U.S. at 378. Additionally, courts have rejected any reading of Zadvydas and Martinez as allowing a separate interpretation of § 1231(a)(6) for the third category of aliens in that statute. See Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir.)(Supreme Court's interpretation of § 1231(a)(6) does not authorize continued detention of alien suffering from harm-threatening mental illness for longer than the presumptive six-month post-removal period authorized in Zadvydas where the alien's removal from the United States is not reasonably foreseeable), rehearing denied, 389 F.3d 967 (2004); Tran v. Gonzales, 411 F.Supp.2d 658 (W.D.La. 2006)(holding and reasoning in Martinez necessarily applies to third category of aliens in § 1231 (a) (6)), aff'd sub nom. Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008)."

"Most recently in Tran, the Fifth Circuit rejected the government's reading of Zadvydas, and found the Supreme Court did not create an exception for detention of mentally ill aliens beyond the presumptive six month post-removal period. ..It further held the regulation authorizing the continued detention of a removable alien having no significant likelihood of being removed in the reasonably foreseeable future, and who had been determined "specially dangerous" because of mental illness that would likely cause him to commit future acts of violence, was not a permissible interpretation of 28 U.S.C. § 1231(a)(6)). Id. at 485."

For more on the topic see also, Sophie Feal on Cuban Nationals and Repatriation, Q&A.)

CRIMINAL IMMIGRATION: False statement to PO not Fraud (9th Cir)

This new case from the 9th Circuit, which involves the appeal of an Argentinian national, found to be inadmissable on various grounds, is an excellent example of how complex and language specific criminal immigration issues can be. Please see Äsk the Expert": Immigration Attorney John "Ovink.

The issue in the Blanco v Mukasey case is "Whether Blanco was convicted of a crime of fraud depends on the statutory definition of the crime. In 1986, Blanco pled guilty to violating California Penal Code § 148.9(a), which provides:
Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor. The California courts have explained that a violation of California Penal Code § 148.9(a) occurs whenever any person falsely identifies himself in a way that would mislead the officer and evade proper identification, including by giving a false name or date of birth. ...

To convict a defendant under the statute, the prosecutor does not need to show that the individual had specific intent to obtain a benefit or cause another to be liable on his behalf; rather, the prosecutor “need only establish general intent . . . that the defendant intended to do the act which forms the basis of the crime, whether or not he knew that the act was unlawful.” ......Thus a conviction under California Penal Code § 148.9(a) requires a showing that the individual knowingly misrepresented his or her identity to a peace officer, but does not require that the individual thereby knowingly attempted to obtain anything of value.

A crime involves fraudulent conduct, and thus is a crime involving moral turpitude, if intent to defraud is either “explicit in the statutory definition” of the crime or “implicit in the nature” of the crime. ...... ...... .....When the only “benefit” the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.

IMMIGRATION RAIDS: Law suit against ICE filed

Seton Hall Law School's Center for Social Justice has filed suit against the federal government over Immigration Home Raids in New Jersey. The law suit was filed on April 3, 2008 in federal court, "alleging that federal law enforcement officials violated ten victims’ constitutional privacy and due process rights under the Fourth and Fifth Amendments by entering their homes without consent or a judicial warrant during pre-dawn "raids." The Complaint is available at the Center's website.

Some of the facts alleged are that on one occasion, ICE agents claimed they were police and demanded to be let in to search for a male criminal. Without a search warrant, the ICE agents entered and searched a plaintiff's entire home, displaying their guns, then arrested her despite her legal Temporary Protection Status. She produced documents to demonstrate her legal status, but the agents threw those documents aside without looking at them. She was detained for nearly 36 hours, and denied food or water for the first 24 hours of her detention. She was released without explanation or apology.

In another case, ICE agents furiously pounded on the door of the plaintiff's home, shouting “Paterson Police!” When the plaintiff, a lawful permanent resident, refused to let the agents into her home unless they showed her a warrant, the ICE agents pushed the door open and forced their way in. The ICE agents, displaying their guns, detained her while they searched her entire home, and would not permit her to tend to her sick husband. The agents interrogated and arrested her son, and shoved her aside as she tried to hug him goodbye. She pleaded with the agents to tell her where they were taking her son but the agents refused and slammed the door in her face as she tried to run after him.

IMMIGRATION: New Resource for Advocates

www.immigrationadvocates.org, "Immigration Advocates Network is a free national online network that supports legal advocates working on behalf of immigrants' rights."