Immigration Consequences: Indecent Assault is CMT resulting in Deportation

Meboob v AG, November 26, 2008, the Third Circuit has adopted a categorical approach to identifying crimes involving moral turpitude. Partyka, 417 F.3d at 411; Knapik, 384 F.3d at 88. This “categorical” inquiry is based on “the criminal statute and the record of conviction, not the alien’s conduct.” Partyka, 417 F.3d at 411. When a statute is “divisible,” meaning that it prohibits several different types of conduct, we “look to the record of conviction to determine whether the alien was convicted under [a] part of the statute [which] defin[es] a crime involving moral turpitude.” Id.

When no sub-section is specified in the record of conviction, we begin our categorical inquiry with the sub-section requiring the least culpability. Accordingly, a crime involves moral turpitude when “the least culpable conduct necessary to sustain a conviction under the statute” can be considered morally turpitudinous. Id.
***
B. Least Culpable Conduct
Mehboob was convicted of indecent assault under 18 Pa. Cons. Stat. § 3126(a), which contains eight sub-sections. Section 3126(a) is therefore divisible, so we look at the record of conviction. The record of conviction in this case does not specify the sub-section under which Mehboob was convicted. Therefore, we look at the sub-section that requires the least culpability, sub-section (a)(8), to determine whether it is a crime involving moral turpitude.

Sub-section (a)(8) is violated when there is “indecent contact with the complainant” when “the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.” The term “indecent contact” is defined as “[a]ny touching of the sexual or other intimate parts
of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa. Cons. Stat. § 3101.

Immigration Law: Supreme Court will Review Two Deportation Cases

From Jurist.org, November 26, 2008:

The US Supreme Court granted certiorari in two cases Tuesday.

In United States v. Denedo the Court will decide whether a military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis [backgrounder] filed by a former service member to review a final court-martial conviction. The case involves a Nigerian national who enlisted in the US Navy and was later convicted on larceny charges. After he was discharged from the Navy, deportation proceedings began onthe basis of the conviction. Denedo sought a writ of error coram nobis from the US Court of Appeals for the Armed Forces [official website], which found [opinion, PDF] that it had jurisdiction over the case. The US Department of Justice [official website] appealed the ruling.

In Nken v. Mukasy [docket; stay application, PDF], the Court will consider what standard governs a stay of deportation request by an alien pending consideration of his petition for review. Jean Marc Nken is a native of Cameroon who fears persecution upon return to his home country. He was denied a stay of a deportation order while he pursued court review of the denial of his asylum claim. His lawyers originally asked the Court for a stay of deportation, but the court granted full review to resolve the conflict over the proper standard of review. His deportation has since been blocked, and oral argument is scheduled for January 21.

Racial Profiling: Ethnicity cannot support Detention

New York Times, November 25, 2008. Judge Rules That Suspects Cannot Be Detained Because of Ethnicity

"A federal judge in Brooklyn ruled on Monday that the United States government could not use ethnicity as justification for detaining two Egyptian-born men who were questioned for four hours after a cross-country flight in 2004. "

"The two men, Tarik Farag, a former New York City police officer, and Amro Elmasry, who was working in Egypt for General Electric, sued the government, saying the questioning was unjustified. The government said that the men, who were arrested but not charged with any crime, had acted strangely during their flight from San Diego to Kennedy International Airport and that two counterterrorism agents had observed them switching seats, checking their watches often and speaking in Arabic. "

"The government said that the men’s ethnicity was a factor in deciding to detain them, and argued that it was an acceptable factor. But Judge Frederic Block of United States District Court in Brooklyn disagreed. In response to the government’s request for a determination without a trial, the judge said there was enough merit for the case to continue. He cited the internment of Japanese-Americans during World War II in saying that the 9/11 terrorist attacks should not justify detaining a suspect based on race."

Miranda Abroad: Second Circuit Issues Opinion

The Second Circuit issued three opinions today in the case of defendants arrested abroad, one of which addressed Miranda abroad. November 24, 2008,01-1535-cr(L) (5th A)

"To summarize, we hold:
(1) The inculpatory statements of Al-’Owhali and Odeh that were obtained overseas by U.S. agents were properly admitted at trial because (a) the oral warnings of the federal prosecutor satisfied, and the “Advice of Rights” form signed by defendants substantially complied with, the government’s obligations, insofar as it had any, under Miranda v. Arizona, 384 U.S. 436 (1966), and (b) the statements were not obtained involuntarily from defendants in violation of the Fifth Amendment; "

Terrorism Trials: Defense alleges that Informant tried to Generate Crime

Terrorism Trials

Five men are currently on trial in US District Court Camden New Jersey, charged with conspiracy to engage in acts of terrorism. Philadelphia Inquirer Novmber 21, 2008.

" Mahmoud Omar, the key government informant in the Fort Dix terrorism trial, completed his 13th and final day of testimony yesterday by again explaining conversations that he had secretly recorded for the FBI during a 16-month undercover operation. The prosecution has alleged that Omar's tapes, the linchpin of its case, lay out the details of a conspiracy by five foreign-born Muslims to launch a jihad-inspired attack on the South Jersey military base."

"Informants" Avoided Deportation and Paid Funds by US Government

" Defense attorneys challenged the credibility and motivation of Omar by pointing out that he was a convicted felon facing deportation and had been paid about $240,000 by the FBI for his undercover work. They are expected to raise similar questions about Bakalli. Little has been made public about the former Northeast Philadelphia resident, but the prosecution has conceded that he was facing possible deportation when he agreed to cooperate and that, in exchange for his help, the government promised to assist him and his family in their attempt to remain in the United States."

Immigration Consequences: AG Issues new position on CMT

Matter of SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008)Matter of SILVA-TREVINO, 24 I&N Dec. 687 (A.G. 2008). The Attorney General remanded to the Board of Immigration Appeals.

(1) To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.
(2) It is proper to make a categorical finding that a defendant’s conduct involves moral turpitude when that conduct results in conviction on the charge of intentional sexual contact with a person the defendant knew or should have known was a child.
(3) To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.

Vienna Convention: No Merit to Claim in Capital Case, Dual Citizen not a Foreign National

Com. v. Baumhammers--- A.2d ----, 2008 WL 4938399Pa.,2008, the Supreme Court of Pennsylvania rejected as without merit a claim by the defendant, a dual US and Latvian citizen, that the failure to inform of his consular rights resulted in ineffective assistance of counsel. However, the facts of this particular case are fairly unique. According to the opinion, the defendant had training as an attorney.

Guantanamo: Algerian 6, US Blackmailed Bosnia to Force Transfer?

Update: November 20, 2008. Judge Orders Five Detainees Released.

Judge Leon, in a ruling from the bench, said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.
“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.
Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights. (NYT)

*******

ISN Security Watch report by Anes Alic and Damir Kaletovic, that the Algerian Six, who were living in Bosnia at the time of their arrest, had been ordered released by the Bosnian Supreme Court, but then transferred to Guantanamo.

" According to the documents obtained by ISN Security Watch, the defense team will try to prove that US authorities had no evidence against their clients to warrant their extradition, and that their handing over occurred after pressure and blackmail, particularly from Christopher Hoh of the US Embassy, who allegedly threatened to withdraw US financial and military support from Bosnia."

"According to testimony given by then-Bosnian Federation prime minister, Alija Behmen, Hoh said that if he did not hand over the men to the US troops, "then let God protect Bosnia and Herzegovina."

"Behmen said that after talking with US Embassy officials in Sarajevo, it was clear that "we faced with the choice of either jeopardizing the very existence of our country, but risking a confrontation with international Stabilization Forces (SFOR), being branded as supporters of terrorism and losing financial and political support from the US".

Guantanamo: NACDL Press Release on Military Commissions

The National Association of Criminal Defense Lawyers and the American Civil Liberties Union issued a joint news release on November 18, 2008 describing Monday’s defense filings in the military commissions proceedings at Guantanamo Bay, Cuba. The news release is available online at NACDL’s Web site at http://www.nacdl.org/public.nsf/newsreleases/2008mn24?opendocument

"Washington, DC­ (November 18, 2008) -- For the second time this month, a group of more than 30 military and civilian defense lawyers, assembled by the American Civil Liberties Union and National Association of Criminal Defense Lawyers as part of the John Adams Project, filed several pretrial motions in Guantánamo challenging the constitutionality of the military commission prosecutions. The defense is protesting the legality of these ad hoc tribunals, which may rely on coerced confessions and expressly preclude prisoners from invoking the Geneva Conventions. The John Adams Project is a partnership between the ACLU and the NACDL that sponsors expert civilian counsel to assist the under-resourced military defense counsel for several Guantánamo detainees.

“It has become painfully clear that the military commissions lack meaningful constitutional protections,” said Denny LeBoeuf, Director of the John Adams Project. “History shows that federal civilian or military courts are perfectly capable of handling terrorism prosecutions and accommodating sensitive national security concerns, as has been demonstrated time and time again.”Motions filed yesterday in the case of several 9/11 defendants focused on the grave constitutional flaws underlying the Military Commissions Act, charging that the tribunals lack the jurisdiction to prosecute detainees for acts that do not constitute war crimes and that the trial procedure established by the Department of Defense is so deficient that it violates basic constitutional and international standards of due process. “These challenges cut to the heart of the Commission’s authority to convict suspects in a system that resembles a trial in name only,” said Michael Price, National Security Coordinator for NACDL. The filings come just one day after President-elect Obama reiterated his commitment to close Guantanamo Bay and end the military commissions process.

In a joint trial of five detainees implicated in 9/11, defense lawyers in United States v. Mohammed et al filed seven pretrial motions yesterday, bringing the total up to 73 since charges were referred in May. The motions include:
· Defense Motion to Dismiss for Unlawful Command Influence by the President. The defense requested dismissal of all charges against the accused because of evidence that President Bush, as commander-in-chief, has unlawfully influenced the military commissions through prejudicial and inflammatory public comments and by amassing such unmovable public hostility towards the accused that any objective, disinterested person would harbor a significant doubt that they can receive a fair trial by military commission. The Commission is duty-bound to ensure that the accused are afforded a fair trial that will guarantee that a death sentence will not be imposed on the accused due to the passion and prejudice that has been injected into the proceedings by the President of the United States.

· Defense Motion to Dismiss Charge for Lack of Jurisdiction. Settled Supreme Court precedent reiterates that Congress may only use military commissions to prosecute war crimes. The Military Commissions Act unconstitutionally creates jurisdiction to try detainees for conduct not traditionally recognized as a war crime. As a result, the MCA is overbroad and unconstitutional, and the military commissions lack jurisdiction to consider such charges.

· Defense Motion to Dismiss (Ex Post Facto Application of Unlawful Combatant Status). This motion rejects the concept or category of detainees dubbed “alien unlawful combatants,” arguing that there is no basis for this classification under International Humanitarian Law, and that prior to September 11, 2001, no such category existed in American jurisprudence. The MCA simply invents a new class of prisoner in order to substantially reduce the elements and burden of proof necessary to convict and punish, including by execution; and subvert the presumption of innocence by altering rules of evidence to make it easier for the government to convict. This retrospective application of such changes in the law violates the Ex Post Facto Clause of the Constitution (Art. I, Sec. 9, cl. 3).

· Defense Motion to Dismiss (MCA Exceeds Congress’ War Powers). In Boumediene v. Bush, the Supreme Court rejected the government’s contention that it had “the power to switch the Constitution on or off at will” and that it could treat Guantanamo Bay as a law-free zone. In this motion, the defense makes a related point: Congress cannot establish a Constitution-free zone simply by calling a criminal proceeding a “military commission.”

· Defense Motion to Dismiss (The Commission Is Not a “Regularly Constituted Court”). This motion seeks to dismiss all charges against because the Military Commissions Act and the Rules for Military Commissions fail to provide the minimum standards of due process mandated by the Supreme Court in Hamdan, the International Covenant on Civil and Political Rights, and customary international law. The commissions violate the right to equal protection and the right to due process, denying the accused adequate time and facilities to prepare a defense and permitting the admissibility of coerced confessions, including those possibly obtained by torture or cruel, inhuman or degrading treatment.

The motions were filed on behalf of detainees Mustafa Ahmed al Hawsawi and Ramzi bin al Shibh. Khalid Sheikh Mohammed, Ali Abdul Azziz Ali, and Walid bin Attash reserved the right to join at a later time once the filings are translated into Arabic and the detainees have had an opportunity to consult with counsel. The linguists provided by the military have been unable to accomplish the translations, and the ability of defense attorneys to meet with their clients remains extremely restricted.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s 12,000-plus direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling more than 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

White Collar Criminal Immigration: Human Resources Employee Sentenced, Charges against Company Still Pending

The press reports that a federal judge in Salt Lake City sentenced a human resources employee to probation for aiding in the hire of undocumented workers. However, charges against the company are still pending.

A federal judge on Thursday ordered a human resources manager to serve 36 months of probation and pay a $200 fine for helping undocumented applicants get jobs at his company. He had earlier pleaded guilty to two counts of encouraging or inducing undocumented workers to remain in the United State illegally by helping two undocumented workers get jobs at the company in Salt Lake City Utah.

His attorney said that the defendant did not profit from the hires and was only trying to help undocumented workers and fulfill his own duties to his employer by filling low-wage jobs. The company has been charged with 10 counts of harboring illegal aliens.

Interpreter: Claims to Be Certified; No Reversible Error

A Tennessee Court has upheld the death penalty, after various claims of errors. One of these included the fact that the interpreter for a witness claimed to be certified but in fact was not. Because the defense had made no objection, and there was no other evidence that the fairness of the trial was undermined, the Court did not find this error to be sufficient for reversal. State v. Banks--- S.W.3d ----, 2008 WL 4823068Tenn.,2008.November 07, 2008.

"The use an interpreter who is neither certified nor registered is not reversible error in and of itself. It may rise to the level of reversible error only in circumstances where a certified or registered interpreter was readily available and where the use of the non-credentialed interpreter undermined the fairness of the proceeding in some way. This record does not indicate that a certified or registered Arabic language interpreter was readily available or that Mr. Ghanem's translation somehow undermined the fairness of the proceeding."

Guantanamo: Study Reveals Shattered Lives of Released Detainees

From the Center for Constitutional Rights:

Washington, D.C. — Detainees released from U.S. detention in Guantánamo Bay, Cuba and Afghanistan live shattered lives as a result of U.S. policies in the “war on terror,” according to a new report by human rights experts at the University of California, Berkeley done in partnership with the Center for Constitutional Rights (CCR). The report is available below.
The report, Guantánamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Detainees, based on a two-year study, reveals in graphic detail the cumulative effect of Bush Administration policies on the lives of 62 released detainees. Many of the prisoners were sold into captivity and subjected to brutal treatment in U.S. prison camps. Once in Guantánamo, prisoners were denied access to civilian courts to challenge the legality of their detention. Almost two-thirds of the former detainees interviewed reported having psychological problems since leaving Guantánamo. “The nightmare of Guantánamo did not end with the detainees' release.

Men never convicted of crimes or given the opportunity to clear their names are suffering from a lasting 'Guantánamo stigma,' and are unable to find work,’” said Laurel Fletcher, Director of the International Human Rights Law Clinic at UC Berkeley School of Law and co-author of the report. Researchers conducted interviews with released detainees in nine countries. The comprehensive study also includes in-depth interviews with key government officials, military experts, former guards, interrogators and other camp personnel.“Guantánamo, like Abu Ghraib, has become a stain on the reputation of the United States,” said Eric Stover, director of the UC Berkeley Human Rights Center and co-author of “Guantánamo and Its Aftermath.

”The authors call for an independent, nonpartisan commission to lift the shroud of secrecy from Guantánamo and other detention sites. They further argue that the commission should have subpoena power and, if applicable, recommend further investigations of those allegedly responsible for any crimes committed at all levels of the civilian and military chain of command.The authors warn that such a commission should not be undercut by the issuance of pardons, amnesties, or other measures that would protect those culpable from accountability.

President-Elect Barack Obama has called for the closure of Guantánamo. The UC Berkeley report asks for even broader remedies.“There is no doubt that these men and their families have suffered the gravest consequences of the Bush Administration’s so-called war on terror,” said CCR Executive Director Vincent Warren. “Overturning the legal atrocities at Guantánamo and the countless warrantless infringements of basic rights of detainees is only one step in undoing the damage done to these men and their families.”

Over half of the study respondents who discussed their interrogation sessions at Guantánamo (31 of 55) characterized them as “abusive.” Detainees reported being subjected to short shackling, stress positions, prolonged solitary confinement, and exposure to extreme temperatures, loud music, and strobe lights for extended periods—often simultaneously. The authors conclude that the cumulative impact of these methods, especially over time, constitutes cruel, inhumane, and degrading treatment and, in some cases, rises to the level of torture. “Carefully researched and devoid of rhetoric, the UC Berkeley report adds a new chapter to America's dismal descent into the netherworld of prisoner abuse since the tragic events of 9/11,” said the Honorable Patricia Wald, who served on the U.S. Court of Appeals and the International Criminal Tribunal for the Former Yugoslavia. “It provides new insights into the lingering consequences of unjust detention,” Wald added.Most detainees interviewed for the study were not vengeful toward America, but simply expressed a desire for justice and an opportunity to clear their names.

"We cannot sweep this dark chapter in our nation's history under the rug by simply closing the Guantánamo prison camp," Stover said." The new administration must investigate what went wrong and who should be held accountable,” said Stover.Of the more than 770 detainees who have endured Guantánamo since it opened in 2002, over 500 have been released without formal criminal charges or trial. So far, of the 250 or more who remain in detention, only 23 have been charged with a crime. Two have been convicted and one has pled guilty.The Human Rights Center investigates war crimes and other serious violations of human rights and international humanitarian law. HRC’s empirical studies recommend specific policy measures to hold perpetrators accountable, protect vulnerable populations, and help rebuild war-torn societies.

CCR & Berkley Report : GTMO & Its Aftermath

Cultural Issues & Sentencing: Wa. Supreme Court Upholds Prohibition

State v. Cayenne, November 13, 2008. " This case involves a challenge to a sentencing condition imposed on a Native American tribal member convicted for off-reservation, illegal fishing. The fishing involved the use of a gillnet, and the sentencing judge ordered the defendant not to own any gillnet. The Court of Appeals partially vacated the condition, holding the sentencing court had no authority to restrict a tribal member's rights while on the reservation. We reverse."

"Chehalis tribal members are subject to all state laws when fishing on non-tribal lands. In 2005, Washington State Department of Fish and Wildlife officers twice observed Cayenne unlawfully gillnetting in the Chehalis River while on non-tribal land. The officers arrested Cayenne, and the State charged him by information with two counts of felony first degree unlawful use of nets to take fish, violating RCW 77.15.580. Under this statute, a person is guilty if the person lays, sets, uses, or controls a net capable of taking fish from state waters and the person is not licensed to do so. "

"A jury convicted Cayenne of count two. As part of Cayenne's eight-month sentence, the trial court prohibited Cayenne from owning gillnets during the term of his sentence, on and off the reservation. Cayenne appealed, arguing the trial court exceeded its authority to impose a crime-related prohibition restricting his on-reservation behavior with respect to fishing. The appellate court agreed and vacated the crime-related prohibition as it extended "[o]r could be interpreted to extend, to fishing within the Chehalis Indian Reservation." State v. Cayenne, 139 Wn. App. 114, 124, 158 P.3d 623 (2007). We granted the State's petition for review."

Guantanamo: Obama plans for detainees disclosed

November 10, 2008., AP: " President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final.

Guantanamo: First Habeas trial begins November 6

The civil habeas case began on November 6, 2008 in Washington, D.C., and involves a group of six detainees from Algeria, arrested in Bosnia, on allegations they intended to bomb the US Embassy. These charges have since been withdrawn, and attorneys for the men argue that they are victims of a mistake that the Government refuses to acknowledge.

Lawyers for the Government are not taking any chance that the Court will order the men released:

" In the case that began Thursday, government lawyers appear to be taking few chances that the men will be freed. They have filed a sealed envelope of evidence with Judge Leon, which the detainees’ lawyers have not been permitted to see. In court filings the government lawyers said that if the evidence in the closed hearings was not enough to justify the detention, then the judge should open the envelope. Judge Leon, the filing said, “may very well ultimately face the circumstance where the information justifying detention is too sensitive” to share not only with the detainees but also with their lawyers." New York Times.

Immigration Crimes: 18 USC 1015a Does not Require that False Statement be Material

United States v Yousseff, November 5, 2008, 9th cir. Defendant, a Egyptian national, made false statement on application I-485. Ninth circuit upheld the conviction as immigration statute does not require that false statement be material.

Congratulations Barak Obama!

A joyous moment in American history! We hope that one of President Obama's first agenda items will be to close Guantanamo.

Guatanamo: DC Court of Appeals Stays Detainees Petition for Review

The Government successfully obtained a stay in the action of a Guantanamo detainee, for the Court's review of his status. Basardh v Gates. November 4, 2008.

"Basardh is a detainee at the United States Naval Base at Guantanamo Bay, Cuba. A Combatant Status Review Tribunal determined that he is an enemy combatant. Basardh brought two actions contesting the legality of his detention. The first was a petition for a writ of habeas corpus in the district court. This was stayed pending the Supreme Court’s decision in Boumediene v. Bush, 128 S.Ct. 2229 (2008), regarding whether § 7 of the Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), violated the Suspension Clause of the Constitution, ART. 1, § 9, cl. 2, when it deprived federal courts of jurisdiction over habeas actions brought by detainees at Guantanamo. The stay was dissolved after the Court ruled in the detainees’ favor in June 2008.

Basardh’s second action – which is the subject of the government’s motion – is a petition for direct review of the Tribunal’s determination of his status. He filed the petition in this court pursuant to Detainee Treatment Act § 1005(e)(2). By our count, more than 150 Guantanamo detainees have similar petitions pending in our court.

**
As to the second consideration, there is serious doubt about our jurisdiction over these petitions – and thus a strong probability that the government will prevail, see Va. Petroleum
Jobbers, 259 F. 2d at 925; see also Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The doubt arises from application of the established rules of severability. It is perfectly clear that
Congress passed the Detainee Treatment Act in order to restrict habeas jurisdiction after the Supreme Court held, as a matter of statutory construction, that Guantanamo detainees could bring habeas petitions in federal court. Rasul v. Bush, 542 U.S. 466 (2004). "

Immigration Consequences: Hawaii Failure to Leave name after Accident not CMT

November 3, 2008, Latu v Mukasey:

“[I]n order to be inherently fraudulent, a crime must involve knowingly false representations made in order to gain something of value.” Navarro-Lopez, 503 F.3d at 1076
Navarro-Lopez explicitly stated that “[t]he type of benefit at issue in fraud cases is not the evasion of criminal penalties, but rather something more tangible, such as money, a passport, naturalization papers, or an occupational deferment from military service.” Id. at 1077 (citations omitted). “When the only ‘benefit’ the individual obtains is to impede the enforcement of the
law, the crime does not involve moral turpitude.”

Latu’s offense does not involve knowingly false representations in order to gain something of value. Instead, a driver may violate the statute merely by failing to provide all the requisite information. In Blanco, we addressed a violation of a California statute criminalizing the provision of false information to an officer to evade the process of the court or the proper identification
of the person. We held that the statute did not require fraudulent intent and therefore was not a crime involving moral turpitude. Although the crime violated a duty to society to obey the law and not to impede the investigation of crime, it did not require an intent to obtain something tangible.

Immigration and Law Enforcement: Sheriffs office to have access to ICE data base

The Harris County Sheriff's Office today became the first local law enforcement agency in the nation to test an automated fingerprint check system that gives jailers full access to suspects' immigration history, officials said. The new program provides a seamless and simultaneous check of immigration and criminal history by linking the FBI's database with the Department of Homeland Security's database, known as IDENT (the Automated Biometric Identification System), officials said Monday. Houston Chronicle, October 27, 2008.


Under the new system, Harris County jailers will have full access to millions of immigration records in the IDENT database, Palmore said. When a suspect is booked into the Harris County Jail, his fingerprints will be checked against the FBI system and the immigration database simultaneously.

Jury Selection: Peremptory for Dread Locks not Race Neutral

The South Carolina Supreme Court reversed the verdict in a civil trial.

10-27-08 McCrea v Gheraibeh; peremptory based on dreadlocks not race neutral:

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/26557.htm
While we recognize the importance of properly allocating the burden of proof in a Batson inquiry, in our view, counsel’s explanation that he struck the particular juror based simply on counsel’s “uneasiness” over the juror’s dreadlocks was not a race-neutral reason for exercising a peremptory strike. Regardless of their gradual infiltration into mainstream American society, dreadlocks retain their roots as a religious and social symbol of historically black cultures. For this reason, we hold that counsel’s explanation that the juror’s dreadlocks caused him “uneasiness” was insufficient to satisfy the race-neutral requirement in the second step of the trial court’s Batson analysis. See also Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998) (holding that basing a peremptory strike on a characterization of the juror as a “redneck” is facially discriminatory in violation of Batson).

By proceeding with a pretext inquiry under Batson without first eliciting a race-neutral reason for the strike from Respondent’s counsel, and ultimately dismissing Petitioner’s Batson motion based solely on the reputation of counsel making the strike, we find that the trial court bypassed an evidentiary requirement that goes to the very heart of a Batson inquiry. For this reason, we hold that the trial court erred in denying Petitioner’s Batson motion

The trial of Chuckie Taylor (cont.) & Update

Update: Mr. Belfast a/k/a Chuckie Taylor has been found guilty by a federal jury on October 30, 2008 and is pending sentencing. For additional information about the charges, see Amnesty International.

Editor's Note:
The September 18, 2008 issue of Rolling Stones magazine has an interesting biographical piece on Charles Taylor Jr., currently on trial for commmiting torture in Liberia. "Chucky Taylor was an ordinary suburban teenager - until he went to live with his father, one of Africa's most brutal dictators. How did a kid from Orlando end up as the first US citizen on trial for torture abroad?"