Case in Brief, Briseno v Scribner, February 23, 2009. Expert testimony did not substitute for evidence of intent to benefit gang in this case. It should be noted, however ,that the Court did not find constitutional error in the admission of opinion testimony given by gang expert.
"The thrust of Briceno’s evidentiary challenge is that Vi’s testimony that the hypothetical robberies would have been gang-related should have been excluded as pertaining to an ultimate issue for the jury. Our recent decision in Moses forecloses such a challenge, as it holds that there is no clearly established constitutional right to be free of an expert opinion on an ultimate issue. See 543 F.3d at 1105-06. Accordingly, the admission of the opinion testimony of Peter Vi cannot be said to be contrary to, or an unreasonable application of, Supreme Court precedent."
International and Federal Criminal Defense
- Federal and Extradition Defense
- Tampa Bay, Florida, United States
- 727-551-0751 * Since 1981 * Representing Foreign Nationals: State and Federal Criminal Defense, White Collar Crime, Fraud, Extradition, Regulatory Matters, and Administrative Proceedings. For additional information go to Linda Friedman Ramirez P.A. at: www.spanishlaw.com
Friday, February 27, 2009
Immigrant Advocate Appointed by Obama
Immigrant advocate appointed : A former Miami immigrant rights advocate and attorney has been appointed by the Obama Administration to the Department of Homeland Security. Esther Olavarria has been named a deputy assistant secretary for policy within the department. During her time in South Florida Olavarria has worked with the Haitian Refugee Center, Legal Services of Greater Miami and the Florida Immigration Advocacy Center, according to CBS4 news partners at The Miami Herald.
"Cold ICE Brings Heat" Immigration WorkPlace Raids
Update: February 25, 2009. Secretary of State seeks review of recent immigration workplace raid, according to the New York Times.
" Homeland Security Secretary Janet Napolitano on Wednesday ordered a review of a raid at an engine plant in Washington State that resulted in the arrests of 28 people suspected of being illegal immigrants. A high-level official in the Department of Homeland Security said that Ms. Napolitano had not been informed about the raid on Tuesday before it happened, and that she was seeking details about its planning and scope. “She was not happy about it because it’s inconsistent with her position, and the president’s position on these matters,” said the official, who agreed to discuss the matter on condition of anonymity because the secretary had not authorized the conversation. President Obama has promised immigration enforcement that would focus less on illegal workers and more on the employers who rely on them.
ICE Brings Heat, But Not Light, To Immigration Debate 2008, by Ivan Dominguez. Excerpt from the NACDL's Champion Magazine, February 2009, and reprinted with Permission.
"In the aftermath of the congressional failure of the McCain-Kennedy immigration reform legislation in the summer of 2007, which would have resulted in comprehensive immigration reform, the issue of how to fairly and effectively enforce U.S. immigration laws is proving to be as vexing and divisive as ever. Inherently unjust mass trials, known as “Operation Streamline,” which began in 2005, continued in 2008. It was also a record arrest year for workplace immigration raids. Local and state governments persisted in their efforts to arrogate to themselves immigration enforcement authority. And discrimination, violence, and even murder of those perceived to be immigrants –unauthorized or otherwise — galvanized communities from the Long Island seashore and the five boroughs of New York City to the border towns in the desert southwest and rural agricultural centers in the heartland of America.Perhaps the difficulty in the administration of a fair, just, and consistent approach to the millions of unauthorized immigrants who call America home was best reflected in some of the more unexpected violations of immigration law.
....Through Operation Streamline, undocumented people arrested while attempting to cross the border are brought to a local jail, and those without a criminal history or prior illegal entry are charged in federal court with a misdemeanor, “entry without inspection.” These individuals often meet their attorney for the first time at their initial appearance, where they are brought bound together in groups of 50 or more before a U.S. magistrate judge, who explains the charges en masse. The defendants are offered a short sentence in return for guilty pleas and then speedily deported to their own country, usually Mexico. The procedures barely, if at all, comport with due process of law.
......
The criminalization surge:
"From 2002 to 2008, worksite criminal arrests increased almost 45-fold, from 25 to over 1,100. The overwhelming majority of arrestees were workers, not owners, managers, or supervisors, according to U.S. Immigration and Customs Enforcement (ICE). During the same period, administrative worksite enforcement arrests jumped from 485 to 5,184, a greater than 1,000 percent increase in just seven years. ICE identifies aggravated identity theft and social security fraud as charges faced by criminally arrested workers.8Of course, the question of the applicability of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1), to individuals who used false means of identification without knowing it belonged to another person is a serious mens rea issue. It has significant implications in the immigration enforcement setting in light of the trend toward increased criminal prosecutions. Indeed, in October 2008, the U.S. Supreme Court granted certiorari in the matter of Flores-Figueroa v. United States (No. 08-108) to address this very question. And NACDL is out front. On December 22, NACDL filed an amicus brief in support of Petitioner in Flores-Figueroa. ICE says that it “focuses on employers who are egregiously violating immigration laws, especially when those violations can compromise our nation’s security.” So let’s look at the year in workplace immigration raids. According to U.S. government data, during fiscal year 2008, there were 1,103 criminal and 5,184 administrative workplace immigration-related arrests. Just over 10 percent of the criminal arrests, and about 2 percent of the total arrests (criminal and administrative), were of owners, managers, or supervisors, while the remaining arrests were of allegedly unauthorized workers."
(See also, US Supreme Court to hear oral argument on Flores Figueroa, February 25, 2009.)
For a copy of the complete article, please contact NACDL . Editor's Note: Linda Friedman Ramirez is a Life Member of NACDL and encourages colleagues to consider membership in this phenomenal national criminal defense lawyers organization.)
" Homeland Security Secretary Janet Napolitano on Wednesday ordered a review of a raid at an engine plant in Washington State that resulted in the arrests of 28 people suspected of being illegal immigrants. A high-level official in the Department of Homeland Security said that Ms. Napolitano had not been informed about the raid on Tuesday before it happened, and that she was seeking details about its planning and scope. “She was not happy about it because it’s inconsistent with her position, and the president’s position on these matters,” said the official, who agreed to discuss the matter on condition of anonymity because the secretary had not authorized the conversation. President Obama has promised immigration enforcement that would focus less on illegal workers and more on the employers who rely on them.
ICE Brings Heat, But Not Light, To Immigration Debate 2008, by Ivan Dominguez. Excerpt from the NACDL's Champion Magazine, February 2009, and reprinted with Permission.
"In the aftermath of the congressional failure of the McCain-Kennedy immigration reform legislation in the summer of 2007, which would have resulted in comprehensive immigration reform, the issue of how to fairly and effectively enforce U.S. immigration laws is proving to be as vexing and divisive as ever. Inherently unjust mass trials, known as “Operation Streamline,” which began in 2005, continued in 2008. It was also a record arrest year for workplace immigration raids. Local and state governments persisted in their efforts to arrogate to themselves immigration enforcement authority. And discrimination, violence, and even murder of those perceived to be immigrants –unauthorized or otherwise — galvanized communities from the Long Island seashore and the five boroughs of New York City to the border towns in the desert southwest and rural agricultural centers in the heartland of America.Perhaps the difficulty in the administration of a fair, just, and consistent approach to the millions of unauthorized immigrants who call America home was best reflected in some of the more unexpected violations of immigration law.
....Through Operation Streamline, undocumented people arrested while attempting to cross the border are brought to a local jail, and those without a criminal history or prior illegal entry are charged in federal court with a misdemeanor, “entry without inspection.” These individuals often meet their attorney for the first time at their initial appearance, where they are brought bound together in groups of 50 or more before a U.S. magistrate judge, who explains the charges en masse. The defendants are offered a short sentence in return for guilty pleas and then speedily deported to their own country, usually Mexico. The procedures barely, if at all, comport with due process of law.
......
The criminalization surge:
"From 2002 to 2008, worksite criminal arrests increased almost 45-fold, from 25 to over 1,100. The overwhelming majority of arrestees were workers, not owners, managers, or supervisors, according to U.S. Immigration and Customs Enforcement (ICE). During the same period, administrative worksite enforcement arrests jumped from 485 to 5,184, a greater than 1,000 percent increase in just seven years. ICE identifies aggravated identity theft and social security fraud as charges faced by criminally arrested workers.8Of course, the question of the applicability of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1), to individuals who used false means of identification without knowing it belonged to another person is a serious mens rea issue. It has significant implications in the immigration enforcement setting in light of the trend toward increased criminal prosecutions. Indeed, in October 2008, the U.S. Supreme Court granted certiorari in the matter of Flores-Figueroa v. United States (No. 08-108) to address this very question. And NACDL is out front. On December 22, NACDL filed an amicus brief in support of Petitioner in Flores-Figueroa. ICE says that it “focuses on employers who are egregiously violating immigration laws, especially when those violations can compromise our nation’s security.” So let’s look at the year in workplace immigration raids. According to U.S. government data, during fiscal year 2008, there were 1,103 criminal and 5,184 administrative workplace immigration-related arrests. Just over 10 percent of the criminal arrests, and about 2 percent of the total arrests (criminal and administrative), were of owners, managers, or supervisors, while the remaining arrests were of allegedly unauthorized workers."
(See also, US Supreme Court to hear oral argument on Flores Figueroa, February 25, 2009.)
For a copy of the complete article, please contact NACDL . Editor's Note: Linda Friedman Ramirez is a Life Member of NACDL and encourages colleagues to consider membership in this phenomenal national criminal defense lawyers organization.)
Thursday, February 26, 2009
Immigration Consequences: Ninth Circuit and Arizona Aggravated Assault
Case in Brief: The Ninth Circuit has affirmed for federal sentencing purposes that a conviction for aggravated assault is not a crime of violence. United States v Esparza-Herrera.
" We hold that under the categorical approach, assessing the law of other jurisdictions and scholarly comment, ordinary recklessness is a broader mens rea requirement for aggravated
assault than is “recklessness under circumstances manifesting extreme indifference to human life.” Accordingly, we conclude that A.R.S. § 13-1204(A)(11) is broader than the Model Penal Code’s definition of aggravated assault because the Arizona statute alone encompasses acts done with ordinary recklessness. With this difference in mind, under our categorical approach we next determine whether most states follow the Model Penal Code in requiring more than ordinary recklessness to sustain an aggravated assault conviction. See Rodriguez-Guzman, 506 F.3d at 744 (“[A]n offense’s generic definition under the Guidelines can be drawn from the ‘sense in which the term is now used in the criminal codes of most States.’ ” (quoting Taylor, 495 U.S. at 598)).
Although surveys of state statutes conducted by the district court, the government, and Esparza-Herrera reach different results, all three agree that the majority of states define aggravated assault as requiring at least “extreme indifference” recklessness. The
government concedes that 22 states require either knowledge or intent for an aggravated assault conviction. The government further acknowledges that 10 states and the District of
Columbia follow the Model Penal Code definition requiring “extreme indifference” recklessness. In sum, under the government’s own survey jurisdictions require, at a minimum, a heightened form of recklessness to sustain an aggravated assault conviction. Accepting the government’s analysis and the premises of our circuit precedent, we hold that a majority of states define aggravated assault as requiring at least a heightened, “extreme indifference” form of recklessness. Cf. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1153 (9th Cir.
2008) (en banc) (describing 35 states setting the age of consent at below 18 as “the vast majority of states”).
We conclude that A.R.S. § 13-1204(A)(11) encompasses conduct beyond aggravated assault, as it is defined by the Model Penal Code and a majority of states, and therefore a conviction under that statute under our precedent is not a conviction for a crime of violence under Guidelines § 2L1.2(b)(1)(A)(ii). III Under the categorical approach, aggravated assault requires a mens rea of at least recklessness “under circumstances manifesting extreme indifference to the value of human life.” Esparza-Herrera’s statute of conviction, A.R.S. § 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence. We conclude that the district court correctly denied the government’s request for a 16-level sentencing enhancement, and accordingly we need not address Esparza-Herrera’s other arguments.
" We hold that under the categorical approach, assessing the law of other jurisdictions and scholarly comment, ordinary recklessness is a broader mens rea requirement for aggravated
assault than is “recklessness under circumstances manifesting extreme indifference to human life.” Accordingly, we conclude that A.R.S. § 13-1204(A)(11) is broader than the Model Penal Code’s definition of aggravated assault because the Arizona statute alone encompasses acts done with ordinary recklessness. With this difference in mind, under our categorical approach we next determine whether most states follow the Model Penal Code in requiring more than ordinary recklessness to sustain an aggravated assault conviction. See Rodriguez-Guzman, 506 F.3d at 744 (“[A]n offense’s generic definition under the Guidelines can be drawn from the ‘sense in which the term is now used in the criminal codes of most States.’ ” (quoting Taylor, 495 U.S. at 598)).
Although surveys of state statutes conducted by the district court, the government, and Esparza-Herrera reach different results, all three agree that the majority of states define aggravated assault as requiring at least “extreme indifference” recklessness. The
government concedes that 22 states require either knowledge or intent for an aggravated assault conviction. The government further acknowledges that 10 states and the District of
Columbia follow the Model Penal Code definition requiring “extreme indifference” recklessness. In sum, under the government’s own survey jurisdictions require, at a minimum, a heightened form of recklessness to sustain an aggravated assault conviction. Accepting the government’s analysis and the premises of our circuit precedent, we hold that a majority of states define aggravated assault as requiring at least a heightened, “extreme indifference” form of recklessness. Cf. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1153 (9th Cir.
2008) (en banc) (describing 35 states setting the age of consent at below 18 as “the vast majority of states”).
We conclude that A.R.S. § 13-1204(A)(11) encompasses conduct beyond aggravated assault, as it is defined by the Model Penal Code and a majority of states, and therefore a conviction under that statute under our precedent is not a conviction for a crime of violence under Guidelines § 2L1.2(b)(1)(A)(ii). III Under the categorical approach, aggravated assault requires a mens rea of at least recklessness “under circumstances manifesting extreme indifference to the value of human life.” Esparza-Herrera’s statute of conviction, A.R.S. § 13-1204(A)(11), encompassed ordinary recklessness, and therefore his conviction was not a conviction for generic aggravated assault or a crime of violence. We conclude that the district court correctly denied the government’s request for a 16-level sentencing enhancement, and accordingly we need not address Esparza-Herrera’s other arguments.
Aggravated Identity Theft: US Supreme Court Has Heard Oral Argument
The US Supreme Court has heard oral argument on Flores-Figueroa v US, as to whether a defendant can be convicted of aggravated identity theft under certain circumstances. There is currently a circuit split. The Government has charged non-citizens with aggravated identity theft for using false social security numbers, without evidence that the defendant knew that the identity belonged to a real person. Advocates complain that the aggravated identity theft charge, which has a mandatory two year minimum sentence, has been use to coerce pleas to lesser offenses; that Congress did not intend to apply this statute to an individual who is solely using a false identity without harm to an actual individual. Copies of all briefings on this important case are availble at the SCOTUS Wiki.
A transcript of oral argument is available here.
A transcript of oral argument is available here.
Sunday, February 22, 2009
Vienna Convention Consular Notification & Civil Litigation: Right Clearly Established for 1983 purposes
Al-Khalidi v. Rosche E.D.Wis., 2008. Action brought by prisoner pursuant to 42 USC 1983. The opinion has only limited value; plaintiff's pleadings sufficient to state a claim as the right was clearly established in 1996.
"Article 36(b) of the Vienna Convention provides in relevant part: [I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph. "
See also Jogi v (7th Cir. 2007). The Seventh Circuit: "We conclude that even though many if not most parts of the Vienna Convention address only state-to-state matters, Article 36 confers individual rights on detained nationals. Although international treaties as a rule do not create individual rights, see Chaparro-Alcantara, 226 F.3d at 620-21, Sosa recognizes that international law in general, and thus treaties in particular, occasionally do so, see 124 S.Ct. at 2756. Although two of our sister circuits have issued opinions in which they apparently reject this conclusion, two considerations persuade us that we should not follow their lead: first, they were both addressing the specific argument that Article 36 22 No. 01-1657 provided some kind of shield against criminal enforcement—a position that we too have rejected—and second, these decisions both predated Sosa. See Jimenez-Nava, 243 F.3d at 198; Emuegbunam, 268 F.3d at 394."
"Article 36(b) of the Vienna Convention provides in relevant part: [I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph. "
See also Jogi v (7th Cir. 2007). The Seventh Circuit: "We conclude that even though many if not most parts of the Vienna Convention address only state-to-state matters, Article 36 confers individual rights on detained nationals. Although international treaties as a rule do not create individual rights, see Chaparro-Alcantara, 226 F.3d at 620-21, Sosa recognizes that international law in general, and thus treaties in particular, occasionally do so, see 124 S.Ct. at 2756. Although two of our sister circuits have issued opinions in which they apparently reject this conclusion, two considerations persuade us that we should not follow their lead: first, they were both addressing the specific argument that Article 36 22 No. 01-1657 provided some kind of shield against criminal enforcement—a position that we too have rejected—and second, these decisions both predated Sosa. See Jimenez-Nava, 243 F.3d at 198; Emuegbunam, 268 F.3d at 394."
Readers may also find this law review article of interest, "Treaties as Law of the Land". This Article argues that, when a treaty binds the United States to behave in a given way towards a particular individual, the treaty is “judicially enforceable” by the individual just as any statute or constitutional provision would be, unless the treaty is non-self-executing in the Foster sense. A treaty might be unenforceable in court because it is too vague, or otherwise calls for judgments of a political nature, or is unconstitutional, just as statutes and constitutional provisions might
be. But no additional threshold showing of the treaty’s “judicial enforceability” is required.
Thursday, February 19, 2009
Racial Profiling: See Video of ICE agents Detaining Individuals at a Convenience Store
"Racial profiling is the initiation or extension of police activity based on an individual’s race, ethnicity, or national origin that has the effect of treating minority persons differently than non-minorities. To be sure, a minority stopped by police may have engaged in prohibited conduct, however it is the use of racial or ethnic stereotypes by law enforcement to focus disproportionately on minorities that lies at the core of prohibited racial profiling.*
The Washington Post February 18, 2009, has posted the video of ICE agents detaining various individuals at a convenience store. The video suggests that the agents arrested at least one individual without having even spoken to the individual, suggesting that his arrest for illegal presence in the United States was based solely on a racial profile. Click here for video.
*Floyd Weatherspoon, Ending Racial Profiling of African-Americans in the Selective Enforcement of Laws: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721, 724 (2004).
The Washington Post February 18, 2009, has posted the video of ICE agents detaining various individuals at a convenience store. The video suggests that the agents arrested at least one individual without having even spoken to the individual, suggesting that his arrest for illegal presence in the United States was based solely on a racial profile. Click here for video.
*Floyd Weatherspoon, Ending Racial Profiling of African-Americans in the Selective Enforcement of Laws: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721, 724 (2004).
Wednesday, February 18, 2009
Foreign Nationals in Federal Prisons: New Report by Pew Hispanic Center
A Rising Share: Hispanics and Federal Crime
by Mark Hugo Lopez, Associate Director, Pew Hispanic Center February 18, 2009
"Sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40% of all sentenced federal offenders -- more than triple their share (13%) of the total U.S. adult population. The share of all sentenced offenders who were Latino in 2007 was up from 24% in 1991, according to an analysis of data from the United States Sentencing Commission (USSC) by the Pew Hispanic Center, a project of the Pew Research Center.
Between 1991 and 2007, enforcement of federal immigration laws became a growing priority in response to undocumented immigration. By 2007, immigration offenses represented nearly one-quarter (24%) of all federal convictions, up from just 7% in 1991. Among those sentenced for immigration offenses in 2007, 80% were Hispanic.
This heightened focus on immigration enforcement has also changed the citizenship profile of federal offenders. In 2007, Latinos without U.S. citizenship represented 29% of all federal offenders. Among all Latino offenders, some 72% were not U.S. citizens, up from 61% in 1991. By contrast, a much smaller share of white offenders (8%) and black offenders (6%) who were sentenced in federal courts in 2007 were not U.S. citizens. "
Click here for the full report. For further comment, see New York Times.
by Mark Hugo Lopez, Associate Director, Pew Hispanic Center February 18, 2009
"Sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40% of all sentenced federal offenders -- more than triple their share (13%) of the total U.S. adult population. The share of all sentenced offenders who were Latino in 2007 was up from 24% in 1991, according to an analysis of data from the United States Sentencing Commission (USSC) by the Pew Hispanic Center, a project of the Pew Research Center.
Between 1991 and 2007, enforcement of federal immigration laws became a growing priority in response to undocumented immigration. By 2007, immigration offenses represented nearly one-quarter (24%) of all federal convictions, up from just 7% in 1991. Among those sentenced for immigration offenses in 2007, 80% were Hispanic.
This heightened focus on immigration enforcement has also changed the citizenship profile of federal offenders. In 2007, Latinos without U.S. citizenship represented 29% of all federal offenders. Among all Latino offenders, some 72% were not U.S. citizens, up from 61% in 1991. By contrast, a much smaller share of white offenders (8%) and black offenders (6%) who were sentenced in federal courts in 2007 were not U.S. citizens. "
Click here for the full report. For further comment, see New York Times.
Website of Interest: Canada's Immigration and Refugee Board, Country Specific Information
The Immigration and Refugee Board of Canada has excellent National Documentation Packages with country-specific links to a wealth of background and human rights information.
Sunday, February 15, 2009
New Global Report on Human Trafficking
A Global Report on Trafficking in Persons launched today by the United Nations Office on Drugs and Crime (UNODC) provides new information on a crime that shames us all. Based on data gathered from 155 countries, it offers the first global assessment of the scope of human trafficking and what is being done to fight it. It includes: an overview of trafficking patterns; legal steps taken in response; and country-specific information on reported cases of trafficking in persons, victims, and prosecutions.
Attn Criminal Defense Pracitioners! Is your client a victim of human trafficking??
"According to the Report, the most common form of human trafficking (79%) is sexual exploitation. The victims of sexual exploitation are predominantly women and girls. Surprisingly, in 30% of the countries which provided information on the gender of traffickers, women make up the largest proportion of traffickers. In some parts of the world, women trafficking is the norm. "
Attn Criminal Defense Pracitioners! Is your client a victim of human trafficking??
"According to the Report, the most common form of human trafficking (79%) is sexual exploitation. The victims of sexual exploitation are predominantly women and girls. Surprisingly, in 30% of the countries which provided information on the gender of traffickers, women make up the largest proportion of traffickers. In some parts of the world, women trafficking is the norm. "
Saturday, February 14, 2009
Immigration Policy: Parents of US Citizens Deported More than 100,000 in Decade
The New York Times on Feburary 13, 2009, discusses a report of Department of Homeland Security just released. More than 100,000 parents of United States Citizens have been deported.
"Of nearly 2.2 million immigrants deported in the decade ended 2007, more than 100,000 were the parents of children who, having been born in the United States, were American citizens, according to a report issued Friday by the Department of Homeland Security.
But the department lacks data that might have addressed questions left unanswered by the report, like the number of American children who were left behind in the United States or, alternatively, exited the country with their deported parents. Nor could the report say in how many instances both parents of such children were deported."
"Of nearly 2.2 million immigrants deported in the decade ended 2007, more than 100,000 were the parents of children who, having been born in the United States, were American citizens, according to a report issued Friday by the Department of Homeland Security.
But the department lacks data that might have addressed questions left unanswered by the report, like the number of American children who were left behind in the United States or, alternatively, exited the country with their deported parents. Nor could the report say in how many instances both parents of such children were deported."
Friday, February 13, 2009
Immigration Policy: House Judiciary Asks for Investigation of Arizona Sheriff
House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), and Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), Constitution Subcommittee Chairman Jerrold Nadler (D-N.Y.), and Crime Subcommittee Chairman Bobby Scott (D-Va.) called on Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano to investigate allegations of misconduct by Maricopa County (Arizona) Sheriff Joe Arpaio.
Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling.
On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You’re Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
The text of the attached letter is linked here.
Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling.
On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You’re Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
The text of the attached letter is linked here.
Wednesday, February 11, 2009
Federal Jurisdiction Native American: 9th Circuit Reverses
On February 10, 2009 the Ninth Circuit in US v Cruz reversed the conviction of the defendant, on the basis that the defendant was not an "Indian" as required by 18 USC 1153.
" Because the evidence viewed in the light most favorable to the government does not demonstrate that Cruz is an Indian or that he meets any of the Bruce factors, no rational trier of fact could have found that the government proved the statutory element of § 1153 beyond a reasonable doubt. Accordingly, the district court’s denial of the motion for judgment of acquittal was error. Where the government has failed to show that any of the Bruce factors has been satisfied, we have no trouble concluding that the error was “clear” and “obvious.” Olano, 507 U.S. at 734. As described earlier, a conviction that erroneously rests on insufficient evidence necessarily implicates “substantial rights” and seriously affects the “fairness” and “integrity” of the judicial process. Accordingly, the denial of Cruz’s motion for acquittal was not only error, but was plain error. We reverse the decision below and instruct the district court to grant the motion for judgment of acquittal."
" Because the evidence viewed in the light most favorable to the government does not demonstrate that Cruz is an Indian or that he meets any of the Bruce factors, no rational trier of fact could have found that the government proved the statutory element of § 1153 beyond a reasonable doubt. Accordingly, the district court’s denial of the motion for judgment of acquittal was error. Where the government has failed to show that any of the Bruce factors has been satisfied, we have no trouble concluding that the error was “clear” and “obvious.” Olano, 507 U.S. at 734. As described earlier, a conviction that erroneously rests on insufficient evidence necessarily implicates “substantial rights” and seriously affects the “fairness” and “integrity” of the judicial process. Accordingly, the denial of Cruz’s motion for acquittal was not only error, but was plain error. We reverse the decision below and instruct the district court to grant the motion for judgment of acquittal."
Tuesday, February 10, 2009
Florida Supreme Court Hears Arguments in Cuban Immigrant Death Penalty Case
The Florida Supreme Court has recently heard oral arguments in the case of Juan Carlos Chavez, a Cuban immigrant sentenced to death for the kidnap and murder of a young boy, according to the Miami Herald. The conviction was previously affirmed by the Florida Supreme Court on November 21, 2002. The case is now at the post conviction stage, with the Court hearing arguments relating to the exclusion of a cultural expert who would have testified regarding Cuban versus American culture as relevant to whether Mr. Chavez could have made a knowing waiver of Miranda.
The following is an excerpt from an Appellant's Brief, which is found on the internet (and therefore, cannot be authenticated.)
"In this issue Mr. Chavez argues that the trial court erred when ruling that Mr. Michael Amizaga would not be permitted to testify as an expert as to the differences between the constitutional rights provided to criminal defendants in Cuba as opposed to those constitutional rights provided to criminal defendants in the United States, specifically those embodied under the Fifth and Sixth amendments which are contained in the Miranda warnings, including the right to remain silent, the right to consult with an attorney prior to and during questioning, and the right to terminate questioning at any time. Mr. Amizaga, through his study and experiences with the Cuban criminal justice system would have testified that a criminal defendant in Cuba would not be entitled to the constitutional protections afforded to the accused in the United States. Mr. Amizaga would have further testified that Mr. Chavez’s experiences in Cuba, including those he encountered at the hands of Cuban military jailers, would not have provided him with an understanding of the constitutional rights embodied in Miranda and how those rights could be exercised in the United States.
The first disputed point between Mr. Chavez and the State centers on the qualifications of Mr. Amizaga to serve as an expert witness. Mr. Chavez contends that Mr. Amizaga, through independent study and travel to Cuba, had the acquired the requisite special knowledge of the Cuban criminal justice system to testify what rights were afforded to the accused in Cuba and how a Cuban defendant could exercise their significantly more limited rights as compared to the constitutional rights embodied in the Miranda warnings. Mr. Amizaga’s testimony would have been particularly important because he would have been able to explain how the criminal justice system operates in Cuba, including presenting testimony to aid the trial court about the contrast between the roles that an attorney for a defendant plays in Cuba versus the United States. "
The following is an excerpt from an Appellant's Brief, which is found on the internet (and therefore, cannot be authenticated.)
"In this issue Mr. Chavez argues that the trial court erred when ruling that Mr. Michael Amizaga would not be permitted to testify as an expert as to the differences between the constitutional rights provided to criminal defendants in Cuba as opposed to those constitutional rights provided to criminal defendants in the United States, specifically those embodied under the Fifth and Sixth amendments which are contained in the Miranda warnings, including the right to remain silent, the right to consult with an attorney prior to and during questioning, and the right to terminate questioning at any time. Mr. Amizaga, through his study and experiences with the Cuban criminal justice system would have testified that a criminal defendant in Cuba would not be entitled to the constitutional protections afforded to the accused in the United States. Mr. Amizaga would have further testified that Mr. Chavez’s experiences in Cuba, including those he encountered at the hands of Cuban military jailers, would not have provided him with an understanding of the constitutional rights embodied in Miranda and how those rights could be exercised in the United States.
The first disputed point between Mr. Chavez and the State centers on the qualifications of Mr. Amizaga to serve as an expert witness. Mr. Chavez contends that Mr. Amizaga, through independent study and travel to Cuba, had the acquired the requisite special knowledge of the Cuban criminal justice system to testify what rights were afforded to the accused in Cuba and how a Cuban defendant could exercise their significantly more limited rights as compared to the constitutional rights embodied in the Miranda warnings. Mr. Amizaga’s testimony would have been particularly important because he would have been able to explain how the criminal justice system operates in Cuba, including presenting testimony to aid the trial court about the contrast between the roles that an attorney for a defendant plays in Cuba versus the United States. "
Monday, February 9, 2009
Medellin Jurisprudence: The Supremacy Clause and Treaties
Law Review Article of Note: Supremacy Clause and Judicial Enforcement of Treaties
Carlos M. Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599-695 (2008).
http://www.harvardlawreview.org/issues/122/dec08/vazquez.shtml
"Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause — federal statutes and the Constitution itself."
"As with anything from Prof. Vázquez addressing the treaty self-execution doctrine, well worth reading. He argues forcefully for a restrictive interpretation of Medellin, in terms of what it means for future treaty construction cases. " .......Mark Warren, February 9, 2009.
Immigration Enforcement: Analysis of Operaton Fugitive
Update: NPR Reports on Immigration Law Judges Overwhelmed by Crackdown.
Update February 9, 2009 Collateral Damage: Analysis of ICE's Fugitive Operations Program.
Excerpt from Executive Summary: " Since 2003, no immigration enforcement program has experienced a more dramatic increase in funding, nor expanded its staffing and operations more rapidly, than the National Fugitive Operations Program (NFOP). This initiative, led by US Immigration and Customs Enforcement (ICE), a component of the US Department of Homeland Security (DHS), is intended to improve national security by locating and removing dangerous fugitive aliens. ICE defines "fugitive" as a person who has been ordered deported, excluded, or removed by an immigration judge, but has not left the country; or one who has failed to report to DHS as required. ICE further distinguishes between those fugitives who have a criminal history or are otherwise dangerous, and those who have no criminal history whatsoever.
.....
• Despite NFOP’s mandate to arrest dangerous fugitives, almost three-quarters (73 percent) of the individuals apprehended by FOTs from 2003 through February 2008 had no criminal conviction. • Fugitive aliens with criminal convictions have constituted a steadily decreasing share of total arrests over time. In FY 2003, fugitives with criminal convictions represented 32 percent of all FOT arrests, a figure that dropped to 17 percent in FY 2006 and 9 percent in FY 2007, the most recent year for which there is data on criminal arrests available.
New York Times, February 4, 2009, "Despite Vow, Target of Immigrant Raids Shifted" , by Nina Bernstein.
"The raids on homes around the country were billed as carefully planned hunts for dangerous immigrant fugitives, and given catchy names like Operation Return to Sender. And they garnered bigger increases in money and staff from Congress than any other program run by Immigration and Customs Enforcement, even as complaints grew that teams of armed agents were entering homes indiscriminately. But in fact, beginning in 2006, the program was no longer what was being advertised. Federal immigration officials had repeatedly told Congress that among more than half a million immigrants with outstanding deportation orders, they would concentrate on rounding up the most threatening — criminals and terrorism suspects. Instead, newly available documents show, the agency changed the rules, and the program increasingly went after easier targets. A vast majority of those arrested had no criminal record, and many had no deportation orders against them, either. " The complete article can be found at the New York Times.
Update February 9, 2009 Collateral Damage: Analysis of ICE's Fugitive Operations Program.
Excerpt from Executive Summary: " Since 2003, no immigration enforcement program has experienced a more dramatic increase in funding, nor expanded its staffing and operations more rapidly, than the National Fugitive Operations Program (NFOP). This initiative, led by US Immigration and Customs Enforcement (ICE), a component of the US Department of Homeland Security (DHS), is intended to improve national security by locating and removing dangerous fugitive aliens. ICE defines "fugitive" as a person who has been ordered deported, excluded, or removed by an immigration judge, but has not left the country; or one who has failed to report to DHS as required. ICE further distinguishes between those fugitives who have a criminal history or are otherwise dangerous, and those who have no criminal history whatsoever.
.....
• Despite NFOP’s mandate to arrest dangerous fugitives, almost three-quarters (73 percent) of the individuals apprehended by FOTs from 2003 through February 2008 had no criminal conviction. • Fugitive aliens with criminal convictions have constituted a steadily decreasing share of total arrests over time. In FY 2003, fugitives with criminal convictions represented 32 percent of all FOT arrests, a figure that dropped to 17 percent in FY 2006 and 9 percent in FY 2007, the most recent year for which there is data on criminal arrests available.
New York Times, February 4, 2009, "Despite Vow, Target of Immigrant Raids Shifted" , by Nina Bernstein.
"The raids on homes around the country were billed as carefully planned hunts for dangerous immigrant fugitives, and given catchy names like Operation Return to Sender. And they garnered bigger increases in money and staff from Congress than any other program run by Immigration and Customs Enforcement, even as complaints grew that teams of armed agents were entering homes indiscriminately. But in fact, beginning in 2006, the program was no longer what was being advertised. Federal immigration officials had repeatedly told Congress that among more than half a million immigrants with outstanding deportation orders, they would concentrate on rounding up the most threatening — criminals and terrorism suspects. Instead, newly available documents show, the agency changed the rules, and the program increasingly went after easier targets. A vast majority of those arrested had no criminal record, and many had no deportation orders against them, either. " The complete article can be found at the New York Times.
Sunday, February 8, 2009
Movies of Note: The Visitor & Edge of Heaven
The Visitor - This film is poetic in its portrayal of an older university professor and two young immigrants. We are pleased to see that Richard Jenkins has been nominated for an Academy Award. Edge of Heaven is a beautiful and complex film, with an interesting intersection of lives in Germany and Turkey.
Monday, February 2, 2009
Immigration Related Crimes: Seizure of Tax Returns to Prosecute Identity Theft
The New York Times February 2, 2009 reports that law enforcement in Colorado seized tax returns from a tax preparation business, for the purpose of finding immigrants who may have committed identity theft, by using false social security numbers. Criminal charges have now been filed against a number of individuals, and the ACLU has filed a law suit regarding the search and seizure conducted.
"For the past decade, thousands of Hispanic men and women who settled here went to Amalia’s Translation and Tax Services to pay their annual income taxes. Whether these people were in the United States legally mattered little to Amalia Cerrillo, who runs the business out of her home in this northern Colorado farming town. The Internal Revenue Service, Ms. Cerrillo knew, requires everyone, regardless of immigration status, to pay taxes on income earned in this country. “My clients wanted to do what any other American does,” Ms. Cerrillo said. “And they wanted to show that they paid their taxes if there is ever a chance for amnesty or a green card.” That all changed Oct. 17, when investigators with the Weld County Sheriff’s Office, armed with a search warrant, seized thousands of confidential tax returns from Ms. Cerrillo’s business. They told her they were looking for people with fraudulent Social Security numbers, commonly used by illegal immigrants to get work. "
"For the past decade, thousands of Hispanic men and women who settled here went to Amalia’s Translation and Tax Services to pay their annual income taxes. Whether these people were in the United States legally mattered little to Amalia Cerrillo, who runs the business out of her home in this northern Colorado farming town. The Internal Revenue Service, Ms. Cerrillo knew, requires everyone, regardless of immigration status, to pay taxes on income earned in this country. “My clients wanted to do what any other American does,” Ms. Cerrillo said. “And they wanted to show that they paid their taxes if there is ever a chance for amnesty or a green card.” That all changed Oct. 17, when investigators with the Weld County Sheriff’s Office, armed with a search warrant, seized thousands of confidential tax returns from Ms. Cerrillo’s business. They told her they were looking for people with fraudulent Social Security numbers, commonly used by illegal immigrants to get work. "
Sunday, February 1, 2009
Jury Selection & Batson : Petition for Writ of Certiorari
The defendants in the Cuban Five case, have filed a Petition for a Writ of Certiorari, seeking relief from the Eleventh Circuit's affirmation of the judgements in this case.
"Petitioners were convicted in district court in Miami on charges centering on their role as unregistered Cuban agents in monitoring anti-Castro organizations. The trial was the only judicial proceeding in U.S. history to be condemned by the U.N. Human Rights Commission, which found a “climate of bias and prejudice against the accused” so extreme that it failed to meet the “objectivity and impartiality that is required in order to conform to the standards of a fair trial.” A panel of the Eleventh Circuit agreed and ordered a retrial in a new venue, but the en banc court reversed, holding that the community’s pervasive hostility to the Castro government was categorically irrelevant to the venue inquiry. The dissent called on this Court to grant certiorari. The court of appeals further held that petitioners could not state a prima facie claim under Batson v. Kentucky because the prosecution had not used all of its peremptory strikes to eliminate every potential black juror. "
The questions presented are:
1. Did the Eleventh Circuit apply an erroneous legal standard in holding that petitioners did not establish a right to a change of venue?
2. Does a party’s failure to use all of its peremptory strikes to strike all minority members of the juror per se preclude a prima facie challenge under Batson v. Kentucky?
3. Incident to its review of Questions 1 and 2, should this Court review the judgment as it pertains specifically to petitioner Hernandez?
"Petitioners were convicted in district court in Miami on charges centering on their role as unregistered Cuban agents in monitoring anti-Castro organizations. The trial was the only judicial proceeding in U.S. history to be condemned by the U.N. Human Rights Commission, which found a “climate of bias and prejudice against the accused” so extreme that it failed to meet the “objectivity and impartiality that is required in order to conform to the standards of a fair trial.” A panel of the Eleventh Circuit agreed and ordered a retrial in a new venue, but the en banc court reversed, holding that the community’s pervasive hostility to the Castro government was categorically irrelevant to the venue inquiry. The dissent called on this Court to grant certiorari. The court of appeals further held that petitioners could not state a prima facie claim under Batson v. Kentucky because the prosecution had not used all of its peremptory strikes to eliminate every potential black juror. "
The questions presented are:
1. Did the Eleventh Circuit apply an erroneous legal standard in holding that petitioners did not establish a right to a change of venue?
2. Does a party’s failure to use all of its peremptory strikes to strike all minority members of the juror per se preclude a prima facie challenge under Batson v. Kentucky?
3. Incident to its review of Questions 1 and 2, should this Court review the judgment as it pertains specifically to petitioner Hernandez?
Book of Note: Poems from Guantanamo
As reviewed by the St. Petersburg Times, February 1, 2009.Poetry gives voice to Guantanamo Bay detainees, By Meg Laughlin. Several years ago, an "enemy combatant" at Guantanamo handed his New York defense attorney a sealed envelope. It was a list of what he wanted to discuss at their next meeting, he said. Then Jumah al-Dossari returned to his solitary confinement cell, where he lived 24 hours a day for years. • The lawyer, Josh Colangelo-Bryan, suddenly remembering something he wanted to tell his client, got permission to go to his cell. There, he found al-Dossari dangling from the bars, having fashioned his sheet into a noose. The lawyer yelled for guards to cut down the 30-year-old Saudi construction supervisor. • When he regained consciousness, the lawyer asked why. • "I'd rather die than live dead," whispered the prisoner. • That night Colangelo-Bryan opened the sealed envelope and found a suicide note from al-Dossari. • "Take my blood. Take my death shroud and the remnants of my body. Take photographs of my corpse at the grave, lonely," it began. • It is this note, along with other writings, that became the only intimate voice of the isolated Guantanamo prisoners. • They scratched words into Styrofoam cups with pebbles and etched them into napkins with their fingernails. Eventually their words became a 72-page book of poetry, Poems from Guantanamo, The Detainees Speak. • "Even when they had no hope, writing the poems gave them back their humanity," said Colangelo-Bryan. •
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