Immigration Crimes: Ninth Circuit Reverses Conviction due to Admission of Application

This is an interesting USA v Marguet-Pilado from the 9th circuit, March 27, 2009; reversal of a conviction for 8 USC 1326, because of hearsay statement within an application for permanent residence status admitted as a public record. The Ninth seems to suggest that the government should have argued some other hearsay exception.

Immigration Policy: Jailed without Justice

Amnesty's Report will be discussed today on Democracy Now, March 25, 2009.

" IMMIGRANT DETENTION
Immigration is growing and increasingly visible. Immigrants and their families carry all their human rights with them when they move. But undocumented immigrants often live in the shadows and at heightened risk of human rights violations. Amnesty International calls for immigrants to be treated with full respect for their human rights and human dignity. "

"JAILED WITHOUT JUSTICE

On March 25, Amnesty International released a new report "Jailed without Justice" that exposes the immigration detention system in the United States as broken and unnecessarily costly. Over 30,000 immigrants are detained every day. This is triple the number detained just ten years ago. Immigrants can be detained for months or years without any meaningful judicial review - this despite international human rights standards requiring judicial review.
It costs about $95 per day to detain someone, while effective alternatives only cost $12 per day. These more affordable alternatives are often not considered and the use of such programs varies greatly region to region. "

READ THE: Executive Summary Key Findings Full Report (PDF)
//-->» Urge the Department of Homeland Security to fix this broken system

Immigration & Civil Rights:Law Suit re Racial Profiling at Border Resolved

Immigration rights, civil-rights violations suit is settled for $100,000. El Paso Times, March 19, 2009.

" A federal lawsuit claiming that Otero County, N.M., sheriff's deputies were involved in racial profiling, unlawful stops and other civil-rights violations while targeting undocumented immigrants in Chaparral has been settled, activists said Wednesday. The Otero County Sheriff's Department agreed to a settlement of $100,000 and changes to its operational procedures, which activists said would help eliminate fears that deputies are enforcing federal immigration laws. The lawsuit stemmed from incidents in which deputies allegedly harassed and interrogated residents and searched homes in Chaparral while trying to find undocumented immigrants in 2007 and 2008 as part of the federally funded Operation Stonegarden.


The Border Network, an immigrant rights group, was one of 14 plaintiffs represented by lawyer Briana Stone of the Paso del Norte Civil Rights Project. Garcia said that under the agreement, deputies will not inquire about a person's immigration status in minor cases, deputies will not "hold" a person who is not under arrest for federal immigration officers, and the department will accept the matricula consular (consulate-issued identification card) as a valid ID. " Read here for the complete article. "

Interpreters: Courts Locate Interpreters for Indigenous Languages, Interpret by Telephone

Los Angeles Times. L.A. is known as a mecca for court interpreters, but when a defendant or witness speaks a rare dialect, officials may resort to unusual remedies. The international phone line connecting a downtown Los Angeles courtroom to a cellphone 1,500 miles away in Texcoco, Mexico, was repeatedly disconnected and difficult to hear at times. But on that line hung the constitutional rights of Candido Ortiz, accused of drunkenly stabbing a man with a broken beer bottle and charged with attempted murder. Ortiz, 20, spoke only a variant of Mixe, a language used by about 7,000 people in the mountains of the southern Mexican state of Oaxaca.

In a case that is unusual even for Los Angeles, a place that some call the mecca of court interpreters, officials were unable to find anyone in the United States who could translate for Ortiz. A three-month search eventually led officials to Eduardo Diaz, a university student in Mexico. At Ortiz's preliminary hearing earlier this month, Diaz was teleconferenced in from Mexico to interpret over a speakerphone. A Spanish interpreter in court translated the proceedings from English to Spanish, then Diaz translated the Spanish into Quetzaltepec Mixe, also spelled Mije.

California law guarantees a defendant the right to an interpreter in all criminal proceedings. In Los Angeles County, where more than a third of the population is foreign-born and more than half speaks a language other than English at home, that sometimes means court officials are sent scrambling for speakers of Chuukese, Marshallese, Mexican Sign Language or Q'anjob'al, a Mayan variant."We're proud of the fact that over 100 languages are represented among our interpreters," said Greg Drapac, who headed the court's interpreter assignment operation from 1997 to 2005. "Which is great, until you realize there are over 6,000 living languages."

Immigration Crimes: 8 USC 1326 Favorable Sentencing Decisions

The Fifth Circuit has USA v Munoz-Ortenza conviction for Cal. Pen. Code section 288a(b)(1), prohibited conduct that would not be criminalized under the generic meaning of sexual abuse of a minor, and thus was not a "crime of violence, does not result in sentencing enhancement. Court reversed as plain error and remanded for resentencing.

The Sixth Circuit, United States v Medina-Almaguer. March 12, 2009. California 11352 conviction is not necessarily a drug trafficking offense for purposes of USSG 2L1.2(b)(1)(A).

If the state-law definition of a prior offense covers more ground than the conduct reached by the federal-sentencing enhancement, a sentencing court may consult a limited range of judicial documents to determine the nature of the prior conviction. See Shepard v. United States, 544 U.S. 13, 20–21 (2005). In the context of a conviction stemming from a guilty plea—as Medina-Almaguer’s predeportation conviction did—the question is whether the court documents establish that the defendant “ necessarily admitted” the elements of a predicate offense through his plea.

For that purpose, a sentencing court generally may consider the charging document, a written plea agreement, a plea-colloquy transcript in which the defendant confirmed the factual basis for the plea or some other “comparable judicial record,” Shepard, 544 at 26, so long as they establish what the defendant “necessarily admitted,” id. at 16. Otherwise, the sentencing court must stand by the fact of conviction and the definition of the offense—whether they establish the nature
of the prior conviction or not.

Treaty Transfer: Mexico, US carry out exchange of 36 inmates

According to the Associated Press, Mexico and the United States have exchanged 36 inmates who were sent to their respective countries to serve out the remainder of their sentences. Federal prosecutors say 10 Americans who were tried, convicted and sentenced in Mexico for homicide, weapons possession, drug or other charges have been sent north.

The United States, meanwhile, sent 26 Mexicans back home to serve out sentences for money laundering, drug charges or weapons possession.

The Mexican Attorney General's Office said Sunday the exchanges were carried out between March 9 and 13. Three more such exchanges are planned for this year.

A 1977 treaty allows inmates convicted in either of the two nations to serve out their sentences in their home countries.

Immigration Consequences: Reckless Conduct CIMT 11th Circuit

Case in Brief: Keungne 11th Cir. March 11, 2009.

Whether criminal reckless conduct under Georgia law involves moral turpitude is an issue of first impression in this circuit. The Georgia statute provides, in relevant part:

A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross
deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.

Ga. Code Ann. § 16-5-60(b).

Under a categorical analysis of the statutory definition and nature of the crime of reckless conduct under Georgia law, we are convinced that it requires a sufficiently culpable mental state and is inherently a crime involving moralturpitude. First, the Georgia reckless conduct statute, like the statute analyzed in Medina, penalizes an individual for “consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person.” Ga. Code Ann. § 16-5-60(b). Thus, the Georgia criminal reckless conduct statute requires a person (1) to have an actual awareness of a “substantial and unjustifiable risk” that his action or omission will cause harm or endanger the safety of others, and (2) to act while “consciously disregarding” this “substantial and unjustifiable risk.” See Knapik, 384 F.3d at 90 (“[T]he BIA limits moral turpitude to crimes in which a defendant consciously disregards a substantial risk of serious harm or death to another.”).

Immigration Policy: 30,000 Haitians Under Order of Removal, Opinion re Discriminatory Policies

Update: Editorial in New York Times March 10, 2009:

Haiti’s Despair, Continued
" The Department of Homeland Security has decided to continue an ill-advised Bush administration policy of deporting illegal Haitian immigrants. Haiti, already desperately poor, was devastated by storms last year. It is hard to see how an influx of up to 30,000 homeless, jobless people — the number of Haitians facing deportation from the United States — would do anything but further destabilize the country as it struggles to recover from what has been called its worst natural disaster in a century.

American advocates for Haitians have joined the Haitian government in pleading for an end to the deportations, arguing that all interests are better served by giving the detainees temporary protected status. When a political crisis or natural disaster makes repatriation a bad idea, it is far wiser to allow people to stay put rather than be forced home where they will place further strains on local supplies of food, clean water and housing — all of which are perilously scarce in Haiti. The Haitian diaspora can do a lot more for its stricken homeland by sending home what is really needed: money.

Ending deportations of Haitians would also be consistent. Tens of thousands of Nicaraguans, Hondurans, Salvadorans and others whose countries have been hit by war, earthquakes and hurricanes have routinely been granted protected status in 18-month increments.
The strongest argument against doing so is the fear that boatloads of Haitians will take to sea in a deadly gamble to win sanctuary for themselves. That is a legitimate concern. But the best way to address it is by helping to lessen Haiti’s misery with aid, trade and investment. Haitians living in this country can help — but not if they are deported home to a country that is in no condition to accept them. "

Previously posted:

Global Researcher Stephen Lendman discusses discriminatory immigration policies towards Haitians. February 27, 2009.

"On December 9, ICE resumed deportations after halting them in September following summer storms that battered the country leaving 800,000 people without food, clean water, other essentials, and for around 70,000 their homes. ICE spokeswoman Nicole Navas announced: "We fully expected to resume deportation flights when it was safe. And we made a determination that it was appropriate to (do it now) based on the conditions on the ground....The individuals being returned have final orders of removal and the necessary travel documents" - even though advocates say things are worse in Haiti, not better.

BBC called the situation "eye-popping," and the Miami Herald said it was "the worst humanitarian disaster (for) Haiti in 100 years" leaving: -- Gonaives, Haiti's third largest city, uninhabitable;-- most of the nation's livestock and food crops destroyed as well as farm tools and seeds for replanting;-- irrigation systems demolished; -- collapsed buildings throughout the country; 23,000 houses destroyed; another 85,000 damaged; 964 schools destroyed or damaged;-- conservatively about $1 billion in storm damage; -- the threat of famine, especially for children and the elderly; -- 2.3 million Haitians facing "food insecurity," according to USAID, reeling under 40% higher prices than in January; -- inadequate sanitation and clean water; -- the widespread threat of disease; and -- overall millions lacking everything needed to survive who in normal times struggle to get by." The complete article is available here.

Terrorism Trials: Court Acquits of Violation of 18 USC 2339

Case in Brief, USA v Abu-Jihaad; Trial court entered Judgment of Acquittal for violation of 18 USC 2339, in a lenghty opinion; the Court denied the defendant's motion for a new trial on the second count of disclosing national defense information. The Court's written order is available through the web.

Immigration Enforcement: GAO Report Calls for Better Controls over State and Local Coop

Immigration Enforcement: Better Controls Needed over Program Authorizing
State and Local Enforcement of Federal Immigration Laws. GAO-09-109, January30, 2009.
http://www.gao.gov/cgi-bin/getrpt?GAO-09-109
Highlights - http://www.gao.gov/highlights/d09109high.pdf


Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Highlights of GAO-09-109, a report to Laws congressional requesters Section 287(g) of the Immigration and Nationality Act, as amended, authorizes the federal government to enter into agreements with state and local law enforcement agencies to train officers to assist in identifying those individuals who are in the country illegally. U.S.

Immigration and Customs Enforcement (ICE) is responsible for supervising state and local officers under this program. GAO was asked to review this program. This report reviews (1) the extent to which ICE has designed controls to govern 287(g) program implementation; and (2) how program resources are being used and the activities, benefits, and concerns reported by participating agencies. GAO reviewed memorandums of agreement (MOA) between ICE and the 29 program participants as of September 1, 2007. GAO compared controls ICE designed to govern the 287(g) program with criteria in GAO’s Standards for Internal Control in the Federal Government. GAO interviewed officials from both ICE and participating agencies on program implementation, resources, and results.