The Government Shutdown and Immigration

The agencies handling immigration matters under the Department of Homeland Security are largely unaffected by the government shutdown.

U.S. Citizenship and Immigration Services (USCIS) is open for business for all fee for service activities. This means that applications and interviews for various benefits including the green card and naturalization are moving forward.

Immigration Customs and Enforcement (ICE) is also continuing its detention and enforcement operations.

Meanwhile, the Executive Office for Immigration Review (EOIR) or Immigration Court, which is under the auspices of the Justice Department, is only handling removal cases for individuals who are in custody. Removal cases for individuals who are not detained are being continued or held in abeyance.

The Washington Post has a great round up of how other government agencies are impacted by the shutdown.

Romney on DREAMers & A Tale of Three Immigrants

By: Danielle E. Huntley, Esq.  

As I said in my last post on discretion and DREAMers, our current immigration system is unstable and flawed because it is wholly dependent on the whims of whoever is in charge of the executive branch. Mitt Romney’s latest statements that, if elected, he would end the Deferred Action for Childhood Arrivals (DACA) program illustrates this point perfectly.

Romney stated first in the Denver Post:

"The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I'm not going to take something that they've purchased," Romney said. "Before those visas have expired we will have the full immigration reform plan that I've proposed."

His campaign then clarified his statements following a request by the Boston Globe:

Responding to a Globe request to clarify Romney’s statement to the Denver Post, Romney’s campaign said he would honor deportation exemptions issued by the Obama administration before his inauguration but would not grant new ones after taking office.

The DACA program rests not in a statutory or even a regulatory framework it exists with the stroke of an executive pen and can die by the same. Coverage of Romney’s remarks can be found here, here, here and here.

The discretion problem is further illustrated by three different illegal immigrants in the news: Jose Antonio Vargas, Praq Rado and Qing Xiong Liu. Mr. Vargas, a Pulitzer Prize-winning journalist turned undocumented immigrant activist, was arrested in Minnesota for driving without a valid license.  ICE declined to detain him or initiate proceedings against him. Mr. Rado was arrested by ICE on a train en route to the East Hampton Film Festival for a screening of a short film about his experience of coming to America. He was apparently ordered removed in 2007. Mr. Liu, a Brooklyn father of two small children, was on a bus to Indianapolis in search of work when his ID was checked by ICE who had pulled over the bus Mr. Liu was riding in for speeding. ICE detained him in an Ohio facility because he had not complied with a prior order of removal. Mr. Liu was recently released from custody and has been reunited with his family in Brooklyn.

Assuming that all three of these men have no criminal records or other mitigating factors against them, their disparate treatment is a result of which particular bureaucrat reviews their case. It creates a system that does not uphold the rule of law and is unfair to the immigrants, legal and otherwise, who interact with it.

Government Deports Key Criminal Defense Witness

By: Danielle Huntley, Esq.  

On September 14, 2012 the Ninth Circuit decided a case called U.S. v. Leal-Del Carmen in which the government (the prosecution) deported a witness who could provide exculpatory evidence for criminal defendant Jonathan Leal-Del Carmen. Exculpatory evidence is evidence that tends to clear the defendant from alleged fault or guilt. It is a very big deal for the government to withhold or block access to this type of evidence.

The Ninth Circuit was less than impressed with the government’s actions. Chief Judge Kozinski, writing for the court, held that the government violated the defendant’s constitutional rights when it deported a witness who could have helped exonerate him.

Here’s what happened in the case.

On March 25, 2010 border patrol agents found 12 illegal immigrants hiding in the brush in Smith Canyon an unfenced area along the United States-Mexico border. They arrested the defendant and another man later that same day on suspicion of alien smuggling.  The border patrol agents questioned at least four of the illegal immigrants – three identified the defendant as a lead smuggler the fourth, Ana Maria Garcia-Garcia said three times that the defendant was not a leader. That’s your exculpatory evidence. The defendant could only be found guilty if the jury believed he was leading the group and her testimony would suggest the opposite. Border patrol recorded the four interviews on tape and then deported Garcia-Garcia and the eight other illegal immigrants they had picked up.

Chief Judge Kozinski in a lengthy footnote (sometimes the best part of a judicial opinion) calls into question the government’s story about what happened when Garcia-Garcia and the other illegal immigrants were interviewed. I am going to quote from it at length, because I think it’s interesting and Chief Judge Kozinski points out other potential shenanigans:

FN3 “It's not clear from the record whether border agents interviewed the eight other aliens in the group. At a motion hearing, [the defendant’s] attorney asked the government to produce any statements taken from those witnesses: “I can't tell whether there was actually a statement taken, even if it was unrecorded, for the other eight material witnesses.... I have no statements from these eight individuals at all.” The Assistant United States Attorney represented that he was not aware of any statements but would turn them over if they could be found. Defense counsel apparently never received any statements, because in his jury summation he argued, “And for the nine other witnesses we have no idea because nobody bothered to question them, or ask them or see what they knew.”

We find it suspicious that the government would interview some of the witnesses but not the others. It's also curious that the testimony of the single exculpatory witness happened to be included on the tape with the inculpatory witnesses. The government argued before the district court that a border agent made the video of Garcia–Garcia's interview because he believed her testimony wasn't exculpatory and wanted to show he wasn't “hiding anything.” But the agent couldn't have known what Garcia–Garcia would say before she said it. Either the agent made videos of all the witnesses but preserved only some, or he first interviewed them without a video recorder and then replicated some of the interviews on tape. Either alternative leaves us skeptical that the government did not question the eight other aliens it apprehended.

The Assistant United States Attorney disavowed that there were audio or video recordings of the eight others, saying he ”inquired about that specific point,” but he produced no sworn statement to that effect from any of the agents involved. Nor does the record disclose any evidence as to notes the agents may have taken in connection with the witness interviews. It's possible that the agents made such notes but did not produce them because they did not believe them to be exculpatory.

The defendant had not been arraigned and had no attorney when Garcia-Garcia was deported, meaning his attorney never had an opportunity to interview her. Defense counsel was forced to submit multiple discovery requests to force the government to turn over the video recordings of the interview – which the court took issue with.

You may be thinking, well they got to play the video of the testimony at trial so not that troubling – wrong, the district court denied use of the video at trial. The Ninth Circuit stated that the district court abused its discretion by blocking the video or any mention of the missing witness.

The Ninth Circuit further held that the video recording should be admissible because the government engaged in conduct (deportation) designed to prevent Garcia-Garcia from testifying. Furthermore, the district court should have given the jury a missing-witness instruction which would tell the jury that Garcia-Garcia existed; they should presume that she would testify unfavorably against the government, and that the government prevented her from testifying.

The court had no patience for the government’s argument that Garcia-Garcia was not in its control:

The government quibbles…that Garcia–Garcia is not “peculiarly” within its power, given that it has no knowledge of where she is in Mexico and therefore has no better chance of finding her than [the defendant] does. But it's the government's fault that no one knows where she is. The government removed Garcia–Garcia from the country and thus put her beyond the reach of the court and defense counsel. It also failed to obtain and keep her contact information, which would at least have made it possible to seek her voluntary return.

Because Garcia–Garcia is an alien lacking a lawful immigration status, the federal government had exclusive authority to parole her into the country to testify. For the government to say that it isn't responsible for her absence because it no longer knows where to find her comes close to the classic definition of chutzpah. (internal citations omitted)

It sounds like chutzpah to me.

Criminal prosecution is a powerful tool of the state and it is deeply troubling when it abuses that power through getting rid of unfavorable witnesses.

DREAM Act-lite and the Rule of Law

By: Danielle Huntley, Esq.  

The coverage of the Obama administration’s policy change towards so-called DREAMers, illegal aliens who were brought here as children, has garnered significant media coverage. Coverage here, here and here.

In my view, what has been missing from the discussion is how a change like this is emblematic of an inherent problem in our system. It continues a trend of the government creating immigration “law” through executive orders, policy memorandums and updates to various operational manuals; none of which are subject to meaningful legislative review or the regulation making process.

What are the limits of presidential power and prosecutorial discretion? On the one hand this program could be stopped at any time – it is wholly within the whim of the executive branch to maintain it. It creates no affirmative rights, only a process to ask the government to ask for its discretion. Conversely, if a DREAMer is under a final order of removal and they benefit from this program, how is that action different from a warden releasing a prisoner from prison after she has been found guilty by a court and sentenced?

This policy change is beneficial for this subset of illegal aliens, but it stands in stark contrast to the many policy changes that have created burdens where none is legislatively authorized.

Prosecutorial Discretion in Immigration Cases?? Really?

By: Danielle E. Huntley, Esq.  

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.

Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.

There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:

• deciding to issue or cancel a notice of detainer;
• deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
• focusing enforcement resources on particular administrative violations or conduct;
• deciding who to stop, question, or arrest for an administrative violation;
• deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
• seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider joining a motion to grant relief or a benefit.

Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:

“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”

The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.

This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.

Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.