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.

How Does the Deporter-In-Chief Do It?

By: Danielle Huntley, Esq.  

The most frequent questions I get asked when a new person finds out I am an immigration lawyer is “so what do you think we should do about illegal immigration, why can’t we just send them home?” The second most frequent question I get asked is what I think of President Obama’s record number of removals. He has removed so many illegal aliens he is sometimes colloquially referred to as the “deporter-in-chief.” My follow-up question to both inquiries is to ask what they think the removal process looks like. I hear variations on this theme: “the illegal alien gets picked up by Immigration and put on a plane back to their home country.”

This prompts me to begin a series of posts on removal proceedings and how the process actually works.

Today, I will start with grounds for removal from the United States. An alien is deemed removable under six broad categories [8 U.S.C. 1227(a)(1)-(6) – I’m including the statutory cite because it drives me crazy when they are not included in a blog entry]. The six categories are:

1. Aliens who were not admissible to the U.S. at the time they entered the U.S., when they applied for the green card, or have violated their status in some other way. Included in this category are aliens who do not leave after their visa has expired, and aliens who enter the country illegally.
2. Aliens convicted of certain criminal offenses;
3. Aliens who fail to register or use false documents;
4. Aliens who trigger certain national security issues;
5. Aliens who have become public charges, and cannot show that the cause of becoming a public charge arose after entering the U.S.; and,
6. Aliens who unlawfully vote.

These categories apply to all aliens in the U.S. from those present in the U.S. with a tourist visa to legal permanent residents who hold the green card.

In my next post in this series I will discuss how an alien who falls into one of the six categories above comes to the attention of the appropriate immigration authorities.

Please Proceed to the Back of the Line, Your Estimated Wait Time is 23 Years

By: Danielle Huntley, Esq.  

I have heard many times from folks on the left and the right that foreigners who wish to immigrate to the U.S. should ideally wait in line for a visa or a green card. I have also heard that illegal aliens should go to the back of the line if they are granted some type of amnesty. But, when pressed, very few can articulate what exactly the line is and who waits in it. Here I am hoping to help, by explaining the mythical line in layman’s terms.

First, some initial definitions are important. All foreigners who come to the U.S. on a visa are divided into one of two categories: immigrants and non-immigrants. An immigrant holds the immigrant visa or, as it is commonly known, the green card. They are legal permanent residents of the U.S. Non-immigrants hold non-immigrant temporary visas like tourist visas, work visas and student visas.

With that out of the way, back to my original question –what exactly is the line and who waits in it?

The line refers to foreigners waiting for the green card. While there are restrictions on certain types of non-immigrant visas they are better understood as quotas, rather than a line.

An immigrant’s place in line for a green card is determined by the date an immigrant petition is filed on their behalf by either a family member, an employer or, in limited instances, for themselves.  The date the petition is filed gives the immigrant their priority date which controls their place in the line.

The line is controlled by the Visa Bulletin put out monthly by the State Department.  Here’s where one of the biggest misconceptions about the line falls apart– there is not a singular line. There are at least 65 different lines for different categories of immigrants.

Each category of immigrant listed in the Visa Bulletin has a cutoff date, which means that USCIS is issuing green cards for immigrant petitions filed in that category before that date. If the Visa Bulletin’s cutoff date in a category is January 1, 2005 then all immigrants in that category with a priority date before January 1, 2005 can be issued green cards.

These lines move at vastly different paces. For some immigrants their time in line lasts as long as it takes USCIS to process the petition, for others the wait can be decades long.

Who has the longest wait for family based petitions? According to the October 2012 Visa Bulletin immigrants in these four categories have the longest wait times:

1. Siblings of U.S. Citizens from the Philippines have the longest wait, a whopping 23 years long.  Their cutoff date is February 8, 1989. (I was in preschool when these petitions were filed).
2. Married children of U.S. Citizens from the Philippines come in at second place with just more than a 20 year wait. Their cutoff date is July 22, 1992.
3. Unmarried children of Permanent Residents who are 21 years of age or older from Mexico come in at third place with just under a 20 year wait. Their cutoff date is October 1, 1992.
4. Married Children of U.S. Citizens from Mexico come in at fourth place with a 19 year wait. Their cutoff date is February 8, 1993.

The wait times calculated above are just estimates. The line does not necessarily advance a month with each monthly bulletin. This highlights how unpredictable and complicated our system is. If comprehensive immigration reform does come to fruition and some type of amnesty is granted, should illegal aliens be able to jump ahead of individuals who have been waiting to immigrate legally to the U.S. for years? If they are to go to the back of the line, which line should they go to the back of? If the wait is decades long is that workable?

In the coming weeks I plan on posting more details on how the Visa Bulletin works and how immigrants are categorized.

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.