the "worst of the worst" ... or just an easy conviction?

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Apparently an incarceration ratio of 1 in 100, while good enough for U.S. citizen adults, is a little low for immigrants in the eyes of the feds. 

From Anna Gorman and Scott Glover at the LA Times (via Thoreau at Unqualified Offerings):

Federal authorities are cracking down on immigrants who were previously deported and then reentered the country illegally -- a crime that now makes up more than one-third of all prosecutions in Los Angeles and surrounding counties, a Times review of U.S. attorney's statistics shows.

Most of these prisoners were probably removed through an administrative removal proceeding after coming to the U.S. previously.  Most probably didn’t have access to counsel the first time around, which is just one of the due process violations prevalent in the pseudo-judicial immigration system.  But it’s ok, the government argues, because it’s “just a civil matter.”  No jail time involved—just “detention” on your way out of the country if you try to fight your case. 

But there are serious consequences if someone previously deported decides to come back to be with their children or spouse, or out of economic desperation.  Then the outcome of the previous administrative proceeding is used against them in criminal court.

"They are some of the worst of the worst," said Julie L. Myers, assistant secretary of Immigration and Customs Enforcement in Washington. "They are people that citizens of any community would want off the streets."

Is this Julie Myers?  Check.  Is she making a public statement?  Check.  Then there’s a high probability that what she’s saying is not true.  

"I just wish that were true," said Jerry Salseda, a deputy federal public defender who has represented scores of illegal immigrants charged with reentering the country after having been deported. He and other critics say people who committed minor crimes years ago have been caught up in the wave of prosecutions.

Bruce J. Einhorn, a former immigration court judge, said the U.S. attorney's office should spend more resources going after smugglers rather than illegal crossers.

"That would do more to stop dangerous illegal immigration than by prosecuting a few more undocumented people who have reentered illegally," he said.

Einhorn also questioned the efficacy of the prosecutions, because people's motivations to return -- reuniting with small children and escaping poverty -- often outweigh time behind bars.

In years past, many of those now being prosecuted for illegal reentry would have simply been deported. Now they are being sent to prison first. Sentences can be as long as 20 years, but most defendants receive three to five years, prosecutors said.

But one would hope these defendants would at least have the benefit of due process protections inherent in the criminal justice system.  Not entirely, as it turns out, since they’re not U.S. citizens. 

Thom Mrozek, spokesman for the U.S. attorney's office in Los Angeles, said the cases make up a large percentage of the overall number prosecuted by the office, but they do not represent an undue drain on resources or hinder other types of prosecutions. That's because the reentry cases are easy to prove, he said, rarely go to trial and don't require much time.

To win a conviction, prosecutors need to prove three things: that the defendant is in the United States, that he or she is not legally permitted to be here and that the person had been formally deported in the past.

A side benefit of such easy-to-prove cases is that they can be made when there isn't enough evidence to convict illegal immigrants on other charges, said Mark Krikorian, executive director of the Center for Immigration Studies, a group that advocates tighter enforcement of immigration laws.

As usual, the government views lack of procedural guarantees for immigrants as a feature, not a bug of the current system.  The subjects of this process—the migrants—are virtually invisible, their rights unacknowledged and unconsidered.  They are legal ciphers.  The government argues that increased prosecutions of the already-deported are not a waste of resources—just look how easy it is to get a conviction!  Those who have formulated this approach do not care one whit about the human consequences of the policy.  Even many of those who argue against this vindictive policy do so not on the basis of harm to individuals and families, but on the ground that, contrary to government assurances, these prosecutions do take valuable resources away from other cases. 

Even within the U.S. attorney's office, some prosecutors -- particularly veteran lawyers who have risen to supervisory levels -- have regarded the cases as distractions that take time away from more meaningful work.

William Carter, who was chief of the environmental section when he resigned in 2006, said he recalled some illegal re-entry cases that were triggered by relatively minor crimes such as DUIs, traffic offenses and even jaywalking.

"With some of these cases, why are we bothering?" he said. "You need to do something about the border. You don't do it by throwing people in jail."

This LA Times article is much better (aside from the headline) than other articles I’ve seen in venues around the country which parrot the government’s stated reasons for punitive, unjust anti-migrant policies.  But I’ll keep hoping for more stories that are migrant-centered, stories about human beings and the devastation our government’s policies are causing them.


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5 Comments

Publius said:

"Most probably didn’t have access to counsel the first time around, which is just one of the due process violations prevalent in the pseudo-judicial immigration system."

Yeah, great stratagey, Kyle, give every one of the tens of thousand illegal aliens a lawyer and bankrupt our treasury or tax our citizens to death in raising the necessary funds for whatever defense they could come up with for crossing our border illicitly. That is the immigration lawyers dream. Illegal aliens are given all the due process required by the Constitution, which doesn't dicatate free legal council for misdemeaners. It's ironic that your advocacy goups opposed felony charges for illegal aliens, as your friends would've been given free legal council, something that may have tied up our courts for years and extended their stay after arrest. Free lawyers with felony charges or misdemeanors and deportation, its your choice. Your charges of unfairness are not founded in our laws. I notice that you like to make new immigrant rights on the fly, and that only takes from you credibility.

By the way, what kind of due process rights do Guatemalans have in your country? I'll bet that they'd trade their legal system for ours in a heartbeat, as would nationals of every Latin American country. Don't like our system? There's always migrating back to the old country. I hate foreigners who nitpick our laws, all-the-while taking advantage of every legal right our country offers.

yave begnet said:

It's yave, not kyle. And it's not a foreigner nitpicking the laws--I was born in Utah.

It's not just lack of counsel, although that's a problem. There are a whole host of due process deficiencies. I outlined some of them here, which I linked to in the post above:

No right to jury trial. No right to a speedy trial. No right to court-appointed counsel. No right to counsel at all if ICE wants to “question” (i.e., interrogate) you outside the presence of your attorney while preparing the charging documents—it’s an “administrative” procedure that doesn’t trigger the right to counsel, as they’ll happily tell you, no need for those messy legal guarantees since there’s nothing of importance at stake (just your whole life). No double jeopardy protection. Seriously compromised protection against self-incrimination. Limited protection from unreasonable search and seizure. Secret evidence to be used against you if the government says you are a threat to security—no chance for you to rebut it if you don’t even know it exists. Witnesses to be produced in your favor [only] if the government feels like it. Charges to be shifted or dropped at the government’s convenience. No Article III judges—immigration judges are part of the Executive, not the Judicial Branch.

I guess you didn't bother to click through the link or you might have realized that those due process deficiencies have led to the deportation of many U.S. citizens. Next you'll tell me that's ok since most of them probably had immigrant parents or grandparents ...

Publius said:

Describe an istance where an illegal alien can subjected to double jeapoardy when the issue is his citizenship? Why should a jury trial be necessary when he's only being asked to provide some proof of citizenship? Are you saying that a person should be assumed to be a US citizen and it is up to the government to prove othewise? All those people caught within miles of the border could just enter without question and ask for a jury trial? Self incrimination? What nonsense. We should just let them and not require that they identify themselves? The federal courts have ruled that there is no right to fail to identify oneself. If you are arrested as a suspecet that is one of the things you are required to do. You cannot conceal your identity. If you're an illegal alien and you claim citizenship, and it's proven otherwise, you may be prosecuted under federal law, pehaps as a felon. Yes, immigration judges are a part of the Executive Branch, so what? Arrest, identification and deportation are administrative procedures, not criminal procedures. If you wish to make them criminal procedure, i.e. criminal due process, you'll have to make their crimes felonies. You never did respond to may concerns over the ridiculous proposal of yours to bankrupt the people of this country and backlog the criminal courst by your proposal to give them all free legal council and a jury trial. You talk nonsense, Yave. It isn't going to happen and you only make you and your buddy Kyle silly by doing so.

yave begnet said:

Describe an istance where an illegal alien can subjected to double jeapoardy when the issue is his citizenship?

How about the LA 8.
"The government lost the case probably six times totally in the course of the twenty years." The case shows there's nothing to keep the government from trying to deport a particular individual again and again and again, even after one unfavorable ruling after another from the courts and even repeal of legislation by Congress.

Why should a jury trial be necessary when he's only being asked to provide some proof of citizenship?

What you seem to be saying here is you really don't care if someone is a U.S. citizen and gets deported if they are indigent, have lost their papers (it's not easy or cheap to get replacement citizenship papers, especially if you have no other form of ID), or are mentally disabled like Pedro Guzman. Also, many migrants here have some way of staying lawfully--an old overlooked relative petition, cancellation of removal, perhaps registry if they've lived here since 1972. With few due process guarantees, it is much more difficult for them to make use of these existing channels to lawful status. Of course, that is the entire point, that is why Congress has removed those guarantees, really beginning with the Chinese Exclusion Act, or maybe in the nativist wave of the 1850s.

Are you saying that a person should be assumed to be a US citizen and it is up to the government to prove othewise?

No, but the government shouldn't be deporting U.S. citizens as it has been. And what happens in these USC deportation cases is instructive in seeing how unjust the system is to migrants. The entire process, from start to finish, is stacked against them. Again, this is the result of calculated political efforts by restrictionists, but it doesn't always have to be this way.

Self incrimination? What nonsense.

I'm glad to see you have such faith in the Fifth Amendment.

The federal courts have ruled that there is no right to fail to identify oneself. If you are arrested as a suspecet that is one of the things you are required to do.

It's more complicated than that--there's an extensive body of case law on suppression that is beyond the scope of this post. Also, in immigration proceedings, it is the government's burden to prove alienage. I made the mistake of trying to explain this to an ICE officer once--he just laughed in disbelief and said I was wrong. He obviously didn't know what the law said and didn't care.

If you're an illegal alien and you claim citizenship, and it's proven otherwise, you may be prosecuted under federal law, pehaps as a felon.

True.

Arrest, identification and deportation are administrative procedures, not criminal procedures. If you wish to make them criminal procedure, i.e. criminal due process, you'll have to make their crimes felonies.

Now you're arguing from assertion--my principle complaint is that immigrants get a decision against them in administrative proceedings that is later used against them in criminal proceedings. So the government right now gets the benefit of relatively easy administrative cases without the burden of due process guarantees. This is exactly how DOJ attorneys repeatedly justify the project--(paraphrasing) "easy prosecutions." "Not a drain on resources." "Open and shut cases."

You never did respond to may concerns over the ridiculous proposal of yours to bankrupt the people of this country and backlog the criminal courst by your proposal to give them all free legal council and a jury trial.

You're right that there is a tension here between admin and criminal proceedings. Criminal proceedings might not be good for many migrants, and would likely backlog the process further. But since when has the argument that true justice is inefficient carried much weight with the courts? That goes pretty directly against the founding principles of this country. Visit Iran or China and you will see an efficient criminal justice system, but one that undoubtedly gets the wrong result much of the time. Perhaps you'd prefer to get rid of due process guarantees for citizens as well ... that would save the courts money, reduce the burden on citizens of serving on juries, make prosecutors' jobs easier. What's your take on the Bill of Rights, anyway?

kyledeb Author Profile Page said:

Dear Publius,

Again I appreciate you stopping by at Citizen Orange but you have not even attempted to arrive at any kind of common ground, or shown any respect, like I've asked of you in previous comments. Since it's obvious you have no intention of moving towards a solution, but just disrupting the flow of this blog, then I'm going to suggest you read and comment elsewhere since this is certainly not the place for you.

Thanks for stopping by again, and I'm sorry that we couldn't have a more civil discussion.

Sincerely,
Kyle de Beausset

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