Thursday, February 25, 2016

Ignorance of Immigration Law Abounds, Particularly with GOP Lawmakers

 When I read this article from ABC News on the plight of migrant children who cross the southern border from Central America, I was struck by the quote from Senator Jeff Sessions of Alabama. "It cannot be that every young person from Central America is entitled to asylum or entry into this country," he is quoted as saying. 

The quote, I believe, betrays the true thought process behind many Republican lawmakers and their tea party supporters on immigration issues. Sure, the stylish thing for conservatives to say is that they support immigration, just not illegal immigration. Except that hidden in Sessions' statement is a criticism of the legal programs and processes that exist in U.S. immigration law. 

Let's start with asylum. This is a program to give protection to people who fear persecution, such as the threat of serious violence, in their home country. On one hand, it is difficult to obtain asylum. But on the other, if a foreign born person proves that he or she qualifies for asylum, U.S. law mandates that the Federal Government grant protection and a pathway that could lead to permanent residency and eventually citizenship. 

Yet asylum, despite it being a legal program, is one of the key targets of conservatives' criticism. Indeed, some conservatives complain about the number of green cards the Obama Administration has handed out. Seemingly lost in the criticism is that the green card process is the process to become a legal permanent resident. 

What also seems to escape conservative critics is that there is a legal process for determining eligibility for legal immigration programs. This is a country of laws. Our Constitution requires Due Process. The Government cannot simply pick up a person near the border because they look Hispanic and automatically ship them back to Central America. Let's not forget how many citizens of this country are of Hispanic origin. Fortunately, this isn't like the film caricatures of Nazi German where the Gestapo get to demand to see the "papers" of everyone. Citizens are not required to carry proof of citizenship. 

But the immigration courts of this country are clogged. There are not enough judges and government attorneys to handle the cases already in court. No one seems to be willing to spend the money to create more courts, hire more judges and hire more attorneys. The result is that cases tend to remain pending for years. 

Even then, there are more programs available than simply asylum. I hesitate to list them here, for fear that if GOP lawmakers really did understand the breadth of immigration law would be motivated to repeal those programs. 

Probably most alarming in statements like that of Sessions is the callousness that it betrays. Central American countries such as El Salvador, Honduras, Guatemala and Nicaragua are plagued by gang violence. Yet, many in the United States like to turn a blind eye to that violence and deny the role of this country in creating a situation that the Central Americans governments are unable to manage on their own. 

We as a society are judged by how we protect the vulnerable. An immigration system without compassion erodes our humanity and condemns the helpless to situations they had no role in creating. 

By: William J. Kovatch, Jr.
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Tuesday, February 23, 2016

Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.


I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.