Abductions in Portland: Are the Federal Laww Enforcement Extreme Aggressive Tactics Legal?

There is disturbing evidence of strange occurrences out of Portland, Oregon.

Videos and eye witness accounts spread across the Internet, detailing the action of armed men in camouflage fatigues and body armor pulling up in unmarked mini-vans, grabbing people off of the streets, and putting them in the back of those vans.  The reports began surfacing around July 14^th, and Federal Government officials have admitted that these tactics are going on.

The story of Mark Pettibone and Connor O’Shea is chilling.  In the early morning hours of July 15^th, Pettibone and O’Shea were heading home after spending the night in demonstrations.  The demonstrations were rather peaceful, with very little activity by either the Portland police or federal law enforcement.  While walking home, an unmarked mini-van pulled up in front of them, and four to five armed men in camouflage fatigues and body armor jumped out. 

O’Shea ran and hid, and began taking video with his phone.  Pettibone was caught, and thrown into the back of the van.  The men pulled the beanie he was wearing over his face and held his hands over his head.  Pettibone says he was driven around downtown Portland for a while, and then taken to a building.  He was patted down, and his belongings searched.  Officers put Pettibone in a cell, and later read him his Miranda rights.  No one told him why he was arrested.  But he was asked if he would waive his rights and answer some questions.  Pettibone demanded a lawyer, and was released about ninety minutes later.

Pettibone and O’Shea believe they were targeted merely because they were wearing black clothing near the area where demonstrations had occurred.  They denied engaging in activities such as spray painting any buildings, or using laser pointers to shine in the eyes of law enforcement officials.

Our Federal Government is one of limited power.  Whatever power it has, it has been given by the people, through the Constitution.  Keep in mind, in our system, the central government co-exists with state and local governments.  The Tenth Amendment to the Constitution makes it clear that if the Constitution does not give the Federal Government the power to do something, that power is reserved to the states or the people.  That is our federalist system.

The whole idea is that there are some issues that are inherently local.  The legal rules over those issues should be made by smaller governments, that are closer to the people.  Land use, health and safety issues, traffic rules, these are just a few examples of those types of issues.  Whereas foreign policy, trade among the states, establishing a common currency, these are all issues where a national government needs to be able to make the rules.

When you read the Constitution, you will find that it does not give the Federal Government the power to make rules and act to protect the health, safety and welfare of the people.  That is called the police power.  Through the auspices of the Tenth Amendment, the police power is reserved to the states.  That is why most criminal law is state law, and most law enforcement agencies are part of the state or local government.

For the Federal Government to be able to engage in criminal law enforcement activities, there has to be a federal hook.  Meaning, the activity being policed has to have some connection either to a power explicitly given to the Federal Government through the Constitution, or something that’s necessary in order for the Federal Government to do its job, like having employees or owning property.

For what’s going on in Portland, the federal hook is the protection of federally owned property.  The Federal Government needs to be able to own property to perform its functions.  It owns courthouses, office buildings, military installations.  Heck, the Federal Government owns parks for people to enjoy.

That’s why, for instance, it was the U.S. Park Police, an arm of the Federal Government, that used tear gas, flash-bang grenades, and brute force to push people out of Lafayette Square, a federally owned park, in early June, so President Trump could have a clear path to take his highly controversial photo op.

And keep in mind, I’m not saying how the Park Police did their job was legal.  There is an awful lot of documentation showing that their tactics to clear the park of demonstrators peacefully exercising their First Amendment rights, and news crews reporting on the demonstrations, was way over-aggressive and very likely a violation of law itself.

But getting back to Portland, the specific legal justification for federal law enforcement activities stems from Chapter 40 of the U.S. Code, section 1315.  This provision of law empowers the Secretary of Homeland Security to protect federally owned and occupied property, and the people on that property.  The Secretary is also empowered to designate employees of the Department of Homeland Security, as well as other federal employees transferred to the Department of Homeland Security, to be law enforcement officers for this purpose.

So far so good.  There is nothing really controversial about the Federal Government having the power to protect its property.  Nor is it controversial to give the Secretary the power to respond to requests by other federal agencies to deploy law enforcement officers to the requesting agency’s property.

But having the power to engage in law enforcement activities doesn’t necessarily mean that everything that the agency does in the name of protecting federal property is authorized by law.  Like every law enforcement agency, the Department of Homeland Security must exercise its powers consistently with the requirements of the Constitution.

Let’s take these abductions in the middle of downtown Portland in the early morning hours following a demonstration as an example.  Federal law enforcement activities are limited to federally owned or occupied properties.  That doesn’t mean that there is a magic line where the federal property stops and the federal agency therefore has no power to do anything.  The statute itself says the Department of Homeland Security’s authority extends to “areas outside the property to the extent necessary to protect the property and persons on the property.”  But that language and authority has to be interpreted with a degree of reasonableness. 

If U.S. law enforcement officers are protecting a federal courthouse for example, and someone from across the street has fireworks that he or she is aiming at the courthouse in order to do damage, it would be reasonable for the federal officers to be able to cross the street, regardless of whether that agency then crosses over into land that is not owned by the Federal Government, and arrest that person.

But it doesn’t give federal law enforcement officers the authority or power to drive around downtown Portland, blocks away from the federal courthouse, and randomly pick people up off of the streets.  That is what the Federal Government is being accused of doing.

Moreover, the exercise of law enforcement power must be reasonable.  An arrest, for example, must be based on a warrant, or probable cause.  So the statute empowers federal law enforcement officers to make an arrest without a warrant if a crime has been committed in their presence, or the officer has reasonable grounds to believe that the person being arrested has committed a felony.  And again, those specific powers are not in and of themselves controversial.

What is controversial, is grabbing someone off of the streets, blocks away from where a demonstration has taken place, hours after a demonstration has taken place, and assuming due to the color of the clothing that person is wearing, that that person has engaged in unlawful activities.  Especially when the officers are just grabbing the person, without announcing that they are law enforcement officers from the Federal Government, without announcing that the person is under arrest, without announcing why the person is being taken, and throwing that person in the back of an unmarked van.

That doesn’t look like an arrest.  That looks like kidnapping.

It doesn’t help that the law enforcement officers aren’t wearing traditional police uniforms.  They are wearing plan camouflage fatigues.  They are not wearing any clearly visible and identifiable insignia communicating that they are part of any government agency.  They are not wearing any name tag.  They are not showing any badge of office.  They have a tiny patch above the breast pocket that says “police.”  But that’s very ambiguous and not helpful. 

Let’s throw out there that there have been reports of right-wing militia type groups, some of whom are wearing military-style fatigues, mixing in with protesters, either to agitate or incite protesters into violence.

Under these circumstances, the actions of the federal officers is very dangerous, both to themselves and to the protesters.  Without a clearer indication of who these officers represent, it is very much reasonable for the person being abducted to assume that they are in fact being kidnapped, and possibly by these right-wing paramilitary groups.  It would be very reasonable, where the officers are not announcing who they are or why they are grabbing this person, for that person to fight back and try to protect themselves.

And while normally, as a lawyer, I would tell you, if you are being arrested or detained by a law enforcement officer, don’t fight back, and don’t physically resist,regardless of whether you think the arrest is legal, because such actions can themselves constitute a crime giving the officer further authority over you, in these cases how is the person supposed to know that they are being placed under arrest.

The danger created by federal law enforcement’s actions is further intensified by the fact the specific law enforcement officers in this case are not properly trained for the task at hand.  We’ve learned that the specific arm of the Department of Homeland Security assigned to protect the federal courthouse in Portland is the U.S. Customs and Border Patrol Tactical Unit, or BORTAC.  BORTAC’s primary law enforcement mission is to combat drug smugglers at the border.  And that is a very different type of law enforcement than crowd control.  BORTAC is simply not trained to keep the peace when it comes to large scale demonstrations.  Their tactics may very well be effective when you are talking about a member of the cartels trying to smuggle drugs across the Mexican border.  But it’s not the way to handle largely peaceful protesters exercising First Amendment rights.

Indeed, many critics of these abductions have likened the federal agents’ behavior to the disappearances of political opponents that often happens in third world tin-pot dictatorships.  Authoritarian dictatorships, like Venezuela, the right-wing’s favorite whipping boy when they engage in scare tactics to warn the electorate against turning socialist.

When you examine the root cause of this current campaign in Portland, the parallels between the Department of Homeland Security’s current actions, and those of authoritarian regimes because inescapable.

These actions are tied to a campaign to protect federal monument, memorials and statues, as outlined in President Trump’s June 26, 2020 Executive Order.  But the language Trump uses in that order is just striking.  In the preamble, Trump rails against “left-wing extremists,” whom he claims “call for the destruction of the United States system of government.”  His call to action is filled with references to “anarchists,” “left-wing extremists,” “fringe ideolog[ies],” and “Marxism.”  Trump is not even trying to hide his motivation in signing this Executive Order, and that is political.  He is targeting people and groups because of their political beliefs, and because of their involvement in left-wing politics.

Trump seems to conveniently forget that one of this country’s greatest values is the protection of free speech, and specifically, the protection of political speech meant to criticize the government and its leaders.  The fact that a sitting president feels so comfortable attacking political ideologies critical of his Administration is nothing less than shocking.  This is what authoritarian regimes do.

But Trump goes further.  He clothes his campaign against his political opponents in the supposed need to combat rioters.  But, in doing so, he deliberately conflates peaceful expression of protected political speech with the incidental violence that has coincided with the most recent protests.

This is not to say that violence hasn’t occurred since the protests over the killing of George Floyd by Minneapolis police began at the end of May.  It certainly has.  But the causes of that violence has been complex, and it is not necessarily true that the main proponents of the violence have been those who have protested against police brutality targeted at African-Americans and in support of Black Lives Matter. Indeed, some of the violence has been instigated by overly-aggressive police tactics aimed at the peaceful protesters.

The point is that you can’t presume that people gathered at or near federal properties to protest against institutional racism are going to engage in violence or property damage.

Turning back to Portland, it is true that federal properties, including the federal courthouse, have been damaged in the most recent demonstrations.  The damage to the courthouse after July 4^th appears to stand out in the minds of Homeland Security officials.  Specifically, in the early morning hours, at around 4:00 AM, about a thousand people had gathered at the federal courthouse, and launched commercial fireworks at the building.  Because no one was in the building at the time, the Portland police concluded that there was no immediate threat to any person’s life or safety, and decided against dispelling the crowd.

Now, I’m not in a position to second guess the actions of the Portland police.  It can certainly be argued that police presence could have served to escalate the situation, and incited that crowd to turn toward more violence.  In their judgment, it was better to wait it out.

This doesn’t prevent either the state or federal officials from prosecuting anyone involved in the July 4^th incident.  In this modern society, video cameras seem to be everywhere in the public space.  To the extent that law enforcement officials are able to obtain evidence that implicates any specific person in the damage to the federal courthouse, by all means, that would be an appropriate exercise of law enforcement authority.

But President Trump and Homeland Security officials have used this incident not only to criticize local political decision-makers, but as an excuse essentially to usurp state and local law enforcement entities, with shock troops from the U.S. Marshal Service and the Department of Homeland Security.  On July 16^th, Acting Secretary of Homeland Security, Chad Wolf, released a statement condemning the “failed response” of state and local leaders.  In a laundry list of damage to federal properties in Portland, Wolf justified the Department’s enhanced law enforcement activities in Portland; activities that the state and local leaders neither requested, nor wanted.  Some of the items listed in the Homeland Security release appear like desperate attempts to paint a dire picture for public relations purposes.  The list includes items such as graffiti, taking down temporary fencing, plywood and wooden barriers, and ripping a card reader off of its mount.  This is not to defend those who were causing property damage, or to say that the Federal government didn’t have the right to take some action to protect federal property.  But the response has been way out of proportion to the damage sustained.

It bears noting, that Homeland security’s response has trampled on the very notion of states’ rights, a concept that the right-wing usually champions in political discourse.  Moreover, Trump and Homeland Security officials have overstepped their authority.

Even before federal thugs in rented mini-vans were abducting random people off the streets in Portland, the U.S. Marshal Service was continuing the trend we have seen nationwide in response to the George Floyd protests.  And that is overly aggressive tactics against peaceful demonstrators.  Specifically, on July 12^th, a twenty-six year old man had joined demonstrators across the street from the federal courthouse.  He was holding a speaker over his head with both hands.  He was unarmed.  One of the Marshals took that as an opportunity to shoot the young man in the head with a so-called non-lethal impact munition.  The man fell to the ground, unconscious and bleeding profusely.  He had fractures in his face and skull, and required surgery.

The Federal Government hasn’t denied that these things have happened.  Quite the contrary, Trump and Homeland Security officials have threatened further escalation.  Trump is threatening to expand the use of federal officers to cities like New York, Chicago, Philadelphia, Detroit, Baltimore and Oakland, because these cities are, in Trump’s words, run by “liberal Democrats.”  That’s right.  The political party of the chief executive of major metropolitan cities is being used as the reason to threaten the wide-scale deployment federal stormtroopers.

This is a threat that has been backed up by Deputy Secretary of Homeland Security Ken Cuccinelli, who cited vague “intelligence about planned attacks on federal facilities,” in response to the enhanced federal activities in Portland, and warned, “If we get the same kind of intelligence in other places . . . we would respond in the same manner.”

Indeed, in the wake of the federal action in Portland, it has been revealed that the Department of Homeland Security has been spying on people domestically, thought to be threats to monument, memorial and statues.  Moreover, the intelligence being gathered is not limited to statues that are owned by the Federal Government. That’s an awful lot of resources being expended on protecting lifeless representations of people long dead.

Trump’s real motivation is to quell demonstrations that call attention to systemic racism that plague law enforcement agencies across the country.  Trump has clearly allied himself with white nationalists and others who would deny that systemic racism is a problem.  Specifically, Trump opposes the move to remove statues and memorials dedicated to Confederate soldiers and politicians from the public space.  He highlights the vandalism and damage to such statues in his call for greater federal protection.

Trump has equated patriotism with the veneration of approved national symbols and historic figures, with no debate over whether the beliefs, actions and behaviors of these national figures actually merits the honor of having a statue in the public square.  To motivate his white nationalist allies, Trump likes to expand the discussion, and highlight the odd exceptions to the call for the removal of Confederate historical figures.  His Executive Order, for example, references the statue of Ulysses S. Grant in San Francisco.  But, Trump conveniently leaves out that while Grant fought against the Confederacy, he himself owned a slave in his lifetime, and his wife inherited slaves.  This is the very inconsistency that movements like Black Lives Matter have been pointing out, and that Americans who want their government to live up to the ideals and principles of our Founding Fathers, principles such as liberty and equality, ought to be able to question without having their patriotism impugned.

More disturbingly, Trump called attention to “Christian figures” supposedly “in the cross-hairs, too.”  Although Trump failed to mention any such Christian figures by name, in California a statue of Franciscan monk Junipero Serra has been removed.  And while Father Serra attempted to protect indigenous Americans from the abuse of Spanish Conquistadors, he was still part of the drive of the Spanish Catholic Church to eradicate the religious beliefs of Native Americans, and compel them to adopt Catholicism.

Yet, Trump uses this as justification to protect religious symbols and property, specifically mentioning depictions of Jesus, through federal action.  Trump cites the Church Arson Prevention Act of 1996, and in doing so, he turns the very purpose of that Act of Congress on its head.  Historically speaking, church burnings have been acts of intimidation perpetrated by white supremacists, such as members of the Ku Klux Klan, against the African American community.  The Church Arson Prevention Act was not meant to protect Christianity, per se.  It was meant to fight racial discrimination.  And here, Trump is invoking it to further the interests of white nationalists, who like to argue that the United States was founded on Judeo-Christian principles, and often use that as an excuse for discrimination against no-Christian Americans, such as Muslims.

This is very much at odds with the Establishment Claus of the First Amendment, which prevents the Federal Government from establishing a state religion.  Trump cannot show favoritism to any specific religion.  Yet, that is exactly what he has done by including the protection of Christian property and symbols as a goal in his Executive Order.

What is striking about all of this, is just how pointless it is.  Mark Pettibone, for example, asserted his right to an attorney, and the federal agents simply released him.  It is almost as if federal agents are just picking people up in the vicinity of where demonstrations took place, without cause and without any criminal charges, just in the hopes that someone waives their Miranda rights and incriminates himself.  Anne Applebaum, a writer for The Atlantic, has described these activities as “performative authoritarianism.”  That is, it is aimed at appealing to Trump’s base by making an apparent show of force, but a show that it meaningless as it fails to accomplish any true law enforcement aims.  If anything, it only telegraphs the ultimate impotence of the Trump Administration, while communicating that certain segments of American society are going to be treated as enemies.  These actions do set a dangerous precedent, as they firmly set America further down the road towards authoritarianism.

By: William J. Kovatch, Jr.

For the YouTube video of this article, click here:  https://youtu.be/hbqWB_3SULc

Photograph of federal officers in Portland on July 15, 2020, from Macha Chai on Twitter (@macha_chai), depicts unidentified officers who took a man off the streets and threw him in an unmarked mini-van without identifying who they were, or why the man was being abducted.  Photograph is used for the purpose of education, commentary, and research.

References

 Statutes

40 USC 1315.

Church Arson Prevention Act of 1996, Pub. L. 104-155 (July 3, 1996).

Executive Material

The U.S. Department of Homeland Security, Acting Secretary Wolf Condemns the Rampant Long-Lasting Violence in Portland (July 16, 2020).

The White House, Executive Order on Protecting American Monuments, Memorials and Statues and Combatting Recent Criminal Violence (June 26, 2020).

Articles

Becket, Lois, "San Francisco protesters topple statues of Ulysses Grant and other slave owners," The Guardian (June 20, 2020).

Campa, Andrew J., "Junipero Serra statues to come down in Ventura, city leaders decide," Los Angeles Times (July 16, 2020).

"DHS Official on Reports of Federal Officers Detaining Protesters in Portland, Ore.," NPR (July 17, 2020).

Jurecic, Quinta, and Wittes, Benjamin, "Nothing Can Justify the Attack on Portland," The Atlantic (July 21, 2020).

Kanno-Youngs, Zolan, "Were the Actions of Federal Agents in Portland Legal?" The New York Times (July 17, 2020). 

KOIN 6 News Staff, "Riot declared as federal courthouse attacked in Portland," KOIN 6 News (July 5, 2020).

Lang, Marissa J., "A Navy vet asked federal officers in Portland to remember their oaths.  Then they broke his hand." The Washington Post (July 20, 2020).

LeBlanc, Beth, "Trump considers 'more federal law enforcement' for Detroit protests," The Detroit News (July 20, 2020). 

Levinson, Jonathan, "Federal Officers Shoot Portland Protester in Head with 'Less Lethal' Munitions," OPB (July 12, 2020, updated July 26, 2020).

Levinson, Jonathan, and Wilson, Conrad, "Federal law Enforcement Use Unmarked Vehicles to Grab Protesters Off Portland Streets," OPB (July 16, 2020).

Olmos, Sergio, Baker, Mike, ad Kanno-Youngs, Zolan, "Federal Officer Deployed in Portland Didn't Have Proper Training D.H.S. Memo Said," The New York Times (July 18, 2020).

Shepherd, Katie, and Berman, Mark, "'It was like being preyed upon': Portland protesters say federal officers in unmarked vans are detaining them," The Washington Post (July 17, 2020).

Tiefenthaler, Ainara, Hill, Evan, Jordan, Drew, Browne, Malachy, and Botti, David, "Videos Show How Federal Officer Escalated Violence in Portland," The New York Times (July 24, 2020).

 

Vladeck, Steve, and Wittes, Benjamin, "DHS Authorizes Domestic Surveillance to Protect Statues and Monuments," Lawfare (July 20, 2020).

 

Weber, Peter, "Unidentified federal agents in camo and rented minivans are grabbing people off Portland's streets," The Week (July 17, 2020).

Is ICE Ginning up the Numbers of "Criminal" Deportations?

The Obama Administration has stated publicly that it's deportation policy is to concentrate enforcement resources on high priority cases, such as criminal aliens.  An article in USA Today suggests that the Administration may have been ginning up the numbers to make it appear as though deportation of criminals has been on the rise.

At issue is what the definition of a "criminal alien" is.  The easy cases are those convicted of crimes such as assault and battery and larceny.  The article suggests, however, that the Administration has included in its definition of a "criminal alien" those who have convictions for minor traffic offenses, such as driving without a license.

To be clear, in Virginia, driving without a license is a misdemeanor, and can carry a jail sentence of no more than one year.  However, undocumented aliens cannot obtain a driver's license in Virginia.  This raises the question of whether driving without a license is on par with other crimes, such as larceny.

In the past, ICE has estimated that up to a quarter of its criminal deportations included aliens who had only traffic violations.  ICE has not released information of how many of the criminal deportations of the most current year were due to minor traffic convictions.

While the article hints that ICE has been trolling DMV records, and deporting aliens who have nothing more than a traffic violation, the article also points out that there have been instances where ICE has refused to initiate deportation proceedings against aliens who were cited for driving without a license.  The article mentions as an example an incident near Asheville, North Carolina where 15 individuals were arrested at a police checkpoint mostly for minor traffic violations, immigration officials ordered many of them released.

The article implies that there are quotas within the agency to maintain high numbers of criminal deportations, and that in orderto meet these goals there is pressure to initiate removal proceedings against those convicted of minor traffic offense.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

State Courts Limiting the Effect of Padilla v. Kentucky

A little over two years ago, the U.S. Supreme Court handed down its decision in the case of Padilla v. Kentucky, where it held that the failure of criminal defense counsel to advice a non-citizen defendant on the immigration consequences of of accepting a plea bargain amounts to a violation of the Sixth Amendment.  To many at the time, Padilla appeared to be a landmark decision, offering help to permanent residents and other non-citizen convicts seeking to re-open convictions which resulted in surprise immigration consequences.  A number of state courts, however, have attempted to close the door on the ability of non-citizen defendants to use Padilla to re-open old state convictions.  States such as Virginia now prohibit the use of certain extraordinary writs to seek post-conviction relief.  States such as Florida hold that Padilla is not retroactive, and thus cannot be used to attack convictions occurring before the date of the Supreme Court's decision in Padilla.

In this article, I discuss the efforts of state courts to curtail the reach of Padilla.

The Virginia opinion of Morris v. Commonwealth can be found here.

The Florida opinion of Hernandez v. State can be found here.

The U.S. Supreme Court has taken up the issue of whether Padilla should be applied retroactively, as discussed in this article.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Do I Need a Lawyer to Apply for Citizenship?

While attending a class with other immigration lawyers, I heard a presenter express her experience that USCIS is reviewing the basis of a person's permanent residency in many more cases when that person has applied for citizenship.  Indeed, I have personally come across a number of people who found themselves in trouble after submitting a naturalization application because USCIS had uncovered some problem with their permanent residency.  Indeed, other immigration lawyers stated that the situation had gotten to a point that when a person comes to them for assistance in filing a naturalization application, the lawyers are now going in depth in questioning the potential client on how they became a permanent resident.

When a person submits a naturalization petition, USCIS does not simply adjudicate whether that person should become a citizen.  Quite the contrary, USCIS sees this a its last opportunity to look into the background of the applicant, and be sure that everything in the applicant's background is in order.  This means that the adjudicator routinely reviews the applicant's basis for applying for permanent residency in the first place, to ensure that the applicant was granted permanent residency properly.

While it may no seem fair, if, during the naturalization application process, the adjudicator finds something was wrong with the way that the green card was issued, he or she can recommend that the green card be revoked.

For example, if an adult child of a permanent resident was granted an immigrant visa, he or she must remain unmarried until being admitted to the United States as a permanent resident.  If that person were to get married at some point after the U.S. consulate issued the visa, but before actually entering the United States, then that person would have been unqualified to have been admitted as a permanent resident.  When applying for naturalization, that person will be required to disclose the details of all marriages.  A thorough adjudicator could notice that the date of marriage preceded the date of admission, conclude that at the point of admission the person did not qualify for the green card, and then recommend that the green card be revoked.

Similarly, there is a requirement that an applicant for citizenship show five years of good moral character.  Applicants should be aware that the FBI will be conducting a background check on them.  That means that any convictions will likely be brought to the Government's attention if a naturalization application is filed.

The bottom line is that sometimes it may be the better course simply not to apply for citizenship.  But, in order to know that, a person would likely need to consult with a knowledgeable immigration lawyer.  Thus, while the application process would appear simple, consulting with a lawyer beforehand can avoid some disastrous consequences.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

ICE Detention System Needs Reform

Having visited a number of "detainees" awaiting a hearing on immigration issues, I highly recommend this article.  The ICE detention system needs major reform.

The number one problem is that immigration law is civil in nature, not criminal.  This appears to be a hard concept to get across to the average person.  It is even harder for the alien who is being detained.

In many instances, aliens are detained in prisons alongside convicted criminals.  They are treated like prisoners.  They are indeed prisoners in all but name.   They are called "detainees."  But the softer language fails to hide the cruel reality that these are largely forgotten segments of our society.  One where pursuing reform is difficult because it is not politically popular to do so.

The detention system is largely ad hoc.  There are a few federally run facilities, such as Farmville in Virginia. But, in many instances, the Federal Government contracts either within a state or local jail for space, or with a private prison company.

One of the issues that led to this problem was the press for enforcement, enforcement, enforcement.  Naively, the public thinks that enforcement means you pick up an illegal alien, and you neatly drop him off over the border.  That is hardly the case.  When a person is here without a valid immigration status, there are provisions of law which may help that person become legal.  It is that person's right to pursue those avenues.  This means you must have due process.  You must have courts to hear the cases.  You must have Government lawyers to present the Government's side.  You must have humane facilities available to house these people until their hearing is scheduled.  That means money. 

When the Government last pursued an enforcement-only policy, it failed to put the money into the effort that was required.  This led to the ad hoc and inhumane system we now have.  One that in many instances even deprives detainees of the health care they need, as many have died in detention over medical conditions that would have been easily treatable if caught early enough.

You add to the complications that it is much easier for politicians to say that they are being tough on crime.  Thus, they pass measures such as mandatory detention.  This means that aliens who are removable or deportable because of criminal convictions must stay detained, with no hope of being released on bond while waiting for a hearing.  The law is mandatory, giving immigration judges absolutely no discretion.

The law leads to intolerable situations, where a person who has a conviction, and has served time for that conviction, now has to be imprisoned yet a second time for the very same crime awaiting his hearing.  This is true, even if the alien can make a good showing that he is entitled to immigration relief.  I had such a client.  He had been convicted of domestic assault.  He served his time.  he was picked up again later for his immigration problems.  But, he was relief available to him.  I ended up securing permanent residency for him.  In the meantime, he was forced to wait for 9 months in detention, with real, hardened criminals.  And there was nothing we could do about that.

More pleasant sounding words, like "detention," and publicly denying that this is a criminal law matter, fail to hide the deplorable condition that exists in the nation's immigration detention system.  This is a condition that must be addressed, out of pure morality and civility.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Video Blog: Criminal Issues and Immigration Law

Even a Deferred Adjudication is a Conviction for Immigration Purposes

Deferred adjudication programs can offer a break to first time criminal offenders.  The idea is that a formal adjudication of guilt is withheld.  If the defendant shows a time of good behavior, often one year, then charges can be dismissed or reduced.

 But, what appears to be a good deal for criminal purposes could land a non-citizen defendant into hot water for immigration purposes.  This is because of the broad definition of "conviction" under U.S. immigration law.  A conviction includes not only a formal adjudication of guilt, but also any admission of guilt or of facts sufficient to find guilt, so long as some form of punishment is given.

In most deferred adjudication programs, the defendant has to admit guilt, or the judge has to find that the prosecutor has alleged sufficient facts to find guilt.  The result is usually some form of a suspended sentence, or some form of probation.  But, this is enough under immigration law to be considered a conviction.

This means that upon acceptance of a deferred adjudication program, immigration authorities can commence removal proceedings.

The defendant in this article from the Oregonian found that out the hard way.  According to the Oregonian, he worked as a cashier and would give his family unauthorized discounts or ring up false returns.  The result was a felony conviction which could be reduced to a misdemeanor.  However, because there is a felony conviction, which was likely considered an aggravated felony for involving a crime of theft for which a sentence of one year or more was imposed, it triggered ICE to commence deportation proceedings.

Given the broad definition of "conviction" under U.S. immigration law, it is advisable that a non-citizen defendant facing criminal proceeding receive accurate immigration advice.  In that way, an informed decision on whether to accept a plea bargain, accept deferred adjudication or push for a trial, can be made.

By:  William J. Kovatch, Jr.
(703) 837-8332
info@kovatchimmigrationlaw.com

Should I Apply for Deferred Action?

Sure, the President has announced a program to grant deferred action to young people who were brought to the United States before they were 16, are under 30, and have been in the United States for 5 years.  Yes, you can receive work authorization if approved.  But, should you apply?

The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government.  Deferred action is a discretionary program.  That means that the Government is not required to grant it to anyone.  So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings.  Is it worth the risk?

First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose.  The worst possible scenario has already happened to you.  You might as well give it a shot and apply.  Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.

There are people who should absolutely not apply.  Do you have any kind of criminal record?  Then do not apply.  You will find that USCIS will deny your application.  Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.

Do you have an outstanding order of removal or deportation?  Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance.  Then, you never made it back to court.  If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.

So, who should apply?  As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action.  If it is very important to you that you receive work authorization, then applying for deferred action may make sense.

Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform.  Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform.  Of course, this is pure speculation on my part.  But, it is based on some history.  When amnesty last passed, people who had a place in line were given priority over new applicants.  It makes sense to some degree.  When you apply for deferred action, the FBI will do a background check.  If the person passes the background check, then the Government will know already that the person is not a security risk.

But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power.  If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years.  In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings.  Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.

In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.