A couple of days ago, I wrote about the case of Jerry Lemaine, an immigrant who has been living in the United States for 25 years, who was busted for pot twice — convicted only once — and has now spent three years in jail awaiting possible deportation because of his “crimes.”
I put “crimes” in quotes not just because I despise the war on drugs, but because, legally speaking, he appears not to have been convicted of any crimes. Scott Greenfield explains:
The underlying charge of unlawful possession of marihuana (another New York quirk is the odd spelling of marijuana), in violation of New York Penal Law 221.05, is a “violation”, defined as an offense that is neither a misdemeanor nor a felony. There is nothing lower than a violation, and it is not a “crime” as defined by New York law.
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There’s one additional quirk to consider, that a dismissal, under New York law, gives rise to a legal fiction that the arrest and prosecution never happened. While it may remain on the defendant rap sheet, ironically noting that it’s dismissed and sealed but still there, it may also magically disappear as if it never happened.
So, one violation (with all the criminal severity of a parking ticket) and one never-proven accusation by a police officer is enough for the jerks at Immigration and Customs Enforcement to call it a felony, even though it’s not.
How the hell does this stuff happen?
Immigration law isn’t something I’ve spent much time thinking about, so please bear with me, but it looks like a huge part of the problem is the legal fiction that immigration cases are not considered criminal cases. They proceed under civil law, where the government has a lesser burden of proof.
It makes sense that not every legal action by the government is a criminal proceeding. The government has to be able to sue someone who accidentally breaks a window on a government building or a supplier who defaults on a contract, and it would be silly for the government to face a higher burden of proof than an ordinary citizen filing the same lawsuit.
However, many of the government’s so-called “civil” actions actually involve the kinds of things that only governments can do. If someone hits me with their car, I can sue for my injuries, but if I see them commit a crime in their car, I can’t just confiscate it. Only the government can do that, and yet forfeiture is considered a civil matter.
Immigration cases appear to involve the same sort of deceptive definition. The government is hurting people in a way that only the government can, yet the accused doesn’t receive the presumption of innocence.
In the Lemaine case, for example, the proceedings are apparently conducted under civil rules despite the fact that ICE (1) is sending armed agents to capture people, (2) is locking them in a cage to ensure they show up in court, (3) is seeking to take away some of their freedom, and (4) is doing so because of alleged crimes.
Doesn’t that sound like a criminal issue to you? I mean, if this is a purely civil matter, how come the government gets to use pre-trial detention? I’ve never heard of courts detaining people to make sure they show up for a lawsuit.
I’m willing to be convinced that some aspects of immigration cases are essentially civil in nature. It might make sense to require immigrants to prove they got here legally, and to prove that their paperwork is in order. But when the reason for throwing them out of the country has nothing to do with the act of immigration, and is in fact due to allegations of criminal behavior, the burden of proof really should fall on the government.
As an attorney who has practiced in the field of removal/deportation defense for many years, I appreciate your comments on this topic. It is the source of great frustration that the civil element of these proceedings results in my clients having less rights than they would if criminal charges were brought against them. This particular case serves as a road map for all the things that can be done by the Government, pursuant to statutes mostly enacted in 1996 which make it nearly impossible for most “respondents” to mount an effective defense. The law provides for “mandatory dentention” of anyone charged with being an aggrevated felon but that status can be challenged in a hearing at which the respondent has to show it is unlikely that the charge will be sustained. It is the rare Immigration Judge that will make such a finding, at best they rule that any challenge to the “agg fel” charge should be left for the actual hearing,
A large number of respondents, facing mandatory detention in prisons far from family simply give up and agree to removal. Families are unable to pay for legal services which besides expertise in a specialized area, also require payment of travel expenses. It is just a horrible situation and Nina Bernstein has been a real hero in exposing just how devestating and inequitable our “tough on crime” immigration laws are. The legislative history of the 1996 statute shows that many Senators believed that “prosecutorial discretion” would safeguard situations such as the one in the article which involved good people caught up in a bad situation. In my years of practice, I have never once seen such discretion exercised and the Immigration Judges are powerless to push the Office of Chief Counsel (the ICE prosecutors) to do so.
One last twist to this particular case: the law in Haiti requires that all “criminal deportees” be imprisoned upon their return to Haiti and several human rights groups have reported that the conditions in Haitian jails in tantamount to torture. At present, due to the earthquake, no removal orders to Haiti are being enforced but there is no way to tell how long that policy will remain in effect.
So people convicted of aggravated felonies get mandatory detention before their immigration hearings even though they’ve been released from the detention that was the actual punishment for the crime? The state that convicted them says they’re free to roam in public, but ICE puts them in a cage anyway?
I didn’t even mention whole jurisdiction shopping issue because the post was already getting too long, and there’s something gratuituously evil about hauling an immigrant 1500 miles away from their family and friends and keeping him there for three years.
And I hate it when legislators rely on prosecutorial discretion, because prosecutor’s always defend their more idiotic prosecutions by saying they’re just upholding the law. Bad things happen when everybody passes the buck.
Thanks for your comments, especially since you have experience in with the law. I haven’t written much about immigration law in the past, so it’s good to know I didn’t completely screw it up.