ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.

Arizona’s new immigration law, SB 1070 calls for the arrest of anyone who cannot prove they are in the country legally. As a result, if the legislation is found to be constitutional, thousands of people will be jailed for being unable to show documentation that they entered the country legally. One group that will make a lot of money off of this is the private prison industry.

A study by NPR showed that the Arizona legislation was drafted by American Legislative Exchange Council {ALEC) an organization that brings together legislators and corporate lobbyists. Both Arizona state Sen. Russell Pearce, the primary sponsor of the legislation and the Corrections Corporation of America, the largest owner of private prisons in the country are members of ALEC and were present at the meeting where Pearce presented the idea to ALEC.

While legislators pay $50 to join ALEC 200 corporations pay tens of thousands of dollars to belong. The money is used to pay the way of legislators to three conferences a year where they meet with lobbyists and are wined and dined by them.

Pearce’s legislation had thirty-six co-sponsors shortly after he filed it with the Arizona Senate. Two thirds of the co-sponsors either attended the ALEC meeting where the legislation was written or are members of ALEC. Thirty of the thirty-six co-sponsors received donations either from the Corrections Corporation of America ( CCA) or other corporations that own private prisons. Arizona governor Jan Brewer, a major supporter of SB 1070,is a major recipient of CCA money. Her campaign manager is a lobbyist for CCA. Her communications director, Paul Senseman is a former lobbyist for the company and Senseman’s wife continues to lobby for the company. Company employees and executives have donated significant amounts to her campaign and to Brewer supported causes.

Today the jury will start deliberating in Scranton, Pennsylvania in the trial of Brandon Piekarsky and Derrick Donchak who are charged with a hate crime and a civil rights violation for the murder of Luis Ramirez. It is alleged that Piekarsky, Donchak, and a group of their high school buddies killed Ramirez because they were upset with the increase in the Hispanic population in their hometown of Shenandoah.

According to the Associated Press article the teenagers were tried and found not guilty on serious state charges and are now being charged in Federal Court. A half dozen inebriated members of their high school football team, according to the prosecutor, acted as a team in attacking the twenty-five year old Hispanic man after they attended a block party.

At one point during the fight Ramirez walked away. Then one of the teenagers yelled racial slurs at him and he charged towards them.

Certainly the death of Ramirez is a tragedy, but a number of a number of basic American traditions are brought into question by the trial. While no strict double jeopardy question arises since the Federal charges are different from the state charges for which the men were found not guilty. But do we really want to give the government two bites of the apple. They already put the defendants through one serious trial and now they are facing life in prison in a second trial for the same act.

Ramirez left the fight and then came back to renew it. I do not know about Pennsylvania law but under California law and the law of many states Piekarsky and Donchak had no duty to retreat. They would have had a right to defend themselves. As the Supreme Court recently pointed out in McDonald the right to defend oneself, even with a gun and there were no guns involved in this case, is fundamental to the American way of life.

A third issue is that the four football players are being treated as a team. Two of them have plead and the other two are on trial but the prosecutor calls them a team. Traditionally we insist upon individual responsibility. We do not blame everyone walking home in the group because one of the group, Brian Scully yelled racial slurs at Ramirez. Nor do we hold it against the entire group that Collin Walsh knocked Ramirez out or that Piekarsky kicked him in the head while he was unconscious.

Regardless of what you think about these American traditions the law is not the best way to change them. Regardless of what the jury does, the right of self defense in strongly ingrained in our society. Likewise nothing that happens in Scranton is going to change American individuality or view about subjecting defendants to multiple trials for the same behavior. These values are taught to us as children and trials are not going to change them.

On the other hand it does not mean that the men should go free. Nothing in our traditions endorses murder and murder should be punished, unless as I suspect the jury in the state case found that the men were acting in self defense.

San Francisco Sheriff Michael Hennessy requested that San Francisco opt out of U.S. Immigration and Customs Enforcement’s (ICE) Secure Communities Program.

Secure Communities is a program under which the fingerprints of everyone arrested in a community are provided to ICE. However under San Francisco’s Sanctuary City ordinance only those immigrants who are charged with felonies, found to have a previous felony or ICE contact in their criminal history are reported. Initially ICE promised that only those charged with felonies would be subject to deportation.

As a study quoted in the New York Times shows nationwide twenty-six per cent of those deported under the program do not have criminal records. In some places the percentage is higher. In Maricopa County, Arizona the percentage is fifty-four per cent and in Travis County Texas it is eighty-two percent. By ICE’s own records seventy-nine percent of those deported either had no criminal record or convictions for minor offenses.

Prior to the June 8th implementation of Secure Communities in San Francisco, ICE and California Attorney General Jerry Brown told Hennessy that there was no way to opt out of the program. But in response to statistics showing that many of the people deported are innocent or are guilty of only minor offenses and ICE has agreed to make the plan voluntary. They have agreed to meet with Hennessy to discuss the city’s objections to the program. As Hennessy has pointed out in the past many immigrants are intimidated by the program and refuse to report criminal activity due to fear of deportation. A wife may not report domestic violence, for example if she knows that her husband may be deported. She want medical help for herself and treatment for her husband but she does not want him to be deported where he will not be able to support her and have contact with their children.

U.S. District Judge Susan Bolton issued an order restraining the State of Arizona from enforcing significant parts of Arizona’s new restrictive law criminalizing and limiting the activity of illegal immigrants. The order prohibits the enforcement of provisions that: require officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person; creating a crime for the failure to apply for or carry alien registration papers; creating a crime for an unauthorized alien to solicit, apply for, or perform work; and authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

The court found that these sections of the law are most likely preempted by Federal law and that the government is likely to succeed in have these sections found to be unconstitutional. Furthermore it found that the failure to issue a temporary restraining order banning these sections would result in irreparable harm to the Federal government.

While the judge refused to grant a restraining order regarding other sections of the bill and the Federal government did not challenge all of the section, Thus some sections will go into effect today the granting of the restraining order was seen as an important if temporary step by those who oppose the bill,

An El Salvadorean citizen residing in San Francisco was seized by Immigration and Customs Enforcement (ICE) as an illegal alien after he was stopped for making an inadequate stop at a stop sign. When he was stopped the officer asked him for his driver’s license. He did not have one. (Of course it is hard if not impossible for an illegal alien to obtain a driver’s license.) He was then arrested for driving without a license. When his name was placed in the computer it was discovered that while he had no criminal record he had an immigration warrant and he was seized by ICE.

San Francisco is a sanctuary city. Under the Sanctuary Ordinance no city funds can be used to assist in the deportation of a non-citizen. Originally there was an exception for those convicted of a felony. Recently, after the Federal government threatened to arrest juvenile probation officers who were shielding juveniles from deportation the rule was amended to allow the deportation of anyone charged with a felony even if the charges were eventually dismissed or reduced to a misdemeanor. But in any case making an improper stop is only a traffic infraction and driving without a license is at most a misdemeanor. Neither should result in a report to ICE or deportation. But someone, probably the police officer apparently violated the Sanctuary Ordinance and reported the poor man who had lived in the city for five years to ICE and he is now facing deportation.

Perhaps the ironic part of the incident is that it occurred on June 2nd. On the eighth ICE’s Secure Communities Program took effect in San Francisco giving it access to all fingerprints taken at the jail allowing for the deportation of any illegal alien even if the person is never charged with a crime or is only charged with an infraction or a misdemeanor.

The Attorney General yesterday sued the state of Arizona to prevent S.B. 1070, the state’s new tough immigration law from taking effect on the 29th. Among other things the law makes it a state crime to be in the state illegally. It will require police, while enforcing other laws, to question a person’s immigration status if there’s reasonable suspicion that the person is in the country illegally. It will also require legal immigrants to carry proof of their immigration status.

It bans day laborers from blocking road while seeking employment. There are other section regarding the impounding of vehicles and employment but these are not being challenged in the Federal suit. A number of civil rights organizations have filed a separate suit challenging the entire law.

The Federal government claims that under the Constitution’s Supremacy Clause it has sole power over immigration law. In some areas, such as international relations and the ability to declare war the Federal Government has the sole power to act. In other areas the Federal government and the state governments share power but states cannot enact laws that limit or counteract Federal statutes. For example both the Federal government and the state governments have passed laws criminalizing the use and trafficking of certain drugs The problems occurs when states pass laws decriminalizing the medical use of marijuana. The Federal courts have held that these laws are a violation of the Supremacy Clause and are invalid.

The Federal suit points to the Federal Government’s power to set “uniform Rule[s] of Naturalization” as justification for giving the Federal government sole power over immigration law.

Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.

German Ordino-Ortega was sentenced to 60 months in the Federal prison for being unlawfully present in the united States following deportation. The sentence was based on a base offense level of eight and an 16-level enhancement for having a prior conviction for a crime of violence.

However, the Fifth Circuit Court of Appeals ruled that a conviction for injury to a child under the Texas Penal Code did not qualify as a crime of violence. A crime of violence, according to the comment to Sentencing Guideline Section 2L1.2 is one that either is on “a list of enumerated crimes or ‘any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.’”

But under Texas law injury to a child can be committed without the use, attempted use, or threatened use of physical force. For example it can be committed by an act of omission or by placing poison in a child’s food. Neither of these would qualify as an act of violence under the Guidelines. Therefore an act of violence is not an element of the offense and cannot be used to aggravate the sentence.