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.

Secure Communities is a Department of Homeland Security (DHS) program to deport felons who have either been convicted of serious felonies in the past or are currently accused of committing such. It operates through the use of biometric evidence, primarily booking fingerprints, which are immediately transmitted to the Integrated Automatic Fingerprint Identification System (IAFIS) of the FBI’s Criminal Justice Information Services (CJIS) Division and the Automated Biometric Identification System (IDENT) of the Department of Homeland Security’s US-VISIT Program.

Within hours of booking DHS can order the local sheriff’s to put a hold on the person for transfer to an immigration facility. Thus even if the District Attorney decides not to charge the individual or if the only charges pressed are misdemeanors or infractions the individual could be deported. DHS says that only felons will be targeted but the hold may be placed before the person is charged.

San Francisco Sheriff Michael Hennessey last week asked California Attorney General Jerry Brown to exclude San Francisco from Secure Communities even though that will mean a loss of Federal Funds. He pointed out that the programs is in direct conflict with San Francisco’s Sanctuary City policy under which only those accused of felonies are reported to Federal Authorities. Under Secure Communities all people who are booked will be automatically reported.

Last year the San Francisco Sheriff’s Department reported 2000 aliens to DHS and DHS picked up 1,162 of them. Hennessey says the number will dramatically increase under Secure Communities. Although DHS claims that they will target felons, Hennessey claims that among those that will be reported are those charged with such petty crimes as selling from an ice cream cart without a permit. DHS says they do not have the budget to go after those accused of petty crimes but Congress seems willing to increase DHS’s budget in light of Arizona’s move to criminalize illegal aliens.

One problem with Secure Communities is that it inhibits immigrants from calling the police for help. An immigrant is less likely, for example to report domestic violence, if he/she is afraid that their spouse or significant other will be finger printed and deported shortly after being arrested. Immigrants are less likely to report the gang activities of their neighbor’s children if they are afraid the child will be deported. In the end it may make us less secure and crime less likely to be reported.

A thirteen year old boy punched a schoolmate and stole forty-six cents from him. Proper punishment–some time in youth hall maybe. Counseling–perhaps. But in this case the fourteen year old, his mother and his brother, but not his stepfather who is a US citizen were almost deported when it was discovered that their visa had expired.

San Francisco Mayor Gavin Newsom instituted a new policy under which every juvenile alleged to have committed felonious conduct and who was in the country illegally is reported to Homeland Security for deportation. No conviction is necessary. So when the boy was arrested and charged with robbing forty-six cents the Juvenile Probation Department reported it to Homeland Security and the kid, his mother and his five year old brother were ordered to leave the country by March 5. Luckily some strings were pulled in Washington and the deportation order was delayed. Yesterday it was announced that the family had been given green cards and would not be deported.

The ironic part of this is that the boy’s mother, Tracey Washington is married to Charles Washington, a Municipal Bus driver and a United States citizen. Therefore she and her children are eligible for citizenship.

As Charles Washington pointed out after it was announced that his family would be allowed to remain in the country, in a letter to Newsom

“Your policy hurts families and tears children away from their parents for minor, first-time offenses,” Charles Washington, a Muni bus driver, said in a letter to the mayor.

“Our family’s luck in this case was unique, but Mr. Newsom, the pain we felt when our family was facing deportation as a result of your policy is not unique.”

Other consequences are that children who have spent most of their life in this country are deported to countries where they cannot speak the language. Children may be deported, without their parents to countries where they do not have family or know anyone. The Board of Supervisors pass legislation rejecting the mayor”s policy. But Newsom vetoed it. The Board overrode the veto but Newsom has refused to enforce the legislation.

The Ninth Circuit ruled in, United States v. Juarez, that the Federal that the tolling of a term of supervised release begins whenever a person absconds not when a warrant is issued.

Manuel Ignacio Juarez was sentenced to 46 months in prison and four years of supervised release in 1989 for bank robbery. After he did his 46 months he was turned over to INS and deported. At some point prior to 1993 when he applied for a California driver’s license under a false name he came back into the country illegally. Since he did not notify his probation officer of his new address within 72 hours he was considered to be a fugitive.

He was arrested and released in 1994 for possession of paraphernalia and he was arrested and kept in custody in 1995 for two robberies. He was sentenced to 15 years. Time in custody is tolled towards completion of the supervised release.

A Federal Judge issued a bench warrant for him for violation of his supervised release in 2005. When he was released from prison on the state robbery charges in 2009, he was turned over to the Feds on the supervised release warrant and he was sentenced to eighteen months. He appealed claiming that his supervised released terminated prior to the the issuing of the warrant. When excluding the time that Juarez was a fugitive and the time that he was in state custody his period of supervised release did not terminate prior to the issuance of the warrant in 2005. Once a warrant is issued the period is tolled until Juarez is brought back into Federal custody and a judge acts upon the warrant. In this case it was 2009.

Thus a period of supervised release can be a lifetime sentence. I doubt anyone really expected Juarez to report to his probation officer when he returned illegally to the country. (Although once I had a client who was released upon entering a plea and ordered to return for sentencing. No one expected this to happen since he was going to be deported. But just in case I showed up at the courthouse on the sentencing date. He had been deported and the judge issued a warrant. As I am walking out of the courthouse, who do I see? He knew he was supposed to be in court for sentencing so he illegally returned to the country for sentencing.) Thus Juarez was considered a fugitive. This could go on forever.

The United States Supreme Court ruled yesterday in Padilla v. Kentucky that defense counsel in a criminal case is incompetent if he/she does not inform a defendant prior to entering into a plea agreement of the immigration consequences facing the defendant.

Jose Padilla, a citizen of Honduras who lived in this country for forty years was told by his counsel prior to his entering a guilty plea to trafficking in narcotics that he would not be deported. The advice was clearly wrong. The law mandate deportation for anyone convicted of trafficking.

The Court, using the Stickland standard, required that an attorney’s performance fall within the expected range of attorneys in similar cases and that the defendant not be prejudiced by the attorney’s performance.

But some courts, including the Supreme Court of Kentucky, have held that attorneys have no duty to inform the client of collateral effects of the plea. But the Supreme Court in this case, without directly deciding what collateral affects defense counsel must inform their clients of decided that in this case the odds on deportation were so great that not informing the defendant of the correct immigration consequences in effect left the client not knowing a direct effect of the plea.

While admitting that in some cases the immigration effects of a guilty plea may not be clear enough for a non-expert in immigration law to give competent advice the court said that in this case the defense counsel gave incompetent assistance by not accurately advising Padilla of the immigration consequences.

As Justice Alito pointed out in a concurring opinion the decision will lead to further litigation as to what cases will the immigration effects be too complicated to assume that a criminal defense attorney will be able to competently advise his/her client on the consequence. What about other collateral consequences, such as licensing issues, civil suits, tax issues, civil commitments, etc.

But there is no question that the better informed a defendant is about all of the consequences of a plea bargain, the better she/he can decide whether to accept the bargain. All too often clients are presented with a proposed bargain and given only a few minutes or less to decide whether or not to accept it. In these cases they do not have time to consider all of the possible ramifications of the agreement and often regret their decision with no ability to retract the plea.

The Ninth Circuit Court of Appeals ruled that California’s law against indecent exposure is not necessarily a crime of moral turpitude.

Victor Ocegueda Nunez entered the country illegally when he was fifteen years old. He is now 31, married to a United States citizen and they have three children all of whom are citizens. Homeland Security moved to deport him. An illegal alien who has been in the country for over ten years can apply for cancellation of removal unless he he/she has been convicted of a felony or more than two misdemeanors involving moral turpitude. Cancellation of removal is not available to anyone who spent more than six months in jail on a misdemeanor.

Nunez has two misdemeanor convictions one for petty theft, a crime of moral turpitude, and one for indecent exposure. Crimes of moral turpitude are nigh impossible to distinguish from other crimes. But generally they are are crimes that involve either fraud or “base, vile, and depraved” conduct that “shock[s] the public conscience.” For example theft crimes are crimes of fraud and therefore involve moral turpitude. It the intent is to seriously injure someone, such as murder, rape or kidnapping the crime has been found to be a crime of moral turpitude. Sex crimes are only crimes of moral turpitude if someone is injured as in the case of rape or “lewd and lascivious conduct toward a child.

Crimes of moral turpitude have been divided up into two group. Categorical crimes are those in which all violations of the law are crimes of moral turpitude. This involves crimes such as theft and rape. The second group, the modified categorical includes crimes where a conviction is possible for behavior that is not necessarily a crime of moral turpitude. In these cases the Immigration Court must decide whether whether the particular behavior is “base, vile, and depraved” and whether it shocks the public conscience.

Under California law crimes of indecent exposures involve three different types of behavior; 1) those meant to sexually excite the person exposing himself, 2) those meant to sexually excite someone else, and 3) those meant to insult someone. Not all crimes in all of the categories are crime of moral turpitude. For example the statute has been used to convict nude dancers. But nude dancing is not “base, vile, and depraved.” Likewise one may be convicted of indecent exposure for by showing your behind to someone who cuts in front of you while you are driving but again that is not “base, vile, and depraved.” Therefore, since the trial court did not specify the behavior resulting in Nunez’s conviction the Ninth Circuit remanded the case to the Immigration Court for a determination of whether or not Nunez’s conduct involved moral turpitude. If it did not he will be entitled to request a cancellation of removal.

Farouk Shami is a self made millionaire who lives in Houston and is running for the Democratic nomination for governor of Texas. He claims to have come to this country from Palestine with $71.00 in his pocket and to now be worth millions. While attending college in this country he got a job as a cosmetologist and eventually formed a company manufacturing cosmetology products Today he is a millionaire running for governor of Texas.

How smart do you have to be to become a millionaire and run for governor. Not very–apparently. He wants illegal aliens to be given citizenship in exchange for turning in gang members. If I was an illegal alien turning in a gang member the first thing I want to do is get out of the country–not stay here. After all that gang member I turned in has friends in the gang who have guns. I might just be a good target to be killed for turning in the gang member.

The last thing we need is desperate vigilantes doing anything to stay in the country fighting a war against armed gang members in the streets.

The Eleventh Circuit Court of Appeals upheld the conviction of Jose Lopez for (1) conspiring to encourage or induce an alien to enter the United States, (2) encouraging or inducing 17 aliens to enter the United States, and (3) and knowingly aiding or assisting an alien, who was inadmissible due to a prior aggravated felony conviction, to enter the United States.

In order to uphold the convictions the court found that “encouraging or inducing an alien” under 8 U.S.C. § 1324(a)(1)(A)(iv) included “helping” an alien to illegally enter the United States. Initially the trial judge refused the request of the government to define “encouraging or inducing.” But while deliberating, the jury sent a note requesting a definition and the judge gave the government’s proposed dictionary definition:

In response to your question concerning “encourage” and “induce,” I instruct you on the below dictionary definitions in conjunction with all of the Court’s instructions in your deliberations.

To “encourage” means to knowingly instigate, to incite to action, to give courage to, to inspirit, to embolden, to raise confidence, to help, to forward, and/or to advise.

To “induce” means to knowingly bring on or about, to affect, cause to influence an act or course of conduct, lead by persuasion or reasoning, incite by motives, and/or to prevail on.

The evidence at trial showed that Lopez accompanied two other men to the Bahamas, where they picked up 19 aliens. It did not show that Lopez at any time spoke with the aliens. Nor did it show that he went with the intent to bring aliens into the country or that he even knew that the aliens were illegal until after the boat left the Bahamas. It did show that while he did not own the boat he steered the boat most of the time.

But as the dissent points out to define “encourage” as “to help” allows Lopez to be convicted for steering the boat. Yet steering the boat is a violation of 8 U.S.C. § 1324(a)(2) which prohibits transportation of illegal aliens. Laws are to be read in such a way that one section of a law does not duplicate another. Furthermore since words should be given there normal meaning and since “to help” is one of the last in a series of definitions for “encourage” in most dictionaries the dissent by Judge Barkett states

The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible interpretation, namely, “to help.”