They all get to stay.

I heard back from ICE. Not in an official reaction of course. That would have been too much honor, but because I talked to attorneys who had read the posting. The reaction was threefold:

1) What I described never happened and the blog was a personal attack on the attorney who had given the presentation;
2) I don't want the ICE attorneys to do their job; and,
3) I believe that everybody gets to stay and nobody gets deported, especially not my clients.

1. The attorney I talked to disputed my account, but at the same time confirmed that ICE "informs and advises"  county attorney's office on the immigration consequences of convictions. In other words, what I described did in fact happen, exactly as I described.. The reason for my post was that I was infuriated with the attempt of ICE attorneys to influence the prosecution by county attorneys to ensure that people are mandatorily detained and that they aren't eligible for relief due to the nature of the conviction. This had nothing to do with singling out one attorney. It just happened that she was gloating about it.

2. I do want ICE attorneys to do their job. However, they are being conditioned to misunderstand what their job is. It is not their mission to make sure that everyone who is out of status or in violation of immigration law is deported. Based on my experiences with these ICE attorneys my impression is that they think that they have to "win" every time and that enforcement is synonymous with deportation.This is not a new problem and it is not even their fault. Ever since Immigration became part of this monstrosity that's called Homeland Security, ICE employees have been told that they were our country's first and final defense against the enemy. I never really understood why immigration became part of national security in the first place. In that way of thinking everything would be part of national security and every department could be engulfed by DHS, including food and drugs, transportation, treasury etc., all possible targets for terror. Moreover, we threw billions their way and certainly made them believe they were suddenly extremely important. Please note that nobody (but a few) cared about immigration enforcement prior to September 11, 2001.

The job of ICE attorneys is to directly represent the interests of the US government and the public interest as a whole. When their position, in my opinion, is in conflict with their mandate, I'm calling foul. For years, we were made to believe that ICE was accurately representing the Administration's (i.e. right wing Republicans) position. However, I vaguely remember that we had an election in 2008 and, based on the comments of the President and officials representing the federal government, it appears that this Administration openly has a different position towards immigration. I want ICE to adequately represent its client, the US government and our interests as citizens. It is not in the best interest of this country to make winning cases and deportation paramount over family unity, economic interests, community survival, educational benefits, fundamental rights of US citizen children, second chances and humane policies. Granting relief to someone in deportation proceedings could also be a win for the government. In addition, immigration law is not punitive and ICE attorneys should stop seeing themselves as the enforcer, or the ultimate crime fighter. It is unfortunate that because the agency was labeled Enforcement they actually believe that this is a legal term. It is merely a word of art that should have never been used. What was wrong with Immigration and Naturalization Service? Nothing.

3. Just because I'm critical of perverse behavior and of unethical attempts to circumvent the legal system, I'm not of the opinion that everyone gets to stay. In my previous posts I indicated that a person whose only crime is to have used a fake ID or SSN in order to be able to work, should not be mandatorily detained and automatically deported (even when it was found that the SSN did belong to someone else). I continue to believe that such a person should be eligible for bond and should be allowed his or her day in court. And I continue to believe that when ICE Office of the Chief Counsel promotes a policy with the county attorneys that would strip an immigration judge of discretion, it is conspiratorial, unethical, borderline illegal and definitely not in the best interest of this country. End of story.

It's all a lie!

We all know that we’re not supposed to lie and we’re taught that you need to work if you want to accomplish something. Unfortunately, these two ideals don’t always agree with each other when a person has come to the United States without documents to make a better life for yourself and your family. Actually, it is increasingly impossible to work for a living for those living in this country undocumented without perpetrating some lie. If you don’t have a social security number it is not possible to work. So what choice does one have when it comes to feeding your family? For a minute, I’ll humor those who believe that this person has only one choice, which is to leave this country, or regret the day that he or she ever stepped foot in this country. If that’s your belief, you don’t need to read any further. However, for those who actually adhere to a system of justice and fairness, please read on.

Specifically, undocumented workers use invented social security numbers or alien registration numbers in order to find employment. More often than not, the offense was committed for the sole purpose of finding employment and not to steal someone’s identity. Moreover, more often than not, there was no actual victim, since the number was a fake. Sure, it is still a lie, but it is not necessarily identity theft and it is certainly not an offense with the intent to defraud a victim.

Until recently, these offenders who got caught by law enforcement were allowed by the Maricopa County Attorney’s Office to plead to either “solicitation to take the identity of another” or to “criminal impersonation”. The Statutes covering these offenses do not necessarily require a finding of fraud. And since using a fake ID or SSN is not necessarily a fraud offense, such a plea would be appropriate. Moreover, even if these offenses could be categorized as crimes involving moral turpitude (see below), they were either undesignated felonies, which meant that they could be designated a misdemeanor upon completion of probation or they were sentenced as misdemeanors.

To provide some background to better understand a change in practice one should know the following: in immigration law the term crime involving moral turpitude (CIMT) is used. A CIMT is conduct that is morally reprehensible, inherently vile or base. Using a fake ID or Social Security Number to buy liquor, or to get a job is lying, but is not conduct that would constitute a CIMT. Identity theft or fraud can be a CIMT. Especially when the ID theft involves a victim, such as in credit card fraud or when using someone else's identity for illegal purposes the conduct is a CIMT. A felony conviction for a CIMT makes a person ineligible for bond and also ineligible for relief. Meaning an undocumented alien who is convicted of a felony CIMT offense would face automatic deportation.

The attorneys at ICE, in particular in Eloy, are apparently of the opinion that anyone who has ever used a fake ID, a fake Social Security Number, or a fake Alien Registration Number should be deported from the United States. These ICE attorneys, contrary to what the Administration is advocating, don’t believe that these people should be eligible for bond or any form of relief in immigration court. They don’t seem to care that these people may have US citizen children, spouses or parents. They don’t understand that their position is contrary to what the policy and priorities of this Administration for which they work.

These attorneys, specifically in Eloy, have taken it upon themselves to teach the Maricopa County Attorney’s Office on how to “close the loophole”. In a presentation the ICE attorneys explained to MCAO that if the attorneys no longer would allow the above mentioned pleas, but forced people to plea to a felony “solicitation to forgery”, these people would be ineligible for bond and would be automatically deported, since a conviction for forgery is by definition a conviction for fraudulent conduct and a guilty plea to such a felony constitutes a felony fraud conviction, which is a Crime Involving Moral Turpitude. As result, the Immigration Judge wouldn’t have jurisdiction over a bond request and the alien would remain detained and because the alien has now been convicted of a felony involving fraud, he or she would no longer be eligible for cancellation of removal.

De facto, ICE has negotiated the ultimate plea with the Maricopa Attorney’s Office ensuring that hardworking people who might have used a fake ID or fake SSN, but who have not defrauded anyone or victimized anyone to support their family, stand no chance and do not get an opportunity to present their case to an immigration judge. The ICE attorneys have taken away the discretionary power of the immigration judge and have fulfilled the complete undermining of our system of judicial oversight. What makes this devious plan so morally reprehensible, vile and base is that this practice by lower echelon ICE attorneys seems to  be more powerful than any of the recent policy memos that have come from Washington.

This change of policy will become a problem for MCAO since the office continues to offer a plea to a misdemeanor criminal impersonation or solicitation to ID theft to non-aliens who used a fake ID for purposes of buying liquor or to drive. It shows an inequality of justice when certain offenders are punished more harshly than others for the same offense to accomplish an unrelated goal by another government agency.

Why the Current Administration is killing the Dream.

Recently, the Secretary of the Department of Homeland Security announced that the attorneys of Immigration and Customs Enforcement are reviewing all 300,000+ cases currently pending with the immigration courts. The purpose of the review is to determine whether ICE should continue pursuing a case or whether it should administratively close a case in line with the Administration's priorities, which apparently included going after aliens with a criminal record.

The Administration calls this Prosecutorial Discretion. On its face, Prosecutorial Discretion might sound like a reasonable approach to alleviate some of the pressure on an overworked and backlogged system. The practice is not new and is being used in criminal cases all the time, but once again, the menace is in the details.

Unlike criminal law, Immigration Law is administrative law. ICE attorneys aren't prosecutors. Immigration Judges aren't impartial or members of the Judicial Branch of government. Judges are employees of the Department of Justice. Even the appeals court, the Board of Immigration Appeals, is part of the Department of Justice. So, the term alone shouldn't even apply.

In criminal cases, when prosecutorial discretion is used, the prosecutor's office decides that it won't bring charges when an enforcement agency has completed its investigation. There can be many reasons for the decision, but the result is that the case doesn't go forward and the charges are either dropped or never even brought. Therefore, the case won't linger in the court system.

The plan of the Administration with regard to the current immigration cases is different. ICE Removal Operations (ERO) will still continue to bring charges. The Enforcement agency can still continue to put people in removal proceedings. The input of new cases doesn't get halted. However, ICE attorneys will get to pick which case they want to put in the refrigerator to bring back later when they have more resources or different priorities. The charges aren't being dropped, the cases aren't terminated. They are administratively closed and the case remains in the system. This means that ICE at any time at any point, may decide to go forward with a case. Reasons for reopening could be a change in political leadership, increased manpower, a lull in new cases, or whatever. It leaves a client in complete legal limbo. This is not prosecutorial discretion as understood in the practice of law. This is convenient and regulated abuse of power of a government institution that is unable to manage its own workload.

This so-called prosecutorial discretion by ICE attorneys cannot be reviewed, appealed or questioned in a court of law. As a lawyer I have to put some serious question marks behind a practice that preempts a client from seeking justice in a court of law. As young people we're taught that we shouldn't take the law in our own hands and that justice and fairness is a job for the courts. In law school we're taught that we have a legal system that includes review of government decisions. This new plan is opposite of everything we've learned, since it is nothing more than government induced vigilante justice, allowing government employees to play judge and execute random justice without any review by the judicial branch. This vigilante justice creates a veil of humanity over a practice that in actuality doesn't provide a solution to the problem, which is that ICE initiates more cases than it can handle. This practice masks the problem that ICE is a department that is too large, overpaid, over-funded and has a skewed view of enforcement. I believe that if you start a case, you need to finish it and if you can't you need to drop it or not initiate it in the first place. This business of prosecutorial discretion is a dangerous path to complete chaos and since the Office of the Chief Counsel has its own political agenda, the employees of this office shouldn't be in charge of determining who gets to stay in the United States for a while longer and who doesn't. This is not for an ICE attorney to decide. This is a case for a court of law to decide.

Besides the fact that these ICE attorneys are not to be trusted and that this practice will induce more and unnecessary stress on US children of parents who are in removal proceedings, our legal system is built on judicial review. Prosecutorial Discretion in removal proceedings is the opposite of that.