Friday, December 9, 2011

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.

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