David's Inner Thoughts

Credible Fear

2012-01-15T11:14:00.000-08:00

TO DIE IN FLORENCE - with writer’s notes

This story is based on a client’s case file and the relevant facts of this story are true. The characters are fictionalized. The immigration judge ordered our client removed from the United States in the summer of 2011 and the Board of Immigration Appeals affirmed the decision at the end of September 2011. The case is currently pending before the US Court of Appeals for the 9^th circuit and if the court follows its own precedent decisions, the client will be deported to El Salvador. It may take two years before the Court renders a decision and making the story into a movie may influence the court and may alter the outcome of the decision, hence the ending of this story.

The movie starts in the future in a blood orange color.

Possibly it is 2014.

The prologue starts with a 28-year old young man escorted by two ICE agents from a plane on a tarmac in sunny, hot and sweaty conditions. The ICE agents take of the handcuffs when they hand him over to local authorities. The two agents wish the young man well. The immigration authorities escort the young man of the tarmac to the gates. The airport has a sign in big red letters saying “El Salvador”.

The young man leaves the airport in a taxi to the city. The taxi takes him to the center of San Salvador. The young man gets out of the taxi. He seems unsure of where to go, when a dark blue sedan catches up with him and a semi-automatic machine gun appears through the rear window. Several shots are fired and the young man falls to the ground, his body riddled with bullets. People are screaming, panic takes hold of the square and the car takes of with screeching tires.

Spring of 2011. The colors are blue and gray.

We’re in a court room in the Florence Detention Center. A young female lawyer whose parents immigrated from Iran in 1979 finishes describing the scene we just watched. The young man who we just saw being murdered is sitting next to here in a kaki jump suit. He is 24-years old. The lawyer starts her arguments and tells the judge that her client’s fear is that if he is deported from the United States, that he will be immediately killed upon arrival.

This is where the movie starts.

We learn that the young man is called Raul Lopez. His testimony tells the story of child whose family refused to succumb to the terrors of the gangs, in particular MS-13. The movie goes back and forth between the current scenes in the court room and the chronological telling of the story, starting when Raul was 8-years old, playing soccer in the streets, when he saw his uncle been murdered by three men. We hear and see the story of his older brother being initiated by MS-13 and disappearing when he was 17-years old to be never heard from again. We witness his mother’s attempts to protect him from the gangs and his first refusal to join when he was 14-years old. The violence surrounding the child’s family is enormous. When he was 11-years old, his father was killed in broad daylight on Sunday morning after church. Houses are set on fire, family parties are disrupted by killings and mourners are threatened after funerals. No one is safe from the terror and government officials either are complicit or unable to do anything.

In cross examination, the government attorney downplays the violence and actually mocks the young man’s experience. The government attorney paints a picture of an emerging democracy in El Salvador and cooperation by law enforcement with America’s war on drugs. He hammers on the fact that young man’s mother through a friend forged documents to smuggle the young man to the United States with a fake passport and visa when he was 16-years old. This was eight years ago. He confronts Raul that he has been working in the United States illegally as a construction worker and he possibly still has ties to MS-13. He points out that the young man never asked for assistance, but had chosen to live under the radar and only just asked for asylum, because he was arrested in a raid. He thinks the story is rather convenient and we have literally heard this sob story a thousand times before. Raul admits having worked illegally, but says that he never hurt anyone and that he is scared of the gangs.

Raul’s attorney introduces evidence that two of his cousins were recently deported from the United States and murdered in El Salvador within two weeks. The judge examines the death certificates and the movie takes us to El Salvador one year ago when these two men were deported and murdered.

The story evolves, but during closing arguments, the government attorney recites current case law that refusal to enter a gang and the resulting gang terror, especially from MS-13 in El Salvador is not a ground for asylum in this country. The highest courts have decided that gang-related terror is not grounds for asylum, since asylum is for persecuted individuals living in fear of their government, not because their family are criminals and are afraid of their own criminal organization. It would be like granting the Corleone family asylum from Italy. The young female attorney tries to argue that if her client is deported he might face the same fate as his cousins, but she has to admit that it is difficult to know what will happen in the future. She says she hopes that the judge will think twice before sending this man to a certain death.

The immigration judge is sympathetic with the young man’s plight, but rules that because the claim was filed more than one year after he entered the United States, the young man is not eligible for asylum. He would be eligible for withholding of removal, but this standard is higher. In the end the judge in a convoluted decision agrees that the circuits have ruled that a person who refused to join a gang is not protected and he orders the young man deported to El Salvador. He says he is very sorry and wishes Raul well. Raul cries and is taken away. His attorney nervously tries to compose herself. She sees her client being shot when he returns to El Salvador.

The young lawyer, Niousha Parsi, has a conversation with her parents during dinner who tell her that she could make a much better living as a corporate attorney, or be successful just like her brother. They don’t understand her relationship with this older Jewish lawyer she works for. They end up yelling at each other and she storms out.

The next morning Niousha discusses the case with her boss. She doesn’t think they should appeal, because they have no chance and the client doesn’t have any money. Her boss is an older Jewish lawyer who fights against everything and everybody. He has a great sense of humor, but he is so cynical, sour and disillusioned with the system, the practice, his clients, other attorneys and life in general, that he has been outcast by everyone, including his own wife and children. He tells the young lawyer that they do need to make money to pay the next month rent, but in this case, she should appeal if she truly believes that her client will be killed if she loses. She thinks about what to do. She is certain they will lose on appeal and recites the case law to her boss: The 9^th circuit ruled in Ramos v. Holder that in the matter of S-E-G the Board recently determined that young Salvadoran men who have resisted recruitment into the MS-13 do not constitute a particular social group and that the refusal to join the MS-13 does not amount to a political opinion. The 9^th circuit agrees and there’s no hope.

December 2010. The colors are Arizona red.

We see 22-year old Raul working at a construction site in South Phoenix when the Sheriff raids the place. He tries to hide, but he does get caught and is being dragged away as a big criminal. He is represented in criminal court by a disinterested public defender where he is convicted for identity theft, because he had a fake driver’s license and social security number.

It may be true that they’ll lose, Murray Goldman, the old lawyer says, but since everything is against her client, she has nothing to lose. She has to fight if she believes what she just told him. This is why people become lawyers, he says. She merely shakes her head.

June 1996. The colors are bright and hot.

The 8-year old Raul is playing soccer in the streets in El Salvador. His uncle is walking towards him pushing a fruit card. Three men approach him. The child stops playing and watches. He hears yelling, three shots and his uncle falls to the ground.

September 2011. The colors are beige and brown.

Three judges sit in the conference room of the Board of Immigration Appeals. The female judge disagrees with the two men. She can’t believe that they’re sending this young man home. She was recently appointed to the Board and the two other judges make her understand that she can’t let her emotions get the best of her. He doesn’t see any errors in the judge’s decision and agrees with the judge who wrote the opinion that they need to affirm the order of removal.

End of September 2011. Outside the colors are bright and hot, but inside the colors are blue, bland and gray.

The glass separates the lawyer from her client. The little booth feels claustrophobic and Niousha is holding back her tears when she tells him that they lost the appeal. Raul begs her to keep fighting and that he rather dies in Florence than returning to El Salvador. He says that he doesn’t mind being here more time, since he has been here already almost one year. He says he trusts her and that God will guide her.

Spring 1999. The colors are green, yellow and sky blue.

Raul is 11-years old. It is Sunday morning, the family is leaving Church. His father moves ahead of the family. His mother, his two sisters and younger brother try to catch up. From the other side of the streets, a group of men approach the young man’s father. They shout at him. It’s difficult to see and understand what is going on, but then a knife appears. His father falls to the ground. We hear two shots being fired. Raul’s mother starts screaming and runs towards her husband. The group of men opens up, she kneels by her husband. She wails. The street is silent. The young man’s father dies.

Spring 2011.

Back in the court room, the Judge gives Raul’s mother a tissue. She testifies that after the murder of her husband she fled El Salvador and left her two sons and two daughters with family members. She tells the Judge that she was granted “temporary protected status” by the United States and that’s how she has been able to live here. The government attorney wants to know why she felt that it was safe to leave her children behind. She tries to explain that she had no choice, but the government attorney fails to understand.

October 2011.

At the office, boxes are stacked shoulder high. Murray, carrying a box of files, has a fit. God has nothing to do with this, he says, and if he did then he is an absolute asshole. He says he can’t understand why people always think God can help them. It will be Niousha who can help and hopefully they’ll find a reasonable ear at the circuit court of appeals, but he doubts it. He tells that if God was on their side, they didn’t have to move out of their office.

December 2002.

Raul is now 14-years old. He is pressured in a ceremonial meeting to join the gang. They sit in a circle in a remote area. He is presented with a gun. The older gang members slap the young man on the head, egg him on. They want him to kill his cousin and tell him that if he does, he will be protected by the gang. Raul trembles and gets up. He aims the gun on gang members. They laugh in his face and challenge him to pull the trigger. He can’t and throws the gun on the ground. One of the gang members picks up the gun and puts it against the young man’s head. He pulls the trigger. There are no bullets in the gun.

October 2011. Colors are light brown, dark brown and white.

Niousha’s brother enters the small storage room, where the lawyers have set up shop in his office space. Boxes are everywhere. He hopes that they don’t have to stay long. He wouldn’t want to have to work in an office without windows. His sister lashes out and tells him that he is spoiled and arrogant. He calls her ungrateful. Murray feels out of place and asks why the internet is not working – they need to file the appeal today.

April/May 2003. The colors are yellow, blue, green and red.

Raul, now 15-years old, gets on a bus in San Salvador. He ducks behind a seat and holds on to his backpack. The bus drives through Guatemala. It stops at a few checkpoints, but no one asks him anything. He gets off the bus close to the border with Mexico where he is being greeted by someone, who says he is a friend. They cross into Mexico at night on foot. The “friend” gives the young man an address in Oaxaca. Raul continues to travel, now by train and his journey ends close to Chihuahua.

November 2012. The colors are white marble, dark oak brown and gray.

The hotel room in San Francisco is empty, when Niousha enters from the bathroom. She appears very nervous. She takes deep breaths, looks in the mirror and runs back to the bathroom.

The overwhelming marble of the structure and the enormous hardwood benches in courtroom number 3 of the 9^th Circuit are imposing. The three Judges sit high on the bench. In front of the Judges sit the clerks and the court reporter. The young lawyer feels that she stands a mile away and she feels as small as an ant.

Judge Bybee asks why this case is so special that the Court should overturn its own precedent decisions. “The United States of America cannot grant asylum to a person who doesn’t qualify according to the definition, even when the circumstances appear to be very sympathetic.” The other Judge admonishes the young lawyer that she is wasting the Court’s time unless she can prove that this case is very different from any other case that has come before this Court. He says that he reviewed the entire record and found no errors in the Judge’s findings. He feels that this young lawyer has not made any legal argument and is merely stalling the inevitable.

October 2012.

Niousha meets with Raul in Florence. Niousha informs her client that she’ll appear at the 9^th Circuit next month. Raul has visibly aged. He is now 27-years old. He has been sitting in Florence for almost 3 years. He appears exhausted. He says that he believes in Niousha. Whatever happens, it is God’s will.

November 2012.

Niousha stares at the three Judges, she stares at her table. She tries to compose herself. She apologizes, but then gets up and continues.

May 2006.

Raul is 18-years old. He enters the football stadium in cap and gown with three hundred other students. His mother is sitting in the stands. The high school band is playing a medley of favorite fight songs. The English teacher who calls of the names then calls for Raul Lopez. Raul walks towards his principal who hands him his diploma. Raul grins from ear to ear. His mother closes her eyes for a moment and lets out a prayer.

November 2012.

Niousha tells the Judges that Raul wants to be an engineer. He was an above average student who could have received a scholarship, but won’t be able to attend college, unless this Court decides that he shouldn’t be sent to a certain death. Niousha pulls herself together, ends with stating that she doesn’t have a legal argument, but that her case is about what is doing right and humane. She attacks the Judges and says “if this Court can’t see that, then any legal argument is irrelevant, since our system is first build on justice and fairness and secondly about applying the law. If the first hurdle can’t be taken, then the second argument is useless.” The Judges are not amused.

January 2014.

The first scene repeats itself: Raul gets out of the taxi. He seems unsure of where to go, when a dark blue sedan catches up with him and a semi-automatic machine gun appears through the rear window. Several shots are fired and Raul falls to the ground, his body riddled with bullets. People are screaming, panic takes hold of the square and the car takes of with screeching tires.

January 2014.

Murray and Niousha are unpacking boxes again. Niousha is crying. They’re on the 27^th floor of a high rise building and they look out over Phoenix. Murray is happy. He gives Niousha a big hug. She doesn’t want to say goodbye, but he says it’s OK and leaves. She is left behind between the boxes in her new office She looks out the window when her new boss, a lady in her mid-forties, walks in and asks her how she’s doing.

THE END

They all get to stay.

2011-12-15T07:10:00.000-08:00

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!

2011-12-09T13:01:00.000-08:00

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.

2011-12-07T09:04:00.000-08:00

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.

Economisses

2011-08-23T11:51:00.000-07:00

Economists miss the point!

Talk of a crumbling housing market, loss of consumer confidence, malaise, lack of growth of the job market, insecurity in the markets and deficit reduction is just talk. After the horrible attacks in 2001 our country has been on lock down. This lock down resulted in a drastic decrease of influx of capital, manpower, ideas and business.

The subsequent creation by Congress of serious obstacles to facilitating migration, whether it was through immigration, or merely by stimulating influx of business has stumped any growth potential since 2002. This is the root cause of our current economic woes.

However, there seems no willingness to discuss the link between continued restrictive immigration policies and the lack of growth from the bottom up. Increased homeland security and defense spending for 8 years and a decrease in new influx is a recipe for decline. The unwillingness to open the discussion on reopening the borders is based on fear and understandably so.

If the choice remains to stump growth in exchange for perceived security, our economic forecast will continue to worsen and our true security will diminish. Our knee jerk reaction to the events of 9/11 will prove to have actually caused the damage that Bin Laden said he was going to inflict on the West. We should have an honest discussion on whether we want to overcome our fears and open up our society for business, people and ideas or whether we want to continue on this path of implosion.