Allegations of Passaic County Jail Beating of Immigration Detainee

The Herald News printed allegations that Osama Metwaly, an immigration detainee being held in Passaic County jail, was beaten while handcuffed. The immigration detention officials deny the charges, saying that instead a man recently required medical care because the prison officials used pepper spray in a "minor" incident after the detainee resisted prison orders and all other reasonable efforts to resolve the situation failed. According to the Herald News, the allegations of a beating are supported by a handwritten statement signed by fifteen immigration detainees.

Passaic County jail was audited by the Department of Homeland Security's Inspector General for possible mistreatment of immigration detainees and the release of the final report has not yet happened. Immigration detainees are often held in ordinary, regular prisons in order to save money (it costs "only" $77 per day per detainee at Passaic County jail) even though immigration detainees are being held for merely civil violations, not crimes. The courts have tried to distinguish immigration violations from crimes in order to deny immigrants the right to appointed counsel and other basic rights guaranteed to all criminal defendants. Yet, strangely, some defendants in immigration court are being forcibly held in the same prisons as ordinary criminals and subjected to the same treatment as ordinary criminals. Perhaps one day courts will realize that as a matter of basic fairness and Constitutional rights, immigration courts need to be run like criminal courts -- and provide the basic rights guaranteed to all criminal defendants.

As far as the allegations in the Herald News, perhaps over time it will become clear whether the prison guards acted appropriately or inappropriately. It is too early to tell right now.

Jockey Stewart Elliott Granted Waiver

According to an article by the Thoroughbred Times, Immigration Judge Henry Dogin in Newark, New Jersey granted a waiver of deportation to jockey Stewart Elliott.

Stewart Elliott is a world-famous horse racing jockey who was the regular jockey of dual classic winner Smarty Jones. According to the article, Mr. Elliott was convicted in 2001 of aggravated assault for beating his friend with a beer bottle, pool cue, and wooden stool. Because of the amazingly broad definition given by Congress to what constitutes an aggravated felony, Mr. Elliott was convicted of what Judge Dogin ruled was an aggravated felony, which drastically limited his ability to avoid deportation.

In a highly controversial move, Congress in 1996 chose to limit drastically the ways a hard-working immigrant can avoid deportation if he or she is guilty of an aggravated felony. Before 1996, it was difficult but not impossible for a hard-working, tax-paying, well-respected member of society to escape deportation based on an evaluation of an immigration judge. After 1996, people are shocked to find out that it is extremely difficult and in some situations impossible to escape deportation even for those who can prove they regret their crime, are completely rehabilitated, and are now leaders of their communities.

In Mr. Elliott's case, the article suggests that he did not even spend a day in jail for his crime (receiving probation instead). Congress's controversial 1996 decision was to march thousands of immigrants toward deportation based on crimes that a criminal judge ruled did not even deserve a single day in jail. Despite many well-reasoned criticisms, Congress has not chosen to take a step back from its controversial 1996 law. In fact, there have been proposals to make it even harder to qualify for a waiver from deportation.

The article does not make clear whether the waiver was based on cancellation of removal for green card holders, section 212(c) relief (which Congress has tried to limit to those who pled guilty before approximately 1997), or section 212(h) relief for extreme hardship to a family member. These forms of relief are very complicated so you should get a consultation with a lawyer or accredited non-profit immigration assistance agency if you have a similar question.

Attorneys litigating these types of cases should consider raising the argument that a green-card holder (LPR or legal permanent resident) returning from a trip overseas should not be considered someone who left the US and seeks readmission from square one if the trip was just a fleeting trip outside the US. This doctrine was discussed in the Fleuti case and can be raised and preserved for appeal in these types of cases. In the Third Circuit, though, you need to point out that there currently is an adverse decision in a case titled Tineo. However, perhaps one day we can convince the Third Circuit to change its mind on this important issue.

Severe Winter Advisory: Newark Immigration Court

Health Advisory: watch out, there is bitterly cold weather in Newark, New Jersey and people visiting the immigration court building at 970 Broad Street in Newark, New Jersey have been experiencing up to 40-45 minute waits outdoors in the bitter cold. At times, the wait is minimal, but waits have been stretching to extreme lengths and some people have been forced to wait outside in the bitter cold the entire time.

Good clothing options include:
A hat (ideally two hats or one ski mask),
Sunglasses (to shield off the cold wind),
Two shirts plus at least one sweater or sweatshirt,
Thick trousers,
Thermal underwear,
Wollen socks (ideally wear two pairs of socks, including one thermal sock layer),
Heavy shoes or boots
Thick gloves

We hope this advisory reaches everyone visiting the Newark Immigration Court this winter. We are not aware of any announcement on this topic being provided to the public. People have been losing feeling in their toes while waiting on the line recently. We hope this does not happen to you. Remember, safeguard your health. But also safeguard your legal case. Why not try to safeguard both?

Motion to Suppress for undocumented in criminal court

According to the Immigration Professors Blog, in United States v. Atienzo, 2005 US Dist LEXIS 31652 (by district court judge Paul Cassell), a district court judge ruled that an undocumented immigrant (not previously deported for a felony) can be entitled to invoke the Fourth Amendment in a criminal case. The judge focused on the immigrant's ties to US society.

A more challenging topic is whether an immigrant can make a motion to suppress in immigration court, a topic discussed in another blog post.