Cespedes-Aquino: 212(c) Not Available for Post-1997 Conviction

In Cespedes-Aquino v. Gonzales, No. 06-1550 (3d Cir. Aug. 21, 2007), the Third Circuit waded again into the murky law of section 212(c) relief. Section 212(c) granted immigration judges the discretion to allow someone with green card status (LPR status) to stay in the United States despite a criminal conviction if the person could meet very strict requirements and show that his good qualities outweigh all of his negative qualities. It was a sensible decision to give some discretion to immigration judges. In 1997, though, Congress's decision to repeal section 212(c) took effect -- a controversial move by Congress that many people still believe was a grave mistake.

The Third Circuit and other courts are left with trying to figure out how to deal with Congress's repeal of section 212(c). Congress did not say it was repealing it retroactively, so it is now well-established that someone convicted after a guilty plea before a specific date (in most cases, before April 1997), can still use section 212(c) relief. And the Third Circuit recently ruled in Atkinson v. Gonzales, 479 F.3d 322 (3d Cir. 2007) that those who were found guilty (even if not by guilty plea) before the applicable date (usually April 1997), can still use section 212(c) relief also. (Figuring out the applicable date depends on the crime involved and I'm not going to explain that analysis here.)

This case raises the strange issue of someone who rejected a plea bargain offer pre-1997 but was not convicted until after 1997 because he fled the court for 13 years. (He rejected a plea bargain offer in 1990 and finally pled guilty in 2004.) The parties argued heavily about whether absconding from the case for 13 years meant he could not use section 212(c) relief. The Third Circuit in broad dicta ruled that only people whose conviction or plea agreement was before the repeal of section 212(c) [April 1997] can try to use section 212(c) relief, regardless of whether the person rejected a plea bargain before 1997 or had absconded during the trial.

Time will tell whether the Third Circuit's broad and inflexible rule will be modified for cases where someone rejected a guilty plea pre-1997 and for reasons other than the person absconding, the final conviction is after April 1997.

Newark Mayor Emphasizes Need To Encourage Immigrants To Contact Police

Newark, New Jersey mayor Cory Booker took a commendable stand by emphasizing the need for immigrants to cooperate with police to help fight crime. Crime-fighting and protecting innocent people are so important that local police should not sacrifice their primary goals just to help the immigration authorities pursue mere civil violations by undocumented immigrants.

As Jeffery C. Mays wrote on August 17, 2007 in the Newark Star-Ledger, "Booker won't push to arrest migrants: Mayor says city residents must feel free to aid police," undocumented immigrants could be afraid to cooperate with police if they know the local police might contact the immigration authorities.

The local police must guarantee that there are protections within the local police to prevent them from handing over those who contact the police to fight crime over to the immigration authorities. Elsewhere in New Jersey, a local police force handed over an undocumented immigrant who contacted the police to help them fight crime and was not involved in any criminal activity. Shockingly, the local police handed the man over to the immigration authorities to be deported -- exactly the wrong thing to do if you want immigrants to help fight crime.

Even more shockingly, even though the immigration judge pointed out that there were major public policy concerns with deporting someone who helped the local police fight crime, ICE (Immigration and Customs Enforcement) has repeatedly refused to stop the deportation proceedings, even after they learned about how the local police turned over someone who helped them fight crime and was not involved in any criminal activity. Both the ICE counsel and the ICE Special Agent within the deportation and removal unit refused to stop the deportation and are fighting the immigrant's appeals.

If ICE is not going to stop the deportation of immigrants who help local police fight crime, then the local police must first build air-tight guarantees that they won't turn over helpful callers for deportation before they report anyone over to ICE.

Nobody knows whether crimes have been committed in Newark today that could have been stopped if only some immigrants who knew about the criminals or their plans had contacted the local police -- but that the immigrants were rightfully afraid that local police might turn them over for deportation even though they were being helpful in fighting crime. Rather than trying to deport all immigrants, to fight crime it may be more productive to build relations with immigrant communities so the 99% of law-abiding immigrants will help the police crack down on crime and catch the criminals (immigrants and citizens alike) living among us.

Dissecting Jose Carranza and the Immigration Angle

Jose Carranza is charged with three murders in Newark, New Jersey and several newspapers are reporting that he is not in the United States legally. Whenever you have limited space, you need to choose your words carefully. What led the journalists who looked over Jose Carranza to dissect him according to his immigration status? Is that the best way to dissect him?

It makes sense for journalists to describe someone in a way that helps everyone understand more about what happened. For example, if the suspect was the neighbor of one of the victims, or had a dispute with them in the past, that would be very interesting information -- it would help us understand the possibility that a killing was a horrific end to a long-running feud. It certainly would not excuse the crime, but it would help us understand. Same if it turns out the suspect was the spouse or ex-boyfriend of one of the victims.

It also makes sense to offer descriptions that help us understand. Does it help to emphasize whether the suspect is right-handed? What his race is? Whether he violated the civil laws on paying income taxes? Whether he violated civil laws on immigration status? Whether he has numerous parking tickets or DWI charges? Whether he watches violent films? Whether he plays violent video games? Whether he plays Dungeons and Dragons?

It probably makes sense to stress the characteristics that actually have some relationship to being more likely to commit crimes. For example, if you point out that a suspect is right-handed, but right-handed people commit crimes at a lower rate than left-handed people, then what is the point of mentioning he's right-handed?

It's disappointing, then, for journalists to point out that Jose Carranza is an immigrant when studies frequently show that immigrants commit crimes at a much lower rate than people born in the United States. Why point out whether the suspect is an immigrant?

Are there any studies that show whether people who fail to pay their income taxes are more likely to commit other crimes? Until those studies are done, why don't journalists emphasize whether suspects have paid their income taxes fully and accurately over the past few years? Wouldn't cheating on taxes in theory lead to worse crimes? Could we have stopped the criminals who ran Enron into the ground if the IRS and police had been strictly enforcing the income tax laws?

If you don't dissect criminal suspects wisely, you could end up with such farcical suggestions as locking up all white men just because Timothy McVeigh is a white man and the mastermind of the Oklahoma City bombing.

Allegations of ICE Mistreatment Contributing To Deaths

There are two news stories about people held in ICE custody (Immigration and Customs Enforcement custody) dying.

Liz Mineo wrote in the MetroWest Daily News on August 9, 2007 about "Illegal immigrant dies in ICE custody." Edmar Alves de Araujo died August 7th hours after police in Woonsocket, Rhode Island arrested him then handed him to ICE officers. According to relatives, he had a seizure condition and needed specific anti-seizure medication that relatives tried twice to give and mention to the local police after the arrest. The second time they went, the local police said he had already been taken by ICE. ICE had Mr. Alves de Araujo from 3pm until he died around 4:15pm. The local police would not answer questions. ICE spokesperson Paula Grenier said that while ICE was processing him at a detention center, he had signs of distress and ICE agents called 911 for help and waited for the EMT. An autopsy is not yet completed.

Adriana M. Chavez wrote on August 9, 2007 in the El Paso Times about "Woman detained by feds dies while in custody." Rosa Contreras Dominguez was detained in August at an ICE detention center, lost consciousness while there, was brought to a hospital, and died. There are two diverging accounts of what happened. Relatives claim ICE did not give proper medical attention and had been complaining for six days how one of her legs was in pain. ICE spokesperson Leticia Zamarripa said ICE gave her a physical examination on the first day and then six days later, she complained that her leg hurt and ICE brought her to a hospital when they noticed she was losing consciousness. According to the article, an autopsy report will be given to the family soon.

These stories come in the context of widespread concern of inadequate medical care being given by ICE to its detainees. In December 2006, the DHS Office of Inspector General issued a report on its audit of five facilities where ICE held detainees and its audit concluded there were many deficiencies in health care. Most of the audited facilities did not comply with standards for documenting detainees' initial screening. Also, ICE had no time limit for responding to sick call requests -- and the audited places frequently failed even to meet their various rules. The OIG's audit did not represent a random sample -- if only Congress spent enough money for an honest and representative audit of how ICE treats its detainees.

Georgia Police Reach Out To Immigrants

Mary Lou Pickel wrote an article on August 7, 2007 in the Atlanta Journal-Constitution about how "DeKalb police reach out to immigrants." DeKalb County police officer Jose Ayala explained to a crowd that criminals target the Hispanic population specifically because of the immigration question. The police are working to urge people not to be afraid of the police and to report crimes. According to Ms. Pickel, police have known for some time that Hispanic laborers make up a greater proportion of robbery victims because they carry cash. And officer Ayala explained that criminals prey on Hispanic immigrants because they assume they won't go to the police.

These developments make it even more important for local police to work closely with all communities and not to misuse their powers by trying to enforce immigration law violations that are merely civil violations. They should instead focus on enforcing the criminal laws -- and making absolutely sure that local police do not turn crime victims in for deportation, especially someone with no criminal record (something local police in New Jersey did in 2005 to an immigrant who called the police after receiving various threats).