Deportation for Misdemeanor Criminal Recidivism Appears to Divide Supreme Court Along Familiar Ideological Faultlines

Kimberly Atkins' article doesn't mention any comments or questions from Justice Sonia Sotomayor, the sole Hispanic on the Court, but I would be surprised if she votes for deportation of the Hispanic criminal. If the typical pattern holds, Alito, Roberts and Thomas will join Scalia and Kennedy to prevail 5-4 over Breyer, Ginsburg, Sotomayor and Stevens.

Court considers if two misdemeanors equal a felony
By Kimberly Atkins
Staff writer

WASHINGTON - The U.S. Supreme Court took up a case Wednesday that considers whether a person who was convicted of two misdemeanors - therefore qualifying for, but never charged with, a felony enhancement - is guilty of an “aggravated felony” under immigration law.

The case, Carachuri-Rosendo v. Holder, involves Jose Angel Carachuri-Rosendo, a permanent U.S. resident from Mexico who pleaded guilty to possession of a marijuana joint - a misdemeanor - in 2004. In 2005 he pleaded guilty to illegal possession of one Xanax tablet without a prescription - another misdemeanor.

Although he could have been prosecuted under a recidivism statute that would have elevated the second charge to a felony, the prosecutor chose not to seek an enhancement.

Carachuri-Rosendo then received notice of removal proceedings. At a hearing, an immigration law judge held that he was subject to deportation. The judge reasoned that the second conviction qualified as an “aggravated felony” under the Immigration and Nationality Act because it could have justified a felony sentence under the Controlled Substances Act. (The INA authorizes deportation for anyone convicted of a crime “punishable” under the CSA.)

Carachuri-Rosendo appealed to the Board of Immigration Appeals and ultimately to the 5th Circuit, which both affirmed.

The Supreme Court granted certiorari in the case.

What is ‘punishable’?

Sri Srinivasan, a partner in the Washington office of O’Melveny & Myers, argued that the “aggravated felony” trigger should not have come into play absent a court ruling on recidivism.

“At the very least [the defendant] would have had to have been found to be a recidivist under a state provision that attaches sentencing consequences to being found to have been a recidivist,” Srinivasan argued.

“But this was ‘punishable‘ as a felony because it was his second drug offense,” Justice Antonin Scalia said, referring to the language of the INA. “He was a recidivist. And although it was only a misdemeanor under state law, under the Controlled Substances Act he could be prosecuted for a felony.”

“But he has to have been convicted of the felony,” Srinivasan replied. “That is the critical distinction.”

Scalia said a conviction wasn’t necessary under the text of the law.

“The critical language is ‘punishable,’” Scalia said, emphasizing every syllable of the word. “The truth is, he could be punished for a felony.”

“He has to be convicted of a felony,” Srinivasan asserted. “In absence of that finding he hasn’t been convicted of an ‘aggravated felony.’”

Justice Anthony Kennedy pointed out that five states have no recidivism statutes at all, so there could be uneven results.

“If you have one of those states with no recidivist provisions and you have ten separate possession convictions, [the defendant is] still not a recidivist under the federal rules,” Kennedy observed.

“That doesn’t mean that those prior convictions don’t enter into the picture at all,” Srinivasan said, noting that federal authorities can take those convictions into account when considering removal actions.

Felony to have ‘one Xan-something pill’?

Nicole A. Saharsky, assistant to the solicitor general, argued on the government’s behalf that state court action is not the determinate factor in deciding who is an aggravated felon under federal law.

“Congress’s judgment here was that all aliens who engage in the same serious conduct would be treated the same for immigration purposes,” Saharsky said. “What [the defendant] is saying is: ‘I don’t want my aggravated felony to count because of the difference in state law.’”

Justice Ruth Bader Ginsburg wondered if the punishment fit the crimes.

“If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say never, ever darken our doors again because of one marijuana cigarette and one Xan-something pill - it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute” that way, Ginsburg said.

Saharsky said the result is the one Congress intended.

“What controls is Congress’s judgment, and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens,” Saharsky said.

Justice Stephen Breyer, using a hypothetical of a gentle “pussycat burglar” armed only with a pillow, said that the case illustrates the same practical problem present in cases involving other sentence-boosting statutes, such as the Armed Career Criminal Act: people committing relatively minor crimes facing dire consequences based on unclear state and federal laws.

Breyer said he feared a ruling in the government’s favor could “get [a] very mixed up area of the law which we have tried to straighten out [o]nce again totally mixed up. That’s my concern.”

A decision is expected by this summer.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com
© Copyright 2010 Lawyers USA. All Rights Reserved.

Immigrants Sue to Force Massachusetts Taxpayers to Provide Free Health Care

Legal immigrants have two extreme and opposite images in America: the opportunity-driven, entrepreneurial, patriotic and hard-working heroic individual, on the one hand, and the clannish, backward-looking, unproductive, stubbornly unassimilated, parasitical ward of the state, on the other.

The kind of immigrant who cheers his native country's sports teams against U.S. teams, who displays a foreign flag in his apartment window, or who sues his hosts to force them to tax themselves for his benefit probably nudges the image toward the latter.

IMMIGRANTS SUE STATE OVER EXCLUSION FROM HEALTH CARE: Massachusetts program faced budget cutback last year
By Kay Lazar
Boston Globe

Massachusetts’ exclusion of thousands of legal immigrants from state-subsidized health coverage is unconstitutional and should be struck down by the courts, according to a lawsuit filed yesterday by several of the affected immigrants.

The lawsuit charges that the state’s Connector Authority and its executive director, Jon Kingsdale, violated the immigrants’ right to equal protection under the state and federal constitutions when the administrators last year cut their health coverage through the Commonwealth Care program because of a tight state budget.

The Connector oversees the state’s 2006 landmark health law that created Commonwealth Care, which provides lower-cost insurance for low-income residents. Dick Powers, a spokesman for the Connector, said the authority had no comment on the lawsuit.

“You can’t violate people’s constitutional rights just because you don’t have the funds,’’ said Matt Selig, executive director of Health Law Advocates, a Boston-based public interest law firm that is assisting the immigrants in the suit.

Last year, about 26,000 immigrants lost their coverage after lawmakers eliminated $130 million in funding to help balance the state’s budget.

The Legislature ultimately restored about a third of the money, and the immigrants were given stripped-down health care plans with significantly higher copayments for medications and other treatments.

Since then, 8,000 more legal immigrants became eligible but have been denied coverage in the plans because the Legislature capped enrollment when it voted last summer.

Among those unable to get coverage is Dorothy Ann Finch of Boston, a 51-year-old immigrant from Zimbabwe with college degrees in psychology and business management, who was a project manager in London before immigrating to the United States in 2006, according to the lawsuit.

Finch was not offered health insurance by her employer here, the suit says, because she worked part time.

So she applied for and was accepted into Commonwealth Care, but the enrollment process was not completed before July 2009, when the Legislature voted to terminate coverage for the immigrants and capped enrollment in the new, stripped-down program.

“This event turned my life upside down,’’ Finch said in an affidavit filed with the lawsuit.

She is a diabetic who suffers from oral health infections, vision loss, and kidney and heart problems, according to the suit, and she has been unable to afford other insurance.

“I cannot hold liquid in my mouth because of my infected jaw,’’ Finch said in her affidavit. “I am afraid to receive medical treatment because I cannot pay the bills.’’

Another plaintiff in the suit, identified as 45-year-old Jane Doe, a licensed architect from the Philippines with a master’s degree in building science, has breast cancer and has been unable to find cancer specialists from the list provided to immigrants in the state’s stripped-down health plan.

“I have searched on the new plan’s website, and I called for assistance,’’ Doe said in her affidavit. “I finally found a GYN in Norwood but with a waiting list. I cannot find a medical oncologist, and I am worried about my health care.’’

The lawsuit estimates that the Commonwealth has saved more than $80 million by cutting the immigrants’ health coverage.

Lawmakers have said they were reluctant to cut immigrants’ coverage, but made the choice because they are more expensive for the state to insure: The federal government does not chip in for their care the way it does for others who are US citizens.

Through a spokesman, Senator Steven Panagiotakos, chairman of the Senate Ways and Means Committee, declined to comment on the lawsuit, as did Representative Charles Murphy, chairman of the House Ways and Means Committee.

Eva Millona, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition, said it was unfortunate that immigrants have to sue the state’s Connector Authority, especially because Governor Deval Patrick and his administration have fought hard to retain coverage for the group.

But she said the immigrants could not legally sue the Legislature.

“These people are their neighbors, they pay taxes, they are part of the fabric,’’ Millona said. “But they are being separated because of their immigration status.’’

Weakened Secretary of Homeland Security is Readying Florida Base to Receive Illegal Immigration from Devastated Haiti

U.S. officials are talking tough for public consumption, but are quietly making arrangements to accomodate a tidal wave of Haitian migration to South Florida. The AP story here quotes officials saying that any illegal Haitian migrants will be intercepted at sea and repatriated to their native country.

That is obviously intended to dissuade Haitians from staging a mass evacuation across the strait, but Homeland Security Secretary Janet Napolitano, already weakened by earlier public relations debacles, can't make it stick. The political pressure will come from several points on the compass, including the Catholic church, the Congressional Black Caucus, the Hip-Hop Summit, and the president's own pollsters.

Napolitano obviously understands that she is a paper tiger, as she is already preparing the former Homestead Air Base south of Miami to receive the expected surge of escaping Haitian survivors.

Haitians Seeking U.S. Refuge Will be Returned
By CURT ANDERSON, AP Legal Affairs Writer

MIAMI – U.S. authorities are readying for a potential influx of Haitians seeking to escape their earthquake-wracked nation, even though the policy for migrants remains the same: with few exceptions, they will go back.

So far, fears of a mass migration have yet to materialize. However, conditions in Haiti become more dire each day and U.S. officials don't want to be caught off guard.

Between 250 and 400 immigration detainees are being moved from South Florida's main detention center to clear space for any Haitians who manage to reach U.S. shores, according to the Homeland Security Department. The Navy base at Guantanamo Bay could house migrants temporarily — far from suspected terrorists also being held there — and the Catholic church is working on a plan to accept Haitian orphans.

Homeland Security spokesman Sean Smith said Monday that orphans who have ties to the U.S. — such as a family member already living here — and Haitians evacuated for medical reasons are among those who can gain special permission to remain in the U.S.

The mass migration plan, known as "Operation Vigilant Sentry," was put in place in 2003 because of previous experiences with Caribbean migrations, said Coast Guard Lt. Cmdr. Chris O'Neil, spokesman for the Homeland Security Task Force Southeast that would manage any Haitian influx.

"There is no new incentive for anyone to try to enter the United States illegally by sea," O'Neil said. "The goal is to interdict them at sea and repatriate them."

The message was underscored by Homeland Security Secretary Janet Napolitano during a weekend appearance at Homestead Air Reserve Base south of Miami, a key staging area for Haiti relief flights.

"This is a very dangerous crossing. Lives are lost every time people try to make this crossing," Napolitano said, addressing Haitians directly. "Please do not have us divert our necessary rescue and relief efforts that are going into Haiti by trying to leave at this point."

Some immigration advocates say the U.S. should shift away from stopping migrants and ease safe passage. They say those on approved waiting lists should be able to join spouses or relatives in the U.S.

"We should be figuring out an orderly transition for people to come here, instead of being panicked about it," said Ira Kurzban, a leading Miami immigration attorney.

The Obama administration's decision last week to grant temporary protected status to Haitians in the U.S. illegally as of Jan. 12 does not extend to those attempting to enter the U.S. after that date.

So far this year, the Coast Guard has intercepted 17 Haitians at sea, all before the earthquake struck. The 2009 total of 1,782 was higher than any year since 2004, when more than 3,200 Haitians were stopped attempting to reach U.S. shores. That was a year of political upheaval in Haiti following the collapse of the government of former President Jean-Bertrand Aristide.

Cuba is responsible for the biggest mass migration from any Caribbean nation: more than 125,000 Cubans streamed to the U.S. in 1980 after former President Fidel Castro opened the port of Mariel to anyone who wanted to leave.

U.S. policy notwithstanding, the Catholic Church in Miami is working on a proposal that would allow thousands of orphan children to come permanently to this country. A similar effort launched in 1960, known as Operation Pedro Pan, brought about 14,000 unaccompanied children from Cuba to the U.S.

Under the plan dubbed "Pierre Pan," Haitian orphans would first be placed in group homes and then paired with foster parents, said Mary Ross Agosta, spokeswoman for the Archdiocese of Miami.

"We have children who are homeless and possibly without parents and it is the moral and humane thing to do," Agosta said.

Officials said many details would have to be worked out and the Obama administration would have to grant orphans humanitarian parole to enter the U.S.

____

Associated Press writers Matt Sedensky in Miami and Larry Margasak in Washington contributed to this story.

Tough Immigration Enforcement Lands Sheriff Under Investigation by Eric Holder's U.S. Justice Department

Shortly after President Obama took office, his attorney general placed Arizona sheriff Joe Arpaio under investigation for racial discrimination and unconstitutional searches.

Arpaio is legendary for his unsympathetic treatment of jail inmates, and more recently he has been publicized as one of the few major western law enforcement official who actively enforced immigration laws.

Within the Mexican-American constituency, which is large and probably decisive in most of the West, this confrontation with Arpaio is pure re-election gold for Obama. He will sew up solid majorities among Mexican-Americans, including Evangelicals, in 2012.

Although Obama needs no help with Black middle-class voters, Holder's attack on Arpaio may help cement Obama's solidarity with the Black underclass that normally does not vote. It will be interesting to see whether Obama and the new class warriors can finally mobilize the Mexican-American and Black lumpenproletariat that has heretofore be reliably inert.

Thousands protest sheriff's immigration efforts

By JACQUES BILLEAUD, Associated Press

PHOENIX – Thousands of immigrant rights advocates marched in front of a county jail in Phoenix Saturday in a protest that was aimed at Maricopa County Sheriff Joe Arpaio's immigration efforts and was marked by a clash between a small group of protesters and police officers.

Organizers say the protest was meant to show officials in Washington that Arpaio shouldn't handle immigration enforcement, and that Congress and the Obama administration need to come up with a way for immigrant workers to come to the country legally.

The three-mile walk that started in a west Phoenix park ended by afternoon at the Durango Jail Complex, a collection of five jails, where officials played music, including a record by singer Linda Ronstadt, to drown out noise made by protesters. Ronstadt took part in Saturday's protest.

Protesters chanted "Joe must go" as they approached the jail complex. One person carried a sign that said "We are human" and bore a picture of a lawman with a wolf's face. A family of five wore T-shirts saying "Who would Jesus deport?"

For his part, Arpaio said he wasn't bothered by the protesters and that they should be directing their frustrations at Congress because it has the power to change America's immigration laws.

"They are zeroing in on the wrong guy," Arpaio said. "They ought to be zeroing in on the president."

The demonstration was peaceful until police say protesters near the end of the procession started throwing water bottles at officers. Phoenix Police Lt. Pat Hofmann said officers used pepper spray as they tried to separate protesters from an officer who was trying to take away the bottles.

Phoenix police spokesman Sgt. Andy Hill said on-scene supervisors described a group of demonstrators purposefully disrupting the demonstration by assaulting several police officers and a police horse.

He said one demonstrator struck a police sergeant on the head and chest with a flagpole. Two others threw water bottles, possibly containing rocks, at other officers, but missed.

Hill also said a police officer on horseback was assaulted while her horse was mobbed, punched and pushed. The officer used pepper spray to stop the assault.

"Most regrettably, a nearby 2-year-old child was hit by some of the pepper spray," said Hill, adding that the Phoenix Fire Department was called to the scene to treat the girl. "I am told she was released and was expected to be OK."

No one else was seriously injured, he said.

Phoenix police said Saturday night that five people were arrested during the protest and taken to Maricopa County Jail. Four were booked on suspicion of aggravated assault on police. The other faces disorderly conduct and resisting arrest.

Though the scene of the disturbance was cleared within minutes, the aftermath was chaotic. Protesters yelled obscenities at police officers in riot gear. One officer shook his pepper spray canister as he ordered people to keep moving. One protester wore goggles, and several others wrapped bandanas around their mouths.

Critics have accused deputies working in Arpaio's immigration efforts of racial profiling, which the sheriff denies. He says his deputies approach people when they have probable cause to believe they had committed crimes.

Ten months ago, Arpaio learned he was under investigation by the U.S. Justice Department for alleged discrimination and unconstitutional searches. He says the investigation was prompted by his immigration efforts, although federal authorities haven't provided details.

Since early 2008, Arpaio has run 13 immigration and crimes sweeps involving officers who flood a section of a city — in some cases heavily Latino areas — to seek out traffic violators and arrest other violators.

Arpaio's power to make federal immigration arrests was stripped away three months ago by officials in Washington, but he continues his immigration efforts through the enforcement of two state laws.

A federal grand jury also is investigating Arpaio and his office on allegations of abusing his powers.

Haitian Catastrophe is Immigration Policy and Enforcement Game-Changer

The recent catastrophe in Haiti is shaping up as an immigration policy and enforcement game-changer. The Obama regime has already halted deportations of illegal alien Haitians, even those already in detention. Now Haitian activists and their allies are urging relocation of large numbers of orphaned Haitian children to South Florida.

Operation Pierre Pan May Start at Miami Hospitals: Miami advocates are pushing to relocate Haitian children to the U.S.
By Todd Wright
Jan 15, 2010

Some of Haiti's most fragile - its children - have arrived at Miami area hospitals and for a few, Miami may become their new home. So far, 23 patients from the earthquake have been treated at Jackson Memorial Hospital, with countless more likely to be airlifted from the island for treatment. Florida Sen. Bill Nelson has contacted all the children's hospitals in Florida and requested that they receive critically injured Haitian children in the aftermath of the earthquake.

Nelson on Friday said he also plans to introduce a "major Haitian relief bill."

But the injured won't likely be the only children coming to Florida.

"Operation Pierre Pan," as its being called, is an effort to relocate the thousands of children likely orphaned by the natural disaster in Port-au-Prince. Many of the children could already have relatives in Miami and around the U.S.

A similar effort occurred decades ago when "Operation Pedro Pan" was launched to help the children of Cuba during the political upheaval in that island neighbor. Some 14,000 children were relocated to the United States, many of them settling in South Florida.

While advocates mobilize for a push to help find the children new families if not reunite them with stateside relatives, there are several hurdles that need to be overcome.

The movement would need the approval of the U.S. government to at the very least grant the orphans temporary status in the country.

Still, agencies in Miami-Dade and Broward are gearing up for the possible influx of children in need of a home, according to the Sun-Sentinel.

We've already begun to make preparations and are willing to do our part," said Mark Riordan, Broward County spokesman for the state's Department of Children and Families.

Halloween costume hurts feelings, but is it a right?

Immigration: Halloween costume reigniting immigration debate -- chicagotribune.com

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