New Immigration Considerations For Clients

***This memorandum from Federal Defenders of New York is published with their permission and is in regards to President Trump’s order on immigration enforcement from last week, not the most recent order on refugee and Muslim bans.  Thanks to David Patton and Isaac Wheeler of Federal Defenders of New York for making this memorandum available. ***

President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term. The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:

1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction. Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014. Once those took effect in 2015, 98 to 99% of all non-border removals were people who fell under those priorities, with the vast majority falling under levels 1 and 2 (primarily immigrants with convictions). As a result, thousands of ‘just undocumented’ folks or people with only minor records were left alone, even if ICE encountered them in the criminal justice system. The new order does not explicitly withdraw the 2014 memo but includes overarching language suggesting that no-one encountered by ICE need be left alone. (Before, ICE had to determine that a non-priority immigrant’s deportation served an “important federal interest” to deport him or her, and this accounted for only 0.2% of removals in FY2016).

It is important to bear in mind that ICE cannot generally deport people who are currently in valid immigration status (such as green card holders) in the absence of a conviction that falls under one of the specified categories of deportable conduct in the Immigration and Nationality Act. (There are exceptions, including for noncitizens apprehend at ports-of-entry, such as airport courier cases). This order does not change that. But as to those who currently lack valid immigration status or who have status but also already have a conviction that renders them deportable, it defines new and vastly broader enforcement priorities, including:
· Anyone who has been convicted of any “criminal offense” (even one that does not fall under a criminal deportation ground of the INA, such as a traffic misdemeanor). This language appears to apply to past convictions with no statute of limitations, and it is not clear yet whether it applies to dispositions that a state or locality would define as non-criminal (such as N.Y. state violations).
· Anyone who has been charged with any criminal offense, “where such charge has not been resolved.”
· Anyone who has committed conduct that constitutes a chargeable criminal offense (again, possibly including the most minor offense). This also conceivably covers anyone who entered the country illegally, since that is an offense under 8 USC 1325.
· Anyone who has engaged in fraud or willful misrepresentation in connection with an official matter or application to a government agency, or who has “abused” public benefits
· Anyone whom an immigration officer judges to be a risk to public safety
Again, these expanded priorities apply to people who are “removable,” and not, for example, to a green card holder arrested in the interior who has no prior convictions but has a pending case. Such a person is usually only removable upon conviction.

For clients covered by these expanded priorities, defenders should note that several of the changes may alter ICE and CBP practices when a non-citizen federal defendant is released on bond. In many cases, even if a defendant has an immigration detainer, ICE or CBP will process them upon release from custody but then allow the defendant to stay out under the bond conditions set by the court while the criminal case plays out. It remains to be seen if DHS will interpret the Jan. 25 order as a directive to work at cross-purposes with the U.S. Attorney’s Office by removing clients who are still facing federal prosecution. But for now, when there is a detainer, defense counsel should consult an immigration expert before seeking a client’s release on bond and should consider whether the client would be helped or harmed by being taken into ICE or CBP custody for removal before a criminal case is resolved. And depending on how this provision is interpreted by DHS, clients under pre-trial supervision who currently lack immigration status or who are otherwise removable may wish to consult an immigration expert now about possible defenses to removal, in light of the risk of possible immigration detention. (Clients should only be referred to reputable immigration lawyers with expertise in criminal-immigration removal defense).

Defense counsel should also consider these revised enforcement priorities when counseling a client regarding the effect of a deferred prosecution or the dismissal of a case (especially, but not exclusively, cases regarding document fraud, other frauds on the government, or public benefits), since DHS may interpret the order as a directive to prioritize even clients who are cleared of charges.

2) DOJ and DHS are ordered to identify and report on every federal defendant’s immigration status. Under the rubric of ‘transparency,’ the order directs DHS and DOJ to “collect relevant data” for quarterly reports on all non-citizens in BOP custody and “all aliens incarcerated as federal pre-trial detainees under the supervision of the [Marshals].” That’s not likely to change anything tomorrow, and virtually every deportable non-citizen in BOP custody becomes known to ICE already, but it could mean a closer-to-100% detainer rate at presentments if the Marshals implement this policy even when arresting case agents don’t confer with DHS.

3) Relatedly, the Priority Enforcement Program (“PEP”) Is scrapped and the Secure Communities (“S-Comm”) program is coming back. The Secure Communities program allowed ICE to learn of the arrest of noncitizens by any law enforcement agency via instant sharing of booking fingerprint data and to lodge “detainers” temporarily preventing their release. It was replaced with PEP in 2015 because of widespread criticism of the former program and the refusal of many jurisdictions to comply due to concerns about the legality and constitutionality of immigration detainers issued under S-Comm. Under PEP, ICE continued to receive fingerprint data but supposedly narrowed its criteria for the issuance of detainers. Importantly, in some cases it began to lodge a revised detainer form (I-247N) that only asked criminal authorities to notify ICE of a defendant’s release, not to hold the individual for 48 hours beyond the termination of criminal custody. While immigration advocates dispute claims that PEP meaningfully addressed the problems with the old, legally and constitutionally suspect detainers, S-Comm will now be reinstated, reversing whatever gains PEP represented. For now, if the USAO or USMS claims there is a detainer on a client, defense counsel should demand to see it and should note whether it is an I-247N that does not actually request that the defendant be held for ICE. In addition, detainers issued under PEP explicitly state that they are not meant to affect decisions on the issuance of bond, so subject to the new concerns discussed in Point 1, above, defense counsel should not automatically assume in every case that the existence of a detainer makes release on bond impossible or inadvisable.

4) Other aspects of the order may have significant impacts on noncitizens in the federal criminal justice system in the longer term:
· DOJ is ordered to devote “adequate resources” to the prosecution of immigration-related crimes. Since these already account for 52% of all federal criminal prosecutions, the impact of this directive is unclear, but the President appears to consider this allocation “inadequate”;
· DHS and DOS are ordered to implement authorized sanctions against countries that resist accepting deportees, which could change the outlook for defendants from Cuba, China, Sierra Leone, Vietnam, and other so-called “recalcitrant” countries;
· The broad language in the order directing the enforcement of the law against “all removable aliens” might affect DHS’ use of prosecutorial discretion to benefit federal defendants including cooperators, although again it remains to be seen if DHS will interpret the order as an instruction to work at cross-purposes with other state and federal law enforcement agencies
· Subject to appropriation, the order directs the hiring of 10,000 additional interior enforcement agents (above the large increases in the Border Patrol in the separate border enforcement order). ICE agents might be deemed exempt from the hiring freeze the President has separately ordered as necessary to meet public safety responsibilities, but if immigration judges are not, the already critical overcrowding of immigration courts could become a severe due process problem. (At this writing, detained noncitizens in New York are waiting eight to ten weeks for an initial hearing with an immigration judge).

Several immigration advocacy have already issued preliminary advisories and commentaries on the executive orders (which have helped inform the analysis above). Defense counsel should continue to check back with these organizations (including the National Immigration Project of the National lawyers Guild and the American Immigration Council) and the National Immigrant Justice Center’s Defender Initiative page for continuing guidance.

The impacts of this order on state criminal justice systems may be far more sweeping, and state criminal defense practitioners should watch for an advisory soon from the Immigrant Defense Project.

Isaac Wheeler
Immigration Attorney
Federal Defenders of New York
52 Duane St. 10th Fl.
New York, NY 10007

Mental Health Madness

I was recently appointed to represent a young woman charged with a felony.  We can call her “Jasmine.”  Upon reviewing her file and the police report, it seemed something was very strange.   Jasmine was the passenger in a stolen vehicle that was owned by a law enforcement officer.  She was partially undressed and in the car with a man who she didn’t know when the vehicle was stopped.

When I went to talk to her, she was irate.  She was confused about why she was being charged with Unauthorized Use of a Motor Vehicle and began yelling.  The other women in the holding cell tried to calm her down.  I tried to calm her down.  Jasmine was just stringing words together that made no sense at all.  I couldn’t ask her simple questions such as “Where is your family?” or “Who can I call to help you?”  I noticed she had a medical bracelet on her arm.  I tried to ask her if she had seen a psychologist or psychiatrist since she had been arrested a few days earlier.  She couldn’t tell me. I filed a motion to have her examined for competency and am awaiting those results.

Last year, I represented an older man who had been in prison for most of the past twenty five years.  “Frank”, as we can call him, told me that he had spent a lot of time in isolation because of behavior issues. Unlike Jasmine, he could communicate with me but he had a long history of mental health issues.  He told me was just better off in custody than on the streets.  Frank was able to get some level of care in custody that he could not on the outside.  He was happier in custody, he told me.  He received his medication in custody, he said.

In 2015, I represented a young man who had been in prison several times and was charged with a new felony.  “Steven” also had been in trouble for a multitude of minor offenses, such as trespassing, possession of marijuana, and driving with an invalid license.  He was accused of threatening an officer, which I argued took place during a mental health episode.  Luckily, this incident was recorded on video and his case was eventually dismissed.  But, during the several months his case was pending, Steven continued to have mental health issues.  I asked for him to be examined, and he was- twice.  Both times he was found to be competent despite having several serious diagnoses and taking heavy duty medication.

During that same period of time, I represented a man charged with violating his probation. “Ricky” was very young.  He could have been the poster child for societal issues.  His father was in prison, his mother was in prison, his grandmother who raised him was dead and his only living relative was an uncle who was, at best,  marginally interested in providing for Ricky.  He dropped out of high school, started doing drugs and was headed nowhere, fast.  Ricky also exhibited some very strange behavior.  The judge in that court tried to work with him and sent him to several different programs in lieu of prison.  Each time, he violated the rules and regulations of the programs.  The judge even provided money so that I could bring in a psychiatrist to evaluate him.  Eventually, after more than eighteen months of trying to keep him out of prison, Ricky’s good fortune ran out.  He was accused of assaulting several people in custody and his probation was revoked.

So, what’s the point?  First, the Harris County Jail is one of the biggest mental health facilities in the country.  There are more uninsured people in Texas than anywhere else, and far too often, the only option available to people with mental health issues is jail.  Combine that with a general lack of funding, and options for many people evaporate quickly.

There are some diversion programs available in Harris County, including the Mental Health Court but typically, people require a specific, “qualifying diagnosis” to gain admission into this court, and certain types of offenses are bars to admission.  Some people, like Ricky, do not have a “qualifying diagnosis” but still clearly need services.  There are programs in the jail to help people, but far too often, it’s incredibly difficult or impossible for uninsured people, or homeless people, or people on the fringes of society, to keep appointments with social workers or doctors, or refill prescriptions, or go to probation meetings.

So what’s the solution?  More programs?  More funding?  More doctors and mental health professionals?  You tell me.

Biases Make Bad Lawyers

I remember the first time I represented a known member of a white supremacist organization who prominently displayed a swastika tattoo on his hand. I was a young lawyer, just starting my practice, and his wife paid me to represent him before I knew about his affiliation in that group. I remember the surprise in his eyes when he first saw me during my visit to him at the jail. It was an interesting first client meeting. I considered abandoning the representation once I learned his views. But, needing the fee, I put aside my feelings and pressed forward.

His wife was one of the nicest people. She disagreed with his views and hired me because I was black. Throughout the representation, I was always trying to make sure that my feelings were not interfering with what was best for the client. I constantly had to be honest with my feelings and manage my fears. Doing so, we were able to obtain a very favorable result for the client. He and his wife were very happy. I learned the value of our constitution and the value of unbiased counsel. Thereafter, I started getting calls from other members of his organization seeking my representation.

One of my concerns is that criminal defense lawyers often let bias and fear influence the outcome of cases. It is one of the reasons many of us have concerns about someone who leaves the DA’s office immediately representing people in first degree felony cases….. Also, the fight of some lawyers is determined by how the client treats them. And the fight of other lawyers is determined by their view of the value of the person they represent. This cannot be. Lawyers simply should not accept representation if this is the case. Some clients are assholes and treat their lawyers badly…. And some are poor and uneducated…. But none are destined to get in trouble or commit crimes. None are disposable and “throwaway able.” We should not assume that. We have to avoid the mindset that “if it wasn’t this case, it would have been another one later on….” That mindset will cause us to push our clients into making bad decisions. It will taint our representation.

If you think I am wrong, please let me know. And let me know why. This article might back up my feelings…

http://www.abajournal.com/news/article/white_lawyers_may_have_biases_that_hurt_their_black_clients_says_op_ed_call

How Much Punishment Is Enough?

 

The topic of punishment came up among my colleagues the other day. Ironically, it was initially about what had happened to the prosecutors who were fired after the recent change of administration.  Elections have consequences, and I have now seen seven changes of administration in the District Attorney’s office here.   Each has caused some disruption as some people were encouraged not to stay.  None in recent memory have had quite so many folks who were told they would not be back.

 

I will be candid that I thought this overhaul at the top was long overdue. I will also be candid that were some folks that were kept whom I would have fired, and that there were some who were fired whom I would have kept. I did not run for that office, so I figure that is not my call.  What has been more within my sphere is that several of these former prosecutors have now become defense attorneys, and have reached out for help and assistance in starting on this side of things. I have given that help, and advocated for some to become members of the local criminal defense bar.  This has met with some resistance by my brethren, and my response to them, and to you, the readers out there who may one day assess punishment in a jury case on the criminal docket, is: “How much punishment is enough?”  When does one stop kicking the person who is down?

 

I have been fired. It is painful and humiliating.  It is more so when you had a position of public trust, and your name is placed in the local paper as among those who were let go.  There is no good story one can give at that point to family and friends.  You were determined to be unwanted. That stings. Period.

 

I have also had days when I worried about the mortgage, and the prospect of losing my house.  There is nothing that makes that better, except work and money in the bank again.  I started in this hunter-gatherer business of defense work, so I at least have had a few decades to get used to the stress.  I cannot imagine what people with mortgages and kids do when they are let go from a good upper-middle class job. What does one tell a child when the tuition bill is due and one cannot pay it?

 

I have also done other things in my life, from laborer to military service to investigations.  If someone were to take my law license tomorrow, I would make do, and get by.  I have had the unique privilege of defending many people who were, well, frankly…damaged.  This unfortunately means they have sometimes filed complaints with the Bar and tried to do just that.   The Bar decided these complaints were without merit, but if I were a prosecutor and had such a complaint filed by a defense attorney, it would threaten the only way to make a living I had ever known, whether it was justified or not.

 

Even if the complaint is justified, that is a frightening place in which to find oneself.

 

Yet I suppose the same point may be made of most of our clients as defense lawyers.  If one has been publicly arrested and charged with a crime, from a DWI to a possession of drug cases to an assault, one has been most likely strip-searched, placed in county holding, taken from home and hearth, and if one has been in jail for more than few weeks [the average time between court settings here] one has lost a job and missed the rent.  So now in addition to having to produce bail that one likely does not have, one is facing homelessness for one’s family.  This is all before one hires a lawyer.

 

If you, the reader, have ever spent a day wondering if you were in trouble at work or at home, then imagine spending months awaiting a decision by a young prosecutor who has likely never known you or your life as to whether you would be facing prison, jail, unemployment, disgrace, humiliation, fines, money costs you can ill afford, and the ongoing stigma against your very ability to earn a living?  Over a hundred Texas licensing agencies and boards factor in criminal history in determining whether or not to “grant” you the privilege of making your daily bread, from commercial truck driving to nursing to barbers.  Take a gander at the occupations code if you do not believe me.

 

Likewise, for the reader, think of how painful it is to be away from those you love, even for a holiday.  For parents, think of how one misses children when they are away at school or at college, or move out of state.  For children, think of how one would like to see a favorite uncle or aunt again, or a grandparent, or a service or college friend. Now imagine having that choice to do so ripped from you, often for years at a time.  That is the consequence of prison, of jail. There are no furloughs or conjugal visits in Texas’ mass incarceration scheme, at least not in reality.

 

So, in our beloved system here, in our citadel of justice, we punish people for years for trying to drown their sorrows in drugs, or for a momentary lapse in judgment.  That punishment includes loss of liberty, when most of us hate to miss our family for even one day or one week.  It includes an almost permanent ban on fruitful employment due to the incredibly byzantine series of regulations that permanently punish past offenses.  It means permanent exile to the underclass for the sentenced and their families, because the children of prisoners face eviction, homelessness, and lack of education at a rate far higher than normal. I will visit that topic again, but for now simply know that is the truth.

 

It may come as a surprise that even those of my colleagues who see so much misery handed down without a thought by arrogant judges and uncaring juries were willing to pile on some of their former colleagues. Do not get me wrong; some of the prosecutors who were fired have abused their power.  I do not begrudge any boss the ability to shape their company or their office.  I do not wish to reward bad behavior.

 

I just have to wonder some days, whether dealing with former prosecutors or current clients, or future juries….how much punishment is enough?

Happy New Year?

happy-new-year-clock-1450033854gbk2016 certainly left a bitter taste in many people’s mouths. Of course, many people remain upset about the presidential election. Locally, the District Attorney lost her bid for re-election as did many judges. In the aftermath of the election, nearly 40 high level prosecutors were told their services would no longer be required under incoming District Attorney Kim Ogg. Some of our comrades have gotten sick, passed away and divorced. We also lost courthouse fixture Rick Johnson. Even this week between Christmas and New Year’s Day, celebrities Carrie Fisher and George Michael died, adding to a list that has already gotten too long.

The look of the Criminal Justice Center is unquestionably going to be very different on January 2, 2017. Some of the changes, I hope, will be for the better. Others are not as optimistic. Don’t worry, I won’t name names, pessimists. But what are the changes we are hoping to see? What attributes are we looking for in our new prosecutors and judges?

Assuredly, there are certain characteristics and traits we hope to see. First, prosecutors must seek justice not only convictions. All too many times, under prior regimes in Harris County, has there been a win-at-all-costs mentality, or at least perception. Making secret deals with witnesses, sponsoring dubious or worse testimony, protecting bad acting police officers, hiding evidence, and seeking convictions without evidence are not the hallmarks of an honorable prosecutor, or office.

Quite the opposite, in fact, should be true. I was recently appointed to represent a young man charged with theft. Due to his numerous prior theft convictions, he was facing a felony, and because of other convictions, he was looking at an enhanced penalty range of two to twenty years in prison. I spoke with the chief prosecutor on the case after reviewing the police report and watching the surveillance video. The evidence was quite clear; my homeless client had stolen a premade sandwich, yogurt and juice from a convenience store.

I prepared to argue about my client only stealing bread and the desperation many homeless people feel but before I could open my mouth the prosecutor said he would offer time served to my client. No argument, no back and forth, but time served. Justice in this case was time served. My client knew he had broken the law ad was prepared to face the consequences. He was so surprised he was getting out that day that he began to tear up. I told him the prosecutor on his case was seeking justice and not merely seeking convictions and was one of the good ones in the courthouse.

This is the model that should be strived towards. Justice, not hammering a desperate homeless man for stealing food by sending him to prison for years. I am hopeful that the new prosecutors or those taking new positions in the administration and office follow this model and avoid becoming a Javert, only seeking punishment and prison.

In regards to the judges, both new and old, we hope for three characteristics primarily. First, neutrality. A judge should be like an umpire in baseball. Call the balls and the strikes; don’t play shortstop. In my practice, I travel to four counties in the Houston area and have been in front of numerous judges. Some are incredibly fair to both sides, allowing both sides to put on a case. Some are tough on both sides. Some clearly have their favorite side, or lawyer, and make things difficult for all others involved. Having to combat the prosecutor during the trial is often cumbersome on its own accord, adding a judge to the mix is fundamentally contradictory to justice.

The second is fairness, which I admit is closely related to the first topic. Being “tough on crime” is both a topic previously discussed on this blog and exactly not what judges are supposed to do. Call the balls and strikes, but, if you want to play, pick a side: open a law office or apply for a job with the District Attorney’s Office of your choosing. In some courts, electing the judge for punishment can be considered malpractice because some judges want to be “tough on crime.” Sometimes, people deserve to be punished and punished severely for their crimes and there is a time and a place for that. But that is not the case in every trial.

Third, and also related to the first two topics, is consistency. I recall being a young prosecutor practicing in front of a judge who had a pet peeve for burglary cases. This judge wanted people to take classes as part of any probation for burglary, but was consistent in this regard. I recall another judge who simply would not allow the District Attorney to ask potential jurors about the One Witness Rule, whether it was germane or not. Other judges, depending on the day, can swing wildly from side to side in punishment, or what areas could be discussed in front of the jury. This makes practicing in front of those judges akin to walking through a minefield. If you know where not to step, you’ll be ok but if you don’t know which step could be your last, it’s nearly impossible.

I am hopeful that the new judges will be neutral, and fair and consistent.

Happy New Year.