COURT OF APPEAL UPHOLDS
VALIDITY
OF LAPD DIRECTIVE
A Los Angeles Police Department directive that prohibits officers from approaching an individual for the sole purpose of inquiring about the person’s immigration status is not—on its face—preempted by state or federal law, the Court of Appeal for this district ruled on Thursday, June 18, 2009.
Division Three affirmed Los Angeles Superior Court Judge Rolf Treu’s ruling granting summary judgment to LAPD Chief William Bratton and city police commissioners in an action brought by civil activist Harold Sturgeon.
Sturgeon, represented by Sterling P. Norris of Judicial Watch, brought a taxpayer action seeking to enjoin the further implementation of Special Order 40, as the directive is known. It has been in effect since being promulgated by then-Chief Daryl Gates in 1979.
The plaintiff claimed the directive is preempted by 8 U.S.C. Sec. 1373—which bars state and local governments from restricting the exchange of immigration information among local, state, and federal officers—as well as by Penal Code Sec. 834b, which requires local law enforcement agencies to cooperate with federal immigration authorities.
IMMIGRATION JUDGE IN CONNECTICUT THROWS OUT CASES AGAINST FOUR IMMIGRANTS BECAUSE OF EGREGIOUS VIOLATION OF FOURTH AMENDMENT RIGHTS
A judge has dismissed a case against four immigrants caught up in a controversial Fair Haven raid, saying the feds trampled on their rights. The New Haven Independent published this story by Thomas MacMillan on June 8, 2009.
Judge Michael W. Straus of U.S. Immigration Court in Hartford threw out the cases against four immigrants swept up in the June 2007 Immigration and Customs Enforcement (ICE) raid. He ruled that government agents were in “egregious violation” of the immigrants’ Fourth Amendment rights.
For four individuals, the judge’s decisions marks an end to a two-year legal battle that began when Immigration and Customs Enforcement (ICE) agents swept into Fair Haven, arresting 30 immigrants on charges of allegedly being in the country illegally. The raids prompted rallies and accusations from New Haven’s mayor on down that the feds were terrorizing the immigrant community and retaliating against the city for its immigrant-friendly policies, a charged the feds denied.
Attorneys from Yale Law School have been representing 17 of those 30 immigrants. The attorneys have argued that ICE agents violated their clients’ rights by entering their homes without permission and questioned them illegally. ICE has denied the allegations.
But Judge Straus agreed.
“In considering all the evidence in the record, this Court finds that the Respondent’s Fourth Amendment rights were egregiously violated,” he wrote.
Such a violation terminates the case by disqualifying any evidence or confessions that agents may have gathered in their raid, since it was conducted in violation of Constitutional rights.
Please note: The photo above is not from this case.
Outcasts United: A Refugee Team, an American Town (Hardcover) by Warren St. John (Random House, 320 pages, April 2009)
Outcasts United is the story of a team of refugee boys, the remarkable woman who coaches them, and the town where they live, a once-sleepy southern hamlet that has been upended by the process of refugee resettlement. It's a story about the challenges posed by our quickly changing world, and one that reminds us of what is possible in this country when we put our values in action.
The Team
The Fugees come from Congo, Burundi, Sudan, Liberia, Bosnia, Afghanistan and Iraq, among other countries. They are boys whose families were selected by the UNHCR for resettlement in a small town outside Atlanta called Clarkston. Most arrived with nothing but the clothes on their backs and already in debt – owing thousands of dollars to a government agency for the cost of their one-way plane tickets to America. Once in the U.S., resettled refugees are given just three months of assistance from the government before they’re on their own, left to do the best they can to build new lives in a strange land.
This kind of transition would be difficult for anyone, but children and teenagers face special challenges. They are caught between worlds – no longer of the countries in which they were born, yet still separate and outside from the culture of their new home. They are outsiders at school, and at the same time, come under pressure from parents who see efforts to act or dress “American” as a repudiation of their native culture. Outside of school and their homes, the boys must also contend with pressure from the local street gangs who don’t hesitate to take advantage of the newcomers’ desire to belong.
The boys on the Fugees, while from many different countries and cultures, share this experience of being caught between worlds, and something else -- a love of soccer, a game many of the boys learned to play in refugee camps, using a bundle of plastic bags and twine for a ball. The Fugees have none of the fancy cleats or embroidered soccer bags common to their competition. But their passion for the game and the bonds they form across cultural barriers help them compete against some of the league’s best teams, even as they struggle off the field to find a sense of security and belonging in their new home.
The Town
Clarkston, Georgia is a town of 7,200, situated on slightly over one square-mile of Georgia clay, a little over ten miles east of downtown Atlanta. While many small towns around Atlanta have been swallowed by the growing city or county governments, Clarkston has proudly maintained its independence. It has its own mayor, city council, police department and court. Clarkston’s motto is “Small town…big heart.”
In the late 1980s and early 90s, agencies that resettle refugees chose Clarkston as a home for new arrivals from around the world. The town had a surplus of cheap apartments, access to public transportation, and was close enough to the bustling economic engine of Atlanta to offer the prospect of jobs for newcomers. The first arrivals were from Southeast Asia. Soon, refugees arrived from the conflicts in the Balkans, and later, from Africa and the Middle East, radically changing the makeup of a simple southern town whose Baptist church was built in 1880. Today, more than a third of Clarkston’s residents are foreign-born, and most of those are refugees. Clarkston High School, once all-white, now has students from over 50 countries. In some ways, Clarkston is America on fast-forward, a town transformed by immigration not over a span of decades, but in the course of just a few years.
As refugees arrived and changed Clarkston, resentments built up among long-time residents. They had never been consulted about the resettlement process, and the town was given few resources to deal with the problems that resettlement brought on. Simple interactions like the issuing of a traffic ticket became opportunities for confusion and misunderstanding. Some older Clarkston residents began to feel like refugees themselves; though they’d never moved, their surroundings became, to some, threateningly unfamiliar.
By 2003, opposition to refugee resettlement in Clarkston began to mobilize. Residents had had enough. At about the same time, a newcomer to Clarkston decided to start a soccer team there for refugee boys. Unaware of the mounting frustration towards the resettlement process, she could not have known that even the simple game of soccer would get caught up in the battle over Clarkston's identity.
The Coach
Luma Mufleh, a Jordanian-born graduate of Smith College, grew up in Amman, the daughter of a wealthy businessman and a doting mother. But her decision to stay in the United States after college drove a wedge between Luma and her parents. Disappointed and angry at his daughter’s decision not to return home, Luma’s father cut her off completely. At twenty-two and in a country she barely knew, Luma was all alone.
After Smith, Luma moved to Decatur, Georgia, a progressive neighborhood on the eastern side of Atlanta. On a drive to a Middle Eastern grocery store in nearby Clarkston, she came upon a group of boys playing soccer in the parking lot of an apartment complex. Luma joined in. On return visits, she got to know the boys, learned about their backgrounds, and ultimately decided they needed a proper soccer program of their own.
At the time, Luma couldn’t have known how her simple plan to start a soccer team for refugee boys in Clarkston would present so many challenges. She had to fight to find a place for her team to play, in a town where soccer had come to symbolize unwelcome change. She had to find a way to get boys from over a dozen countries – white and black, Christian and Muslim – to play together as a team. And she had to do these things as an outsider herself – a woman soccer coach in a league dominated by male coaches, a Muslim woman in the Deep South. But her journey would change a town and the lives of many.
Outcasts United is the story of what happened when these three disparate elements -- a town, a team and a coach -- came together in a kind of impromptu social experiment. It's a book about resilience in the face of extraordinary hardship, the power of one person to make a difference and the daunting challenge of creating community in a place where people seem to have so little in common
FOR IMMIGRATION ATTORNEYS ONLY: WHAT'S NEW IN IMMIGRATION LAW that I had better know?
This section is intended to provide immigration attorneys with information concerning at least some of the most important developments in immigration law that took place in the last month. In other words, what happened in the last month of which I absolutely should be aware?
NINTH CIRCUIT HOLDS THAT CONVICTIONS UNDER CALIFORNIA PENAL CODE 273.5 ARE NOT CATEGORICALLY CRIMES INVOLVING MORAL TURPITUDE. (June 3, 2009)
For those of us who practice in the area of removal defense, this case is noteworthy.
The court found that California Penal Code 273.5 is a broad statute encompassing several possible victims.
a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
The court acknowledged that based on precedent “spousal abuse under section 273.5(a) is a crime of moral turpitude.” But the court went on to note that injury to a cohabitant is distinguishable. Under the categorical approach, a conviction under California Penal Code 273.5 was not found to constitute a crime involving moral turpitude.
The categorical approach requires that we “compare the elements of the statute of conviction to the generic definition [of moral turpitude], and decide whether the conduct proscribed . . . is broader than, and so does not categorically fall within, this generic definition.” Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006) (citation and quotation marks omitted). “Whether a crime involves moral turpitude is determined by the statutory definition or by the nature of the crime and not by the specific conduct that resulted in the conviction.”
The court also used the modified categorical approach. "Under the modified categorical approach we examine documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for removal purposes." Under the modified categorical approach, the court may look to “charging documents in combination with a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding, and the judgment . . . to document the elements of conviction.” Huerta-Guevara v. Ashcroft, 321 F.3d 888 (9th Cir. 2003)
If an examination of conviction records do not conclusively establish that (in addition to satisfying the other elements of the statute) the victim was the perpetrator's spouse, there is now a strong argument that the conviction in question may not be considered as a crime involving moral turpitude.
Based on the inconclusive record, the court held that Morales’ conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant was not categorically a CIMT within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I) and § 1229b(b)(1)(C).
Editor's Note: An important issue in deportation defense cases involving criminal convictions concerns burden of proof. If the government is trying to deport a lawful permanent resident, it is clearly the government who has the burden.
On the other hand, if the respondent is being charged with inadmissibility and trying to establish that he or she qualifies for an immigration benefit, it is not as clear as to who bears the burden of proving the existence and nature of a crime in this context of establishing eligibility for relief from removal.
In Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir. 2007), the court held that an alien seeking to prove eligibility for cancellation of removal bears the burden of establishing that he has not been convicted of an aggravated felony. However, he or she may meet this burden by pointing to inconclusive conviction records.
In a concurring opinion, Judge Thomas wrote that he supports a rule where the government bears the burden of proving the conviction, even where the conviction is at issue only as it relates to the relief application. See Sandoval-Lua, 499 F.3d at 1133. See also Cisneros-Perez v. Gonzales, 465 F.3d 386, 391 (9th Cir. 2006) (suggesting government bears burden of proving the nature of a crime under the modified categorical approach in the context of an application that would provide relief from removal.)
To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
Published by the Law Offices of Curtis Pierce, 213-327-0044
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
In the words of President Kennedy, the United States is a "nation of immigrants."