Crime

Criminally Yours: The Alien World of Immigration

How we deal with immigrants in deportation proceedings needs a lot of work and a lot of change.

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I thought defendants had it bad in criminal court, but that was until I started doing immigration work. It seemed a natural link to the work I was already doing – representing guys with criminal histories, just in a different venue. Boy, was I wrong.

The years of exposure I’ve had in criminal law — trying cases, negotiating pleas, strategizing defenses — was of little use when I got to Varick Street, NYC, to represent my first detained petitioner in deportation proceedings. (They don’t use the word jailed, they say detained, as though this is something better. It’s not.)

First of all many of the constitutional amendments that apply to everyone (including aliens) in criminal court do not apply in the immigration arena.

1) There is no right to a lawyer unless you can afford one. If you’re a poor immigrant detainee you face the judge alone. [Although thankfully New York City just implemented a pilot program which grants even indigent aliens free attorneys through the Legal Aid Society and similar organizations. This is ground-breaking.]

2) You have no 5th amendment right not to incriminate yourself. A judge can ask the detainee anything and he’s expected to answer. For example, I had a case where my client had been charged with drug possession. He was put in deportation proceedings. When we got to immigration court the judge asked him point blank, “Did you possess those drugs?” I instructed him not to answer as it would endanger his criminal defense.

The judge responded, “Fine, counsel. I will then draw a negative inference from his refusal to answer and assume he possessed the drugs.” Talk about being hamstrung.

3) There’s no right to understand the proceedings as they happen if you don’t speak English. I remember the first time I had a Spanish-speaking client and naturally expected the Spanish interpreter, sitting next to my client, to interpret all that was being said.

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She was silent. When I reminded the court that nothing was being translated he answered, “There is no right to simultaneous translation. Only if I have a question for your client, does my question and his answer get interpreted.”

4) There’s no right to bail. If convicted of certain crimes called aggravated felonies (and these range from anything as incidental as selling one bag of crack to an undercover cop to murder), the detainee is not allowed bail.

The injustice here is even if the conviction is 10 years old and the immigrant has been thriving back in the community, and has a family and a job, he’s still not entitled to bail. [This, thankfully, changed in the 2nd Circuit just a couple weeks ago with Lora v. Shanahan. The Court acknowledged that because of the amount of time it takes to have a detainee’s case adjudicated, it’s unfair to keep him in without at least a bail hearing. This mark gets met once the person’s been in jail for six months.)

5) Finally, the biggest switcheroo for me, the burden of proof is not on the prosecution in immigration court but on me, the immigrant’s counsel. And, boy, this often isn’t easy. Try proving someone fears to be returned to say, Jamaica, when he’s lived in the U.S. for the past twenty years. Even if he’s been a federal cooperator against men already deported to Jamaica, unless there’s proof of a threat, and a reason to believe the Jamaican government would not be able to protect him — he loses.

Then there’s just the question of volume. For the thousands of detained aliens in the New York City area, there are just two judges at Varick Street. They’re hard-working and over-worked. Court starts promptly at 8:00 a.m., and lunch is practically non-existent.

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The waiting room is a like a jammed bus-station with people speaking languages from around the world, happy to get a glimpse of their loved one as he sits in an orange jumpsuit and shackles in front of the judge.

People targeted for deportation are not only those who entered the U.S. without documentation but many who have lived here their whole lives and have green cards, but whose parents forgot to get them naturalized. No matter how law abiding the alien may be now, Immigration and Customs Enforcement (ICE) can reach back to any conviction the person ever had, and use it as a basis for deportation.

Of course, the other victims are the U.S. citizens who are wives and children of the alien in deportation. Once the alien is jailed awaiting a determination on the immigration matter, which can take years to happen, they lose that person’s income, love and emotional support.

How we deal with immigrants in deportation proceedings needs a lot of work and a lot of change. But one good place to start would be affording the constitutional rights everybody gets in criminal court, alien or not.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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