6. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Under Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court restored the waiver for someone who pleaded guilty prior to 1996 to a crime not listed then as an aggravated felony, but left intact the law’s elimination of the waiver for someone convicted in a trial for that crime.
7. Zadvydas v. Davis, 533 U.S. 678 (2001). The Court, 5–4, interpreted the statute to limit detention to approximately six months, finding that indefinite detention would violate the due process clause, which applies to everyone within the United States, whether citizens or aliens. Using the technique of “constitutional avoidance,” the justices actively interpreted the law rather than strike it down as unconstitutional.
8. Jodi Wilgoren, “Refugees in Limbo: Ordered out of U.S., but with Nowhere to Go,” New York Times, June 4, 2005, p. A1. He was released in July 2005. Cost estimate from Elizabeth Stawicki, “U.S. Immigration Spent $200K on Keyse Jama Deportation,” Minnesota Public Radio, June 23, 2006, http://minnesota.publicradio.org/display/web/2006/06/23/jamaflight/. At any given time, more than a thousand long-term deportees are behind bars with no country willing to take them. The GAO found that ICE tracking systems were inadequate to make sure the six-month rule was followed. See Government Accountability Office, “Immigration Enforcement: Better Data and Controls Are Needed to Assure Consistency with the Supreme Court Decision on Long-Term Alien Detention,” May 2004. See also Jama v. ICE, Civil No. 01-1172, Order on Motion and Release (U.S. Dist. Ct., Minn., May 20, 2005), which ordered his release after he lost 5–4 in the Supreme Court, which ruled that aliens can be deported even to countries that have not agreed to accept them. Jama v. ICE, 543 U.S. 335 (2005).
9. Transactional Records Access Clearinghouse, Syracuse University, July 2009, http://trac.syr.edu.
10. Transactional Records Access Clearinghouse, “Immigration Courts: Still a Troubled Institution,” July 2009.
11. Office of Inspector General, Dept. of Justice, “An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General,” July 2008, http://www.justice.gov/oig/special/s0807/. The leading official in the political hiring, Monica M. Goodling, was subjected to a criminal investigation but received limited immunity in exchange for testifying before Congress. Eric Lipton, “Colleagues Cite Partisan Focus by Justice Official,” New York Times, May 12, 2007.
12. Mary Holper, “Immigration Consequences of Criminal Convictions,” Capital Area Immigrants’ Rights Coalition, Jan. 19, 2005. Aggravated felonies are listed in 8 U.S.C. § 1101(a)(43).
13. Bryan Lonegan, “The Court of Appeals Sends the Wrong Message Regarding the Obligations of Defense Counsel to Non-citizens,” draft of paper, citing People v. McDonald, 2003 WL 22764237, N.Y.2d (2003), and People v. Ford, 86 N.Y.2d 397 (1995).
14. Padilla v. Kentucky, No. 08-651. The petitioner, Jose Padilla (no relation to the convicted terrorist), won part of his argument—ineffective assistance of counsel—but the Court sent the case back down to Kentucky courts to determine whether the ineffective assistance had actually prejudiced him, a second prong required for a reversal. The majority of 7–2 (Justices Antonin Scalia and Clarence Thomas dissenting) also limited the ruling to clear-cut immigration situations such as this one, adding that in more nebulous circumstances, a defense attorney had only the obligation to warn that there might be adverse consequences, not to research and determine precisely what they would be. Justice Samuel Alito, joined by Chief Justice John Roberts, concurred narrowly, only insofar as a lawyer gives incorrect advice, not when he refrains from giving any advice, and not when he fails to explain the immigration consequences, even where they are clear-cut.
15. Case No. GC97011965-00, Virginia Beach General District, July 1, 1997.
16. Obituary, Virginian-Pilot, Aug. 15, 2009.
17. A violent sexual crime triggers deportation as an aggravated felony if the sentence, suspended or not, is for at least one year. If nonviolent, it is classified as a crime involving moral turpitude. One such crime committed within five years of getting a green card, or two convictions at any time after receiving a green card, can result in deportation.
18. As long as the marijuana is not for sale, possession of thirty grams or less is also the sole exception to designating an arriving alien with a drug conviction as inadmissible. There is no possibility of a waiver. Otherwise, cancellation of removal for a drug crime that is not a felony is available only to immigrants already in the country, in narrow circumstances. The reasons for excluding foreigners are much broader than for deporting them, requiring only a “reason to believe” that the person falls into any of a long list of categories that include “habitual drunkard,” drug addict, prostitute, illegal exporter, or the spouse or child of a drug trafficker. In general, a legal immigrant gets caught by the reason-to-believe standard when he has left the United States and is stopped upon his return. 8 U.S.C. § 1182(a)(2).
19. To make an arrest, ICE has the authority to issue an administrative warrant based on probable cause, without a judge’s approval. Immigration and Nationality Act, § 287(a).
20. 8 U.S.C. § 1357(a)(1), (3).
21. Explanation from Mary Holper, e-mail to author, July 23, 2009. In fact, courts have held that a Miranda warning in immigration matters might work to the detainee’s disadvantage: “A principal purpose of the Miranda warnings is to permit the suspect to make an intelligent decision as to whether to answer the government agent’s questions. In deportation proceedings, however—in light of the alien’s burden of proof, the requirement that the alien answer nonincriminating questions, the potential adverse consequences to the alien of remaining silent, and the fact that an alien’s statement is admissible in the deportation hearing despite his lack of counsel at the preliminary interrogation—Miranda warnings would be not only inappropriate but could also serve to mislead the alien.” Chavez-Raya v. INS, 519 F.2d 397, 402 (7th Cir. 1975).
22. In their brief, Conteh’s lawyers cited Matter of Davis, 20 I.&N. Dec. 536 (BIA 1992), and Matter of Barrett, 20 I.&N. Dec. 171 (BIA 1990), which held that the offense must be punishable under the Controlled Substances Act (21 U.S.C. §§ 801 et seq.). Also, federal court rulings that giving drugs without remuneration is not trafficking: Steele v. Blackman, 236 F.3d 130, 137 (3rd Cir. 2001); United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).
23. Virginia Code § 18.2-248.2(a)(1), a Class 1 misdemeanor, maximum punishment, twelve months. At the time, it was enough for the detainee to show that he could theoretically have been convicted under that statute even without having dealt drugs for remuneration. Since then, however, the Board of Immigration Appeals has ruled that the detainee has the burden to prove that in actuality he had not been involved in dealing of a “business or merchant nature.” Conteh’s lawyer, Mary Holper, believes he would lose his case under the new standard.
24. Deportable Aliens, 8 U.S.C. § 1227(a)(2)(B), Controlled Substances.
25. Mary Holper, Conteh’s attorney, interview with author, Oct. 12, 2005.
26. Because he had been caught at the airport returning to the United States, Abel was declared “inadmissible” and therefore had to apply for a waiver, even though fewer than thirty grams of marijuana would not have made him deportable if he had remained in the country. Because his pre-1996 conviction resulted from a guilty plea, not a trial, he fit into the narrow category of people deemed eligible for waivers when the Supreme Court, in St. Cyr, struck down that retroactive provision of the 1996 law.
27. Larry G. Hansen, Dept. of Veterinary Biosciences, University of Illinois at Urbana-Champaign, letter to federal judge Gerald Bruce Lee, July 30, 2004.
28. In Lahore, Taliban squads attacked crowds of Ahmadi worshippers in two mosques with grenades, suicide vests, and AK-47s, killing ninety-five in 2010. Banyan, “We Decide Whether You’re Muslim or Not,” Economist, J
une 10, 2010. Her husband’s visits to Pakistan were cited by Special Agent Ramon Oyegbola, of the Bureau of Immigration and Customs Enforcement, to suggest that the family had nothing to fear, implying deceit in his asylum application. Criminal Complaint, United States v. Waheeda M. Tehseen, No. 04-108-M (E.D. Va. 2004).
29. Dr. Ajmal Khan, Neurology Dept., National Institute for Handicapped, to Whom It May Concern, re: Manahil Chohan, July 29, 2004; Dr. Khalida Perveen, National Commission for Human Development, Islamabad, to Judge Gerald Bruce Lee, July 16, 2004; Special Education Eligibility Form, Fairfax County Public Schools, re: Warda Chohan, with attached WJ III Compuscore and Profiles Program Version 1.1b test results, Oct. 29, 2003.
30. If she had honestly checked “Yes” to the question of whether she had claimed citizenship, she probably would have had her green card revoked and been deported, according to Debi Sanders, an immigration attorney. Immigrants in that situation are often advised by advocates not to apply for naturalization and simply to live in the United States on their green cards, as permanent residents. Debi Sanders, interview with author, Feb. 3, 2011. Mani’s two oldest children did their own applications. Lisa Faeth, e-mail to author, Feb. 18, 2011. Also, Form N-400, Application for Naturalization, Waheeda Mani Tehseen, signed Sept. 15, 2001, sworn in personal interview, Aug. 6, 2002.
31. Certificate, “Unsung Hero Award,” U.S. Environmental Protection Agency, Christine Todd Whitman, June 6, 2002.
32. This is known because tapes and transcripts of the tapped conversations were turned over to Mubarak Hamed’s defense team after his indictment.
33. Second Superseding Indictment, United States v. Islamic American Relief Agency et al., No. 07-00087-01/07-CR-W-NKL (W.D. Mo., W. Div.), filed Oct. 21, 2008.
34. 18 U.S.C. § 1425(a). If the fraud is committed to facilitate drug trafficking or terrorism, the maximums are twenty or twenty-five years, respectively.
35. John T. Morton to Danny Onorato (Tehseen’s lawyer), June 23, 2004. See also Criminal Complaint, United States v. Waheeda M. Tehseen, No. 04-108-M (E.D. Va. 2004).
36. Morton to Onorato, June 23, 2004.
37. Judgment in a Criminal Case, United States v. Waheeda M. Tehseen, No. 1:04CR00092-001 (E.D. Va., Alexandria Div.), Aug. 9, 2004.
38. Dr. Riffat A. Chaudhary to Whom It May Concern, National Institute for Handicapped, Lahore, Pakistan, July 27, 2004.
39. Office of Foreign Assets Control, Dept. of the Treasury, “Recent OFAC Actions,” Oct. 13, 2004. The previous Jan., IARA had been listed by the Senate Finance Committee as being suspected of supporting international terrorism.
40. Second Superseding Indictment, Islamic American Relief Agency et al., No. 07-00087-01/07-CR-W-NKL; and Plea Agreement, United States v. Mubarak Hamed, No. 07-CR-00087-02-W-NKL (W.D. Mo., W. Div.), filed June 25, 2010. Ahmed Ghappour, Hamed’s attorney, e-mail to author, Feb. 22, 2011.
41. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). The Supreme Court let stand an opposite decision in the Third Circuit, North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d 288, 300 (3rd Cir. 2002). The Court also declined to hear the appeal in Center for National Security Studies et al. v. U.S. Department of Justice, Nos. 02-5254 and 02-5300 (D.C. Cir. 2003), which endorsed the government’s decision to keep secret the names of detainees.
42. Office of Inspector General, U.S. Dept. of Justice, “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks,” April 2003.
43. Rachel Meeropol, e-mail to author, July 20, 2009.
44. Ashcroft v. Iqbal, No. 07-1015 (2009). The complaint was sent back down to lower courts for revision and refiling, yet it seemed to have little chance of succeeding. The opinion “now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.” Adam Liptak, “Sidebar: Case About 9/11 Could Lead to a Broad Shift on Civil Lawsuits,” New York Times, July 21, 2009. A companion case, Turkmen v. Ashcroft, No. 02 CV 2307 (JG), was equally handicapped by the Supreme Court’s decision, but both continued to work their way through the courts. The government paid six of the plaintiffs in Turkmen a $1.26 million settlement, and six new plaintiffs were added to the suit in 2010. Center for Constitutional Rights, “Turkmen v. Ashcroft,” http://ccrjustice.org/ourcases/current-cases/turkmen-v.-ashcroft.
45. James Ziglar, interviews with author, March 17, 2005, and Nov. 12, 2009. In the first interview, Ziglar described the planned sweeps as aimed at “Arabs and Muslims” but in the second interview revised his statement to include Arabs only; he could not be certain that Muslims had been explicitly mentioned. He may have been right the first time, at least in describing intent, since the more restricted sweeps that were actually conducted targeted communities of Pakistanis, who are Muslim but not Arab. He declined to allow publication of the names of the two participants in the meeting who later commended him. He still faulted them for not speaking up during the meeting itself but did not want to criticize them publicly.
46. By contrast, in April 2010, Obama invited immigrants serving in the military to hold their naturalization ceremony in the White House Rose Garden, where he praised them for being “willing to risk their lives to defend our country even before they could call it their own.” Barack Obama, remarks, Rose Garden, White House, April 23, 2010, http://www.whitehouse.gov/the-press-office/remarks-president-naturalization-ceremony-active-duty-service-members.
47. Rachel L. Swarns, “More Than 13,000 May Face Deportation,” New York Times, June 7, 2003, p. A9, and “Program’s Value in Dispute as a Tool to Fight Terrorism,” New York Times, Dec. 21, 2004, p. A26. Homeland Security and Justice Department officials claimed to have arrested six suspected terrorists among the registrants, but the 9/11 Commission found the assertion unsupported. A modified registration requirement—the National Security Entry-Exit Registration System (NSEERS)—was later instituted for nonimmigrant, nondiplomatic citizens from certain Muslim countries, who were directed to special passport booths upon arrival in the United States and were required to appear at Customs and Border Protection offices periodically during their stay and again upon departure. The system was scrapped in May 2011. Customs and Border Protection, “Important NSEERS Information,” May 5, 2011, http://www.cbp.gov/xp/cgov/travel/id_visa/nseers/imp_nseers_info.xml.
48. Patrick J. McDonnell, “Pakistanis Fleeing U.S. Seek Refuge in Canada,” Los Angeles Times, March 15, 2003, p. 1.
49. Michael Powell, “An Exodus Grows in Brooklyn,” Washington Post, May 29, 2003, p. A1.
50. American Civil Liberties Union Blog of Rights, “Local Enforcement Tactics Lead to Racial Profiling, Human Rights Abuses,” Mar. 29, 2011, http://www.aclu.org/blog/human-rights-immigrants-rights/local-enforcement-tactics-lead-racial-profiling-human-rights-abu. Emergency Petition for Writ of Habeas Corpus, Rita Cote v. Lubins et al. (U.S. D.C. Middle D. Fla., Ocala Div.).
51. Andrea Elliott, “In Brooklyn, 9/11 Damage Continues,” New York Times, June 7, 2003, p. A9.
52. Nina Bernstein, “A Mother Deported, and a Child Left Behind,” New York Times, Nov. 24, 2004, p. A1.
53. Greg St. Martin, “MBTA Police Will Release Advisory to Officers That Immigration Law ‘Is Generally Best Left to’ Federal Agencies,” Boston Metro, Dec. 7, 2005. Detective Andrea Purcell failed to respond to several phone messages requesting comment.
54. Immigration and Customs Enforcement, “Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” http://www.ice.gov/news/library/factsheets/287g.htm#signed-moa. Authorization under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996, § 287(g). See also ACLU’s criticism at http://www.aclu.org/immigrants-rights/ice
-should-end-not-expand-agreements-local-and-state-law-enforcement-says-aclu. Dept. of Homeland Security, “Secure Communities,” fact sheet, Aug. 13, 2009, http://www.ice.gov/pi/news/factsheets/secure_communities.htm; Dept. of Homeland Security, “ICE Secure Communities Criminal Alien Initiative Expanded to Sacramento, Solano Counties,” Jan. 12, 2010; “Secure Communities: IDENT/IAFIS Interoperability, Monthly Statistics Through July 31, 2011,” http://www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_statsfy2011-to-date.pdf.
55. Mary Beth Sheridan, “Va. Police Back Off Immigration Enforcement,” Washington Post, June 6, 2005, p. B1.
56. Migration Policy Institute, “Blurring the Lines: A Profile of State and Local Police Enforcement of Immigration Law Using the National Crime Information Center Database, 2002–2004,” Dec. 2005.
57. Senate Bill 1070, amending Arizona Revised Statutes, Title 11, chap. 7, adding art. 8 (B): “For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).” Undocumented immigrants are to be turned over to federal authorities, but they are also “guilty of trespassing” if “present on any public or private land in this state,” and can be charged with a misdemeanor for applying for or performing work, or entering a vehicle that impedes traffic while picking up day laborers. The law also permits a warrantless arrest based on probable cause to believe that a person has committed a crime making him deportable. In addition, the statute enables citizens to sue local authorities that are not enforcing federal immigration laws.
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