questionable provisions in Arizona’s new immigration bill

Posted in Uncategorized by Ryan Locke on April 15, 2010


The Arizona House approved [press release] a bill [SB 1070 materials] Tuesday that would establish one of the strictest illegal immigration [JURIST news archive] policies in the nation. The bill would criminalize being in the US without proper documentation and would give law enforcement officers increased ability [NYT report] to require individuals suspected of being illegal immigrants to provide proof of their legal status. The proposal has been heavily criticized by immigrant rights groups. Chris Newman, Legal Director of the National Day Laborer Organizing Network condemned the bill [press release] as “the most anti-immigrant legislation the country has seen in a generation.” The bill now moves to the Senate, where it is expected to be approved and sent to Governor Jan Brewer, who will likely approve the final version.

Reading through the bill for the first time, there are several provisions that jump out as being bad ideas.

1.  11-1051(B). This provision requires police officers to make a reasonable attempt to determine the immigration status of any person whom the officer has reasonable suspicion to believe is unlawfully present in the United States.  Note that the officer cannot use race, color, or national origin in order to sustain a reasonable suspicion determination (just like an officer’s reason for searching someone can’t be that he’s black).

But how will these officers determine reasonable suspicion without race, color, or national origin?  That the alleged unlawful alien “appeared nervous” when talking to police?  That the alleged unlawful alien was “present in a high-crime area” or “had shifty eyes” or “ran as soon as the police arrived”?  Maybe unlawful aliens ride in the back of pickup trucks more often, or drink Mexican beer, or grow facial hair more often than lawful aliens.  But who knows?  Keep in mind that subsection (J) indemnifies officers for messing this up unless they’re acting in bad faith.

This is the provision that will get the most attention from the media, probably characterized as creating a police state in Arizona.  While I don’t think things will get that bad, the reasonable suspicion standard is a poor prophylactic because it’s so prone to reverse-engineering.  There’s little to prevent an office from  stopping someone, finding out they’re an unlawful alien, and then make up some reasonable suspicion that allows the stop in the first place.

2.  13-1509. This section essentially parrots 8 USC 1304(e) and 1306(a), which are federal laws criminalizing not having your alien registration card with you at all times and not registering and being fingerprinted.  The section also forces the unlawful alien to pay jail costs and a fine of $500.

Unless Arizona has a large population of wealthy yet unlawful aliens, there is no way that the costs of this section will be offset by the payment provisions.  Are these things that we want to waste our money prosecuting and jailing unlawful aliens for?  Even if you’re super law-and-order and want to remove the unlawful aliens back to wherever they’re from, why not just hand them off to the federal government?  Keep in mind that prisons are where drug cartels recruit most of their US members.

A special mention goes to subsection (G): “Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.”  I’m sure the Arizona legislature merely forgot about the Confrontation Clause, Crawford, and the recently-decided Melendez-Diaz.

3.  13-2929. This section criminalizes a host of third-party behaviors where the person knew or recklessly disregarded the fact that the alien was unlawfully present and: (A)(1) transported the alien in furtherance of their illegal presence, (A)(2) concealed, harbored, or shielded the alien from detection, or (A)(3) encouraged or induced the alien to reside in Arizona.  The penalty is a fine of at least $1,000.

Right off the bat, we know that the (A)(3) encouragement provision violates the First Amendment.  I can tell people to do whatever I want–save the classic shouting-fire-in-a-crowded-movie-theater example–and the First Amendment protects me.  If I told all unlawfully present aliens to move to Arizona (“I hear the weather’s nice”), my speech is not inciting a violation of the law that is both imminent and likely because I’m advocating lawless action at some indefinite future time.  Read Hess v. Indiana, 414 U.S. 105 (1973), for more on that point.  But if I bought some unlawfully present aliens plane tickets to Arizona, then I’d probably rightly run afoul of this section.

Also distressing is the effect this section will have on aliens who have a legitimate need for third-party services.  What about the unlawful alien who is a victim of domestic violence?  Under this section, an emergency women’s shelter would be fined for harboring the alien and perhaps transporting the alien if the shelter picked them up.  Say the shelter never asks the woman about her immigration status.  If she only speaks Spanish, is that enough knowledge to prove reckless disregard?  What if she appears ethnically Mexican?

4.  13-3883. This section authorizes any peace officer to make an arrest without a warrant when he or she has probable cause that the person to be arrested has committed any offense that makes the person removable from the United States.  Note that there are no restrictions to unlawful aliens; this section seemingly applies to LPRs too.

The problem is that immigration law is hard.  Does this mean that every peace officer in Arizona needs to be trained in what offenses make someone removable from the United States?  If the Courts of Appeals can’t agree on what “moral turpitude” means, what do we tell the cops?  If a legal permanent resident (LPR) shoplifts a lollypop from the grocery store–or eats a few grapes in the produce isle–thereby committing petit larceny, can he or she get arrested for committing a removable offense?  Does the phrase “makes the person removable” mean that the offense is capable of causing removal, or will likely result in removal?

I understand that Arizona’s upset at the federal government for perceived sloppy immigration enforcement, but this bill is costly and difficult to implement.


Rwanda’s ex-UN ambassador lives in Alabama and works for a plastics company

Posted in Uncategorized by Ryan Locke on April 13, 2010

A fascinating article in the Washington Post:

In the spring of 1994, when the assassination of Rwanda’s president unleashed a horrific three-month genocide that would ultimately kill 800,000 people, Rwanda’s man at the United Nations assured the world’s diplomats that his government was not to blame.

By a coincidence of history, Rwanda held one of 10 rotating seats on the U.N. Security Council at the time, giving Jean Damascene Bizimana, the country’s 36-year-old ambassador, a place at the table for the council’s private deliberations. Bizimana, a rising star in Rwanda’s diplomatic corps, initially told his fellow ambassadors that the violence was due to spontaneous public outrage over the president’s death on April 6 and that the interim government he now represented would quickly reestablish order.

As violence escalated, he blamed rebel forces from the country’s Tutsi ethnic minority for all the trouble, insisting to the council on April 21 that the rebellion “must be made responsible for its attitude in wishing to continue hostilities, to perpetuate the current violence and to continue to perpetrate massacres.” In May, he voted against an arms embargo on Rwanda that every other member of the council supported.

However, in the weeks that followed, as the government’s direct responsibility for the mounting deaths became increasingly clear, Bizimana spoke out less and less. He became a “sullen and mostly silent” figure at Security Council meetings, and he “never showed the slightest sign of remorse about what was going on in his country,” former British ambassador David Hannay told me.

Shortly after the rebels captured the Rwandan capital in July and overthrew the extremist interim regime, the young ambassador disappeared. Diplomats from the incoming government who took over Rwanda’s U.N. mission on East 39th Street in Manhattan found the bank accounts empty and the offices stripped bare. Even the refrigerator and the stereo were gone.

He ends up moving to Opelika, Alabama–near Auburn University–becoming a US citizen, and now works as a quality control officer in a plant that makes plastic containers for food and pharmaceuticals.  The author tries to talk to him:

After about 10 minutes, Bizimana appeared in the lobby wearing a white lab coat and a hair net. We shook hands, and I explained that I was researching his role on the Security Council during the killings in Rwanda. He stared at my business card for a long while. Speaking quietly, he said that it was late on a Friday afternoon and that he had a meeting to attend. I offered to meet him outside of work hours, but he demurred. I explained what Gen. Dallaire had said about his role in assisting the regime, and invited him to respond. He shook his head.

Finally, Bizimana looked at me and said simply, “This has nothing to do with my current job.”

A few moments later, he turned and walked back through the double doors. He and his company have declined my interview requests since.

The interesting legal angle is in how Bizimana obtained his US citizenship.  He likely applied for asylum from the same genocide that he helped to hide from the international community.

Perversely, his most likely path to citizenship was through political asylum. U.S. law protects individuals with a well-founded fear of persecution in their home countries by allowing them to become permanent residents, thus opening a path to citizenship. (Rwanda’s ambassador in Washington during the genocide, Aloys Uwimana, took that route.) Asylum proceedings are not public, so it is difficult to know whether Bizimana applied. Still, with the new government threatening to arrest him back in 1994, he would have had little difficulty showing that his life would be in danger in Rwanda.

However, asylum officers normally investigate applicants’ stories to find out whether they were involved in the persecution of others, which is grounds for denial of an application. So if he did seek asylum, Bizimana must have artfully minimized his official role in representing genocidal authorities.

4th Amd. — can’t use emergency exception if the basis for the exception disclaims emergency

Posted in Uncategorized by Ryan Locke on April 12, 2010

I came across this case last week. Police officers need an objective basis for an emergency entry, not a subjective motivation.  Nevada held that an entry based on a domestic disturbance where the police arrived after being called by a neighbor and talked to the female involved through a cracked door, where she told them that nobody was hurt and she did not want the police inside, was unreasonable and the drugs found after entry should be suppressed.  This seems correct — if the object of the emergency entry is telling you there’s no emergency, and she doesn’t appear under duress, then you can’t rely on that basis for entry.  The court followed Brigham City [the kitchen fight at a party case], which stated that “the reasonableness of an emergency home entry depends on whether “‘the circumstances, viewed objectively, justify [the] action.”  547 U.S. at 402.  Hannon v. State, 2009 Nev. LEXIS 15 (May 21, 2009).

Nijhawan v. Holder, the aggravated felony for purposes of removal statutory interpretation case

Posted in Uncategorized by Ryan Locke on June 17, 2009

This case, decided earlier this week by a unanimous Supreme Court, at first seems pretty boring (especially since they’re following the decisions of the trial and appellate courts). The issue is one of statutory interpretation: does the $10,000 threshold that makes fraud an aggravated felony refer to the actual elements of the fraud or the underlying factual circumstances?

For example, pretend there are two crimes called second-degree littering and first-degree littering, both felonies . The only difference is that first-degree littering means that the loss you’ve caused is greater than $10,000 (and we’ll say that first-degree littering is punished more strictly than regular littering; you get a 6 point sentencing enhancement or something). You littered oil into a fragile ecosystem and the rescue effort takes $25K. The government could prove either crime—you littered oil, so they could prove second-degree littering, and the loss was greater than $10K, so they could prove first-degree littering. In exchange for a plea, the government only charges you with second-degree littering.

Now that you’ve been convicted of second-degree littering, let’s assume one more thing: you’re a legal permanent resident, an immigrant living here lawfully. This throws a wrench into the plan, because you can be removed if you’ve been convicted of an aggravated felon, 8 USC Sec. 1227(a)(2)(A)(iii). An aggravated felony includes offenses that cause losses greater than $10K, Sec. 1101(a)(43)(M)(i). You did caused losses greater than $10K but you plead to a crime where that’s not one of the elements. Did you commit an aggravated felony?

This is essentially the problem for Nijhawan. He pled to mail fraud to the tune of hundreds of millions of dollars, but the amount of money isn’t an element for mail fraud. In some circuits, this wouldn’t be an aggravated felony because the crime for which he’s being charged does not include the 10K threshold as an element—this is called the “categorical approach.” In other circuits, this would be an aggravated felony because the facts show he caused a loss greater than 10K—this is called the “circumstance-specific” approach.

The Supreme Court went with the latter circumstance-specific approach, mostly based on statutory interpretation: (1) the language of the provision is consistent with a circumstance-specific approach, (2) the provision should be read consistently with the one before it, which is identical and interpreted as a circumstance-specific approach, and (3) categorical construction would render the provision meaningless because no widely-applicable federal or state fraud statute contains a relevant monetary loss threshold.

The Court mentioned that the circumstance-specific approach can be problematic because the amount of loss isn’t necessarily contested in the underlying fraud conviction—for example, Nijhawan never contested the amount of loss because he entered into a plea agreement.

This is the biggest problem with this approach, and this ruling. In the above littering hypothetical, even the second-degree littering is an aggravated felony. Which path do you take: plea to the second-degree and get less time in prison and hope that you won’t be removed, or contest the amount but maybe get convicted of first-degree and spend more time in prison. If the amount is far above 10K—like the 25K in our example—then maybe this isn’t a hard choice. But what about 11K? Defense attorneys will need to pay careful attention to the amount of loss in plea agreements to preserve the client’s immigration status.


Posted in Uncategorized by Ryan Locke on June 14, 2009

There’s a fascinating article in the NYT Magazine today about prisons.  The author visits a prison in Austria whose unique architecture sets it apart from prisons we have here in the US.  Worth a read.

It sounds odd to say, but it’s nonetheless true: we punish people with architecture.  The building is the method.  We put criminals in a locked room, inside a locked structure, and we leave them there for a specified period of time.

Does imprisonment work?  It seems like a bottom-line question, but the answer depends on what you want prisons to do, and that’s not an easy thing to decide.  Even if we assume that there are good and sensible reasons to incarcerate people, there remains some debate about what purpose is served.  Deterrence is often proposed as a goal, but no one really knows whether the prospect of incarceration gives would-be criminals pause, and in any case we quickly reach the realm of diminishing returns….

In fact, though most of us are reluctant to admit it, we mainly use prisons as storage containers, putting people there with the hope that, if nothing else, five years behind bars means five years during which they can’t commit more crimes. It’s called warehousing, and we do a lot of it….

[P]rominent architects aren’t lining up to take on the task of making prisons better.  Most ]architects] would be happy to design a courthouse, but few are quite as eager to build a penitentiary, though the two are merely opposite ends of a single system.  New prison construction is generally parceled out to a handful of large and more-or-less anonymous firms — a process that discourages innovation.  Whoever gets the commission is told how many beds are needed, what kinds of security, how much room for the clinic, the recreation area, the guardhouses.  They’re big-box prisons, as anonymous and uninflected as so many Wal-Marts.

pocket constitution

Posted in Uncategorized by Ryan Locke on June 4, 2009

As someone who always keeps a pocket Constitution in my backpack or briefcase, I found this amusing:

Cheney’s efforts to sway Congress toward supporting waterboarding went beyond secret meetings in Washington. In July 2005, he sent David S. Addington, his chief counsel at the time, to travel with five senators — four of them opponents of the CIA interrogation methods — to Guantanamo Bay, Cuba. On the trip, Sen. Graham urged Addington to put the interrogations at secret prisons and the use of military tribunals into a stronger constitutional position by pushing legislation through Congress, rather than relying on executive orders and secret rulings from Justice Department lawyers.

Subsequent court rulings would challenge the legality of the system, and Justice Department lawyers were privately drafting new rules on interrogations. Addington dismissed the views of Graham, who had been a military lawyer.

“I’ve got all the authority I need right here,” Addington said, pulling from his coat a pocket-size copy of the Constitution, according to the senator, suggesting there was no doubt about the system’s legal footing.
Next time someone questions my decisions, I’m going to slowly reach into my coat and pull out my pocket Constitution.

4th Amd: meth labs

Posted in Uncategorized by Ryan Locke on May 15, 2009

If one of your informants tells you about a meth lab and then you roll up and can smell the meth cooking, can you bust in without a warrant?  Yes.

Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area. See United States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002) (declaring, “[o]ur court has consistently considered safety factors in determining whether exigent circumstances existed,” and “[t]he potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation”). The officers’ concern for the safety of everyone involved in the situation was reasonably heightened after the officers were unable to contact anyone inside the home after knocking and calling the listed telephone number. See id. (holding exigent circumstances existed when there was an odor of ether, possible equipment for methamphetamine manufacturing, and the officers could not determine whether anyone was hiding or lying unconscious, or whether there was a dangerous heat source, in the suspected methamphetamine lab). We therefore conclude the district court did not commit error in denying Clarke’s motion to suppress because the warrantless entry of Clarke’s home on August 23, 2005, was justified by probable cause and exigent circumstances.

United States v. Clarke, 2009 U.S. App. LEXIS 9913 (8th Cir. May 8, 2009).  Note the justification for the exigent circumstances–not “omg drugs!” but “omg this place is about to blow!”– so I’m not sure how well this rationale will generalize.  But now we know: if something has a chance of blowing up, it’s okay to leave the magistrate out of the loop.

multiple personalities

Posted in Uncategorized by Ryan Locke on May 12, 2009

I wrote a paper about dissociative identity disorder and criminal responsibility for a class this semester, synthesizing a framework for dealing with these unique and perplexing cases.  Imagine my annoyance when I read this footnote from a Third Circuit panel ruling that was released yesterday:

After a psychiatric evaluation, Hammer presented an insanity defense. A forensic psychiatrist testified that Hammer suffered from dissociative identity disorder (formerly known as multiple personality disorder) and that one of his alter personalities[FN2] killed Marti; therefore, the defense argued, Hammer himself was not legally responsible.

[FN2] The defense’s forensic psychiatrist testified that Hammer had four alter personalities: 1) Jocko, a violent male; 2) Tammy, a female; 3) Wilbur, a child; and 4) Jasper, a chimpanzee.  He contended that Jocko killed Marti.

Arrgh!  That footnote is perfect!  If I were a law professor, any paper on dissociative identity disorder that didn’t start off with Jasper the chimpanzee would be docked a letter grade.

is illegal immigration a crime?

Posted in Uncategorized by Ryan Locke on April 27, 2009

Sort of.

Homeland Security Secretary Janet Napolitano said on State of the Union with John King this week that illegal immigration is not a crime.  She was asked to comment on Sheriff Joe Arpaio in Arizona, an outspoken supporter of strict immigration law enforcement and all-around hardass:

Arpaio has over 10,000 inmates in his jail system. In August, 1993, he started the nation’s largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story that has attracted the attention of government officials, presidential candidates, and media worldwide.

Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world’s first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.

Also impressive are the Sheriff’s get tough policies. For example, he banned smoking, coffee, movies, pornographic magazines, and unrestricted TV in all jails. He has the cheapest meals in the U.S. too. The average meal costs about 15 cents, and inmates are fed only twice daily, to cut the labor costs of meal delivery. He even stopped serving them salt and pepper to save tax payers $20,000 a year.

Anyway, this is the exchange:

SHERIFF JOE ARPAIO, MARICOPA COUNTRY, ARIZONA (on a video tape): I want the president, I want the politicians to say, we are going to enforce all of the illegal immigration laws and if you come into this country illegally, you’re going to be prosecuted and put in jail.

Let them say that. I’m waiting for them to say that.

NAPOLITANO: Well, you know, Sheriff Joe, he is being very political in that statement, because he knows that there aren’t enough law enforcement officers, courtrooms or jail cells in the world to do what he is saying.

What we have to do is target the real evil-doers in this business, the employers who consistently hire illegal labor, the human traffickers who are exploiting human misery.

And yes, when we find illegal workers, yes, appropriate action, some of which is criminal, most of that is civil, because crossing the border is not a crime per se. It is civil. But anyway, going after those as well.

But the notion that you’re going to fill every prosecutor’s time, every law enforcement official’s time, and that’s literally what he’s talking about, on immigration, he doesn’t answer the other question, which he has been criticized for, by the way, in Maricopa County, because he is not going after murders, armed robberies, other more serious crimes, because he is so focused on this one.

It is not criminal to be an illegal immigrant in the US. The term “illegal immigrant” is a misnomer; it’s not stictly illegal to be in the US without a proper visa or status.  Instead, it’s unlawful–the same way that if you fill out your taxes incorrectly, you may have to pay a civil penalty but you won’t be arrested, prosecuted, and sentenced.  For unlawful immigrants, the consequence is detention (sometimes) and removal.  Although the detention seems like a criminal penalty (and sometimes unlawful immigrants are detained in prisons) both detention and removal are civil penalties.  All of our immigration laws are located in Title 8.

There is no crime in Title 18 for being an illegal immigrant or crossing the border illegally. Title 18 is where all our federal criminal law is located.  It addresses trafficking and such, but not solely crossing the border.

But, 8 U.S.C. section 1325(a) does create a criminal penalty for crossing the border illegally. It says:

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years, or both.

Part (b) applies civil penalties as well.  Note that courts have determined that the act of entering illegally is consummated at the actual entry, so the five-year statue of limitations starts at the time of entry (rather than calculating it as a continuing wrong, effectively eliminating the statute of limitations).  See US v. Rincon-Jimenez, 595 F.2d 1192.

So here’s the distinction: If you cross the border without inspection, that’s a crime.  If you enter with inspection lawfully but then fall out of status, that is not a crime.

are embassies considered “united states territory”?

Posted in Uncategorized by Ryan Locke on April 23, 2009

Sort of.

Diplomatic and consular premises are NOT extraterritorial. This is the most common misconception about embassies, and something you see in movies and TV all the time.  For example, in an episode of The Simpsons the family travels to Australia and eventually takes refuge on the grounds of the U.S. embassy where they can’t be arrested because it’s “technically U.S. soil.”

In reality, that’s not the case.  U.S. embassies are on the soil of the host country.  This was made clear in Persinger v. Iran, where a marine who was held hostage for 15 months at Embassy Tehran sued his captors, the government of Iran, under the Foreign Sovereign Immunities Act. 729 F.2d 835 (D.C. Cir. 1984).  Although other countries are generally immune from the jurisdiction of federal and state courts, the FSIA created certain exceptions.  One of these exceptions is when the tortious act occurs on U.S. soil.  This makes sense–if Japan injures you in Ohio, you should be able to sue them in Ohio.  But the FSIA said U.S. soil, not “U.S. states.”  So what does “U.S. soil” mean?  28 U.S.C. section 1603(c) has the answer:

“United States” means “all territory and waters, continental or insular, subject to the jurisdiction of the United States.”

The marine argued that it should be considered part of the U.S. since the Embassy was substantially removed from the jurisdiction of the receiving state and was subject to the concurrent jurisdiction of both the sending and receiving states, but the Court of Appeals didn’t go for it.  Instead, they deferring to the language of the statute, its legislative history, and the consequences of finding embassies part of the U.S.–in the end, he wasn’t allowed to sue Iran.  Notably the court didn’t decide if Congress could extend jurisdiction to U.S. embassies; they merely decided that Congress didn’t.  For extreme nerds, the Restatement (Third) of Foreign Relations Law and the Office of the Legal Adviser, U.S. Department of State,  agree with this decision.  The OLA opinion is at Vol. II, 1430-1432, 1440 (1994).

But even though embassies are not part of the U.S.’s territory, the U.S. still exercises substantial control over its embassies and consulates, including enforcing American law. This is done mostly through treaties and bilateral conventions.  For example, judicial assistance between the U.S. and Japan is governed by:

  1. Article 5(f) of the Vienna Convention on Consular Relations, 21 UST 77.
  2. Article 17 of the U.S.-Japan bilateral Consular Convention of 1963, 15 UST 768.
  3. the U.S.-Japan bilateral Mutual Legal Assistance in Criminal Matters treaty, Treaty Doc. 108-12.
  4. the multilateral Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 20 UST 361.
  5. Customary international law
  6. Applicable U.S. law and regulations
  7. Applicable Japanese law and regulations

As you can imagine, international law gets rather complicated as you’re flipping through nine or ten sources of law.  The most important treaties can be found here.

In conclusion, embassies are not U.S. territory, but are still controlled pretty heavily by the U.S.  Now you know!