Saturday, December 11, 2010

How The Amnesty Works

The Obama Regime has been implementing an amnesty for two years, much as the Bush Regime did. It is not just the Obama Regime though, the Administrative Amnesty has many participants that make it effective. It also has some opponents that are doing their best to execute the laws of the United States that Obama doesn't want enforced. It also has some lazy and useless bureaucrats who by either action or inaction have been co-oped into the amnesty program.

A recent boastful posting by a member of the immigration bar gives us a demonstrative lesson on how it works, sometimes despite the fact that some of the advocates are none to knowledgeable even about their area of expertise.

The teller of this tale of woe that turns into another amnestied illegal alien is Peter Hill, Attorney-At-Law, apparently specializing in criminal law and relief in removal proceedings in immigration law.

The following is a true story about how I obtained a temporary stay of deportation, and eventually deferred action for a student whose only immigration sin was to overstay his grant of voluntary departure. Long before he became my client, the protagonist of this story was granted voluntary departure for 120 days from an Immigration Judge in Atlanta when he was all of 14 years old. Of all of the deportation cases I have defended in my career as an immigration defense lawyer, the defense of this case might constitute the "biggest rabbit I have ever pulled out of a hat."


What we first see about the attorney is his sly efforts at deceit. Immediately the reader is led to believe that this is a clear case of a poor child brought as a youngster and cruelly ordered deported after adjusting to the U.S. at the tender age of 14. What we later learn is that he was first arrested and detained at age 14, but was released and never left the U.S. despite an agreement by his parents that he would leave.

We eventually find out that we are not dealing with a juvenile, but an adult, aged 18, still in high school. Which leads us to further evidence of his deceit:

"BRG" was a young teenager when he came to the U.S. to join certain family members from Latin America. It is best to use my client's initials BRG rather than his real name because in U.S. District Court under Federal Rule of Civil Procedure 5.2(a)(3) you are not permitted to use the real name of the litigant when the litigant is a minor. BRG was apprehended at the border with Mexico and stopped in early 2006. A relative obtained his release from custody and BRG was sent to Atlanta. He dutifully appeared in U.S. Immigration Court in 2006 when represented by his former counsel and was granted voluntary departure until November 26, 2006. Instead of returning to his Central American country, he continued to attend a high school in Cobb County, Georgia.

Of course, age 14 in 2006, fast forward to 2010, and we have an 18 year old. Hill continues his deceit by ostentatiously claiming that his client was a minor and therefore he cannot legally provide his client's name to the public. That, of course, is a lie. His client was an adult when detained by ICE this year and remained an adult during the short time BRG was his client.

Also on display is the system by which minors are smuggled into the U.S. to remain. Minors appear, are arrested on the border, then some relative appears as if by magic, and the minor is released, never to be seen again, unless the then minor is arrested by local police for some reason, as ICE is prohibited from seeking out illegal aliens in the U.S., much less where hundreds of thousands of illegal aliens congregate, such as public schools.

Hill moves quickly on to his next series of lies:

Cobb County, Georgia is a county which opted into the 287(g) program which has been detecting the presence in the County of all sorts of undocumented aliens. The most notable for the story line herein is that the 287(g) program has identified a large number of the offspring of undocumented aliens, many of whom only know this country because they were brought at a very tender age. The combination of the "criminalization" of driving without a license and the round the clock presence of state police officers at the local jails, who have received minimal training in immigration law under 287(g) programs, have led to a flood of young adults who are undocumented but really have nowhere to go in life.

Where to start...well let's start with the first lie:

"The offspring of undocumented aliens..." A twofer, one being that Hill tries here to confound the reader with the problem of anchor babies with illegal alien minors. Slyly implying that BRG is a U.S. citizen, caught up in some web of oppression. The second lie is that these illegal alien minors know nothing of their home country, except in our case BRG was raised in an unnamed Central American country until age 14. That is all of your formative years, and not tender years at all. BRG certainly knows more Spanish than English and knows more of our mystery country than the United States. He can certainly return with no problems of re-acculturation.

Hill then proceeds to attempt to frighten the reader with scarey words in quotes, though if he had attended high school he would have known not to place words in quotation marks without an actual quote. He just wants to deceive by scaring you with a young adult confronted with a criminal act, driving without a license.

The next is a dozy, baldly showing his ignorance of the 287(g) program as it is implemented in Georgia. Allegedly "state police officers" are stationed in local jails looking out for illegal aliens. Hill must not be from Georgia, as what he calls "state police officers" do not exist in Georgia; there they are the Georgia State Patrol, a highway patrol agency. And, though the GSP does participate in 287(g) through the signatory of the Department of Public Safety, Troopers are not stationed in local jails looking for illegal aliens. That occurs though participating county sheriff's offices or departments, not the GSP. In fact, Cobb County is such an Sheriff's Office. Poor Hill doesn't appear to know that there is a difference between a Cobb County Deputy Sheriff and a Georgia State Trooper. Hint, they even have different colored uniforms and different badges.

The next lies or deceit is that these "state police officers" have only "minimal training in immigration law." Hmmm, very interesting, but one should know that to practice immigration law in the State of Georgia, you don't need any training in immigration law, only a law license. No training in the very complex area of law is required, except the minimal passing score on the state bar exam. So, the deputies of Cobb County actually have more minimal training in immigration law than Hill has. And they certainly have enough training in immigration law to refer an alien to ICE for ICE's decision on placing the alien in removal proceedings. Perhaps because he has no training in immigration law or the process of removing an alien, Hill might be surprised to know that the paperwork that 287(g) deputies complete are reviewed three times, by a Deportation Officer, a Supervisory Deportation Officer, and an Assistant Counsel at ICE before any action is taken by ICE, and not Cobb County, to remove any alien. Of course, facts don't really matter to attorneys at the immigration bar, as we have just seen and will see more of.

The last lie in just a small part of one paragraph (Actually we do need to send Hill back to high school as he did not learn the proper use of paragraphs in either high school or law school, which itself might show how little attention he does pay to any training he receives, however minimal it is. But I digress.) Hill claims that 287(g) has led to a flood of "young adults" (Aha, finally a true statement, no longer are we dealing with a minor, but now an adult.) that "have no where to go in life." Here again we have the implication that this class of illegal alien cannot acculturate to the countries they left, but as we know in this case, BRG left our unknown Central American country at age 14. I bet his Espagnol is quite good. It is not as if he left at age 2. Which begs the question, how does he communicate with his parents? Pantomime?

Now on to the further lies:

BRG was one of these young adults present in the U.S. who have no country who wants them.

Really, BRG is not wanted by his unnamed Central American country? What proof of that do you have? Was he expelled? Deported? Is he like Soviet and Chinese dissidents who have been deprived of their citizenship? Of course not. That is a lie. I am certain his patria wants him back. Mexico allows their expatriate citizens to maintain citizenship even when they naturalize and I am certain this unknown Central American country does as well. Of course, we all know that BRG left voluntarily or was sent by his parents, not deported or expelled. So, more lying hyperbole by some shyster at the immigration bar, trying to gin up sympathy for his client.

And we proceed:

BRG's case started with my firm when an entourage of well wishers came to my office about 10 days after he was locked up by ICE in Atlanta. Shortly after his arrest, 18 year old BRG was transported two and a half hours to Lumpkin, Georgia. His friends and family asked me what I could do for him. It turns out that BRG was the sober driver on a night in late March 2009 when he and his school friends were apprehended by Cobb County, Georgia police officers. Upon a determination by the police officers that he did not have a driver's license he was taken to the adult detention center in Marietta, Georgia.

Here we find out that BRG was an adult as early as 2009, so he was never a juvenile when Hill dealt with him, so he lied when we were told that because of the Federal Rule of Civil Procedure, he could not release BRG's name. We also find out that friends and family were already planning and executing a public appeal to release BRG, a la Jessica Colotl and numerous other illegal alien students participating in ICE's DREAM Act amnesty.

More on that as we first must trudge through three feet of ostentatious and self-serving bullshit solely designed to make our advocate friend look like a Prince among sharks:

When immigrant clients come to my office for help to defend a deportation case, I do not lose sight of the obvious fact that a "Quixotic" defense costs real time and money to launch. I am a solo practitioner, and have been for the vast majority of my legal career. I have to spend a lot of time to plan a defense which is out of the ordinary. More often than not, the deployment of what my colleague Brian Bates of Texas has artfully coined "guerilla [sic] tactics" will end in prolonging the inevitable execution of an order of deportation, especially in those cases when your client does not have lawful permanent resident status to lose. I view it as my ethical duty to advise clients that the money that they would spend on a very long shot defense is probably better spent in starting a new life in my client's home country. I have been to quite a few, but certainly not to all, of the poor countries from where my clients came. The vast majority of my clients from these countries are best understood as 'economic refugees' to this country. I do not like to take client's money to handle a case or mount a defense if I don't think that I can win, or at least make a real difference somehow in the client's life while he or she is still in the U.S. I explained this point blank to BRG's well wishers.

The operative words here are "guerrilla tactics." As that is what was occurring. While the "well wishers" were seeking a delay by "Quixotic" tactics, that was the plan all along. The "well wishers" knew that they had to buy time to get to the amnesty implementers at ICE, all in the office of John Morton, not in the field offices as we shall soon see.

But, first, back to the action. And the "Quixotic" tactic that our shyster will use to delay, delay, delay? Why, nothing more complex than mindless allegations of racism and racial profiling, of course.

They wanted me to try something for him despite my warnings and advice to give up on the inevitable. This time my typically conservative advice in 'Hail Mary' cases to save money for tomorrow's life outside the U.S. was proven wrong. If anyone had predicted that this case would end up the way it did within an hour after I first met BRG's well wishers in my conference room, I most likely would have told that person that he was insane. I reluctantly agreed with BRG's well wishers to develop, or at least to look for, a creative solution to BRG's detention. I started out by asking about the basics of the stop of the vehicle which led to BRG's arrest. Having handled for six years or so a heavy court appointed criminal case load in rural Georgia on behalf of mostly Spanish speaking defendants, I am more familiar with Fourth Amendment search and seizure issues, Fifth Amendment Due Process, and Sixth Amendment issues. Thus it was easy for me to grasp that there might be a Fourth Amendment issue worth noting. It turns out that there apparently was no traffic violation which would allow the police the requisite 'reasonable suspicion' to pull over the car and ask BRG for his license and insurance coverage. The police said at the time of the stop that there was a rear tail light which was not functioning. If this were true, the police officer would be justified under Georgia law to pull over the vehicle and ask for a driver's license and proof of insurance coverage. Thus, the stop would have been lawful. However, a well wisher who was called to pick up the car after BRG was taken into custody insisted that the tail light was working properly when she got there. This was enough of a credible allegation for me to raise the specter, or "defense," of racial profiling at least in order to fashion a remedy for BRG to finish high school somehow. I explained that there was no good legal basis to reopen the grant of voluntary departure because the only relief from deportation available to BRG in essence was a further extension of voluntary departure, which won't help him very much even if I could get the Immigration Judge to do it. Once you have overstayed a grant of voluntary departure, a further extension of voluntary departure may be statutorily, if not barred by regulation, if the proper warnings are given at the Master Calendar proceedings when voluntary departure is granted. On the other hand, if the stop of the vehicle which BRG was driving was indeed the product of racial profiling, the Fourth, Fifth and Fourteenth Amendments' protections against unlawful Government searches, seizures and police action based upon suspect classifications may come into play. Perhaps I could find a lawful basis for terminating proceedings, or for somehow obtaining habeas corpus relief.

There we have it, a serious allegation against a police officer, attacking his integrity and accusing him of racism, all just to buy his client some time to finish high school. And that was an important part of the strategy to gain time for BRG to qualify for the unofficial ICE amnesty. As we shall see, professional ICE employees were having none of this nonsense. But Hill needed time for the "well wishers" to influence John Morton to give BRG amnesty. Not taken into account is that sometimes tail lights and other parts of cars just fail to function properly. Not because they are broken, which Hill obviously assumed, but perhaps a loose connection, moisture, etc. He made a mountain out of a mole hill, with no evidence other than the uncorroborated word of an interested party.

The first attempt at delaying the deportation was a no-go, thanks to a patriotic ICE official at Enforcement and Removal Operations who refused the clearly bogus attempt to stop the deportation of an alien previously ordered removed.

In order to get into Federal Court in an immigration case, 'exhaustion of administrative remedies' is usually a prerequisite. Otherwise, all sorts of immigration disputes, as well as other Federal agency disputes, would readily be heard in Federal Court. There are Congressional statutes which require 'exhaustion of administrative remedies. There are numerous Federal Court decisions at all levels which require exhaustion of administrative remedies as a gatekeeper provision to have a dispute with a Federal agency heard and resolved on the merits in Federal Court. I decided to make a reasonable request of ICE, the government agency which enforces the immigration laws, deports individuals, and assists other law enforcement agencies. On the Monday after the office visit on in mid April, 2010 I sent an 'exhaustion of administrative remedies letter' requesting 'a small favor' from the local ICE Field Office Director. I requested that BRG be released from Lumpkin and equipped with an ankle monitor so that he could simply finish high school before his actual deportation to Central America. The time BRG was spending in detention was quickly minimizing the possibility that BRG would get his high school diploma this year. I further informed the Government officials in that office that in the event that this request was not granted, I would seek habeas corpus relief in US District Court for the Northern District of Georgia. (This was not the first, nor the second time I have obtained habeas corpus relief against this office). I drafted the 'exhaustion letter' and dropped it off at the local FEDEX box with a G-28 representation form, and went home that night thinking that this would probably be all that I could ever do for this client.

My own son was about a month away from graduating from high school, and this irony was not lost on me. BRG, a hard working and well liked immigrant kid who had the judgment to drive a car because his companions with a driver's license were drinking and could not safely drive, was not going to graduate from high school. At the same time, my more privileged eldest son was about to graduate from high school and would soon attend California's finest public university as a reward for his hard work. Sometimes life is not fair, or maybe sometimes it is. We'll let the reader judge. This is what the Dream Act controversy is all about.

,p> [sic] Getting back to the story, I informed my client's well wishers that I did not realistically believe that I would get a phone call from the local ICE Field Office Director's office offering freedom from Lumpkin, an ankle monitor in lieu thereof, and finally a chance to finish high school. I was right! Instead I got a letter on the following Friday telling me that my client would remain in detention, and then he would be deported to his home country. Period. They were the law. I was the dreamer. Well, it just didn't turn out that way, as you will see.

The next step is to go to a hack on the federal bench to stop the deportation, and add some lies to the claim as well.

The next logical step was to file a writ of habeas corpus. On Thursday my client's well wishers called me again and said that they were going to hire me to file a Petition for a Writ of Habeas Corpus in Federal Court the next day, or on Friday of the same week. Usually I do not do any work on a case before I am actually hired to do so, but in this case I believed them. I got up early on Friday morning and read all of the reported cases I could find in an hour and a half about racial profiling in the Federal Courts on my legal research provider's program. My current program tends to restrict cases to the immigration law field. There are about ten cases which I could find in a relatively short time of searching and reading. I found out that Rhode Island even has a statute outlawing racial profiling, although it may not be the only one passed by a state legislature. I read enough of these cases that morning to get a feel for the nature of 'the racial profiling defense.' I did not find any grants of a temporary restraining order against a perfectly valid deportation order. At the time I believed that this was exactly what I needed.

My client's well wishers came back to my office later that Friday morning, signed a contract, and I immediately started working on a Petition for a Writ of Habeas Corpus naming all of the Defendants I could. I stated a claim under the cases I could find founded in a violation of the Fourth, Fifth and Fourteenth Amendment. As an attorney who is no stranger to filing and occasionally litigating habeas corpus petitions, this work comes easy to me as I have handled quite a few in Federal courts and many more in state courts. However, this one got much harder fast because after a half hour of working on the habeas corpus petition I was told that BRG had just been informed by an ICE detention and removal officer that he was going to be deported that very evening. It was 10:30a.m. and I immediately put together two or three affidavits from witnesses who were willing to swear that the only reason the car was stopped was because it was a car typical to Hispanic youths. I also obtained an affidavit from the person who picked up the car, and she swore under oath that the rear tail light was working perfectly when she picked it up.

That was quite convenient. He had witnesses who know the minds of the police officers who stopped the group of criminals that night. Obviously the only available witnesses to the incident were the licensed, but drunk, passengers in the car that night. So just how do they know that the police pulled over the vehicle was that it was "typical to Hispanic youths." Any evidence there? Or just paranoid persecution fantasies of the race hustlers? Obviously the latter. But also no forensic analysis of the tail lights. Were the connections tight? Any rust? There are alot of reasons that tail light might not have been working, but the most likely was that the witness lied.

So, Hill takes the case and moves quickly to a Clinton appointed District Judge, who, without any facts issues the first delay in the campaign to stop the deportation of BRG.

BRG got his wish, which was communicated to the Clerk by yours truly. Hon. U.S. District Judge Thomas Thrash was assigned to hear the case, which he actually heard in his courtroom at 4:30p.m. I made my argument brief, and requested a temporary restraining order. The Government responded. I asked if I could rebut what the Assistant U.S. Attorney had just said, and Judge Thrash said, "No, I have heard enough. I have read your petition, and I am granting a temporary restraining order against BRG's deportation.

And as leftists do, Hill slyly implies that government agents are scouring the highway for Mexican drivers and lawyers protecting illegal aliens:

At about 3:15p.m that fateful Friday afternoon I finished the assembly of the 'meatball petition' and I rushed to my car and drove to downtown Atlanta as fast as I could without getting pulled over - for a 'malfunctioning tail light.' O yes, I had the filing fee in my wallet for Case No. 1:09-cv-3281-CP - a five dollar bill!

Nothing like a little dose of leftist paranoia to add to the racial profiling persecution fantasies. White leftists are so strange, hating their own skin, desparately desiring to be an oppressed minority, while they can go home safe at night in their white suburbs with lots of white cops looking out for gang bangers and other miscreants, as I am certain Hill doesn't want his wife and kids raped and murdered by roving bands of criminals of color.

And Hill's strategy is clear, appeal to a Clinton hack to violate the law and add a little more of the racial profiling nonsense.

The Government wanted no part of a hearing on the merits. I don't blame them as they are lawyers with a client, just like I am a lawyer with a client. Suppose that the Court did actually set a hearing and Judge Thrash found that the stop was indeed the product of racial profiling? The entire integrity of the 287(g) programs, now three in place, in force in the U.S. District for the Northern District of Georgia might be called into question - in short, the Government had a lot to lose if we prevailed on a permanent injunction against my client's deportation. Instead, the new Assistant U.S. Attorney who took over the case from the attorney who argued the TRO that fateful Friday afternoon filed a lengthy Motion to Dismiss sometime during the following week. It exceeded the permissible length of briefs by about 7 or 8 pages. The Government had to ask for the Court's permission to file a longer than permitted brief in support of its Motion to Dismiss. I didn't object, but I later decided to ask for an extension to respond to their motion, which they really couldn't object to given my lack of objection to the Government having exceeded the scope of the local civil rules.

The issue quickly became what to do next after I received the Government's Motion to Dismiss by electronic filing and service. I certainly did not want to litigate the jurisdictional issues presented by the Government. Try to remember that the 'defense of racial profiling' as I understand it was only born after the fateful events of September 11, 2001. There is little guidance available about how 'the defense of racial profiling' interacts with the restriction of review of deportation orders to the U.S. Court of Appeals which must be filed within 30 days of the final action by the Board of Immigration Appeals. We were in uncharted legal territory but I did not feel too confident about what more Judge Thrash could do for BRG if the Government would not agree to hold a hearing.

If Hill were a real attorney, he would have known that there was no case at all, which in the end he did know, and Thrash agreed and but followed through as best he could for BRG. Despite Hill's claim that the government wanted nothing to do with the profiling accusation, they are well versed in the racist cop argument presented ad nauseum in courts. That could easily be swatted down; the AUSA could have easily called in the police officer who would have explained that the tail light was not working then. There are quite a few reasons, like a loose connection, or a lying affiant, that would explain the issue. And in the end none of this had relevance into the execution of the order of removal that BRG ignored. So, basically Hill knew his client was screwed, but, then this was only a delaying tactic, because we know that BRG's friends were lobbying John Morton for the administrative amnesty.

But Hill's deceit knows no bounds, for just before he wins, he has to lie.

...Government did not want to give this kid a chance to finish his education which was guaranteed for all students physically present in the U.S. by a U.S. Supreme Court ruling in 1981 or 1982.

Wrong, the ruling in fact said that States could not expel illegal alien students from primary or secondary public schools, it did not say they had a right to the education, but only that given the ongoing lackadaisical enforcement by the then INS, they children could stay in school, but if the INS took more aggressive action, there was no right.

But now the not so surprising amnesty:

On Monday I got a phone call from my client telling me that they were taking his file to Atlanta from Lumpkin. This statement was odd, to say the least. I was in Court the next morning in an outlying county trying to keep someone out of jail for driving without a license. On the way back to Atlanta I got a call on my cell phone from an office in Washington, D.C. The decision had been made by ICE headquarters in our nation's capital that BRG was going to be granted deferred action. He was going to be let out of jail, and he would be allowed to finish high school.

It is clear that despite Hill's claims of lack of confidence in a positive turn, the ultimate goal was achieved through lobbying John Morton for the DREAM Act amnesty. All BRG needed was a few timely placed lies, an activist Clinton judge and delaying tactics. And BRG got what so many other students go, amnesty from John Morton.

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