Attorney General clarifies criminal status of undocumented immigrants

LatinaLista — The 11th hour decision by Attorney General Michael Mukasey (And we do mean 11th Hour since it was only a few hours before he delivered his farewell remarks to Department of Justice employees) was meant to serve as a last parting shot from the Bush Administration when it comes to influencing the proceedings in the nation’s immigration courts system.

U.S. Attorney General Michael Mukasey.
It wasn’t enough that this administration oversaw the selection of immigration judges based, not on merit, but political affiliation. Now, it seems that those immigrants who were represented by incompetent, lazy or mistake-prone lawyers and lost their cases, have no legal recourse to reopen their cases.

“This order will have a tremendous negative impact on countless people who will be deported simply because they had the bad luck to be represented by the wrong immigration attorney,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt. “This is a dangerous move away from the U.S. tradition of fairness and due process. Losing your case because your lawyer missed a deadline or made some other egregious error can never be considered a fair process.”

Yet, in the government’s haste to strip immigrants of any legal rights, they inadvertently clarified an issue that has been a driving force among critics of undocumented immigrants in justifying the immigrants’ removal from the United States.
At long last, the government has settled the question of whether or not undocumented immigrants are criminals.


The Attorney General’s decision spells out in no uncertain terms just what immigrants are entitled to:

Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings.

However, in declaring, in multiple places, that “aliens” have no right to counsel, the Attorney General further says that

Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.

So, if deportation proceedings are civil in nature then that would mean that undocumented immigrants are not criminals — violators of a criminal law — but only in violation of a civil offense. A much less scary perception.
It’s a memo that the Attorney General needs to make sure that the Department of Homeland Security (DHS) receives before they try to renew efforts in their own 11th hour declarations to further criminalize undocumented immigrants.
By silently condoning the mischaracterization of undocumented immigrants as criminals, the DHS has lent its support to those radicals and nativists who, by their speech, have spearheaded a campaign of hate against Latino immigrants which have resulted in Latinos being attacked, harassed and murdered because of their ethnicity.
The appalling part is that the real criminals, those who incite this violence against Latino immigrants, are getting off completely free.
Where’s the justice in that?

If you enjoyed this post, please consider leaving a comment or subscribing to the RSS feed to stay informed and up to date with articles delivered to your feed reader. Invite a friend to read news on LatinaLista.

Related posts

11 Comments

  1. Liquidmicro said:

    Let’s look at this from the perspective of the court system. If I am the one going against you in court, it is a civil matter, if the government is taking you to court, whether it is State or Federal, it is criminal matter.
    In civil law, a private party (a corporation or individual person) files the lawsuit and becomes the plaintiff. In criminal law, the litigation is always filed by the government, who is called the prosecution.
    Criminal law is much better known to laymen than civil law. They often misapply principles from criminal law to situations in civil (e.g., tort) law, which results in their misunderstanding.
    Illegally entering the US is a crime. Unlawful presence is not a federal crime. However, it is a removable offense under the Immigration Act. As deportable aliens are not citizens of the U.S., they do not have the same rights as a U.S. citizen or Legal Permanent Resident. Their deportation hearing takes place before an immigration judge. Since the penalty is deportation and/or a fine and/or jail time, many people think of the Immigration Court as a civil court. In fact, the Immigration Court is a criminal court, as it is the government prosecuting the offense.
    But immigration proceedings are matters of administrative law, not criminal law. (As a result, the consequence of violating your immigration status is not jail but deportation.) Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens. Congress has nearly full authority to regulate immigration without interference from the courts.
    When deportable aliens are prosecuted under criminal law, instead of being expelled through an administrative proceeding, those accused have the right to a jury trial and all the rules of evidence apply as mandated by the Charter of the United Nations, signed in 1952. The government is burdened with “proof beyond a reasonable doubt” and the following punishment may actually be considered a Misdemeanor as Section 1325 suggests below; “for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both.”
    Imagine the cost and the caseload, that’s why “Deportable Aliens” are encouraged to sign a document admitting their status and quickly be removed under immigration proceedings vs. waiting here for a criminal hearing which could take up to 2 years, all the time they remain on an immigration hold in jail, awaiting their court date. Most sign so they don’t have to sit in jail and can be deported expediently.
    Deportable aliens in detention centers are not being held on criminal law charges, they are being held on Administrative Law charges, for which the Government can hold them for a period of time.
    Therefore, in conclusion:
    The Government has the choice to prosecute for a criminal charge, i.e. document fraud/forgery, for which the Government must now provide burden of proof. Or to plea deal it down to, sign this paper and be barred for 3 – 10 years and if caught you will be charged with a ‘felony’ as an ‘Administrative Violation’.
    The Administrative Violation relieves the Government of having to provide any ‘rights’ to the ‘Illegal Alien’, thus detention center or immediate deportation, depending on country of origin.
    The Criminal Charge would require the “Deportable Alien” to remain in the custody of our criminal system until his/her court date, which could be as long as 2 years in jail. Most “Aliens” opt for the sign and leave.

  2. Grandma said:

    While it’s true that deportation proceedings are civil in nature, being in this country is still a criminal offense according to immigration law. That’s why there are about 30 or more illegal aliens in front of the Federal Court Judge every day in my district, they’re arrested, put in jail and brought before a judge. That’s for the misdemeanor. They get a conviction. If they come back, and they all do, they are then charged with a felony. Where the civil part comes in is after they’re convicted of the crime, they go to an immigration judge or waive that right and are just deported. Most of them waive that right. It just amazes me that you think being in this country illegally is not a crime. It is.

  3. Sandra said:

    What a load of bullpucky. I don’t care what you want to call the infraction or what they are refered to by name, these illegals are here in violation of our immigration laws and subject to deportation. That is all that matters.
    Attaching negative labels to them does not spearhead hate, it is their act of crossing our borders illegally that does. It isn’t hate in most cases anyway but objection to that act.
    It is utter BS to claim that Latinos are anymore targeted for hate crimes than any other ehtnicity other than their percentage of our population is rising so therefore the stats will rise. You are nursing a few hate crimes against them to make it appear that there is some kind of epidemic in this country.
    How about Hispanic citizens standing up for the rule of law rather than illegal foreigners and an ethnocentric agenda? Bet they would see hate crimes against their group drop dramatically. But that isn’t going to happen, is it?

  4. Grandma said:

    After reading this blog a 2nd time I am of the opinion that you have totally misconstrued what the US Attorney General is saying:
    You said:
    However, in declaring, in multiple places, that “aliens” have no right to counsel, the Attorney General further says that Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.
    You said:
    So, if deportation proceedings are civil in nature then that would mean that undocumented immigrants are not criminals — violators of a criminal law — but only in violation of a civil offense. A much less scary perception.
    All he is saying is that in a criminal proceeding illegal aliens have a right to a court appointed attorney, paid for of course, by legal citizens of this country. But when they get to the hearing before the immigration judge, the deportation hearing, they do not get a court appointed attorney. It certainly does not mean that illegal aliens are not criminals.

  5. minute_man_pete said:

    “Attaching negative labels to them does not spearhead hate, it is their act of crossing our borders illegally that does.”
    Nice of you to acknowledge the hate that is there on your side.
    But blame it on the victim?
    “Oh, well if he weren’t here ellegully he wouldnt have got kilt. It was not our hate that did it, it was his crossing the boarder.”

  6. Horace said:

    Ms. Trevino either exposes her lack of understanding of the law or deliberately misrepresents the rights of illegal aliens in this country. One cannot expect illegal aliens to have both the legal rights and due process of a criminal defendant leading to possible imprisonment and the rights and due process of civil proceedings of misdemeanant that could lead only to repatriation. Make up your mind, Ms. Trevino, prosecuted and given rights and penalties of a criminal defendant or prosecuted with all the rights and penalties of unlawful presence. You cannot have it both ways. Choose!

  7. Senor Pescado said:

    wow interesting insights from all, may we use these in the full feature movie we will do?
    I am in El Salvador, a gringo was there once for years illegal, was in jail 3 times for small violations, I was NOT deported or brought up for being there illegally
    but when in Mexico and your papers go bad, or are over the time, you have serious problems
    so I guess my attitude is changed after 30 years down South and then the fact that basically Mexicans cannot drive and flee the scene of accidents in most cases here, then they should be deported immediately when charged with any crime, misdemeanor, or felony,on bus back to the border
    too much burden on the resources of the USA at this time, get legal here and learn English
    Guatemalans, Salvadorans, Nicaraguans are different cases in MY opinion due the circumstances of the USA and CIA involvement in their needless and horrible civil wars, but then all in Mexico learn in 2nd grade of 1847 Veracruz, so that also I can understand, as this and the TRUE history of Cuba is also NOT taught to gringos in schools in USA
    if one is in any country ‘illegally’ they basically as in lawyer[crab bait] speak’,legaleze, you are a criminal
    shame best law back to the peoplem, not those such as lawyers[crab bait] and judges to perpuate their own heinous professions at the expense of ‘the people’
    Viva El Frente

  8. Sandra said:

    MM Pete, how convenient of you to take my post out of context. What I said is that it isn’t hate but opposition to their illegal act. But then I wouldn’t expect honesty from the pro-illegal side. If they couldn’t lie, they would have no arguments.

  9. Zamanthia said:

    I am reading this comment almost seven days since its posting and reading the comments urged me to at least say this: WHen somenone wants to hurt or to impose a prejudice against any group will use any mean to prove that she /he is right. In this case U.S. anti-immigrant groups and individuals defend and support someone who’s interpreting law under a personal perspective. Law is open to interpretations and if I read the fifth and sixth amendments will say that immigrants in removal process do have the right to counsel, moreover entering the U.S. territory without documentation is not a crime, it is a law violation but not a crime, and people at these times should now that.

  10. Sandra said:

    Americans are not anti-”immigrant” they are anti-illegal immigration. Big difference!
    No, our immigration laws are not subject to personal interpretation. They are precise.
    Anyway you want to sugarcoat it, enetering our country illegally is against our immigration laws and that is all that matters.

  11. WHiteAMERICANMOTHER said:

    By silently condoning the mischaracterization of undocumented immigrants as criminals, the DHS has lent its support to those radicals and nativists who, by their speech, have spearheaded a campaign of hate against Latino immigrants which have resulted in Latinos being attacked, harassed and murdered because of their ethnicity.
    The appalling part is that the real criminals, those who incite this violence against Latino immigrants, are getting off completely free.
    It is amazing the position you take mArissa…I am one of those people encouraging incitementagainst the Illegals which you appear to condone. I wouldprefer if Our Government for Our Kids would Shoot everyone of your illegals coming or going. Your Illegals cost our kids their futures, you get health care while we don’t, and you came into our country UNINVITED BY PEOPLE WHO DON”T WANT YOU HERE. It is already written in the Title USc” The Attorney General has the power and duty to protect our borders from the illegal entry of aliens.”Just what is it that you don’t get? Are you really so stupid that you thnk AMercians are criminals for siding with our country against the criminal illegals? The Illegals were already criminal according to the Title listed above….and let me tell you if you don’t get WE REALLY DON”T WANT YOUHERE Because you are criminals of our laws . Civil statutes say you are criminal…and you can go to jail….I hope you are smart enough to read the other quotes. But let me tell you how most of the people I talk to feel…We feel you are trying to take us for a ride…we think…
    That we don’t want you here? That we don’t want topay for crimes you commit, or the free 11 babies or free lunches and free education? WHat do you take us for? I say shoot you all…because in my opinion your people are a negative factor. Eliminate the entry points by shooting the illegals as a final word that we do not want you here. Do you get it? We don’t want to be overrun by Mexicans….We like our country just as it is. To most people if you are illegal you are the biggest criminal of all…OMG…Where is the justice? Take the babies away from any illegals here…You don’t want us to incite people to violence? Most of Us are ready! If it was legal to shoot you all, most would be dead or back in Mexico…That would be justice…That would be justice Marissa Trevillo…But we don’t do that do we? We are nice people…we try to make you idiots see that we do not want you here..the migrant workers weren’t even making it in your country so I can see a need…but we have plentry of people to fill their shoes who deserve it…we want your people to see that by stating that the illegals do not have rights they do not have any choice except to be deported as they should as an illegal. Thats justice Marissa…or do you want the justice we WHIte Mothers and Fathers
    and Black Mothers and Fathers would love to give you? Why do you think we should bother with any justice for your illegals? Your criminals bring drugs and violence, kill and maim people without even botheirng to carry insurqance. California spends 780 million a year just to house criminal illegals…right there it’s obvious that bullets are cheaper…because Marissa we do not care about illegals who try to get away with murder here…and evrything else they can. YOu should be ashamed at your inability to think straight except to further the cause of greedy, slovenly illegals.

Comments are closed.

Top