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Likely New DHS Chief Wants to Abolish Presumption of Innocence So He Can Deport "Criminal Aliens" Who Have Not Been Found Guilty. Roger Algase

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Update, November 27, 8:23 pm:

The incredible, utterly delusional statement that Trump is reported as having made on November 27 that he would have won the popular vote except for "3 million" votes by "illegal" voters (by which he may or may not have meant immigrants, given some of his past statements on this subject) is also far from reassuring to millions of Americans who are concerned, not only about the future of the non-racially discriminatory immigration system that America has enjoyed for the past half century, but also about the closely related issue of whether America will continue to be a democracy, based on free elections, after Trump takes office less than 2 months from now.

See:

http://www.thehill.com/homenews/camp...oted-illegally

Update, November 27, 2:30 pm:

Beyond the justified concern that every immigrant and immigration advocate should have about whether our current legal immigration system, which is based on the proposition that qualified immigrants from all over the world are welcome in the United States, regardless of race, color or religion, could survive a possible 1, 2, 3 punch of cabinet members with reputed white supremacist ties or sympathies such as Jeff Sessions as AG, Kris Kobach as DHS chief (if appointed) and Rudy Giuliani as Secretary of State (if appointed), there is the related question whether America's democracy can survive Donald Trump. In this regard, Slates's November 27 article:

The slow-motion decline: Resisting the gradual erosion of democratic institutions under President Trump.

http://www.salon.com/2016/11/27/the-...esident-trump/

is well worth reading.

The only question one might ask about this article is how slow the erosion might be - maybe not so slow as this article suggests, given some of Trump's campaign statements and post campaign appointments.

Update, November 26, 12:55 pm

The comments in my original post below about Kris Kobach, who is a member of Donald Trump's transition team and is reportedly being considered to become the head of the Department of Homeland Security, should not be regarded as identifying the only threat he poses to America's current immigration system and to our democracy, both of which are based on the principle of racial equality embedded in America's Constitution.

Despite attempts in the media to sanitize Kobach's record of drafting state racial profiling immigration laws aimed at creating a climate of fear in immigrant communities, and voter ID laws aimed at keeping non-white voters away from the polls, by presenting him as merely an immigration "hardliner" would enhance enforcement of existing laws against illegal immigration, Kobach's record includes much more than that.

See:

https://mediamatters.org/research/20...macists/214588


Far more than being just an avid proponent of immigration enforcement, Kobach is, very arguably, one of America's leading architects of a white supremacist immigration and voting system that could destroy America's democracy.

To be continued in a forthcoming Immigration Daily blog post.

My original post follows below:

2,000 years ago, a young Roman poet, Marcus Annaeus Lucanus, wrote the following in the introduction to his great epic poem: De Bello Civili ("The Civil War"):

Iusque datum sceleri canimus ("I sing of evil made into law.")

He also wrote a few lines further on:

Certatum totis concussi viribus orbis/In commune nefas

("All the people of a shaken world [were] forced into a common infamy.")

Of course, Lucan (who was later ordered to commit suicide at the age of 25 by the emperor Nero) was not writing about American immigration law in the 21st Century AD.

He was writing about the wars of the century before his which tore Rome apart and ended its Republic - the ones between Julius Caesar and Gnaeus Pompeus (Pompey); and between Marcus Antonius (Mark Anthony) and Octavian (later to become known, though never officially during his lifetime, as Emperor Augustus Caesar), which most Americans only know about through Shakespeare.

But if Lucan had had a chance, 2,000 years later, to see a document concerning deportation policy that, according to The Hill, Kansas Secretary of State Kris Kobach, the author of Arizona's notorious S.B. 1070 immigration law which was in large part held unconstitutional by the US Supreme Court, and who is reportedly under consideration for DHS chief (which would qualify him as one of the Four Horsemen of the Immigration Apocalypse mentioned in my November 22 Immigration Daily blog) was carrying with him to a meeting with President-elect Donald Trump, he might have written the same words as quoted above to describe it.

The Hill reports on November 24, that Kobach was photographed outside that meeting on Sunday, November 20, holding a document with the title:

"Department of Homeland Security Kobach Proposal for First 365 Days"

According to the same report, the visible part of the document included a proposal to redefine the term "criminal alien" as follows for deportation purposes:

"...'criminal alien' as any alien arrested for any crime, and any gang member"

See:

http://www.thehill.com/latino/307441...reigners-in-us

Wait a moment: Just being arrested makes someone a criminal?!!

If Mr. Kobach knows so little about American law that he has never heard of the doctrine that a person is innocent until proven guilty, i.e. convicted of a crime, not merely arrested for or charged with one, then it is easy to understand why so many of the other state immigrant "crackdown" laws and voter suppression laws intended to keep minority US citizens away from the polls which he has drafted have also been struck down by the courts.

This might come as a surprise to Kris Kobach, but the doctrine that someone charged with a crime is considered innocent until proven guilty is so old that it goes back almost to the time of the above quoted poet Lucan.

In the landmark US Supreme Court case of Coffin v. United States, 156 U.S. 432 (1895), which once and for all determined that the presumption of innocence until proven guilty is part of this country's law, Justice Edward Douglas White, writing for the majority, related the following reported incident from classical Roman history at the time of the emperor Julian, r. A.D. 361-363 ("Julian the Apostate", who tried to restore paganism as the Roman state religion in place of Christianity).

"Ammianus Marcellinus relates an anecdote of the emperor Julian which illustrates the enforcement of this principle in Roman law. Numerius, the Governor of Narbonensis was on trial before the emperor...Numerius contented himself with denying his guilt, and there was not sufficient proof against him."

Justice White's opinion continues:

"His adversary, Delphidius, 'a passionate man' seeing that the failure of the accusation was inevitable, could not restrain himself and exclaimed: 'Oh, illustrious Caesar, if it sufficient to deny, what hereafter will become of the guilty?' to which Julian replied: 'If it suffices to accuse, what will become of the innocent?'"

(156 U.S. at 455)

Of course, neither Kris Kobach (if he actually is appointed as DHS secretary, which is, of course, by no means certain at the time off this writing) nor even Donald Trump himself (no matter how "imperial" his presidency might or might not turn out to be) has the power single-handedly to decide what crimes will constitute deportable offenses, since these crimes are fixed by the statutes relating to "crimes of moral turpitude", "aggravated felonies" and other sections of the INA specifying which specific crimes are grounds for removal.

Changing these laws would clearly require an act of Congress

Nor does even Donald Trump have the legal authority on his own to "deport" the almost (if not even more than) two millennia-old principle of innocence before being proved guilty from our law, where it has been solidly embedded ever since the above Coffin decision, if not earlier.

But, as the above news story makes clear, that is not Kobach's purpose. Kobach, evidently, is not talking about what kind of crimes are deportable offenses under our law, or what standard of proof might be required to convict someone of these crimes.

He is, apparently, according to the above report, interested in expanding the population of already deportable immigrants, i.e. those who are in the country without legal status, which is a removable offense but not a criminal one, who can be targeted as priorities for deportation according to Trump's promise to deport "2 or 3 million" "criminal aliens".

Trump's problem is that even though he has promised to deport that number of immigrants who are already illegal and subject to deportation, either because they entered without inspection (which is a crime) or they overstayed their visas (which is not), available statistics do not seem to indicate that there are actually 2 or 3 million immigrants in the US who have been convicted of crimes that would constitute deportable offenses under current law.

Since there is no possible way of suddenly convicting hundreds of thousands, or more than a million, unauthorized immigrants of crimes (assuming there are that many who have even committed any crime at all) without violating the due process guarantees of the constitution, in order to enable Trump to throw out 2 to 3 million "criminal aliens" almost immediately as he has promised, Kobach's plan, presumably, is to redefine "criminal" so that there will in fact be enough "criminal aliens" in the United States, who are already subject to deportation as overstays or EWI's, so that Trump can prioritize them for deportation in order to meet his announced target.

Since there are an estimated 11 to 12 million immigrants in the US without legal status, if Trump is able to label 3 or 3 million of these as "criminals" without giving them a trial, then, under his own guidelines, he will be able to deport them without actually convicting them of any crime, since they are already subject to deportation anyway for other, non-criminal, reasons.

That way, he can claim that he deported the above large number of "criminal" immigrants even though, under our law, they are innocent since not proven guilty.

This raises some interesting questions. Suppose someone is arrested and charged with a crime, but the charges are subsequently dropped or dismissed by the court, or the person is acquitted after a trial. Everything in our entire legal tradition and history, and in that of every country on earth with the slightest adherence to democratic principles, says that the person is innocent.

Now, if the above news story is accurate, it appears that Kris Kobach, who if appointed DHS chief, would have control over virtually our entire immigration system, is proposing to redefine the definition of who is a criminal in order to turn even people who have been adjudged innocent by the courts to be "criminals", if they have ever been arrested.

As I have mentioned above, Kobach would not have any power to deport legal immigrants, much less US citizens, based on this new definition, because not every crime is a deportable offence; and because our immigration laws make clear that no crime is a deportable offence unless the person was actually convicted of it, not merely arrested for it.

But eroding the 2,000 year old principle in Western law that a person charged with crime is innocent until proven guilty for any purpose, even that of prioritizing certain immigrants for deportation who would be deportable anyway for other, non-criminal reasons, is a dangerous precedent.

This could, before too long, lead to undermining or abolishing the due process rights of legal immigrants and US citizens who might be arrested or charged with a crime in the future, and could signal the beginning of the end of America's democracy and rule of law.

In the above quote, Lucan condemns Ius datum sceleri - making evil (or crime, another meaning of the same Latin word scelus, sceleris, sceleri. etc.) into law.

What would Lucan have said about scelus datus innocentiae - making innocence (or at least the presumption of innocence) into crime?

That is a discussion that he might well have wanted to engage in, or perhaps actually might have engaged in during his short life, with the Kris Kobachs of the Rome of his time. I am sure that they must have been in no short supply.

Donald Trump might also want to have a serious conversation with himself and some the more moderate leaders in his party who care about preserving the basic civil rights guarantees of our law and our democracy, and ask himself whether handing the Department of Homeland Security, with its enormous power over immigration to someone with Kris Kobach's willingness to undermine one of the most basic protections in our entire legal system, namely the presumption of innocence until proven guilty, merely as a ruse to prioritize more people for removal action, is the best way to "unite" and "heal" our nation as promised in Trump's Thanksgiving address.

To the contrary, putting someone with Kobach's reported willingness to play games with one of the most sacred legal rights in our entire legal system so that he can throw Latino, Asian and other non-white immigrants out of the country faster or in greater numbers would be indeed an example of Iusque datum sceleri - evil made into law, just as Lucan wrote 2,000 years ago.
____________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards, based on their merits and qualifications, without regard to ethnicity, religion or national origin. Roger's email address is algaselex@gmail.com





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Updated 12-24-2016 at 08:11 PM by ImmigrationLawBlogs

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Comments

  1. Unregistered222's Avatar
    While you were writing all this nonsense of an article over the strategic leak, well played by Kris Kobach, another fine outstanding officer and father of a 6 year old daughter has been killed when chasing an illegal alien scumbag.

    http://www.breitbart.com/texas/2016/11/23/florida-deputy-killed-chasing-suspected-illegal-alien/

    While this horror show was happening, another illegal alien scumbag was busy raping 12 year old girl

    http://www.breitbart.com/big-government/2016/11/24/police-illegal-immigrant-sexually-assaults-12-year-old-girl-dozen-times/

    See Roger, people are just tired of illegal alien animals using this country as their personal hunting ground and rape stable. Chickens are coming home to roost and there is nothing you can do about it. Absolutely nothing.

    Hopefully, very soon "aiding and abetting illegal alien" will change from an empty word to something meaningful I am getting ready. By the way, if you want to know why Trump won Michigan, a hint for you- fake "mozlem" refugees stuffed down the throat of US taxpayers. Good Job president Obama.
  2. ImmigrationLawBlogs's Avatar
    Why is it necessary to change the law to be able to deport criminal aliens? Once alienage has been established in removal proceedings, deportabiilty is presumed unless the alien can establish lawful presence in the United States.

    Section 291 of the INA.

    Sec. 291. [8 U.S.C. 1361] .... In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, ... If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

    https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9611.html#0-0-0-365
  3. ImmigrationLawBlogs's Avatar
    With all due respect, I don't think that the writer of the above comment (who I assume is Nolan Rappaport) understood my original blog comment correctly. In my comment, I pointed out quite clearly that anyone who is in the US without permission is deportable, whether or not that person has been convicted of or charged with a crime.

    Therefore, there is no point the above comment that I did not already cover in my original blog comment.

    Where the question of who among the estimated 11 or 12 million immigrants who are here without legal status can also be classified as a "criminal alien" arises is in terms of who among them should be prioritized for deportation, not who is subject to deportation.

    Of course, there is nothing in the immigration law that prioritizes "criminal aliens" for deportation over other deportable immigrants.

    But Donald Trump, in his campaign and post-election statements, has stated that he would give "criminal aliens" who are in this country without legal status priority over non-criminal immigrants who are also here illegally in terms of who will be deported first.

    Since neither the law nor any court decision restrict the executive's power to prioritize certain classes of immigrants for deportation (and the DAPA/DACA 5th Circuit decision expressly disavows any such conclusion) Trump is free to prioritize or not to prioritize any group or category of unauthorized immigrants he wants to for deportation.

    Even though not required to by law, he has chosen to prioritize unauthorized "criminal aliens" for deportation first.

    For this purpose, he has virtually unlimited rights to call anyone he wants a "criminal alien" for any reason - (though there might be a Constitutional problem if he labels all Mexican or Muslim immigrants who are here without status as "criminal aliens" so he can deport them faster in accordance with his own campaign promise!).

    This brings us to Kris Kobach's reported proposal to label anyone who has been arrested but not convicted of any crime a "criminal alien" for priority of deportation purposes only, within the context of Trump's own campaign promise.

    While, as pointed out, the DHS could call almost anyone a "criminal alien" for this purpose - even let's say, an immigrant who likes to read books on criminal justice - the fact that Kobach would choose to use arrest, rather than conviction of crime, as his standard for doing so is profoundly disturbing for reasons I have clearly explained in my original post above.

    I cordially invite Mr. Rappaport to read my original post more carefully and respond to the actual point that I made in my comment if he chooses.

    Roger Algase
    Attorney at Law
    Updated 11-25-2016 at 02:51 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    My mistake. I apologize for making a comment without reading the entire article. This is my response to what the article actually says:

    Roger should be happy that Trump has abandoned his plan to deport all 11 million undocumented aliens. Apparently someone told him that it isn't possible. His current intention to deport all the criminal aliens is more realistic, but still quite problematic from an implementation standpoint. Regardless of who he calls a criminal alien, he is stuck with the reality that you need a judge's order to deport an alien unless the alien decides that he will leave without one; and President Obama is leaving Trump with a hopelessly backlogged immigration court. If no new cases come in, the immigration judges will still take two years to clear out their backlog. President Elect Donald Trump will not be able to deport millions of people. (November10, 2016),http://www.huffingtonpost.com/entry/...=1478965334261

    I predict that he will resort to a modified version of the provisions discussed in my article, Deportation Without Due Process? (September 20, 2016),http://www.huffingtonpost.com/entry/...=1474391017164

    In other words, he is going to have to find a way to force people out of the country without hearings. Will he go to that extreme? And if so, how will he do it? Those are questions that I think are more important than who he decides to consider a criminal alien for priority purposes.

    Nolan Rappaport
    Updated 11-25-2016 at 04:00 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    My thanks to Nolan for his clarification. He concludes by saying that whether President Trump will try to get around due process requirements in order to deport millions of unauthorized immigrants is more important that whom he defines as "criminal aliens" (in order to make it appear that he is not deporting everyone who is deportable, but only the "bad dudes").

    I agree with Nolan. Due process is a more important issue than defining "criminal alien" for the above purpose.

    But abandoning the nearly 2,000 year old (if not even older) doctrine in Western law of innocence until proven guilty for any purpose at all, could be the first step in throwing out due process guarantees later on - and for all of us - not only for unauthorized immigrants.

    Roger Algase
    Attorney at Law
    Updated 11-25-2016 at 07:19 PM by ImmigrationLawBlogs
  6. Unregistered222's Avatar
    This is a very interesting and insightful opinion. Thank you Sir.

    Quote Originally Posted by ImmigrationLawBlogs
    My mistake. I apologize for making a comment without reading the entire article. This is my response to what the article actually says:

    Roger should be happy that Trump has abandoned his plan to deport all 11 million undocumented aliens. Apparently someone told him that it isn't possible. His current intention to deport all the criminal aliens is more realistic, but still quite problematic from an implementation standpoint. Regardless of who he calls a criminal alien, he is stuck with the reality that you need a judge's order to deport an alien unless the alien decides that he will leave without one; and President Obama is leaving Trump with a hopelessly backlogged immigration court. If no new cases come in, the immigration judges will still take two years to clear out their backlog. President Elect Donald Trump will not be able to deport millions of people. (November10, 2016),http://www.huffingtonpost.com/entry/5824c8c5e4b0bb5f0af37f01?timestamp=1478965334261

    I predict that he will resort to a modified version of the provisions discussed in my article, Deportation Without Due Process? (September 20, 2016),http://www.huffingtonpost.com/entry/deportation-without-due-process_us_57e01aebe4b053b1ccf2a109?timestamp=1474391017164

    In other words, he is going to have to find a way to force people out of the country without hearings. Will he go to that extreme? And if so, how will he do it? Those are questions that I think are more important than who he decides to consider a criminal alien for priority purposes.

    Nolan Rappaport
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