Saturday, April 05, 2008

Muzzling Judges On Illegal Immigration

Of late, it has become increasingly common for the courts to simply overturn the will of the people as enacted through the legislature. Oklahoma HB 1804 is in the process of being overturned in the courts both directly and indirectly. Even if its opponents, and they are legion and powerful, do not accomplish their goal directly, they may accomplish it indirectly a piece at time. A classic example of this judicial "death of a thousand cuts" can be found in an Oklahoma Court of Criminal Appeals Case styled OCHOA v. BASS, 2008 OK CR 11. The real question decided here is whether or not a District Court Judge may even inquire into the immigration status of the defendants before him. Writing in dissent, Judge Gary Lumpkin eloquently points out the problem:


¶1 I want to commend Judge Bass for doing what all judges are sworn to do, follow the law. At the time of his order he had before him the Petitioners, convicted felons, and probable cause to believe another “public offense” was being committed in his presence. Pursuant to 22 O.S. 2001, § 201, Judge Bass rightfully inquired regarding the legality of Petitioners’ presence in this country and once the illegality was established, his duty was to commit them to the custody of the Sheriff for further action. I agree there are no independent state grounds for the continued detention of Petitioners and the timeline under the federal statute has passed. I further agree with the Court’s opinion that it seems “inappropriate to release illegal immigrants and thereby indirectly permit them to continue their illegal status”. However, without authority to detain under either federal or state law, the Petitioners must be released. While the provisions of HB-1804, 22 O.S. Supp. 2007, § 171.2 , require an exercise of reasonable efforts to determine the citizenship status of persons charged with crimes, it does not set out a legal basis to detain. If the Court’s opinion had concisely adjudicated these facts I would have simply concurred in the decision. However, I must take issue with its mistaken perspectives of the role of a judge, especially in the taking of pleas, some of the assumptions made, and the immigration policy analysis.

¶2 It must first be pointed out that 22 O.S. 2001, § 201 is not restricted to that time prior to sentencing. The opinion takes the plain language of the statute and seeks to judicially amend its language to restrict its application. The language of the statute makes it clear that its dictates apply any time a public offense is committed in the presence of the judge. Secondly, a judge has a duty to inquire regarding any plea presented to the court, negotiated or not, and a defendant offering a plea is on notice to that fact. It is the judge’s duty to ensure any plea meets the requirements of the law and the dictates of justice in a particular case, together with determining if the defendant offering the plea is eligible for the recommendation in a negotiated plea. The court should not allow any party to commit a fraud upon the court by withholding information regarding the qualifications of any defendant to receive a particular sentence. Third, citizenship status is important for the judge to ensure a defendant is afforded the rights under the Vienna Convention on Consular Rights prior to accepting a plea. Therefore, the Court’s policy discussions in this opinion on the handling of pleas and the inquiries that are appropriate disregard the steps required in the actual taking of pleas in the District Courts. While the opinion makes a point that a judge must remain neutral, it seems overly concerned that a judge doing his or her job might undo a deal for the State. This seems inconsistent to me.

¶3 The opinion also overlooks the fact that a state-court magistrate is specifically permitted by federal statute to arrest and imprison persons for offenses against the United States “for trial before such court of the United States as by law has cognizance of the offense.” 18 U.S.C. § 3041 (2000). This right also accrues to state officers for the investigation and arrest for immigration offenses. See United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (10th Cir. 1999). A very thorough discussion on the inherent authority of the states to arrest aliens for violating criminal provisions of the Immigration and Nationality Act and to also arrest for civil violations that render an alien deportable was set out by Kris W. Kobach in The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 (2005) (concluding that there has been no preemption of local police power to make immigration arrests and that Congress has repeatedly acted to preserve, support, and encourage local arrest authority). Therefore, the law supports the action by Judge Bass in this case.

¶4 The real problem in this case is that unlike Judge Bass, who did follow the law, the federal government has failed in its duty to enforce the immigration laws of this country. While individual Border Patrol and INS officers do perform admirably within the limited scope of their ability, this failure to enforce the law reflects a gross dereliction of duty at all levels of our federal government. Our country is strengthened through the entry of legal immigrants into our society with their oaths of allegiance to our Constitution, laws, and way of life. This legal entry fulfills the motto on the Great Seal of the United States “e pluribus unum”, i.e. “out of many, one”. On the other hand, illegal immigrants make a mockery of the laws enacted to protect that way of life and if not checked have the potential to “Balkanize” the country. Too many factions in our society have tried to dilute the facts of the status of illegal immigrants by the semantic labeling of their unlawful entry and presence in our country as merely “undocumented aliens”. I guess those same factions would label someone caught trafficking in drugs as an “undocumented pharmacist”.

¶5 We can all agree that as citizens by birth or naturalization, those of us here legally are blessed to be in the greatest country in the world. It is natural that individuals living in countries that do not provide the same blessings, opportunities, and security would desire to migrate to the United States of America. That migration is welcomed if it is done legally. The failure of the federal government to enforce the law of the land has made a mockery of our immigration law and diminished the Rule of Law as a part of our national framework.

¶6 As previously stated, state authorities have the police power to make arrests for violation of immigration laws. When the federal government fails to follow the law, the states must fill that void. We cannot selectively decide we will enforce some laws and disregard others if we fulfill our oath of office and truly apply the Rule of Law.

Judge Johnson also questioned the result:


¶1 I concur with those portions of this opinion that find Judge Bass had authority to commit Petitioners to custody of the county sheriff for notification of Bureau of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. I also concur with the portions of the opinion finding that once the Department failed to timely respond to the sheriff’s notification by assuming custody of Petitioners within the time allowed by federal law, no further detention was warranted by the law of this State. I therefore fully concur with the opinion to the extent it concludes that the Petitioners have shown that their ongoing confinement by the Respondents is without any state authority and that they are entitled to the writ of habeas corpus. Lastly, for the reasons stated by the majority, I agree that the Petitioners have failed to demonstrate an entitlement to a writ of prohibition.

¶2 I cannot agree, however, with those portions of the majority opinion that: (1) purport to address the propriety of a judge questioning a defendant about his or her citizenship status; (2) reach the sweeping constitutional conclusion by mere assertion that “[n]o statute, administrative rule or executive order can constitutionally require or allow” a judge to inquire from the bench, into any violations of law that are not the subject of the case or controversy before the court; and (3) comment on the wisdom of releasing aliens from state detention when it is not even clear that they would be held in detention by federal authorities while their immigration status is being adjudicated under federal law.

¶3 The necessary question presented for decision in this case is not under what circumstances a judge may question a defendant about his or her citizenship status, nor is it whether the courts of this State are “agencies” that may be constitutionally subjected to certain legislative enactments. The only question to be answered here, as in any habeas action, is simply whether the Petitioners’ detention is lawful. Discussion of these other matters has no bearing on the legality of the Petitioners’ detention, and therefore, in my view, constitutes dictum at best and an unconstitutional advisory opinion at worst.
Conservatives have a terrible tendency to think that because they have elected "their people" to office and then had "their legislation" enacted into law that they have accomplished their goal. This view is naive' at best and subject to cynical manipulation at worst. The fact of the matter is that, under today's political conditions, any duly enacted law passed by the legislature can be overturned either directly or indirectly by the judicial branch. And, until conservatives decide to quit demonizing their lawyers and instead send them out to fight the rest of the battle, they are going to continue to lose.


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