Frontera NorteSur November 2000

Aggravated felony sounds serious but can be a crime such as joy riding, breaking into a car, driving while intoxicated or being caught with a user amount of cocaine. When residents are convicted of such crimes their status to live in the U.S. is canceled without relief and they are returned to their country of origin. The fact that they went to school in the U.S., worked and paid taxes for years, have US-born children and grandchildren, fought in a war, or speak only English does not matter. Deportation without opportunity for explanation is the end result.

In the case mentioned above, my client was convicted of a state felony offense--stealing a case of beer from a convenience store. He was sentenced to three years of probation and then deported after 25 years of living in the United States. Fortunately, he could speak Spanish but had no family living in the country of his birth, Mexico. Caught in a foreign land without any support system he returned to the U.S., was arrested by the border patrol, and charged with the criminal offense of illegal reentry without the permission of the Attorney General.

At that point in the story I met my client. He told me his story. How he was brought here by his parents when he was just 2 years of age. How all his immediate family lives here in the U.S. How he went to school, worked as a mechanic, and yes had trouble with the law. He told me that it was a mistake for which he had already paid. I could do nothing but nod in agreement that immigration law is extremely harsh, separating families with little room for mounting a defense. In legal terms, it is a strict liability offense. One commits one of the many felony offenses classified as an aggravated felony and removal from the U.S. is inevitable with no real chance of ever gaining permission to return. Deported for life.

But this client had a defense, a good defense. His initial arrest was improper. It violated his Fourth Amendment right. That was the federal judge's ruling. My client's arrest was illegal. It was a victory, temporarily.

The facts of the case are that my client and his friend were walking through an open market around noon when a police officer summoned them to stand against a wall while the officer's partner began asking questions: names, purpose for being there, where they came from, where they were going. In my client's mind, the real reason for the stop was that he and his friend were young Mexican-American males living in a border town. The officers called in my client's name to a database and a BOLO (be on the look out) came back stating that he had previously been deported. The police took him down to one of the many local Border Patrol facilities to be processed. The Border Patrol agent confirmed the fact my client had previously been deported, had a criminal history, and then contacted the duty Assistant U.S. Attorney for prosecution.

The fact that my client's arrest was improper and all his verbal admissions (his name and prior deportation) and fingerprints were suppressed by the federal judge would lead one to believe that the government would not have sufficient evidence with which to proceed in its prosecution. Without such evidence the government would not have access to pre-existing information in the INS database to prove up the essential elements of the charge that my client was an illegal alien who had previously been deported and who had not received the permission of the Attorney General to return to the US. We were wrong.

The government continued with its prosecution because there is a judicially created back door to the Constitution that permits prosecutors to access immigration documents. We argued the the government could not use the contents of the immigration file because it is the fruit of an illegal arrest. Without the evidence of fingerprints and name, the government could have never accessed the immigration file and therefore would have been unable to offer evidence of alienage, prior deportation, and lack of permission. Furthermore, without these identifying factors the government would have been unable to prove the relevance of the immigration documents. The Court disagreed. The government was able to use the file because my client, the Court determined, had no possessory interest in that file. The fact that the government accessed those records from suppressed evidence had no bearing. My client was convicted and sentenced to 77 months in a federal prison.

When I first met my client he asked me if the cops could arrest him for no reason. I told him that the Border Patrol believes they have the right without warrant or consent to question a person concerning his or her legal right to enter or be in the United States. However, they are incorrect. The Supreme Court said that the Constitution requires that the arresting officer demonstrate that he or she had reasonable suspicion, based on more than mere ethnic appearance, that the arrestee is undocumented. Otherwise law enforcement could subject residents to potentially unlimited interference with their use of streets and highways. By protecting your Fourth Amendment right I told him, the Court is protecting all people of Hispanic appearance from unlimited governmental intrusion.

In cases like these I am learning about the geography and the time in which we live. The border area creates a loosening of our constitutional rights. The "war" on immigration and drugs takes its toll especially on those living along the border. To be Hispanic and live along the border is to be subjected to government harassment. There are no safeguards to this intrusion. As I found out in my client's case, as long as a law-enforcement stop bears fruit, the manner in which is is conducted makes no difference. The effect of my client's conviction is that the Border Patrol has carte blanch authority to stop anyone for good reason or no reason at all. The current state of jurisprudence appears to say to law enforcement that any successful stop is a constitutional stop. My client's conviction adds to that trend.