Are Criminal Aliens Above the Law?

'Progressives' engage in blatant discrimination while the press scribbles. What would 'Doonesbury' think?

By Andrew R. Arthur on November 1, 2019

In my last post, I discussed a recent NBC News article captioned "AG Barr issues 2 decisions limiting ways immigrants can fight deportation: The decisions make it harder for people with old, low-level criminal convictions or multiple drinking and driving offenses to fight deportation". The article examines two separate decisions that were recently issued by the attorney general (AG) under his so-called "certification authority": one addressing convictions for driving under the influence (DUI) on 42B cancellation (the subject of that prior post); and the other on the effect of sentence modifications for criminal aliens facing removal. The article's discussion about that second decision makes clear that, despite recent protestations that "[n]o one is above the law", that platitude is not true in many "progressive" sanctuary jurisdictions; in those places, alien criminals are, in fact, above the law.

I explained the AG's second decision, Matter of Thomas and Matter of Thompson, in an October 30, 2019, post:

Pursuant to that decision, [state-court orders that modify, clarify, or otherwise alter a criminal alien's sentence] will only have an effect on immigration proceedings, benefits, and relief if they are "based on a procedural or substantive defect in the underlying criminal proceeding", and not if they are "based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences."

That decision addressed a fundamental question in immigration law: Who has say over the immigration consequences of a state-court criminal conviction — Congress or the states? The AG reiterated Congress' constitutional authority with respect to this question:

Congress has determined that an alien who is convicted of a crime that is sufficiently serious to warrant a significant sentence should be subject to removal. Later alterations to that sentence that do not correct legal defects, do not change the underlying gravity of the alien's action. They accordingly do not affect Congress's judgment as to whether that alien should be removed.

Prior to the passage of section 505 of the Immigration Act of 1990, state criminal judges did have some authority over this question, which had specifically been granted to them by Congress. Former subsection 241(b)(2) of the Immigration and Nationality Act (INA) addressed the effect of criminal convictions for purposes of the criminal deportation provision in former subsection 241(a)(4) of the INA. In the act as passed in 1952, paragraph 241(b)(2) of the INA stated:

The provisions of subsection (a)(4) respecting the deportation of an alien convicted of a crime or crimes shall not apply ... (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. [Emphasis added.]

I discussed such "judicial recommendations against deportation" (JRADs) in a 2017 post:

[F]rom the time of the Immigration Act of 1917 until the Immigration Act of 1990, "the immigration laws allowed sentencing judges to issue a [JRAD]". As commentators noted, once a JRAD was made, it was "binding on the [former Immigration and Naturalization] Service [INS], and a resident alien's criminal conviction [could not] be used as a basis for deportation."

Even under the more-lenient pre-1990 INA, Congress had restricted the authority of state-court judges to take such actions. As the foregoing excerpt from subsection 241(b)(2) of the INA (1952) shows, even when they were available, state-court judges had to issue JRADs within a limited timeframe, and the INS had to be given the opportunity to respond before a JRAD was issued. Elimination of that limited authority made it clear that state-court judges had no power to affect the immigration consequences of criminal convictions.

That has not prevented states from attempting to do workarounds to protect criminal aliens from the immigration consequences of their actions, as the NBC News article makes clear:

In recent years, some states, including New York and California, passed laws to ensure low-level crimes do not unintentionally trigger a deportation order for immigrants. A few also have processes to retroactively shorten old low-level criminal sentences to below the immigration system's criteria for deportation (typically a one year sentence or longer).

Progressive prosecutors around the country, many of them recently elected, have been pushing for potential immigration consequences, like deportation, to be taken into account at the beginning of a local criminal case. Some have even added immigration attorneys to their staff to help with those efforts.

Brooklyn District Attorney Erik Gonzalez was one of the first to do so. He and 42 other state and local elected prosecutors filed an amicus brief in the Thomas and Thompson case, arguing that the federal government should recognize the decisions they make when retroactively changing a sentence.

A refusal to do so "would undermine the role of prosecutors in the criminal justice system and the sovereignty of states to enforce their criminal laws and exercise prosecutorial discretion," they wrote. [Emphasis added.]

A note to "Brooklyn District Attorney Erik Gonzalez" and the "42 other state and local elected prosecutors": you are 29 years too late. The federal government has already expressly rejected "the sovereignty of states ... to exercise prosecutorial discretion" to shield criminals from removal.

More shocking, however, is the blasé attitude of NBC News in reporting the bolded portion above without comment. Consider the implication: Two individuals commit a crime serious enough that it could result in deportation — one a citizen, one an alien. The alien gets more lenient treatment (and even maybe the benefit of an immigration attorney in the prosecutor's office) than the citizen. An illegal alien criminal may even get more lenient treatment than a green card holder whose criminal activity would not result in removal (good to keep an immigration lawyer in the prosecutor's office to make such calls) would receive.

In case this stupid policy sounds familiar, it is not the first time that I have written about it: The Baltimore Sun, almost 30 months ago, published my opinion piece on a similar plan that was being implemented by the city's State's Attorney, Marilyn Mosby. As I stated therein:

Baltimore's State's Attorney's Office now has two sets of rules: one for citizens and legal immigrants, and one for illegal immigrants. In an April 27 memorandum, Marilyn Mosby's office "instructed prosecutors to think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration."

This follows assurances from Commissioner Kevin Davis of the Baltimore Police Department (BPD) to the city's immigrant community that officers don't "care about your immigration status."

Ambivalence toward the federal government is not new in Baltimore. These actions take that ambivalence to a new level that is inconsistent with requests Mayor Catherine Pugh has made of the Trump Administration. In December, Mayor Pugh met with newly elected President Donald Trump at the Army-Navy game to request infrastructure funding from the incoming administration. She subsequently has asked for federal help with housing and education, and sought the FBI's assistance in tackling the city's high crime rate.

It seems as if Mosby was on the vanguard of a bad (and possibly unconstitutional) idea.

A few updates are in order. Pugh stepped down in April 2019 in the midst of a controversy over children's books (you read that right). And Kevin Davis is no longer the police commissioner. Two failed candidates later, former New Orleans Police Superintendent Michael Harrison was sworn in as commissioner on March 12, 2019.

Lest you think that Commissioner Harrison might be the voice of reason on the idea that one of America's deadliest cities should not go easy on alien criminals, think again. As local NBC affiliate WBAL reported on July 3:

Speaking at City Hall, ... Harrison stressed the distance the city is trying to put between its local law enforcement and federal immigration enforcement conducted by ICE.

"Our policy, it emphatically says we are not cooperating with ICE. I have not been contacted by ICE. I do not have any information that anyone in my department has been contacted by ICE," Harrison said. "We only arrest people for criminal violations and we do not ask about immigration status."

Why do I say "one of America's deadliest cities?" Baltimore ended 2018 with 309 homicides. By September 23, 2019, the city already had 249 homicides, 37 more than the same date a year before. That was before nine were shot and three killed in four separate shootings on October 29, or before three were shot (one in the head) on the morning of Halloween. Respectfully, partnering with ICE to get criminals off the street is part of the solution in Baltimore, not a problem to be avoided.

Why do I suggest that this idea is "unconstitutional"? As Cornell Law School explains it in simple terms:

The Fifth Amendment's Due Process Clause requires the United States government to practice equal protection. The Fourteenth Amendment's Equal Protection Clause requires states to practice equal protection.

Equal protection forces a state to govern impartially — not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights.

With that in mind, review my August 2019 examination of Baltimore City's separate but unequal standard for prosecuting alien criminals, which examined the following, from a press release issued by Mosby's office in May 2017:

State's Attorney Marilyn Mosby has instructed her prosecutors to strongly consider their prosecutorial discretion when handling minor, non-violent criminal cases involving immigrant victims, witness and defendants.

"As the current administration in Washington continues to increase its efforts to enforce immigration laws, we as prosecutors are the torch-bearers of justice in this city, thereby we must utilize our prosecutorial discretion as we do in every case by considering the unintended collateral consequences that our decisions have on our immigrant population," said Baltimore City State's Attorney Marilyn Mosby.

The Office of the State's Attorney for Baltimore City is still prioritizing public safety with this directive only pertaining to minor, non-violent crimes such as trespassing, loitering, minor drug possession, and petty theft.

As I stated:

So, if you are an African-American male born in Baltimore City (all three immutable [that is, unchangeable] characteristics), you will be treated differently when it comes to prosecutorial discretion under this policy from a person who is an alien (which is not an immutable characteristic). Specifically, you will be treated more harshly, because you do not get the special protection it provides. And why? What is the societal good that is achieved from such blatant discrimination?

The same question could be asked of the "[p]rogressive prosecutors around the country, many of them recently elected", referred to in the NBC News piece who are "pushing for potential immigration consequences, like deportation, to be taken into account at the beginning of a local criminal case." In what way is such blatant discrimination "progressive"? Because they say it is? Or, is it only "progressive" because it is a reaction to the policies of a president that progressives don't like?

Those "progressive" views and, respectfully, NBC News' response to them, is reflected in a January 27, 1985, Doonesbury comic strip, where G.B. Trudeau mocked college students who blindly followed their professor, no matter how outrageous his statements.

It gets started with the professor blandly stating: "And in my view, Jefferson's defense of these basic rights lacked conviction. Okay, any discussion of what I've covered so far?" There is no response as the students scribble. The professor's thought-bubble then reads: "Of course not. You're too busy getting it all down." He attempts to get a rise: "Let me just add that personally I believe the Bill of Rights to be a silly, inconsequential recapitulation of truths already found in the Constitution. Any comment?" More scribbling.

He takes up a notch: "No, scratch that! The Constitution itself never should've been ratified! It's a dangerous document! All the power should rest with the executive! What you think of that?" No response as the students scratch notes.

He then goes ballistic: "Jefferson was the antichrist! Democracy is fascism! Black is white! Night is day!" The strip ends with no response except for one student who says, "Boy, this course is really getting interesting," and another responding, "You said it. I didn't know half the stuff."

Like the professor in that strip, so-called "progressives", like the state and local prosecutors who have set up two systems of justice — a harsher one for citizens and a more lenient one for aliens — push more and more outrageous ideas in order to "protect" alien criminals from what they view as the "excesses" of the administration's immigration policies. (NB: Consider Mosby's statement about how "the current administration in Washington continues to increase its efforts to enforce immigration laws," as if increased law enforcement were an unacceptable concept to a prosecutor). The press, like the compliant students in the classroom, just sit and take it all in — in a bovine manner — oblivious to the inconsistencies of those ideas, or the damage those ideas, taken to their logical conclusion, inflict on the innocent victims in the population and our system of justice.

Night is day. Got it.