Thursday, May 04, 2006

Report to La Migra as probation condition?

In my home county of Smith up in Northeast Texas (Tyler is the county seat), judges are requiring probationers they suspect of being illegal immigrants to report to immigration authorities for "voluntary deportation," reports ImmigrationProf blog. Longview attorney Jose Sanchez said probation conditions for two of his clients included the requirement that, "At the end of twelve (12) months from the date probation begins, if you have not obtained legal status from the U.S.I.C.E, for being within Smith County, Texas, you must leave the country and reside in a location where you do have a legally authorized status."

Heavens! Talk about making law from the bench! This
activist judicial genuflection to popular sentiment certainly makes a bold gesture, but possibly not a legal one I'm told by a couple of friendly immigration lawyers. The issue is whether and how a state district judge would have authority over a defendant's immigration status in the first place - state judges historically have no jurisdiction to enforce federal statutes. Sanchez said he wants "to investigate as to whether what they are doing is constitutional?"

I'm not an attorney and can't address the legal question, but from a public policy perspective I've argued before that local policing and immigration enforcement don't mix. In this case, it seems to almost guarantee the probationer will abscond - then what is gained? At root, immigration is an economic issue, not a criminal justice concern, or it shouldn't be. Ask anyone who lived through the Great Depression: poor people who migrate looking for jobs just aren't the same as criminals acting with malicious intent. Despite pious rhetoric about respecting the law, using the criminal justice system for immigration enforcement worsens public safety for everyone.

3 comments:

SusanK said...

I'm a criminal defense attorney and have very little experience with immigration. However, my understanding is that if immigrants are jailed for certain offenses, they will be deported at the end of their incarceration. Probation is essentially agreeing to give up certain civil rights in order to avoid incarceration. My general understanding is that probation terms can be whatever the judge wants them to be, because probation comes from the "grace" of the state and the offender could always go to jail instead of giving up civil rights.

Gritsforbreakfast said...

Have you ever seen that kind of probation condition, Susan? And isn't it basically BEGGING for the probationer to abscond?

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