Legal Notes From Above the Ground: How Do We Break the ICE?

by Jonathan Messinger

October 18, 2011.  13:14 EDT.  Your Town, Massachusetts, USA.  Seven government vehicles, four unmarked, loaded for the hunt with federal ICE (Immigration and Customs Enforcement), state and local police, aggressively encircle a late model Nissan sedan; guns drawn, and force driver Emma Grant, a 39 year old mother of three, face down onto the residential street where she has lived for the past twelve years with her common law husband and their two young sons, aged 9 and 4.  Emma is tied up against her will and shoved into the back of a squad car, then whisked to a nondescript office park in Burlington to be “processed” for deportation, a humiliating ordeal that takes many hours.  After that, Emma is transported to the South Bay jail in Dorchester where she will languish indefinitely.

Though the name, gender and date of detention of this victim have been changed, all of the other pertinant facts in this real life scenario, above and below, are true.  Emma Grant is my client.  I filed two months prior to her arrest, a timely appeal of her denial of work authorization papers (filed originally in 2000 by her brother, a naturalized1  U.S. citizen), and that case is pending as of this writing.  Emma has a social security number, she has worked for many years in the Boston area and she pays her taxes faithfully.  Emma also regularly pays her child support to her ex-husband, a U.S. citizen, on behalf of their daughter, a U.S. citizen.

It took nearly thirteen full days to get Emma out of jail (pertinent law says a bond hearing should happen within ten days), and it only happened that quickly because I went to the Immigration Court at the JFK Federal Building at Government Center, Boston every morning they were open to file motions and badger clerks there.  I visited the jail every night to keep hope alive for Emma, who suffers from a debilitating heart ailment, compounded now by what may soon be a formal diagnosis of post traumatic stress disorder.  Emma’s bond was $3000 United States Dollars, an enormous sum for anyone in the current economy, let alone a young mother working part time who just had her working papers revoked.

Why would the U.S. government waste tens of thousands of dollars bullying and abusing a young mother who has studied, lived and worked in the Boston area with the only family she has known since fleeing a brutal 1984 coup in her home country that resulted in the torturing and killing of her family there?

The full answer to this question may lie in election cycles, focus groups and those in power who depend on them, but the partial answer includes the purported legal justification for this brazen assault and battery, as well as for this absurd misappropriation of taxpayer resources; Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, as amended, which in pertinant part states:  an “Alien” who has been “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime invlovling moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime” is subject to “removal.”

In 1990, several weeks after her 18th birthday, Emma Grant came to the defense of her friend who was smashed over the head by a French fry basket by an employee at Big Burger in Boston.  Emma was overcharged with four criminal counts (strangely not including trespass, which would have been the only viable charge available on the facts of the case), including assault and battery, in the scuffle that followed.  No one was injured other than a mop that broke behind the restaurant counter.  Emma plead guilty to assault and battery and received only a suspended sentence.

Only a suspended sentence, however, for a non-citizen is dangerous territory, because the vague and overbroad law referenced above and its companion statutes allow deportation for a guilty finding or a plea to any crime punishable by one year or more in jail, regardless of whether any jail time was ever served!  Thus, Emma risks being thrown out of the U.S. because of a minor 21 year old case, and the burden of proof is on her to prove otherwise, not the government.

Yes, we are actively working to vacate the underlying conviction, and this case can theoretically end favorably for Emma Grant, but Wow! People, we’ve got some work to do to break the ICE…

1   “Naturalization” is crude legal jargon which suggests that migrant workers without deep pocket resources, the patience of Job, extraordinary luck and often damned fine attorneys doing their bidding, able to endure the many, many bureaucratic hurdles that ultimately transform, via a couple of pieces of a paper, a good, hard working American to a good, hard working American citizen, are unnatural.  How are the overwhelming majority of us non-indigenous peoples who populate our Land of the the Free (truth = a nation-state built literally on the backs of slaves) and Home of the Brave (truth = mass genocide of native populations followed by the stealing of their fertile lands without compensation) arbitrarily given extra rights as naturals just because because of who brought us into this World and where they chose to do so?

Jonathan Messinger is a solo practitioner in Cambridge and serves on the Chapter’s Board.