Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 4
Judy Clarke , former executive director of both the Federal Defenders of Eastern Washington and Idaho and the Federal Defenders of San Diego, is currently a capital resources counsel for the Federal Public and Community Defender programs, and is based with the Federal Defenders of San Diego, Inc., in San Diego, California.
The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers by Robert James McWhirter (American Bar Association, Criminal Justice Section (2001); $99.95 (CJS member price: $84.95), includes the 2002 Supplement—USA Patriot Act: Strangers in an Even Stranger Land: Aliens and Immigration Law After September 11; (those who purchased the book prior to the update can order the supplement separately at $10 for Section members and $15 for nonmembers.)
Reviewed by Judy Clarke
Robert McWhirter’s immigration handbook succinctly and directly addresses the multitude of issues arising out of the representation of noncitizens accused of a crime or facing extradition, includes useful information about various criminal violations of the immigration laws, and winds easily through the often confusing questions about how to obtain testimony from witnesses in foreign countries. It also compiles in one place a number of the statutes and other documents relevant to these issues. The book untangles the complicated and byzantine world of the Immigration and Naturalization Service (INS), and is a must for any criminal defense lawyer who seeks to competently represent a noncitizen accused of crime.
A significant supplement to the original— 2002 Supplement—USA Patriot Act: Strangers in an Even Stranger Land: Aliens and Immigration Law after September 11—has just been published and canvasses the very new laws affecting noncitizens, guiding lawyers through issues arising out of secret immigration hearings and indefinite detentions.
The Criminal Lawyer’s Guide is divided into three multisectioned parts: Part I addressing "Immigration Law for Criminal Lawyers," including an overview of immigration law and the immigration consequences of criminal convictions; Part II containing the highlights of various "Immigration Crimes," including employment violations, marriage fraud, illegal entry, and reentry after deportation, and alien smuggling offenses; and Part III dealing with "Non-citizen Witnesses and Defendants," which addresses issues with witnesses outside the United States, international extradition, and prisoner transfer treaties. The supplement adds sections on the variety of immigration-related consequences post-9/11, including the USA Patriot Act, aliens’ fund-raising, aliens and money laundering, alien students, alien informants, and military tribunals.
For the lawyer who needs "more," each section includes references to significant case law as well as to collateral sources including government documents and law review articles. The critical statutes are included as appendices. Issues are addressed in the question-answer format, and you’ll find McWhirter has done a terrific job of figuring out your next question.
Examples of the range and value of the book and the new supplement include:
• Can border officials strip search people at the border? Section 3.15 says "yes," but provides the limitations on such searches and the case law in support of those restrictions.
• Can foreign mail be searched? Section 3.30 tells you "yes," but continues by providing the Supreme Court case addressing the issue.
• If the alien client avoids a conviction, does that solve the immigration problems? Section 2.13 cautions "not necessarily" and provides the reader with the various hurdles such a client may face.
• What is the standard of proof for extradition? Section 8.07 quickly answers "probable cause," and explains the requirement of "valid evidence" and an indication of the actual source of the information supporting extradition.
• Are prison transfers only for federal prisoners, or can state prisoners also be transferred? Section 9.07 tells you the 43 states that allow such transfers and provides a reference to an excellent article in NACDL’s Champion magazine that addresses international prisoner transfers.
• What about motions to suppress the illegal entry defendant’s statements? Section 5.22 distinguishes between questions permitted for the administrative investigation and those sought to be admitted at trial.
• What is the legal basis of a collateral attack on the prior deportation? Section 5.24 provides an easy reference to cases addressing this issue, including those setting forth the methodology for attacking a prior
• When are asylum and withholding of removal appropriate? Section 1.58 distinguishes between the two, and suggests grounds for relief, as well as collateral sources to consult.
• What is immigration court? Are immigration judges Article III or administrative law judges? Sections 1.21 and 1.23 succinctly describe the immigration courts, and explain to novices in immigration law that the immigration judges are neither Article III nor administrative law judges.
• What other general laws should concern aliens more than ever after 9/11? The supplement notes that post-9/11 aliens now face more scrutiny and obstacles when returning to the United States after travel abroad and cautions that, under 8 U.S.C. § 1304(a) and (e), every alien "must carry with him and have in his possession any certificate of alien registration or alien registration receipt card issued to him" and notify the INS within 10 days of a change of residence.
• What did Congress do after 9/11? Congress passed a number of far-reaching pieces of legislation post-9/11—the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the Crimes Against Charitable Americans Act of 2001, the Critical Infrastructures Protection Act of 2001, the First Responders Assistance Act, the International Money Laundering Abatement and Anti-Terrorist Act of 2001, and the Enhanced Border Security and Visa Entry Reform Act of 2002. The supplement suggests that a number of constitutional challenges lie ahead.
• Generally, how do the Patriot Act and other provisions affect aliens? Congress expanded the definition of terrorism, mandated detention of aliens suspected of terrorist activity, limited judicial review, aggressively bolstered immigration law, increased enforcement of the northern border, and implemented modern technology to track aliens.
• What is terrorist activity? The supplement gives substantial detail about the post-9/11 legislation, including, for example, the far-reaching new definition of terrorist activity: "Any activity that is unlawful where it is committed or would be unlawful if committed in the United States and involves any number of acts, including hijacking, sabotage, assassination, or the use of firearms, explosives, biological or chemical agents, or nuclear or other weapons, with the intent to endanger safety or to cause substantial damage." Terrorist activity also includes threatening, attempting, or conspiring to do any of the above acts. Also, any time a "weapon or dangerous device" is used in the above crimes "other than for mere personal monetary gain," it is "terrorist activity."
• Who can be tried by a military tribunal? Any noncitizen either inside or outside the United States. The supplement notes this could potentially affect about 20 million aliens in the United States, and any noncitizen anywhere in the world. An alien is subject to the tribunal if the president makes the unilateral determination there is reason to believe that such individual has engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefor that have caused, threaten to cause, or have as their aim to cause injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. Any alien whom the president believes was at any point a member of a named terrorist organization is also subject to trial by a tribunal.
McWhirter’s book and the supplement are a necessary addition to any criminal defense lawyer’s library. He has provided us with a handy reference, written in "plain English," that takes away the mystique of the world of immigration proceedings and the many other difficulties confronting lawyers representing those accused of immigration related crimes.