Quick Hits (page 3)
Victims in Tainted Sting Win Settlement
By: Lianne Hart (LA Times Staff Writer)
HOUSTON - Victims of a discredited 1999 drug sting in the Texas panhandle town of Tulia will receive a $5-million settlement from the nearby city of Amarillo, attorneys announced Thursday.
Two women who were swept up in the early morning raid, which civil rights groups said was racially motivated, brought a lawsuit last year. Amarillo - the lead city in the regional narcotics task force involved - is the first government entity to settle. The money will be divided among 45 people - 37 of them black - who were wrongly arrested. Thirty-five of those convicted later were pardoned by Texas Gov. Rick Perry.
"This is a big day for the case and a big day for our clients, and we think it will bring closure to the injustice that happened in Tulia," said Vanita Gupta, a lawyer for the NAACP Legal Defense and Educational Fund who helped win the release of the Tulia prisoners last summer.
Under the settlement, Amarillo will dismantle the drug task force that oversaw the activities of a rogue undercover agent, Tom Coleman. Coleman, who is white, worked alone and used no audio or video surveillance. His uncorroborated testimony later was found to be so unreliable that a Texas judge said it would be "a travesty of justice to permit the convictions to stand."
Coleman gets to face perjury charges at a trial in May.
Given the "egregious facts in the case," Amarillo had no choice but to settle, City Atty. Marcus W. Norris said in a phone interview. "We could not begin to defend what happened here."
Texas law is unclear on who is legally responsible when a multiagency task force runs amok, Norris said. But since Amarillo was the main participant, its liability could have exceeded $50 million, he said.
"We're not Houston or Dallas. Had we received an adverse jury verdict, it would have been devastating for Amarillo, and we could not take that financial gamble. Once we begin explaining some of the facts that would have come into trial, [the settlement] is a very rational decision, albeit a pill," Norris said.
A claims administrator will divide the money by looking at factors such as length of time spent in jail and harm suffered by the criminal proceedings, Gupta said. Most of the Tulia victims were jailed between one and four years. Others received probation or had the charges dismissed. Mediation is ongoing with 26 counties and the other three cities named in the lawsuit.
Since their release from prison, most of the raid's victims have stayed in Tulia because of family ties, Gupta said. "We're encouraging the clients to move out, but that's easier said than done. Now they have the resources to reassess whether they want to stay in a town with no thriving economy. [The settlement money] may help them look at their lives with more room for opportunity," she said.
Former Tulia inmate Kizzie White, 26, said the money would help but it was "still not going to bring back the four years I missed out with my kids."
"I still think about what happened," said White, a home healthcare provider. "When I was in jail, it was like a nightmare. It helps to know that people realize they made a mistake. Hopefully it won't happen again."
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Growin' Our Own (page 3)
Helpful Info on Drug Crimes and Immigration Consequences
By: Linda Ramirez (Attorney at Law)
The statute is the first place to look when you have a question about what is or is not covered, or how it is characterized in relation to immigration benefits or consequences. To become familiar with the structure of the statute, and its provisions, you should try and use it to find the answer to your questions, looking first to the statutory terms, and second, to any administrative or federal court case law interpreting the statute.
Aggravated felony drug offenses
For example, to determine whether all drug convictions except possession of less than 30 grams of marijuana constitute aggravated felony offenses, you must review the statute. Using a search engine on a website containing the statute and typing in "aggravated felony" and then "drugs" or "drugs and controlled substances," you will be directed to several sections. Section 1101(a)(43) [or section 101(a)(43) of the INA] contains the definition of "aggravated felony" and includes reference to "illicit trafficking" or a "drug trafficking crime " at subsection (B) [8 U.S.C. 1101(a)(43)(B)]. Broken down, the way the Board of Immigration Appeals has read the section, subsection (B) covers two types of offenses -- "illicit trafficking in a controlled substance (as defined in....)," [and] "including a 'drug trafficking crime' (as defined in.....)]".
Illicit trafficking is generally accepted as meaning only "trading or dealing." See Matter of Davis, a BIA (I&N Dec) decision.
A "drug trafficking crime," however, encompasses any substance or offense listed in section 102 of the Controlled Substances Act (as the statute provides). Nevertheless, there are some limits. Given a new reading of the statutory language, the BIA has recently redrawn some lines -- the offense must be a felony under either state or federal law. See Matter of Yanez, below. (This 2002 precedent decision altered a prior interpretation which did not impose consequences based on state felonies if the offense would have been considered a misdemeanor under federal law).
9th Circuit Exception
Furthermore, as an exception, in the 9th circuit, a first time possession conviction for which the offender could have been adjudicated under the Federal First Offender Act (18 U.S.C. 3607-FFOA) had the offense been prosecuted under federal law, does not constitute a conviction at all, whether it is a misdemeanor or a felony. See Matter of Lujan-Armerndariz (9th Cir.); cf. Matter of Roldan; Matter of Salazar (refusing to extend Lujan-Armendariz outside the 9th circuit).
Non-aggravated felony drug offenses
You will find that the statute also contains a ground of deportability for conviction of an aggravated felony offense. See 8 U.S.C. 1227(a)(2) (A)(iii), or INA 237(a)(2)(A)(iii). You will not find any ground of inadmissibility for an aggravated felony offense, per se, as defined in the statute.
In doing this research, you will find that the statute also includes grounds of inadmissibility (at 8 U.S.C. 1182(a)(2), INA section 212(a) (2)) and deportability (at 8 U.S.C. 1227(a)(2)(B), INA section 237(a)(2) (B)) that contain references to drug offenses. In fact, the same section that makes an exception for "a single offense involving possession for one's own use of thirty grams or less of marijuana," also specifies that a conviction at any time after admission, of "a violation (or conspiracy or attempt to violate) any law or regulation. . . . relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)...." (emphasis added) is a deportable offense.
So, the statute covers certain types of drug offenses that are defined as aggravated felony convictions. It also covers some other offenses (besides a single possession offense involving less than 30 grams of marijuana, which is an exception), which are considered convictions "relating to" a controlled substance. The latter are not necessarily aggravated felony offenses, but are offenses that trigger removability.
Now, you should want to know what kinds of offenses these might be, and when such offenses might overlap and also constitute aggravated felony drug offenses. Since the statute does not provide further explanation, you would want to check the regulations and finding that they do not offer more detail, proceed to look at case law.
Resources
Besides the web-based research services, there are some good reference texts and treatises on this subject. One is Kurzban's Immigration Law Sourcebook, published by AILF. Another is Immigration Law and Crimes, published by Westlaw. Bender's Immigration Bulletin, available on www.lexis.com and in hard copy, carries columns and articles dedicated to immigration defense issues. There are also a number of free practice manuals, websites, and materials distributed at training programs. You can check www.nlada.org/defender - click Defender Resources, click Defending Immigrants Partnership and then check out the web page, which contains a manual summarizing crime-related immigration authorities and defenses under the Strategy Sessions subtitle.
Drug-related Inadmissibility and Deportability To get back to your question, first, the 30 gram exception applies only to deportability grounds, not to inadmissibility grounds. So a less than 30 gram offense makes an individual inadmissible, but can be waived. To overcome inadmissibility for a drug possession conviction for less than 30 grams - a person needs to qualify for and be granted a waiver under 8 U.S.C. 1182(h), INA section 212(h).
Second, there are other drug or drug-related convictions that may not be aggravated felony offenses. For instance, misdemeanor possession offenses even for amounts greater than thirty grams do not constitute "drug trafficking crimes," as the aggravated felony definition on its face requires that the crime be a felony (read all citations in 8 U.S.C. 1101(a)(43) subsection (B) and you'll see). Thus, state misdemeanor convictions are not felonies, even if the offender was convicted of two or more of them. See Matter of Yanez, Matter of Santos, Matter of Elgendi. All of these decisions are found at www.usdoj.gov/eoir, click virtual law library, click AG/BIA decisions, click Volume 23 and scroll down.
"Relating to"
In addition there are other offenses "relating to" controlled substances that are not aggravated felony drug trafficking offenses. Unless the offense involves trading or dealing in a controlled substance, it must be a "drug trafficking crime," ie, the offense has to come under the definition in 924(c) of title 18 of the U.S. Code, which refers back to the controlled substance definition in 21 USC 102. In contrast, to be a violation relating to a controlled substance, as defined in 21 U.S.C. 102, depends on the interpretation of "relating to."
Back to the statute
It may sound convoluted, but it is essential that each of us know how to parse the statute and interpret the terminology and statutory references. In addition to making personal possession of less than 30 grams an exception, the statute itself sets out a ground of deportability that is distinct from that under the aggravated felony definition. See 8 U.S.C. 1227(a)(2)(B); INA 237(a)(2)(B). That is, misdemeanor drug possession is not an aggravated felony offense in any circuit, although it is an offense "relating to" a controlled substance. Similarly, possession of drug paraphernalia also is likely to be a "relating to" offense (but not an aggravated felony, meaning cancellation of removal might be available for certain LPRs).
[Ed. note: Visit Linda Ramirez's web site Spanish Law for more information.]
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Pipeline (page 3)
Stretch of Highway in Arizona is a Corridor for Cocaine and Marijuana
By: Ananda Shorey (AP)
FLAGSTAFF, Ariz. - The police dog circles the car stopped on the shoulder of Interstate 40 just outside the city. It sniffs, pauses and then leaps toward the passenger door, clawing up the side before slipping in through the window.
Barry, a Belgian Malinois, wags his tail and scratches the back seat, alerting the officers that he smells something.
The officers find $97,434 in a suitcase and the driver's wallet - and a compartment hidden beneath the floor of the trunk.
The driver, a Georgia man originally pulled over for tailgating, is arrested on suspicion of money laundering. The car is seized by officers who say they believe that the money will be used to buy drugs, with the specially constructed compartment used to smuggle them.
Variations on this scene play out regularly on Interstate 40 in northern Arizona, which has become one of the country's main corridors for transporting cocaine and marijuana smuggled from Mexico, according to authorities.
I-40 begins in Barstow and enters Arizona near Kingman. It traverses the desert and later pine forests as it approaches Flagstaff. The forest disappears as the road heads toward New Mexico. The interstate ends in Wilmington, N.C.
On Nov. 25, Arizona Department of Public Safety officers stopped a driver who had 35 pounds of cocaine near Flagstaff, spokesman Frank Valenzuela said. In October, investigators seized 160 pounds of marijuana and 5 kilograms of cocaine along the same interstate near Kingman.
The southern part of the state is perhaps more widely known for being a transit point for drugs because of its proximity to the U.S.-Mexico border.
But northern Arizona can be just as active. For example, the public safety department's K-9 unit made more drug-related busts in that region from January through early December than in the south, Valenzuela said.
Authorities concede that drug dealers who use Arizona as a gateway to get their products from Mexico into the United States are increasing the amount of highway crime, clogging up the courts and costing residents money and officers time.
The reason: I-40 has several features that make it attractive to drug traffickers. The highway, which is about 6 1/2 hours north of the border, doesn't have Border Patrol checkpoints like those that pepper highways farther south, including Interstate 10.
"Drug smugglers are human too and like to follow the path of least resistance," said Jim Molesa, a Drug Enforcement Administration spokesman.
The highway also provides a straight shot between the West Coast and the South, and it connects to interstates leading to the Midwest, the destination for many of the drugs coming through the area.
Most of Interstate 40's drug traffic from Mexico comes through the border communities of Nogales, Mexico, and Nogales, Ariz., said Steve Volden, a public safety department spokesman.
But traffic also comes from California, where it enters from Tijuana, Mexico, and gets to I-40 via San Diego or Los Angeles. The Arizona traffic heads north through Tucson and Phoenix.
These drugs are mainly taken to Columbus, Ohio; Chicago, New York, as well as cities in Massachusetts, Indiana and Missouri.
Although the Midwest is one of the main markets for drugs passing through Flagstaff, the traffickers are from throughout the country. And their ages and lifestyles vary.
The Department of Public Safety has arrested an 82-year-old man, a 67-year-old English nurse from San Diego, as well as doctors, attorneys and firefighters.
Rent-a-families are common too, said Casey Kasun, a public safety officer. Drivers have passengers pretend to be spouses and children while they move the drugs.
"Greed - it attacks all walks of life," said Sgt. Jeff Brownlee, who oversees the department's K-9 officers in Flagstaff.
When the traffickers are caught, the counties where they are arrested bear the financial burden.
"We take a little beating here because we are a small community and we don't have the resources that bigger counties have for similar problems," said Fred Newton, Coconino County's presiding judge.
County officials won't have to deal with the case of the man caught recently with the large amount of money and the hidden compartment in his car. Because of its magnitude, the case is being filed through the U.S. Attorney's office, which is expected to charge the driver with money laundering, according to the Department of Public Safety.
When the man was taken to the department's crime lab, he watched as officers pried off the bumper of his car. He was released after officers counted the bundles of money from his suitcase and the cash found in his pocket.
Arresting one alleged drug trafficker doesn't offer much relief. For every person arrested, officers said, another will appear.
"The drug trade is very entrepreneurial," Coconino County attorney Terry Hance said. "It probably will always remain there as long as there is a market."
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