Author: mopress

Of 15,662 magistrate court convictions and jail sentences handed to undocumented immigrants in 2004 across the USA, 13,479 were gaveled by judges in South Texas. The unprecedented spike in criminaliztion and incarceration of migrants was documented last August by Syracuse University’s TRAC project, but lay dormant on the information landscape until the Spanish language newspaper RUMBO headlined the report in Tuesday’s edition.

The sizable use of magistrate courts as a strategy of criminalization and incarceration continued during the first six months of 2005 according to Syracuse figures, with South Texas magistrate courts issuing 4,609 of the 5,014 total magistrate court convictions recorded. Jail time for these convictions averaged about three weeks in 2004; two weeks in 2005. The August report is still listed at the Syracuse web site as a "New Finding" but source code for the narrative indicates it was released in late August of 2005.

The number of immigration convictions in state courts across the USA for 2004 nearly equalled the total of magistrate court sentences, bringing the annual total to a little more than 30,000. In state courts however, the average jail term was 23 months.

The overall number of immigration convictions nationwide jumped 58 percent in 2004, primarily because of the magistrate court activity in South Texas.

"When the changes in the overall immigration enforcement effort are examined, it would appear that the Bush Administration has in fact adopted an across-the-board get-tough policy: more referrals, more prosecutions and more convictions," says the Syracuse report. "The overall counts for the entire nation seem clear. Referrals climbed from just under 24,000 in FY 2003 to almost 40,000 in FY 2004 — an increase of 65%. In the same period, prosecutions rose 82% — from almost 21,000 to just under 38,000. And the increase in convictions was similarly up, 18,000 to 31,000."

What Syracuse says about "Texas South":

Texas South, originally established in 1902, currently is the seventh largest in the nation with over 7 million residents, 43 counties and more than 150 assistant U.S. Attorneys.

From December 2001 until June of 2005 the U.S. Attorney in Texas South was Michael T. Shelby. He is now an attorney with Fulbright and Jaworski, a major national law firm based in Houston. In his May 13 resignation statement, Mr. Shelby praised the work of his office in handling cases involving international terrorism, corporate fraud and public corruption, but did not mention criminal cases involving immigration violations.

Given the circumstances, this seems a curious lapse. According to the case-by-case information provided the Executive Office for United States Attorneys by the district he until recently headed, the office in FY 2004 prosecuted a total of slightly more than 21,000 individuals, 18,340 of whom it said were charged with immigration violations. By comparison, his office said, it only prosecuted 90 white collar crime matters, 35 internal security and terrorism matters and 15 official corruption matters.

For the federal prosecutors in Texas South handling immigration matters, the data show that in 2004 — the year when their enforcement effort absolutely exploded — their favorite charge was a section of 8 USC 1325, illegal entry, that previously had been cited much less frequently. Convictions in the district where the section of illegal entry statute law was the lead charge went from 304 in FY 2003 to 13,778 in FY 2004. This jump means that in the most recent complete fiscal year that 8 USC 1325 convictions made up an overwhelming majority of all immigration matters in the district. See Table.

Records from both the Justice Department and the courts show that many if not most of these cases are handled in a cursory way by magistrate judges rather than district court judges. For a flavor of how the process works consider the case brought in the Southern District of Texas against one Eduardo Garcia Nunez.

The complaint was filed against Garcia Nunez by Amador H. Carbajal, a senior agent of the Border Patrol, who said the defendant had been apprehended by an agent who was not named while wading across the Rio Grande River near Brownsville on October 30, 2004. On the next business day, at a brief hearing before Magistrate Judge John William Black, Nunez was formally charged with violating 8 USC 1325(a) (1) for "willfully, knowingly and unlawfully" entering the United States at "a place other than designated by an immigration officer in violation of the law." During the same short session, represented by Sandra Zamora Zayas, a public defender, the defendant was advised of his right to trial, the right to remain silent, the right to bring witnesses on his behalf. Nunez, waiving all his rights, pled guilty and was sentenced to 30 days of confinement.

The official minutes of the whole process required only a few lines of text:

Counsel was appointed to represent the Defendant. The defendant was advised of and waived the following rights: The right to trial; the right to at least thirty (30) days to prepare for trial before the Magistrate Judge; the right to remain silent; the right to bring witnesses and present testimony on his/her behalf; the right to confront and cross examine witnesses. The Defendant was arraigned on the charge(s) contained in the criminal complaint. The Defendant pleaded guilty to the charge(s) in the criminal complaint. The Defendant was sentenced as outlined in the Judgment signed this day. … (Entered 11/01/2004)

Neither Mr. Shelby, the former U.S. Attorney, nor the public affairs officer in the Texas South responded to written inquiries requesting their explanations for the recent abrupt enforcement changes in the district.

The sheer volume of DHS immigration referrals in Texas South (Houston) in FY 2004 (18,092) tower over the totals racked up by the four other districts along the Mexican border in the same year — 4,170 in Texas West (San Antonio) , 3,407 in Arizona (Phoenix), 2,801 in California South (San Diego) and 1,771 in New Mexico (Albuquerque)…..

The length of time it takes the government to process the immigration cases from the moment they are referred by the investigators to the time when they are finally disposed of in any way is much less in magistrate courts than it is in district court. In the magistrate courts the median processing time in 2004 was 0 days — in other words more than half were completed on the same day they were filed in magistrate court. While magistrate processing times have always been fairly short, 2004 set a new speed standard — down from 16 days in 2003. By comparison, cases processed in district court required a median time of 145 days in FY 2004 and 141 days in 2003.

Like many, many others, I knew Coretta Scott King, and I considered her
a mentor. In her memory, I will carry on best as I know how. My
favorite anecdote: the day she exclaimed to a working group of staff,
"We are not going to behave like any corporation!" And truly, we
never did. Bless your soul, Mrs. King. We’ll be thinking of you often.–gm

As it turns out, we clipped last week’s story from the Dallas Morning
News for good reason. This week begins with a news report posted
at GOPUSA that Republicans in the US House of Representatives will be
pursuing the issue of border incursions along the Rio Grande river
involving "military style" uniforms and equipment.

Homeland Security Committee Chairman Peter T. King (R-N.Y.), along with
Reps. Mike Rogers (R-Ala.), Michael McCaul (R-Texas), and Steve Pearce
(R-N.M.) announced on Friday that they have asked Mexican Ambassador to
the U.S. Carlos de Icaza to explain what’s going on.

They’ve also written to U.S. Secretary of State Condoleezza Rice
and Homeland Security Secretary Michael Chertoff, asking them to
investigate and report back to Congress….

McCaul expressed concern about individuals in Mexican military
uniforms helping drug smugglers cross the border. He pointed to a
recent press report saying that law enforcement officers on the U.S.
side observed Mexican military humvees equipped with .50 caliber
weapons escorting drug traffickers back into Mexico to provide them
safe haven.

Meanwhile, over at the Texas Farm Bureau website,
Victoria County Sheriff T. Michael O’Connor claims that 90 percent of
the migrant traffic through his jurisdiction are OTMs (other than
Mexicans):

"I would say 10 percent at most are people from Mexico. The
rest are a makeup of people from Central and South America," says
Victoria County Sheriff T. Michael O’Connor, who polices the "fatal
funnel," a main thoroughfare for illegals traveling Highways 59 and 77,
en route to Houston. "There have even been some from the Middle East,
Russia, and China. The U.S. border with Mexico is not a free border,
but south of that, all borders are open borders. People come into
various ports in Central and South America, and they find their way
here. Their main means of transportation today is rail. They get to the
Texas border and then find their way via a trafficking issue. They pay
thousands and thousands of dollars to get to the Houston area."

O’Connor has a political voice worth respecting, since it is not often
that county sheriffs are also former vice chairs of the Texas A&M
University System Board of Regents. But we have good reason to doubt his thumbnail statistics (as quoted) since official figures
reported from the Department of Homeland Security indicate that 92
percent of foreign nationals apprehended in 2004 were "natives of
Mexico." Putting ourselves into a posture for reading tea leaves, we’d
stick by our previous predictions that
this border issue is being set up by Republican interests for
exploitation, and we’d add one more thing: keep an eye on O’Connor’s
electoral career.

The two part series at the Texas Farm Bureau web site begins with a
sentence about 9/11 and is a tellling marker of the way that the border
issue is being increasingly framed within a war on terrorism context
that criminalizes migrants and militarizes the reflexes of state policy.

Meanwhile, at the American Chronicle website, columnist Barbara
Anderson today files her third border opinion of the year, this time calling
out for "a well regulated militia". The vaunted language of the
Fourth Amendment right to carry guns is placed in context of Minutemen
who she calls "the closest thing we have to a militia". Along
with the Republican chime, Anderson also hits up last week’s report of
"military style" uniforms and guns at the Rio Grande. She pleads
for "sovereignty" in the form of a "sturdy fence":

Is this the time for a “well regulated Militia”? It seems the
disciplined Minutemen may be an answer for the pressing need of eyes
and ears, and some defensive arms, along our wide open southern border
until the government catches up with the sentiments of outrage by its
citizens.

And while we’re on the subject of the war on terrorism, here’s a telling exchange at Monday’s White House Press briefing:

Q According to data currently available at the Department of Homeland
Security Funded Terrorism Knowledge Base, the incidents of terrorism
increased markedly in 2005: worldwide attacks were up 51 percent from
the year before, and the number of people killed in those attacks is up
36 percent; since the year 2000, attacks are up 250 percent, and deaths
are up 550 percent. How do you reconcile those numbers with your claim
that you’re winning the war on terrorism and putting terrorists out of
business?

MR. McCLELLAN: Well, just look at the facts. If you look at the facts,
many of al Qaeda’s known leadership have been put out of business.
They’ve been brought to justice. They’ve either been captured or
killed. No longer is America waiting and responding. We’re on the
offense; we’re taking the fight to the enemy. We are engaged in a war
on terrorism. The enemies recognize how high the stakes are. And one
thing the President will talk about, continue to talk about tomorrow
night and in the coming weeks, is that we continue to face a serious
threat.

This is a deadly and determined enemy. But the difference is now that
we’ve got them on the run, we’ve got them playing defense, we’re taking
the fight to them. And all of us in the international community must
continue to work together. We’ve been fortunate that we haven’t been
hit again since the attacks of September 11th. And that’s in no small
part because of the great work of our men and women in uniform abroad,
and because of the great work of our intelligence community, and the
great work of our homeland security officials here at home who have
worked together using vital tools, like the Patriot Act and other
tools, to help disrupt plots and disrupt attacks.

And there’s great progress being made. But the President made it clear
after September 11th that this was going to be a long war, but he’s
going to continue acting and leading and doing everything in his power
to win that war so long as he is in office. And we also have to work to
continue to advance freedom. And 2006 was a year of progress when it
came to advancing freedom around the world. The Middle East is a
dangerous, troubled region, and that’s why it’s important we continue
to support the advance of democracy throughout that region.

Note: the following email from Irma Muniz passes along a claim by her
husband Ramsey that new evidence has been discovered about the
circumstances surrounding his 1994 arrest for marijuana trafficking.–gm
—————

Dear Friends:
What would any person with a past conviction do upon being
SUDDENLY PURSUED FOR NO REASON after having gotten
out of a car he had just been asked to move? What would he
choose to do with the car key? Ramsey had only seconds
to think as he quickly rushed to a pay phone to try
and reach an attorney. In the rush he thought,
"If I give them the key, it is giving consent to search
a car that doesn’t even belong to me. If I keep the key,
it will implicate me in something." He never made it.
If this was done to Ramsey in 1994, why shouldn’t one
believe that the same happened in his first conviction?

The enclosed is an excerpt of a letter from Ramsey Muniz in
response to a letter received regarding his case against
the United States government. Please forward this letter
to students in Chicano studies programs, Mexicano law students,
law student associations, civil rights organizations,
and listservs. All interested parties may contact the
National Ramsey Defense Alliance for additional information.

–Irma Muniz
*****************

August 14, 2004

Dear Armando:
Shakespeare said, "as the waves make towards the
pebbled shore, so do our minutes hasten to their end."
(Sonnet LX). The loss of our friend, Raul, shows us a
very important fact about life, a fact we must remember.
"Life goes on forever toward its end, never slowing down
or going back. Our lives do indeed ‘hasten to their
end.’" (The Movement of Time – Shawn Waddell).

During my almost eleven years in one of American’s
arduous prisons, I have shared the cultural endeavor
that we, Los Mexicanos, have organized throughout the
entire southwest within the state and federal prison
systems of America. Raul, outside, was a clear example
of what Los Mexicanos can do in this country. Here, and
from here, my beliefs and principles against the
oppression and discrimination toward nuestra gente have
been strongly expressed – more strongly than ever. For
this reason, I will never give up on claiming that my
trial was not conducted fairly. Of course, you are
correct by stating that circumstantial evidence tying
me with that vehicle was the basis for my conviction.
And certainly, all the courts are expected to give
deference to jury findings, regardless of my explanation
to the contrary. But your very welcome opinion is based
on a relitigation "doctrine," which is not the basis for
reopening my case. Let me explain.

Evidence only discovered a few months ago shows a
link, prior to my "alleged participation," between the
government and a confidential informant (the owner of
the load found in the vehicle in question), who was
recompensed for setting me up in this case. Of course,
neither Dick (my trial counsel) nor I knew of this
evidence. In Kyles v. Whitley, 514 U.S. 419 (1995), the
Supreme Court reviewed the standard for granting
collateral relief where the materiality of suppressed
evidence was considered. In sum, the court held that
a "reasonable probability" of a different result is
shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial.
115 S. Ct. at 1566. As you know, Kyles’ holding has
been the subject of explanation and exploration in
subsequent courts of appeal decisions.

For example, in United States v. Smith, 77 F.3d
511 (D.C. Cir. 1996), the court reversed drug related
convictions nothing that, post Kyles, materiality
[of suppressed] information is not gauged by a
sufficiency-of-the-evidence test, 77 F.3d at 512,
citing Kyles. In other words, the
evidence in my case showing that my conviction "hinged"
on a key hidden in my sock, which tied me to the loaded
vehicle, would be irrelevant under Kyles. In Smith,
the reversing panel described the holding in Kyles,
noting "a reviewing court must focus on the fairness
of the trial the defendant actually received rather
than on whether a different result would have occurred
had the undisclosed evidence been revealed." Accordingly,
the question here is whether in the absence of this
evidence, did I receive a fair trial, within the meaning
of Kyles.

As to whether Blakely applies to my case or not, any
response to that would be premature. First the Court must
effectively overrule McMillan, 447 U.S. 79, something it
has twice declined to do, and hold that Blakeley applies
to the Federal Sentencing Guidelines. Second, any
favorable ruling in this matter must be retroactively
applied before I put my horses to run. Although it is
possible to argue that under Tyler v. Cain, 533 U.S.
656 (2001), in which the Court held that a new rule of
criminal procedure may be retroactive through a series
of that Court’s cases (the combination of Schriro v. Summerlin,
U.S. June 24, (No. 03-526, 2004 WL 1402732 at *5-7), and
Winship,) the Schriro’s Court’s conclusion that Ring v. Arizona
should not be applied retroactively is a problem. The only
difference between Ring and Blakely is the name of the state
(Arizona-Washington), and apparently, more important
(considering Teague’s prong against retroactivity), the
involvement of a lower standard of proof which undermines
the accuracy of the proceeding’s outcome.

Because the Arizona law (in Ring) already required
aggravating factors to be proven beyond a reasonable doubt,
it appears that arguably, in Schriro, the majority’s analysis
against retroactivity was limited to the Ring rule. But I don’t
need to torture my brain with this question, after all, "if a
precedent of the Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions," it is the Supreme Court who has "the prerogative
of overruling its own decisions." Rodriguez, 490 U.S. at 484
(1989); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (same).
Thus, I must wait. If I see a good chance, surely, without
doubt, I will be part of that fight. For now, however, the
Kyles argument is my main target.

Thank you for taking the time to inquire about my case.
You will be constantly in our prayers for strength of
your Mexicayotl (consciousness).

Sincerely,

Ramiro R. Muniz
**********************

http://www.freeramsey.com