Punitive Nature of Deportation and Lack of Proportionality Necessitates the Need for Constitutional Safeguards

justice for olango

The procedural rights available to non-citizens in deportation proceedings should be determined through a combination of “the hard floor constitutional rights model, used in criminal proceedings. BMW vs. Gore as well as Padilla vs. Kentucky 559 U.S. 356 (2010) this case mark a sharp departure from the Court’s century long characterization of immigration consequences as “purely civil” both cases opened the door for the extension of a constitutional protection traditionally reserved for criminal realm into civil proceedings. In BMW vs Gore 517 U.S.559 (1996) United States Supreme Court limited punitive damage under the due process clause of the 14th Amendment. The Court found that the excessive punitive damages must be reasonably necessary to vindicate the State’s legitimate interest in punishment and deterrence. In making this determination the Court applied the degree of reprehensibility of the accused conduct and the penalties that could be imposed for comparable misconduct. Punishment, regardless of whether it is civil or criminal, is subject to various constitutional restraints.

In contrast to characterization of immigration deportations, the Court in Padilla alluded that deportation is the penalty for a crime, then as such the criminal law norm of proportionality and penalties, rooted in the 8th and 14th Amendment, should equally apply.

The fact that the results from a criminal conviction are an integral part that may be imposed on immigrant’s defendants who plead guilty to specified crimes, it should be argued that if deportation is part of a criminal penalty, other protections afforded criminal defendants should extend to removal proceedings, at least where these results are directly from convictions. Moreover, if deportation is the penalty for a crime, as the Court said in Padilla, constitutional protections should apply to those immigrants facing deportation as consequences for crimes committed.

Deportations triggered solely by a criminal conviction is a part of the penalty for the underlying criminal behavior, demand the Court to explore the question of what other constitutional limits that can be placed on the imposition of that punishment considering the principle grounded in the 8th Amendment which a penalty should be proportionate to the crime it punishes. The appropriateness of any given punishment is assessed in large part by how fitting it is to the crime committed, and Eighth amendment governs the boundaries of permissible punishment by forbidding punishment that is cruel and unusual.
Due to lack of proportionality principle from our current law of deportation for crimes, aggravated felony category imposes deportation equally for, among other offenses, murder, petty theft and failure to appear in court. Similarly, the sanction is the same regardless of an individual’s history or connections in the community and applies equally to an undocumented individual who entered the country yesterday without permission and to a long-term lawful permanent resident who may have deep roots in the community such as dependent U.S. Citizen family members.  Thus, an immigrant convicted of theft at Vons and a rapist results are the same …deportation!

Much of the sense of injustice that results from the operation of our current criminal deportation law comes from recognition of the blatant disproportion between the sanction of automatic deportation and the circumstances under which it is imposed.

In addition to the centrality of proportion to our sense of just punishment, Eight Amendment jurisprudence is an attractive place to begin exploring amendment reach, because the jurisprudence has already been extended to prohibit certain-non-criminal sanctions where these were found to be penal in nature, even if not in name or explicit intent.

In Sum the under the Eight Amendment the court should step in, and review the proportionality of removal as a criminal sanction. This could take the form of the review of individual cases in which deportation may be disproportionate to the offense. It might also take form of consideration of categorical challenges to certain aspects of the criminal removal scheme at large, such as the “aggravated felony” provisions and their inclusion of manifestly minor offenses.


All rights reserved textboosetrade.com 2016




May Day Rally Comes to Edward J. Schwartz Federal Building


May Day Protects rally brought hundreds to Downtown San Diego. While unions traditionally march on May 1 for solidarity and workers right, this march was more a rallying point for immigrants’ rights. As protestors bypassed businesses in route to Edward J. Schwartz Federal Building they were cheered on by most immigrant service workers raged against Donald Trump policies on immigration. With both left and right demonstrators and presence of organized finest, this 1st Amendment exercise was peaceful.finest

With current administration policies that aggressively threatening to withhold funds from jurisdictions that limit its local law enforcement to enforce immigration laws, faces within the historical meaning of legislative punishment, viewed in terms of the type and severity of burdens imposed. As we take notice, immigration deportations impose “extreme hardship” to the United States Citizen spouses, parents, or children of such immigrant, perhaps these grave consequences are among reasons why California Police Officers do not have authority to turn investigation of criminal activity into enforcement activity of the civil provisions of the Immigration and Nationality Act.

justice for olango
The legal fiction that deportation following a criminal conviction is not punishment is difficult to reconcile with reality. While the case law does not tell us where the line falls that divide permissible from impermissible effects, we know the matter of degree is somewhere between imprisonment and banishment to exile and to get a point across, the protectors vows to fight back by assuming more role in civil participations and calling more strikes and boycott to reflect on immigrations’ labor and purchasing power.

350Socialist Equality Party also allude that; to stop the attacks on immigrates began with advising international solution to the crisis facing immigrants’ workers. The strategic perspective according to Socialist Equality Party it’s a fight that should begin with the rejection of all attempts to divide native-born and immigrant’s workers. As the Governments around the world seek to make impoverished migrant workers scapegoats for the destruction of jobs and living standards resulting from their own policies’ they divert attention from real source of worker’s suffering by fomenting hatred of immigrants. Accordingly, international working class unity and reorganization of world economy its a kernel to meet social needs of the working class and a foundation against mobile corporations that intensify the exploitation of the working class through globalization.

Read more at FB.COM/SEPUS

San Diego Adjunct Faculty Association represent a sector of Part-Time Professors who are qualified expects with MA or PHD graduate degrees just like tenured faculty and they are solely responsible for all aspects of their courses, moreover they teach 60%+ of all classes offered. However, they are paid half or even less than what full-time tenured faculty coupled with’ traveling from campus to campus, only paid hours in the classroom, no paid prep time, grading time or communication time with students outside of class, their efforts to coincide and imbued profound trust with those of the students its frustrated. Adjunts
Working with little to no unreliable income and financial insecurity, San Diego Adjunct Faculty Association demand that unions bargain for equitable salaries and benefits for all faculty, the disparities and impact here is profound and involves an inconsistency not to be excused. To help adjuncts get the contract they deserve you can visit the Association website @ SDAFA.ORG
Sources: San Diego Adjunct Association


Mandatory Prolong Immigration Detentions are Punitive in Nature

barrio loganSandy Huffaker/Reuters

Part I: Mandatory Prolong Immigration Detentions are Punitive in Nature

U.S Supreme Court held that six months is the presumptively reasonable period during which ICE may detain Respondents to effectuate their removal. The Supreme Court held that its ruling in Zadvydas applies equally to inadmissible aliens. Zadvydas v. Davis, 533 U.S. 678 (2001),
Department of Homeland Security administrative regulations also recognize that the HQPDU has six-month period for determining whether there is a significant likelihood of an alien’s removal in the reasonably foreseeable future. 8 C.F.R. Section 241.13 9 (b) (2) (ii). The Immigration and Nationality Act (INA) provides for a 90-day “removal period” for a deportable and inadmissible alien. 8 U.S.C 1231 (a)(1), INA §241 (a). After the expiration of the “removal period”, if an alien has not been removed, he shall be subject to supervision under regulations prescribed by the Attorney General”, 8 U.S.C. § 1231(a)(3), INA § 241 (a)(3).
However, Respondents who are detained in this private concentration camps spend years after the six-month presumptively removal period ended. The deprivation of Respondents liberty should be narrowly tailored to serve a compelling government interest. While DHS would have an interest in detaining suspects in order to effectuate removal, that interest does not justify the indefinite detention, particularly detainees that are not significantly likely to be removed in the reasonably foreseeable future.
A contested deportation proceeding is in essence a quest for the truth, immigration Court and should not cease to be impartial merely because in its quest for truth it perceives avenues of unexplored inquiry brought forth by Respondents who seeks to clarify record by calling attention of Immigration Court to certain areas of inquiry not yet developed. In deciding to rest on the original record, without seeking further significant likelihood of removal in the reasonably foreseeable future its “leading back to an absurdity.

It is not enough for the government to claim dangerousness on the basis of only past crimes especially one that are remote in time because “presenting danger to the community at one point by committing a crime does not place the petitioner forever beyond redemption. Ngo V. INS 192 F. 3d 390,398 (3rd Cri, 1998). (“Measures must be taken to assess the risk of flight {562 F. Supp. 2d 1124} and danger to the community on a current basis.”) (“The mere conviction of a crime is not adequate basis for finding that an individual is a threat to the community.”) Korkees Vs. Reno, 137 F. Supp. 2d 590, 598 (M.D Pa. 2001)
A right conferring benefits of inestimable value such as due process and equal protection of law, is man’s basic right for it is nothing less than the right to have rights, before sustaining any decision to impose the grave consequences of deportation, the Court to effect such results, it may do only on scrupulously clear justification of proof, and it’s a court duty “to scrutinize the record with the utmost care construing “the facts and the law as far as is reasonably possible in favor of the respondents.

Constitutional Consideration

The ultimate balance involves a determination as to when under our constitutional system do judicial procedure be imposed upon administrative action to answer fairness as deportation is drastic measure. The encroachment on the liberty interest of this Respondents deemed to be subject to mandatory detention raises questions of constitutional magnitude concerning the reach of Section 236 (c) of the Act, and Section 303 (b) (2) IIRIRA, as this statue cast doubts on their constitutionality.
This Statues inflict punishment on the specified individual or group and moreover determinative of their character to punish. Nonetheless, the issue here is not whether congress has Authority to implement the law, but whether the method it has chosen to do so offends constitutional guarantees of Individual Rights. Section 236 (c) any Section 303 (b) (2) IIRIRA, interpreted upon Respondents arrested by Law Enforcement are obliged to provide them place of birth amongst other information solicited for identity. Based on that information along…et (Place of birth and National Origin), ICE issue a detainer ordering the delivery of such person to them upon even before conclusion their legal matters. Sheriff Administrative questioners during intake that demand place of birth or National origin under perjury, compel such an individual to their fifth Amendments Rights ‘and cannot be said such information is obtain legitimately during investigation. Not having sought such conspiracy when asked to state place of birth or National Origin, the Government and Law enforcement Agencies in the ordinary case such individuals are compelled to disclosures instead of claiming the privilege against self-incrimination.
Here Law Enforcement reporting to ICE forms a conspiracy against the individual, when they place an Immigration hold on any person suspected solely on ground that they may be deportable “Aliens” and held under no bond “policy”. One can shout the “Absconders Initiative”, (Dec 2001) as to justify the means in entering names in NCIC, however its purpose was to report those who ignored outstanding deportation orders in violation of the civil provisions of the immigration law. Civic provisions are narrow and limited to individuals listed on the NCIC- which arguably is somewhat within the inherent Authority of States. Even mere existence of a warrant of deportation does not enable all State and local law enforcement to arrest the violator of those civil provisions. (1989 Office of Litigation Council op at 8)
Furthermore, this selective enforcement conspiracy is based on a 1996 opinion by the Department of Justice’s Office of Legal Counsel, which concluded as follows; “Subject to the provisions of State Law, state and local Police may constitutionally detain or arrest for violating the criminal provisions of INA. Conclusion thereto is that this Section 236 (c) and Section 303 (b) (2) IIRIRA,] fails to pass constitutional muster on following grounds;
• these statutes “clearly singles out an ascertained group based on past conduct and legislatively the guilt of such group.
• Compels self-incrimination, in violation of the Fifth Amendment privilege.
• Violates the right of equal protection and Inconsistent with protection of the laws guaranteed under due process clause of the 5TH Amendment.
• Create disparities between similar situated suspend including equal treatment under Bail Reform Act.
Art I Section 9, Cl.3, of the Constitution bar by providing that’ “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial, such statues violate the constitutional guarantees of substantive and procedural due process. Heretofore, the singling out of an individual for legislatively prescribed punishment constitutes attainder, whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. To emphasize, when past activity such as; Aliens convicted, criminal aliens, aggravated felons, serves as “a point of reference for the ascertainment of persons ineluctably designated by the legislature for punishment, the art may be an attainder. See Cummings v. Missouri, 4 KH Wall, 277, 324 (1867).

The framers vested the Executive, Legislative and Judicial Powers in separate branches, with a concern that a legislative should not be able unilaterally to impose a substantial deprivation on specified group of people. The judicial function or constitutional question is “not to destroy the Act if the Court can, but to construe it if consistent with the will of Congress, so as to comport with constitutional limitations. The government, conversely, legislative intent to encourage compliance with the law does not establish that these statutes are merely the legitimate regulation of conduct and in some abstract sense, such activity of advising INS of such data constitute direct enforcement of the civil provisions of federal immigration law hence civil violations of immigration are not cognizable under any formula relating to arrest powers by California peace officers.
This approach based on selective enforcement, clearly violated equal protection clause of the fourteenth Amendment of the United States Constitution and should be subject to restraint.

With all due respect, in light of Trust Act local enforcement officers in California do not have authority to turn investigation of criminal activity into enforcement activity of the civil provisions of the Immigration and Nationality Act.

Part 2 [U]nder California law, Possession Requires Knowledge.


Based on Part 1 Publication Titled Differential differences, we point out element eccentric necessary to initiate removal proceedings as conviction not a complain or facts thereof.  Part 2 we will look at overview elements requirement for controlled substance to violate that State statue. This approach can be also applied in other areas of law that require Men’s rea.  All issues assented are opinions of the author, common sense dictate your own research.     

Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.”

Moreover, California does not, criminalize the mere power to control the narcotic; instead, “the offender must knowingly control it with the specific intent to sell it or to have someone else sell it”.

Sandoval-Venegas, 292 F.3d at 1107 (citation omitted).

Consequently, assuming that “L.I.O.” is applied correctly and charged under CHS § 11357 for simple possession[1]

Federal law prohibits the simple possession of any amount of a controlled substance 21 U.S.C. § 844(a) However,  It is also noted that an individual could be assessed a civil penalty for possession of a “personal use amount” of marijuana for is first two violations. 21 U.S.C. 844 a (d). Thus, the individual could be fined for possession of a “personal use amount” of marijuana twice before he would be convicted of simple possession and subject to deportation.




As here, the crime is knowing and intentional possession of the controlled substance itself. See: United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (recognizing that a conviction under § 841(a)(1) requires knowledge that the substance was a controlled substance, but rejecting the argument that knowledge of the exact drug type or quantity is an element of the offense). United States v. Abdulle, 564 F.3d 119, 125-26 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he [or she] be aware that he [or she] possesses some controlled substance.”).

The Suspect/defendant knowledge of what controlled substance he posses has no bearing on the Jury’s finding that he did in fact posses a specific controlled substance. See: CALJIC 12.21.]                                                                                                                                                 “Elements, as distinguished from means, are factual circumstances of the offense the jury must find unanimously and beyond a reasonable doubt.” Omargharib, 775 F.3d at 198. (citations omitted). The elements of the offense possession with intent to sell a controlled substances are the possession thereof with knowledge of character of the substance not nature of the item (See: People v. Gory 28 Cal.2d P.453-454). Therefore possession with intent for sale controlled and knowledge thereof would be lacking and defendants would not have committed the offense charged.

For more similar content, Please Sign Up

[1] See: CHS § 11359 Jury instruction CALCRIM No.2352


American Flag, American Flag with eagle
Immigration reform march in San Jose. Photo by; Roshanda Cummings (o2be_me)

In Immigration, there are differential deference between a complain and conviction


“Whether a particular conviction is a [removable] offense is a question of law. “Thus, Executive Branch cannot be a substitute to judicial branch by adopting meanings based on interpretation’s that are contrary to criminal guidelines, Supreme Court and Circuits Court precedents”.                                                                                                                                 See also, Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000)

To determine whether a conviction constitutes a predicate offense for removal purposes, we use the analytical model constructed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990).”  Under the categorical approach, we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ offense”. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

  1. a) Statue of conviction is categorical match to the generic predicate offense that is; if the statute of conviction criminalizes only as much (or less) conduct than the generic offense. “A state statute is a categorical match to the generic federal statute if it proscribes the same amount of or less conduct than the federal statute. Taylor, 495 U.S. at 588-89; see also Aguilera-Rios, 754 F.3d 1105, 2014 WL 4800292, at *6-7 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1686-87, 185 L. Ed. 2d 727 (2013)). “If the statute of conviction ‘sweeps more broadly than the generic crime, a conviction under that law cannot [categorically] count as [a qualifying] predicate, even if the defendant committed the offense in its generic form.'” {if a conviction categorically constitutes a predicate offense the inquiry ends, if not we move to step two}.
  2. b) We ask if the statute of convictions comparatively “overboard” element is divisible if not, then our inquiry ends, because a conviction under an indivisible overboard statute can never serve as a predicate offense. The “elements-centric, ‘formal categorical approach'” precludes this court from delving into the facts disclosed by the record of conviction other than to determine “which statutory phrase was the basis for the conviction.” See Descamps, 133 S.Ct. At 2284-86/ note fn[1]

With emphasis; California Health & Safety Code § 11359 is indivisible and use of “L.I.O.[2]” in a statue is categorical overboard, which precludes application of the modified categorical approach. As explained, to determine whether a statute is divisible, we consider whether “an element of the crime of conviction contains alternatives, one of which is an element of its Federal analogue,  Rendon v. Holder, 764 F.3d 1077, 1081, 1086 (9th Cir. 2014) recently held that a disjunctive statute is divisible, only if it contains multiple alternative elements, as opposed to multiple alternative means.

More specifically under Rendon [id] “[o]nly when state law requires that’ to convict the defendant and the jury must prove and agree unanimously that defendant committed a particular substantive offense contained within the disjunctive worded statute are we able to conclude that the statute contains alternative elements and not alternative means. A statute is ‘indivisible” if it does not have alternative elements and criminalizes a “broader swath of conduct than the relevant Federal law does. Descamps 133 S.Ct at 2282. If a statute is not divisible, then courts cannot apply the modified categorical approach to determine the facts underlying an individual’s particular conviction. Descamps, 133 S.Ct. At 2283, because the Jury must specifically find the defendant knowingly and intentionally possessed a controlled substance, marijuana is alternate means of satisfying the controlled substance’s element.

To arguement can be raised that; the drug listed by reference in CHS § 11360 (a) or 11359 “L.I.O.” is not “element” because “a jury need not find the specific type of drug involve in a case requiring proof of possession. Instructions for 11359 reflect as much in/ See: CALJIC 12.21. [(The people do not need to prove that defendant knew which specific contained substance (he/she possessed].

       Agreeing to buy a controlled substance does not by itself, mean that a person has control over the substance.] Furthermore thus, the inconsistent use of the term “marijuana” is prejudice…as the penalty in § 1170 (h) under the State is the same, it makes no different during the plea hearing whether respondent possessed hashish, hashish oil or concentrated cannabis[3]. See: People v. Romero, 55 Cal.App.4th 147, 156 64 Cal .Rptr 2d 16 (1997). Concerns the mens rea for possession, not whether the specific drug is an element.   

Please Sign Up and Stay informed.

[1] . A statute is divisible if it sets forth “multiple, alternative versions of the crime,” thereby “effectively creat[ing] “several different crimes.” Id. at 2284-85 (citation omitted). A statute is “indivisible” if it does not have alternate elements and criminalizes a “broader swath of conduct” than the relevant federal law does. Id. at 2282

[2] Lower Included Offense

[3]The drug provisions found in 21 U.S.C. 841 are bifurcated into distinct parts which define the crime and then establish penalties which correspond to the quantity of the drug. Penalty provisions demonstrates that hashish should not be treated the same as marijuana Section 841 (b)(1)(D)( Arguably under 841 (b)(1)(D) penalty provision demonstrates that Congress did not intend marijuana and hashish to be treated in the same manner , even though hashish is not statutorily defined, the penalty distinction is based upon the greater potency of the hashish derivative of the “cannabis sativa” plant, To equate these two drugs in the exception clause of  the Act e.g (241)(a)(2)(B)(i) would be to ignore the importance of this penalty distinction and the clear intent of Congress that these drugs be treated differently.)