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Deportations Guarantee Injustice

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This country’s immigration laws are a travesty.

Americans boast that their country is a free and open society, with a long history of immigration and a dedication to fairness and opportunity. They then support laws that arbitrarily limit the number of people allowed to live, work, and pursue their happiness within our borders.

Such laws create unfair burdens on businesses, interfering with the rights of contract and free association. They also infringe on the right of every individual to make a better life for himself, so long as his actions do not infringe on the equal rights of others.

People flee communist tyranny in Cuba and cross 60 miles of ocean on makeshift rafts, braving days of blazing sun and the risk of shark attacks, only to be driven from these shores by Coast Guard boats blasting them with water cannons. Families are torn apart when loved ones are detained and deported, often after a lengthy and arduous journey across the Mexican desert. And businesses are fined thousands of dollars for hiring “illegal” immigrants — $350,000 against 17 employers in Massachusetts alone in the last year, according to a story in the Boston Globe (Nov. 15).

Now we can add a further injustice: defense attorneys are complaining that they cannot adequately defend their clients because the federal government is deporting key witnesses.

USA Today reports (Nov. 13) that Jose Adrian Garcia, a 52-year-old father of three, was recently convicted of murder and sentenced to 45 years in prison. Meanwhile, the man that Garcia says actually committed the crime couldn’t be found — he had since been removed from the country.

If the Sixth Amendment’s promise is to be worth the paper it is printed on, surely Garcia’s attorney should have had access to that man before he was deported, in order to seek potentially exonerating evidence.

Instead Garcia was denied this important, long-established right — one grounded firmly in Anglo-American law. His attorney, Ellis McCullough, was incredulous.

My reaction was “How in the world did this happen? How could you let this guy go?” Just as a matter of caution, they could’ve certainly held up his deportation until the case was resolved.

Unfortunately this would require some desire on the part of U.S. immigration officials to actually see justice done. It’s possible that an innocent person is going to jail, and that an actual criminal is being set free — possibly to return again to the United States and victimize even more people. What do these officials care? They get paid the same whether Garcia is innocent or not.

The USA Today report continues,

Defense attorneys and public defenders across the country say Garcia’s case illustrates what has become a troubling, systemic problem in the criminal justice system.… They blame a fractured federal justice system, where government prosecutors select who they want to use as witnesses, and the rest get deported by federal immigration officials.

Kyle Welch, a public defender in Texas, complained that attorneys are given no time to question some witnesses and determine their value to a client’s case. “By the time we’re assigned the case,” he said, “they’re gone.” Another attorney told the paper that every six weeks or so he is assigned a case in which “there are witnesses who are no longer available, even for an interview.”

When Immigration and Customs Enforcement (ICE) officers arrest undocumented aliens, Justice Department prosecutors determine who will be charged with a crime and who will be detained as witnesses — for the prosecutors. Then, “after that determination is made … they allow defense attorneys access to the illegal immigrants” (emphasis added).

Allison Price, a spokeswoman for the Justice Department, explained, “Only material witnesses with unique, relevant information are held in the United States for purposes of providing testimony.” But how can she possibly know who is relevant and who is not relevant to a defendant’s case?

This perverted practice provides prosecutors with a veto on witnesses before defense attorneys are even aware they have a case to handle. The entire purpose of our adversarial system is to allow representation from both sides to interview witnesses and review evidence. It’s an important element in what we call a “fair trial.”

Americans who support immigration restrictions and beat their chests about the “rule of law” ought to stop a moment and realize that anti-immigration laws are now being used to keep the accused from truly having their day in court. Our system of justice has turned into a cartoon that very likely sends innocent people to jail while letting criminals — sometimes violent criminals — go free, so that immigration bureaucrats can pat themselves on the back for their efficiency.

We’re long overdue for a return to that fine American tradition of free movement and open immigration. This is one more reason why.

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    Scott McPherson is policy adviser at The Future of Freedom Foundation. An advocate of the Free State Project, he lives in Portsmouth, New Hampshire.