It looks like you can add defense witnesses to the list of immigrants that are a deportation priority of the Obama administration. Sandra Hernandez of the L.A. Times has reported that the 9th Circuit Court of Appeals issued a stern warning to the federal government, who apparently has made a habit of deporting witnesses that are able to provide material testimony that would assist in the defense of defendants in criminal proceedings.
The case involves an individual that was ultimately convicted of the crime of alien smuggling under 8 U.S.C. § 1324(a)(2)(B)(iii). There were four immigrants that were willing to be potential witnesses. The three immigrants that were willing to testify in a way that was favorable to the prosecution were permitted to remain in the United States. The one immigrant that gave statements on multiple occasions exonerating the defendant was deported.
Judge Alex Kozinski issued the following decision:
May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has even been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant.
This is not the first time that the government admitted to deporting defense witnesses.
We had assumed... that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today.
Needless to say the 9th reversed the conviction, and remanded the case back to the lower Court to decide whether to dismiss charges with prejudice as a consequence of the Government's (mis)conduct.
This is not the first time I have seen deportation used as a weapon against defense witnesses. In one of my own cases a Special Agent from ICE testified under oath that he threatened my defense witness with deportation if he wasn't willing to testify for the Government.
Apparently, the government has forgotten that their duty is not to win at any cost, but to ensure that justice is done.
Thankfully, we have the 9th Circuit Court of Appeals to remind them.
Click here to read the full opinion of the Court.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).