At Postville the government distributed a pre-packaged “manual” to the defense lawyers who were appointed to represent the workers, instructing them on how to expedite their clients’ cases. On average, each lawyer represented seventeen defendants at the same time. The district court assembled “checklists” and forms for initial appearances, change of pleas, and sentencing hearings in advance of the raid. While Spanish-language interpreters were appointed to work with defense attorneys, communication barriers between counsel and client continued, as most of the defendants were Guatemalan nationals of Mayan descent for whom Spanish was their second language. The prosecution imposed a seven-day deadline within which to accept a plea or face conviction on the more serious offense of aggravated identity theft, carrying a mandatory minimum sentence of two years in prison under 18 U.S.C. § 1028A(a)(1). In addition, the prosecution conditioned these pleas on the defendants’ acceptance of stipulated judicial orders of deportation that required waiver of all rights and protections under immigration laws. (Click here to view a typical Postville plea agreement.)
Other recent worksplace raids have been conducted in Mississippi, South Carolina, and South Dakota. The government prosecuted workers arrested in these raids for aggravated identity theft and illegal reentry, among other offenses; however, unlike Postville, these prosecutions were not fast-tracked.
Additionally, in Postville and other locations, the government is using the hammer of an aggravated identity theft charge to force pleas to lesser charges, even though it is unclear that the statute covers the alleged conduct of the defendants, i.e., the use of false employment documents. Indeed, in Flores-Figueroa v. United States (08-108) the Supreme Court will consider this term whether aggravated identity theft applies not only to those who intend to steal others’ identities, but also to those who buy fake documents containing names or numbers that happen to belong to real individuals.
The following resources address these issues. In addition, for a quick reference guide to the four criminal offenses with which the Postville defendants were charged, see Defending Criminal Prosecutions: Elements and Legal Landscape of Criminal Offenses Charged Against Non-Citizen Criminal Defendants, by Anton A. Ware and Mimi Yang, Morrison Foerster LLP.
- Grounds of Deportability & Inadmissibility Related to Crimes
by Katherine Brady, Staff Attorney, Immigrant Legal Resource Center, San Francisco, CA; & Dan Kesselbrenner, Director, National Immigration Project of the National Lawyers Guild
(This detailed analysis describes the types of convictions that can impact a non-citizen’s ability to remain or enter the United States.)
- Basics of the Immigration Consequences of Criminal Convictions
by Tova Indritz, NACDL Immigration Committee; & Dan Kesselbrenner, Director, National Immigration Project of the National Lawyers Guild
(PowerPoint outlining potential impact of pleas on client’s immigration status)
- Materials for Understanding Judicial Orders of Removal in the Sentencing of Non-Citizen Criminal Defendants
Compiled by Monica Ramirez, ACLU Immigrants’ Rights Project
(These materials include: (1) statutory authority for issuing “judicial orders of removal” against non-citizen defendants at the time of sentencing; (2) a checklist identifying the requirements for the proper issuance of such orders; and (3) government guidance on “stipulated judicial deportation” and “judicial orders of removal.”)
- Challenging the Barriers to Bail for Noncitizens
(providing arguments for obtaining bail despite the defendant's alleged unlawful presence in the U.S.)
by Ingrid V. Eagly, UCLA School of Law
- Sample Application for Authorization to Obtain an Immigration Attorney Expert Pursuant to the CJA
(application used to obtain CJA services of an immigration expert for the purpose of reviewing and evaluating a client's immigration status, and providing advice regarding the effect a plea would have on the client's immigration status) - Client Immigration Questionnaire for Non-Citizen Defendants
National Immigration Project of the National Lawyers Guild
(Form designed to obtain the facts necessary for defense counsel, in consultation with an immigration expert, to determine current immigration status, possible immigration relief, and immigration consequences of a conviction)
- Immigration Status Checklist
National Immigration Project of the National Lawyers Guild
(Form, in English and Spanish, for use in client interview)
- Intake Information Sheet (English)
Law Offices of Norton Tooby, Oakland, CA
(Form designed to obtain the facts necessary for an immigration expert to determine current immigration status, possible immigration relief, and immigration consequences of a conviction; includes glossary of terms)
- Intake Information Sheet (Spanish)
Law Offices of Norton Tooby, Oakland, CA
(Form designed to obtain the facts necessary for an immigration expert to determine current immigration status, possible immigration relief, and immigration consequences of a conviction; includes glossary of terms)
- Additional Resources:
Criminal and Immigration Law.com
(web site for resources on immigration consequences of conviction and criminal defense of non-citizens)
AILA Information on Workplace Raids
(web page compiling information on ICE workplace enforcement)
AILA Immigration Lawyer Directory
(searchable database for finding an immigration lawyer)
Immigration and Alien-Related Offenses
(Some undocumented workers may face charges of illegal re-entry. This page on fd.org contains resources on defending such cases, including sentencing guideline application issues.)
- Identity Theft
by Martin Richey, Assistant Federal Public Defender, D. MA
(an overview and analysis of the identity theft statutes and applicable sentencing guidelines, highlighting open issues regarding the elements of the offenses and potential defenses)
- Memo on Defenses to § 1028A
Law Offices of Norton Tooby
(This memo presents a legal analysis of elements of § 1028A, and sets forth several defenses against the applicability of § 1028A where the defendant is accused merely of using a false SSN to obtain employment.)
- Flores-Figueroa v. United States (08-108)
(briefs and documents in pending Supreme Court case, involving 3-3 Circuit split, raising whether aggravated identity theft applies not only to those who intend to steal others’ identities, but also to those who buy fake documents containing names or numbers that happen to belong to real individuals)