Yañez: Understanding how we got into this immigration mess

I feel compelled to issue an immigration tutorial, in the interest of simplifying the applicable law and amplifying a better understanding for lay persons of how the Trump administration has distorted the law in order to accomplish a purely political goal.

I have read the news stories in many newspapers ( yes I still read newspapers) and watched the news on the network channels as well as cable and the radio on NPR regarding the issue of separation of children from their parents in immigration proceedings, and I find there is a void of clear understanding of the underlying laws in question.

Here are the basics of the law: There are two tracks for the adjudication of an immigration case, one is through a civil, administrative track to determine if an immigrant should be expelled from the country. That procedure takes place through civil immigration courts presided over by administrative judges and prosecuted by Trial Attorneys who represent the government in these civil proceedings. Those judges and trial attorneys work for Homeland Security (previously the Immigration and Naturalization Service).

The immigrant does not have the right to appointed counsel, if they want a lawyer they must hire one on their own, the government is not obligated to provide a lawyer at government expense ( because these are CIVIL proceedings).The second track is the criminal procedure track. Certain violations of the law that can result in an immigrant being expelled from the country can also be a criminal violation under federal criminal laws.

These criminal proceedings take place before a federal district court, before a U.S. District Judge (not an immigration judge). These cases are prosecuted by a U.S. Attorney, under the auspices of the Justice Department, under the U.S. Attorney General. Only a civil immigration judge can order someone deported, deportations are not ordered in a criminal case. In these criminal proceedings the immigrant/defendant has the right to court appointed counsel, paid by the government.(U.S. Constitution, Sixth Amendment). There are different detention facilities depending on whether the accused are in the civil immigration proceedings or in the criminal proceedings.

Here comes the rub, of the Trump so called “zero tolerance” procedures. Up until this barbaric administration, the majority if not 90 percent-plus of those arrested for entering the country without proper inspection have always been processed through the civil track to determine if they should be returned to their country of origin. The criminal prosecutions were left to the discretion of federal law enforcement as to whether to proceed with using the limited resources of the federal courts, U.S. Attorneys’ offices, federal prisons and all the other personnel and resources required to jail federal criminal defendants.

These federal law enforcement officers obviously want to spend their resources on the more serious federal criminal activities and not on prosecuting, with all that entails, those whose only crime is to have not been inspected and allowed to enter the country. How do children fit into this maze? Children cannot be housed in criminal jails. They can be detained in civil detention facilities. Up until Trump, when Border Patrol encountered families with children and there was no serious criminal activity, the families were detained in immigration facilities and then processed either for expulsion or released on bonds to stay with U.S. family members until their cases were resolved in the civil proceedings.

Then comes Trump and his evil cohorts, whose only goal on anything having to do with immigration is to figure out how to make sure that the U.S. is not “infested” with brown people from the South. And they came up with the idea to criminally prosecute EVERY person encountered by Border Patrol, taking that discretion away from the federal prosecutors. And here we are, those apprehended with children, because they are all now placed in criminal facilities have had their children torn away and placed in detention away from their parents, the farther away the better.

Now Congress and the White House and the AG are twisting themselves into pretzels in their distortion of this system. Trump claiming they are “just following the law” and all of these people are criminals who must be prosecuted in criminal courts. I saw a piece in all the reporting I’ve been paying attention to, and it resonated with me as a fairly elegant analogy of understanding of what has happened here with this administration. the comment is that what Trump has done in the federal system is analogous to having a governor demand and order all state prosecutors to arrest and jail all “criminals” who have violated traffic laws that would normally be treated with a ticket to appear in court at a later date without arrest and require that those traffic violators be taken straight to jail without regard to the seriousness of the crime.

Not a perfect analogy but It makes a good point. I could certainly elaborate on all this but my goal is simply to assist the general public in a concrete understanding of how we got into this mess. I think it’s going to be a long arduous legal trek to untangle all this and get us to a place where the law serves the people and not the brazen political goals of a self serving despot.

Editor’s Note: An earlier version of this guest column was first published on Judge Linda Yañez’s Facebook page.