Mexican Drug Cartel Violence: Mexican Marines arrest presumed leader of Beltran Leyva Cartel – Sergio Villarreal Barragan taken into custody

Sergio Villarreal Barragan captured in Sunday raid officials say

Mexican marines captured Sergio Villarreal Barragan, a presumed leader of the embattled Beltran Leyva cartel who appears on a list of the country’s most-wanted fugitives, in a raid Sunday in the central state of Puebla, officials said.

The presumed capo known as “El Grande” did not put up any resistance when he was arrested along with two alleged accomplices, a Navy official told The Associated Press. The official, who spoke on condition of anonymity in line with department policy, said federal officials would announce the capture shortly.

Mr. Villarreal appears on a 2009 Attorney General’s Office list of Mexico’s most-wanted drug traffickers and has a reward of just over $2-million for his capture.

He is listed as one of the remaining leaders of the Beltran Leyva cartel, whose top capo, Arturo Beltran Leyva, was killed in December in a raid by marines outside Mexico City.

Drug Cratel Violence. Young Woman Murdered & Mutilated By Cartel

Mr. Villarreal’s capture comes about two weeks after the arrest of Edgar Valdez Villarreal, or “The Barbie,” another alleged capo linked to the Beltran Leyvas.

The once-powerful Beltran Leyva cartel split following the death of Arturo — known as the “Boss of Bosses” — which launched a brutal war for control of the gang involving mass execution and beheadings in once-peaceful parts of central Mexico. The fight pitted brother Hector Beltran Leyva and Villarreal against a faction led by Edgar Valdez Villarreal. Hector Beltran Leyva remains at large.

Mr. Villarreal’s capture is the fourth major blow delivered to drug cartels by Mexico’s government in the past year. First came the death of Arturo Beltran Leyva on Dec. 16, 2009, then soldiers killed the Sinaloa cartel’s No. 3 capo, Ignacio “Nacho” Coronel, on July 29. And on Aug. 30 federal police announced the capture of “The Barbie.”

Drug Cartel Victims - Decapitated Bodies Dumped in Plaza

More than 28,000 people have been killed in Mexico since December 2006, when President Felipe Calderon launched a military offensive against the cartels soon after taking office.

In the central state of Morelos, police discovered nine bodies in clandestine graves Saturday in the same area where four more were recently found.

The Public Safety Department said in a separate statement that all 13 victims were believed to have been killed on the orders of “The Barbie” in his battle for control of the cartel.

Also Sunday, the military announced that it filed charges against four troops for the Sept. 5 shooting deaths of a man and his 15-year-old son along the highway linking the northern city of Monterrey to Laredo, Texas.

Authorities have said soldiers opened fire on the family vehicle when it failed to stop at a checkpoint, though relatives who were also in the car say they were shot at after they passed a military convoy.

The mother and wife of the two victims was also wounded in the shooting.

Cartel Violence - Decapitated Head Left in Plaza

A captain, a corporal and two infantrymen are in custody in military prison and have been charged with homicide, the Defence Department said in a statement.

Mexico’s military was already under scrutiny for this year’s killings of two brothers, ages 5 and 9, on a highway in Tamaulipas, a state bordering Nuevo Leon.

The National Human Rights Commission has accused soldiers of shooting the children and altering the scene to try to pin the deaths on drug cartel gunmen.

The army denies the allegations and says the boys were killed in the crossfire of a shootout between soldiers and suspected traffickers.

The scandal renewed demands from activists that civilian authorities, not the army, investigate human rights cases involving the military.

http://www.theglobeandmail.com/news/world/americas/mexican-marines-arrest-presumed-leader-of-beltran-leyva-cartel/article1704715/?cmpid=rss1

Financial Reform: Mortgage Fraud Continues to Boom

Who paid $300,000 for this "structure".

Special report: Flipping, flopping and booming mortgage fraud

(Reuters) – The house on the 53rd block of South Wood Street in Chicago’s Back of the Yards doesn’t look like a $355,000 home. There is no front door and most of the windows are boarded up.

Public records show it sold in foreclosure for $25,500 in January 2009, then resold for $355,000 in October. In between, a $110,000 mortgage was taken out on the home, supposedly for renovations. This June, the property went back into foreclosure.

To Emilio Carrasquillo, head of the local office of non-profit lender Neighborhood Housing Services of Chicago (NHS), the numbers don’t add up. He believes this is a case of mortgage fraud.

It may not make the blood boil like murder or rape, but mortgage fraud is a crime that cost an estimated $14 billion in 2009 and could be hampering an already fragile recovery in the housing market. The FBI has been fighting back, assembling its largest ever team to fight it. They have their work cut out for them, though, as a tsunami of foreclosures is making classic scams easier and spawning new ones to boot.

“There’s no way any property in this neighborhood should sell for that kind of money,” said Carrasquillo, standing outside the house on Wood Street in this poor, predominantly black area of Chicago’s South Side. “Even if it was in great condition.”

Carrasquillo has identified a number of properties in Back of the Yards that sold for between $5,000 and $30,000 last year and then came back on the market for up to $385,000. He said property prices are being artificially inflated, allowing fraudsters to walk away with vast profits and making it harder for honest local people to buy a home.

Mortgage fraud takes many forms, but a well-organized scam frequently involves a limited liability company (LLC) or a “straw buyer.” In

Who paid $355,000 for this structure?

 this scheme, fraudsters use a fake identity or that of someone else who allows them to use their credit status in return for a fee. The seller pockets the money the buyer borrows from a lender to pay for the home. The buyer never makes a mortgage payment and the property goes into foreclosure.

In other words, the money simply disappears, leaving the lender with a large loss. Since the U.S. government is now backing much of the mortgage market in the absence of private investors, that means “taxpayers are ultimately on the hook for fraud,” said Ann Fulmer, vice president of business relations at fraud-prevention company Interthinx.

Back of the Yards was hit by fraud during the housing boom and Carrasquillo says the glut of foreclosures is now making it easier for scammers to pick up properties for a song and flip them for phenomenal profits.

Drug dealers and gang members have taken over abandoned houses, many adorned with spray-painted gang signs. Prior to touring the area, Carrasquillo attached two magnetic signs touting the NHS logos on his minivan’s doors to show he is not a police officer. He said he also prefers touring in the morning, as drug dealers and “gangbangers” tend not to be early risers.

“These properties are just going to sit there, boarded up, broken into and a magnet for crime,” he said. “And that makes our job of trying to stabilize this neighborhood so much harder.”

CRACKDOWN NETS MORE REPORTS OF FRAUD

The U.S. Federal Bureau of Investigation said in a report released on June 17 that suspicious activity reports (SARs) related to mortgage fraud rose 5 percent in 2009 to around 67,200, up from 63,700 the year before. The number had tripled from 22,000 in 2005 and the number of SARs for the first three months of 2010 hit nearly 38,000.

“We don’t see the number declining while foreclosures remain so high,” said Sharon Ormsby, section chief of the FBI’s financial crimes section.

Robb Adkins, executive director of the Financial Fraud Enforcement Task Force, is known as U.S. President Barack Obama’s financial fraud czar. He describes mortgage fraud as “pervasive” and fears it is exacerbating the nation’s real estate woes. “That, in turn, could act as an anchor on the economic recovery,” he said.

For the housing market to recover, potential homeowners need confidence in home prices and investors need confidence to get back into the secondary mortgage market, Adkins explained.

Since the subprime meltdown, a wide variety of scams have come to the fore. They include big cases like that of Lee Farkas, the former head of now bankrupt mortgage lender Taylor, Bean & Whitaker Mortgage Corp, charged in June with fraud that led to billions of dollars of losses. The scheme involved the misappropriation of funds from multiple sources, including a lending facility that had received funding from Deutsche Bank and BNP Paribas.

That appears to be the scam of choice. On July 22, for instance, seven defendants were indicted in Chicago in a $35 million mortgage fraud scheme involving 120 properties from 2004 to 2008 using straw buyers. Of the half dozen properties listed in the indictment, two were in Back of the Yards.

In the mid-2000s, the availability of easy money, poor due diligence by lenders and low- or no-documentation loans, acted as a magnet for fraudsters, who used identity theft and other scams to bag large sums of cash.

“During the boom it was almost like people in the real estate market could do no wrong,” said Ohio Attorney General Richard Cordray. “As ever more money rushed in, it attracted a lot of people who engaged in shady behavior.”

Instead of leaving them without a market, the crash has instead provided fraudsters with a glut of foreclosures, stricken borrowers and desperate lenders to take advantage of.

“There were plenty of opportunities for fraud on the way up and there are plenty on the way down,” said Clifford Rossi, a former chief credit officer at Citigroup and now a teaching fellow at the University of Maryland in College Park.

Alongside familiar scams like property flipping, the crash has added new terms to the lexicon: short sale fraud, builder bailouts and flopping. Rescue scams targeting struggling homeowners with false promises of help are also on the rise.

If some of the mechanisms are new, a lot of the fraudsters are not: in many cases, they turn out to be mortgage brokers, appraisers, real estate agents or loan officers. “Because they’re insiders, they see exactly what’s happening and they’re able to stay one step ahead of the game,” said Todd Lackner, a fraud investigator in San Diego. “They’re the same people who were committing fraud during the boom and they were never caught or prosecuted.”

BACK TO THE YARDS

Just a stone’s throw from downtown Chicago, Back of the Yards is the setting for Upton Sinclair’s classic 1906 novel “The Jungle,” a tale of grueling hardship and worker exploitation at the city’s stockyards. The book includes an act of mortgage fraud against an unsuspecting Lithuanian family.

“Mortgage fraud is nothing new,” said Christopher Wagner, co-managing attorney of the Ohio Attorney General’s Cincinnati office. “It’s been around for a long time.”

Saul Alinsky, considered the founder of modern community organizing, started out in Back of the Yards in the 1930s. Decades later, a young community organizer named Obama got his start near here.

The neighborhood has always been poor, but south of the old railway tracks at W 49th St, the housing crisis’ legacy of empty lots and boarded-up homes is evident on every block. There are few stores and services available — in four separate visits for this story, no police vehicles were sighted.

“This is what we refer to as a ‘resource desert,'” Carrasquillo said. “When no one pays attention to an area like this, it makes it easier to get away with fraud.”

Marni Scott, executive vice president for credit at Troy, Michigan-based lender Flagstar Bancorp, says there are virtually no untainted sales in the area. “There are no cases of Mr and Mr Jones selling to Mr and Mrs Smith.”

“We see cases of mortgage fraud around the country,” she added. “But there’s nothing out there that could match the mass-production, assembly-line fraud that’s going on here.”

In 2008 Flagstar instituted a rule whereby any loan applications here and in parts of Atlanta — another fraud hot spot — must be approved by Scott and the lender’s chief appraiser. In a Webex presentation, Scott rattles through a number of properties snapped up for pennies on the dollar in 2009 and then sold for around $360,000.

She provides an underwriter’s-eye-view of one property, on the 51st block of South Marshfield Avenue, sold in foreclosure in July 2009 for $33,000. In January of this year Flagstar received a loan application to buy the house for $355,000.

The property appraisal — compiled by an appraiser who Scott believes never visited the area — showed four nearby comparable properties of around the same age (100 plus years) sold recently for around $360,000. The trick to this kind of scheme is engineering the sale of the first few fraudulently overvalued properties to get “comps” — comparable values — to fool appraisers and underwriters alike.

“Miraculously, all of these properties were all within a very narrow price range,” Scott said with weary sarcasm. “This is a perfect appraisal for an underwriter. If you are an underwriter sitting in Kansas or California it all looks fairly straightforward so you can just hit the button and approve it.”

Using a $5 product called LoanIQ from U.S. title insurer First American Financial Corp called LoanIQ, Flagstar determined the application itself was fraudulent and there was a foreclosure rate in the area of nearly 60 percent. What is more, property prices here spiked 84 percent last year after 44 percent and 26 percent declines in 2008 and 2007.  [How mant times have you heard the MSM report that “Housing prices recovered 1% last month”]

“No neighborhood should look like this,” said Scott, who declined the application.

Last April, however, another lender approved a loan application for $335,000 on the same property from the same people.

FORECLOSURE MAGNET

Reports this year from Interthinx, CoreLogic Inc and the Mortgage Asset Research Institute (MARI) — which all provide fraud prevention tools for lenders — show foreclosure hotspots Florida, California, Arizona and Nevada are also big mortgage fraud markets.

MARI said in its April report that reported mortgage fraud and misrepresentation rose 7 percent in 2009, adding fraud “continues to be a pervasive issue, growing and escalating in complexity.”

Denise James, director of real estate solutions at LexisNexis Risk Solutions and one of the author’s reports, said reported fraud will continue to rise throughout 2010.

In its first-quarter report, Interthinx said its Mortgage Fraud Risk Index rose 4 percent to 151, the first time it had passed 150 since 2004. A figure of 100 on the index would indicate virtually no risk of fraud.

Congressman Barney Frank

According to various estimates, the 30310 ZIP code in Atlanta is one of the worst in the country. An analysis of that ZIP prepared for Reuters by Interthinx showed a fraud index of 414, making it the eighth worst ZIP code in the country. Back of the Yards — ZIP code 60609 — had an index of 309.

“In some neighborhoods in Atlanta there hasn’t been a clean transaction in 10 years,” Interthinx’s Fulmer said.

In 2005 local residents here formed the 30310 Fraud Task Force. Members sniff out potential signs of fraud — such as repeated property flipped — and report them directly to the FBI and local authorities. Information from the task force led to the arrest of a 12-member mortgage fraud ring on September 15, 2008 — better known in the annals of the financial crisis as the day Lehman Brothers filed for Chapter 11 bankruptcy protection.

Brent Brewer, a civil engineer and task force member, said the arrests had a noticeable impact on fraud in the area. “It made a statement that if you come here to commit fraud there’s a good chance you’ll get caught,” he said.

But Brewer harbors no illusions the fraudsters are gone. “There’s no way they can catch everyone who’s involved in fraud. But if you’re dumb, greedy or desperate, you’re going to get caught.”

FBI GETTING INTERESTED

Law enforcement has come a long way in combating mortgage fraud, though officials freely admit that’s not saying much.

Senator Chris Dodd

Ben Wagner, U.S. attorney for the eastern district of California, said as mortgages are regulated at the state and local level, for years there was little federal interference. Prior to the recent boom, he said, fraud simply “was not identified as a huge problem.”

“There has been a little bit of a learning curve,” Wagner said. “This was not something federal prosecutors had much familiarity with. Now we’re getting pretty good at it.”

Half of Wagner’s 50 or so criminal prosecutors focus on white-collar crime including fraud. Two new prosecutors will be dedicated solely to mortgage fraud.

Now mortgage fraud is a known quantity, Wagner said all U.S. prosecutors tackling it are linked by Internet groups. The May edition of the bi-monthly “United States Attorneys’ Bulletin” (published by the Executive Office for United States Attorneys) was devoted entirely to mortgage fraud.

The FBI has more than 350 out of its 13,000 agents devoted to mortgage fraud. There are also now 67 regular mortgage fraud working groups and 23 task forces at the federal, state and local level. “This is the broadest coalition of law enforcement ever brought together to fight fraud,” Adkins said. He admitted, however that limited resources to fight fraud still pose a challenge.

Attorney General Eric Holder

In June U.S. authorities said 1,215 people had been charged in a joint crackdown on mortgage fraud. Many of the charges were for crimes committed years ago.

Latour “LT” Lafferty, the head of the white-collar crimes practice at law firm Fowler White Boggs in Tampa, Florida, said fraud in the boom was so pervasive that many crimes will go undetected and unprosecuted. “Everyone had their hands in the cookie jar during the boom,” he said. “Lenders, brokers, Realtors, homeowners … everyone.”

OLD DOG, NEW TRICKS

A new mortgage scam born out of the housing crisis is short sale fraud. Short sales are a way for stricken homeowners to get out of their homes, whereby in agreement with their lender they sell their home for less than they paid for it and are forgiven the remainder.

But they have also proven a tempting target for fraudsters, usually involving the Realtor in the deal. Lackner, the fraud investigator in San Diego, described a typical scheme: “Let’s say you have a property up for short sale that you know as a Realtor you can get $350,000 for,” he said. “But you arrange a low-ball appraisal of $200,000 and have someone make an offer of that amount.”

Tont Rezko - Convicted Felon - Real Estate "Development"

“The Realtor says to the bank this is the best offer you’re going to get, take it or leave it,” he added. “Then they turn around and flip it immediately for $350,000. In cases like this, the lender is probably already stuck with a lot of foreclosed properties and doesn’t want more. So they go for it.”

Where the process of fraudulent appraisals overvaluing a property for sale is “flipping,” deliberately undervaluing them has become known as “flopping.”

Bob Hertzog, a designated real estate broker at Summit Home Consultants in Scottsdale, Arizona, says he gets emails from unknown firms offering to act as a “third-party negotiator” between the seller and the bank with what turns out to be a grossly undervalued bid.

Hertzog has tried tracing some of the LLCs, but describes a chain of front companies leading nowhere.

“The problem is it is so cheap and easy to set up an LLC online that sometimes they are set up for just one transaction,” Flagstar’s Scott said. “And if they’re set up using fake information or a stolen identity, it’s very hard to trace who’s behind them.”

Many web sites boast they can help you form an LLC online for under $50.

Another common target for fraud is the reverse mortgage. Designed for seniors to release equity from a property, according to financial fraud czar Adkins, they have been used to commit a “particularly egregious type of fraud.”

Fraudsters commonly forge their victims’ signatures and, without their knowledge or consent, divert funds to themselves. The scam is worst in Florida, a magnet for American retirees.

“Unfortunately it is often not until the death of the victim that their heirs realize that all of the equity has been stripped out of the property by fraudsters,” Adkins said.

But Arthur Prieston, chairman of the Prieston Group, which sells mortgage fraud insurance and has launched a patented system to rate lenders on the quality of their loans, said most mortgage fraud he comes across consists of ordinary people fudging figures to get a loan. “The vast majority of the fraud we see is where people intend to occupy a property, but can’t qualify for a loan,” he said. “They’ll do anything to get that loan approved.”

He added this is achieved with the active collusion of Realtors, brokers and lenders looking to make a sale and keep the market moving. Before his firm issues fraud insurance it reviews a lender’s loans and between 20 percent and the 30 percent of the loans reviewed so far have had “red flags.”

The problem with assessing the extent of the damage caused by mortgage fraud is that it’s not just the dollar amount of the fraud itself. It also hits property values, property taxes and often causes crime to rise.

“Most people interpret white collar crime as a victimless crime, where the bank pays the price and no one else,” said Andrew Carswell, associate professor of housing and consumer economics, University of Georgia. “This is a mistaken perception … neighborhoods and homeowners pay the price.”

UNCOVERING THE SCAMS

Companies like Interthinx, CoreLogic and DataVerify all have data-driven fraud prevention tools for lenders. Interthinx’s program, for instance, identifies some 300 “red flags” including a buyer’s identity and recent sales in a neighborhood, while CoreLogic uses pattern recognition technology. CoreLogic also aims to bring a short sale fraud product to the market soon.

Interthinx’s Fulmer said regardless of the source, on average solid fraud prevention tools can be had for as little as $10 to $15 per loan. “The tools out there enable us to see what’s going on out there right now in real time,” she said.

Apart from fraud insurance, Prieston Group’s new credit rating system for lenders should have enough data within the next year to start providing valid ratings.

Prieston said the firm’s insurance product is growing at more than 100 percent per month, while CoreLogic’s Tim Grace said the firm’s fraud prevention tool business was booming.

Many lenders are also sharing more information about bad loans, though LexisNexis’ James said it is not nearly enough. “If lenders don’t start to share more information then fraudsters will continue to go from bank to bank to bank until they’re caught,” she said.

The University of Maryland’s Rossi said what the industry needs is a “central data warehouse” to combat fraud. “There has been a failure of collective data warehousing across the industry,” he said.

Mortgage Bankers Association (MBA) spokesman John Mechem said members have no plans for a central database, but added “we view our role as being to facilitate and encourage information sharing in the industry.”

The U.S. Patriot Act of 2001 allows lenders a safe harbor to share information, but does not mandate it. “We always encourage more information sharing,” said Steve Hudak, a press officer at the U.S. Treasury Department’s Financial Crimes Enforcement Network, or FinCen. “As of now, however, this is an entirely voluntary process.”

But Rossi said the government should step in. “The Federal government is probably going to have to take the initiative because I don’t see the industry doing this one on its own,” he said. “I am personally not a fan of big government, but we need more information sharing.”

Ultimately, the expectation is lenders will be forced either to improve due diligence, or face being pushed out of business as investors burned by sloppy underwriting during the boom urge them to adopt fraud prevention tools.

“Investor scrutiny is going to be higher than it ever has been,” Rossi said. “The days of a small amount of due diligence are gone.”

Many investors are also investigating their losses and forcing lenders to repurchase bad loans. This is resulting in “thousands of repurchases a month,” according to Prieston.

“When it comes to small lenders with only a few million dollars of loans, ten repurchases will absolutely put some of them out of business,” he said.

The government now guarantees more than 90 percent of the mortgage market and forms almost the entire secondary mortgage market, as private investors have not returned. The FHA, Fannie Mae and Freddie Mac are thus seen as playing an instrumental role in pushing improved due diligence to clean up the government’s multi-trillion dollar portfolio.

FHA commissioner David Stevens was appointed in July 2009. Since then the FHA has shut down 1,100 lenders, after decades in which the government closed an average of 30 lenders annually. He says most lenders he deals with are of a “very high quality,” but that “there are still lenders that either don’t have controls in place or are proactively engaging in practices that pose a risk to the FHA.”

Stevens does not expect to shut down lenders at the same rate as the past year, but added “the number will be much higher than the historical average.”

CoreLogic’s Grace said most large lenders have the tools in place to combat mortgage fraud, but admitted he was concerned about some smaller lenders. “The next shakeout of weak lenders will take place over the next 12 to 24 months,” he said.

The MBA’s Mechem said the U.S. mortgage market must be cleaned up if it is ever to return to normal. “The one thing private investors need to get back into the secondary market is confidence,” he said. “And investors won’t risk buying mortgages if they don’t have confidence in the quality of the loans. Restoring that confidence is going to play a pivotal role in restoring the markets.”

In the meantime, mortgage fraud is expected to cause more problems in areas like Back of the Yards in Chicago.

Three doors down from the boarded-up, foreclosed property that has aroused Carrasquillo’s suspicions, father-of-three Oti Cardoso says he and his neighbors try to cut the grass at the abandoned properties on his block and to keep thieves out. But he has heard most empty houses end up occupied by gang members.

“I want my children to be safe, I don’t want drug dealers here,” he said. “I have tried to find the owner of these houses so I can work with them to help keep their homes clean.”

“If they only knew what was happening here,” he added, “I’m sure they would want to do what was right.”

http://www.reuters.com/article/idUSTRE67G1S620100817

Investors Row - half million dollar houses in a row ...

Obama Administration/ Attorney General Holder & DOJ Stall 911 Terrorist Trial

US stalls on Sept. 11 trial for 5 at Gitmo

By BEN FOXThe Associated Press
Saturday, July 31, 2010; 3:07 PM

SAN JUAN, Puerto Rico — As the U.S. military prepares for the first war crimes trial under President Barack Obama, its most high-profile case against the planners of the Sept. 11 attacks is stuck in political and legal limbo.

Omar Khadr

Canadian prisoner Omar Khadr, accused of killing an American soldier during a raid on an al-Qaida compound, is scheduled to go to trial Aug. 9 at the U.S. base in Cuba.

But Khalid Sheikh Mohammed, the professed mastermind of the attacks, and four alleged accomplices are still sequestered at Guantanamo without charges. The Obama administration, after months of review, hasn’t made a decision on whether to seek a military or civilian trial.

It’s a delay that has angered relatives of Sept. 11 victims. It also has created an unusual situation: Previous war-crimes proceedings, in which Mohammed boasted of his role in the attacks and said he wanted to plead guilty, have essentially been erased. No U.S. officials will say what the plans are for the five men who were transferred in 2006  to Guantanamo from secret CIA custody.

Khalid Sheikh Mohammed

“There’s no case, there’s no judge, there’s nothing,” said Navy Lt. Cmdr. Richard Federico, a military lawyer appointed to defend alleged plotter Ramzi bin al Shibh. “They are back into the black hole.”

Attorney General Eric Holder announced in November the trial would be moved to federal court in New York. But the administration backtracked and put the issue under review after local officials objected to the costs and potential security threat.

The military and justice department refer questions about the status to the White House, which said in March a decision was weeks away. An Obama administration official, speaking on condition of anonymity, told The Associated Press on Friday it is still reviewing the venue and forum for the trial.

Lawyers for the Sept. 11 defendants and other observers doubt an announcement will be made before November elections, because moving them to the United States and keeping them in Guantanamo for a military trial are both politically unpopular choices.

“Why would you want to pay this political price in the three months before this election which you are expecting to do badly in?” said Benjamin Wittes, a senior fellow and terrorism specialist at the Brookings Institution.

The administration official, who spoke on condition of anonymity because the review is ongoing, said the election does not have any influence on the process. The official said the security and cost concerns of state and local officials in New York are being taken into account.

Dominic Puopolo Jr., a Miami computer consultant whose mother was killed in the Sept. 11 attacks, attended the trial in Germany of a Moroccan man accused of aiding the plotters and still hopes to see Mohammed and his co-defendants prosecuted as well – before the 10-year anniversary in 2011.

Khalid Sheikh Mohammed

“I’m incredibly disappointed with the way the Obama administration has handled this,” said Puopolo, whose mother was on board the American Airlines flight out of Boston that the hijackers crashed into the World Trade Center on Sept. 11.

During his presidential campaign, Obama criticized the war crimes tribunals, known as military commissions, that began under his predecessor. But he worked with Congress to adopt changes. He said he wants to keep the tribunals as an option for some prisoners, including Khadr, as part of a plan to close the Guantanamo detention center, where the U.S. holds about 175 men.

Even with the changes, the military commissions are unpopular with some Obama supporters. The American Civil Liberties Union said in a report Thursday that there have been “procedural improvements,” but the tribunals could still convict someone with hearsay evidence obtained coercively, or based on testimony from detainees who are not available for cross-examination.

In the Khadr case, critics oppose the war crimes trial because the defendant was 15 when he allegedly threw the grenade that killed U.S. Army Sgt. 1st Class Christopher Speer of Albuquerque, New Mexico, during a raid on a al-Qaida compound in Afghanistan in 2002.

“Unless the president ends this travesty of justice, the Obama military commissions will forever be remembered for prosecuting a child,” Army Lt. Col. Jon Jackson, Khadr’s Pentagon-appointed lawyer, said Saturday.

The military says it’s a war crimes case because he was not a legitimate soldier. Khadr faces up to life in prison if convicted of murder in a trial that could last several weeks.

The Sept. 11 case is vastly more complicated. For one thing it is a capital case, with nearly 3,000 victims. Legal experts say it’s unclear whether the rules of military commissions permit a defendant to plead guilty and be executed, as Mohammed and his co-defendants have indicated they want to do.

Wittes noted that any choice has potential costs – and potential policy benefits. A successful trial in federal court or the military commission would help clarify legal questions and create a framework for trying other Guantanamo prisoners, helping to close the detention center.

“There is nothing defensible about not making a decision and letting the issue fester,” he said.

911 Ground Zero

As the debate over what to do goes on behind closed doors, military lawyers still visit the Sept. 11 defendants, even though the men have said they want to act as their own lawyers during any trial.

Navy Lt. Cmdr. James Hatcher, meets every three weeks with his appointed client, Waleed bin Attash, a Yemeni who allegedly ran an al-Qaida training in Afghanistan, where two of the 19 hijackers were trained. He can’t provide any details under the security rules.

“It’s obviously in a holding pattern,” Hatcher said. “I can tell you we are preparing on both fronts, whether it goes to federal court or to military court.”

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/31/AR2010073101549_2.html?hpid=topnews

‘We are proud of September 11 attacks,’ accused terrorist tells Guantanamo Court

One of the men accused of being a key 9/11 plotter told the Guantanamo war crimes court yesterday: ‘We are proud of 9/11’.

spoke as the court convened in a chaotic session with some of the accused disrupting the proceedings,  while U.S. government lawyers debated whether an administrative hiccup meant they should not be facing any charges at all.

Ramzi Binshalibh

Defendant Ramzi Binalshibh

Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11 hijacked plane plot, tried unsuccessfully to banish all Americans from his defence table in the courtroom at the U.S. naval base in Guantanamo Bay, Cuba, and complained when the judge asked him to limit his comments.

‘This is terrorism, not court. You don’t give us opportunity to talk,’ Mohammed told the judge, Army Col. Stephen Henley.

Mohammed complained when a prosecutor characterized the charges against him and four co-defendants as the ‘murder’ of nearly 3,000 innocent men, women and children.

But Mohammed, who has repeatedly acknowledged his guilt on charges that could lead to his, later told the court, ‘We don’t care about the capital punishment … we are doing jihad for the cause of God.’

Guantanamo Detention Center

 execution

Defendant Ramzi Binalshibh, whose mental competency to act as his own attorney is the subject of an ongoing challenge, told the court, ‘We did what we did and we are proud of this. We are proud of 9-11.’

http://www.dailymail.co.uk/news/worldnews/article-1122924/We-proud-September-11-attacks-accused-terrorist-tells-Guantanamo-court.html#ixzz0vIIN8SdB

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 4)

Read Part 1 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.)  (Page 18, lines 1 to 12)

Yes, I would invite you to review the history of the LESC and visit the LESC website. http://www.ice.gov/partners/lesc/index.htm

Chapter 8, § 1373(c), Obligation to respond to inquiries:

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

http://www.law.cornell.edu/uscode/search/display.html?terms=1373&url=/uscode/html/uscode08/usc_sec_08_00001373—-000-.html

“shall… any individual … for any purpose authorized by law … by providing the requested information”

THIRD FALSE STATEMENT: DHS, IN ITS DISCRETION SET UP THE LESC – LESC MANDATED BY CONGRESS

We should note the additional false statement above, that, “DHS has, in its discretion, set up LESC”. The DHS was instructed by Congress to establish the LESC and provided with the funding to do so. This action was “mandated” by Congress, there was no “discretion” involved. The issue of “discretion” in the Executive Branch flows in this direction, the DHS will exist as long as the United States Congress allows it to exist, the DHS exists at the sole discretion of Congress, the DHS is a Congressional creation.

 Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities. (Page 18, lines 13 to 16)

Again, the significance of argument is what? This is not a constitutionally recognized argument of “preemption”. The allegations presented by the DOJ do not state a claim of preemption recognized by our Federal Courts nor does this claim state a cause of action for which relief maybe granted by a Federal Court.

The Federal Courts cannot forgive an Executive Agency from a responsibility delegated to it by Congress.

The DOJ may want to seek protection from the Federal Courts because Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano and Mr. Palmatier at  the LESC are incompetent and cannot properly allocate the resources provided by the Congress to their Executive Agencies. The fact that Attorney General Holder and Secretary Napolitano are not qualified to hold their jobs does not mean that a request from the State of Arizona or any other State for that matter is unconstitutional. An otherwise constitutional request cannot become “unconstitutional” because the Executive Agencies involved cannot allocate their resources to successfully complete those tasks specifically assigned to the Agencies by Congress.

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established. (Page 18, Lines 17- 24).

Simply put, the Judge is wrong. This finding is, as has already been demonstrated, not supported by existing law, the doctrine of “federal preemption” or any analysis of Congressional intent. In fact, the Judge’s contradicts the specific Congressional intent specifically stated in the Immigration Statutes and the creation of NSEERS and LESC.

I’m have no doubt that the points presented in this summary will be stressed by the Supreme Court when the Judge Bolton’s decision is reversed.  

FOOT NOTE 7 The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallellegislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, (Page 18, Lines 26 – 28)

 b. Immigration Status Determination During Lawful Stops, Detentions, or Arrests

Next, the Court turns to the first sentence of Section 2(B): For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. A.R.S. § 11-1051(B). The United States makes essentially the same arguments about this requirement. First, the United States advances that it imposes a burden on lawfully-present aliens not permitted by Hines, where the Supreme Court sought to protect the personal liberties of lawfully-present aliens to leave them free from the possibility of intrusive police practices that might affect international relations and generate disloyalty. (Pl.’s Mot. at 26 (citing Hines, 312 U.S. at 74).) Second, the United States argues that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities. (Id.) The United States’ arguments regarding burdening of federal resources are identical to those outlined above and will not be restated. However, the United States makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B). First, the United States argues that this provision “necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials.” (Id. at 26.) The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program (Page 18, Lines 1 to 23)

The Court notes, “The United States makes essentially the same arguments” and “it imposes a burden on lawfully-present Aliens not permitted by Hines”. For the same reasons previously enumerated, the Court is wrong. The Court’s finding does not comport with the facts of this case, the law of the land or the intent of Congress. The Hines case, again, was a case involving State registration of aliens who had not been “arrested”. The DOJ has failed to produce any proof of an additional burden as was the case in Hines, there is no constitutional prohibition against confirming the “immigration status” of those under arrest … and the U.S. Supreme Court has already ruled that checking an arrested aliens NCIC record does not create an undue burden … the Judge’s second finding confirms, beyond all doubt, that this Judicial opinion is rooted in politics not law …

countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.) Also, the United States points out that United States citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B).9  (Page 19, Lines 1 to 6)

FALSE STATEMENT 4: “who will not have readily available documentation to demonstrate that fact,”…  including foreign visitors from Visa Waiver Program… The Visa Waiver program does not supersede any other section of United States Immigration Law.

First I want to urge the reader to note Foot Note 8 below, where I’ve added the specifics of the Visa Waiver Program. Title 8, Chapter 12, § 1187.

I find it very hard to express my complete devastation at the lack of candor and outright dishonesty exhibited by both Judge Bolton and our Department of Justice. These are not “errors” in reading the law, errors based on stupidity or incompetence; these are now, in my opinion, instances of dishonesty.     

It has been quite a while since I worked in the legal field on a daily basis, but I have written many, many briefs and read thousands of legal opinions. Never before have I come across a judicial opinion with 4 false statements made by a Judge. There are frequent disagreements concerning the interpretation of specific laws, however, the specific language or wording of a statute is easily determined. A statute’s wording is written in bold face on the page …. I’ve inserted the relevant statutes into this post for you to read and provided links for you to verify the accuracy of my claims … you  can decide for yourself. 

Unscrupulous Attorneys will misquote and miss-site cases, but I have never seen this from a Judge before never mind an Attorney General of the United States. The statement above is a false statement and I believe it to be an intentionally false statement. No matter what “program” an alien seeks to be admitted under, that alien must first register and once registered is required by Federal Law to carry their documentation … 

Foreign visitors requesting admission through the Visa Waiver Program must still register with NSEERS and/or the DHS. An individual seeking entry under the Visa Waiver Program is required to comply with all other “entry” and registration requirements. An individual asking inclusion in the “Visa Waiver Program” is asking for exemption from the requirement to “qualify” for a visa under our system of immigration quotas. Gaining an exemption from the Visa Quota System, does not exempt an individual from “registering” as an alien.  

(The fact that the Holder DOJ suggests that admission under the Visa Waiver Program exempts foreign nationals from registering with the U.S. Government should raise all sorts of red flags in Congress).

Title 8, Chapter 12, 1304; regulates alien registration procedures in the United States.

Title 8, Chapter 12, § 1304: Forms for registration and fingerprinting

 (a) Preparation; contents

The Attorney General and the Secretary of State jointly are authorized and directed to prepare forms for the registration of aliens under section 1301 of this title, and the Attorney General is authorized and directed to prepare forms for the registration and fingerprinting of aliens under section 1302 of this title. Such forms shall contain inquiries with respect to

(1) the date and place of entry of the alien into the United States;

(2) activities in which he has been and intends to be engaged;

(3) the length of time he expects to remain in the United States;

(4) the police and criminal record, if any, of such alien; and

(5) such additional matters as may be prescribed.

(b) Confidential nature

All registration and fingerprint records made under the provisions of this subchapter shall be confidential, and shall be made available only

(1) pursuant to section 1357 (f)(2) of this title, and

(2) to such persons or agencies as may be designated by the Attorney General.

(c) Information under oath

Every person required to apply for the registration of himself or another under this subchapter shall submit under oath the information required for such registration. Any person authorized under regulations issued by the Attorney General to register aliens under this subchapter shall be authorized to administer oaths for such purpose.

(d) Certificate of alien registration or alien receipt card

Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.

(e) Personal possession of registration or receipt card; penalties

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

http://www.law.cornell.edu/uscode/search/display.html?terms=1304&url=/uscode/html/uscode08/usc_sec_08_00001304—-000-.html

The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28-29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.10 (Id. at 29.) Hines cautions against imposing burdens on lawfully-present aliens such as those described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement (Page 20, Lines 7 to 19).

Foot Note 8: The Visa Waiver Program permits visitors from certain countries to enter the United States without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R.§,§ 217.1-217.7. (Page 20, Lines 21 to 23).

Again, the Court acted dishonestly it discussing the Visa Waiver Program. The Visa Waiver Program does not eliminate an alien’s duty to register with trhe Federal Government and caryy their registration documents with them at all times. 

Title 8, Chapter 12, § 1187. Visa waiver program for certain visitors

 

(1) Seeking entry as tourist for 90 days or less

The alien is applying for admission during the program as a nonimmigrant visitor (described in section 1101 (a)(15)(B) of this title) for a period not exceeding 90 days.

2) National of program country

The alien is a national of, and presents a passport issued by, a country which

(A) extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States

3) Machine readable passport

(A) In general

Except as provided in subparagraph (B), on or after October 1, 2003, the alien at the time of application for admission is in possession of a valid unexpired machine-readable passport that satisfies the internationally accepted standard for machine readability.

(4) Executes immigration forms

The alien before the time of such admission completes such immigration form as the Attorney General shall establish.

(6) Not a safety threat

The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.

(7) No previous violation

If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant

http://www.law.cornell.edu/uscode/search/display.html?terms=1187&url=/uscode/html/uscode08/usc_sec_08_00001187—-000-.html

An individual admitted under the Visa Waiver Program must still register their entry with the Government, the alien must possess a passport (a legally recognized form of ID under the Arizona Law). They must undergo an NCIC and NSEERS check and complete the legally required screening process established by CONGRESS and Administered by the Executive Agencies. The “burdensome check” imagined by the Executive Agencies and agreed to by the Courts involves nothing more than an electronic inquiry of the data systems chartered by Congress and maintained at taxpayer expense to respond to just such an inquiry.

agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation’s need to ‘speak with one voice’ in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” (Pl.’s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens. With respect to the United States’ arguments regarding the burden on and impediment of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions mirror those stated above regarding the second sentence of Section 2(B). Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States.12 In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads (Page 21, Lines 1 to 22).

 The Court continues to make clearly erroneous rulings, rulings not support by the facts, the law or Congressional intent.

Specifically the Court states, in error, that; “transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation”. As previously outlined. Individuals in the Visa waiver program are required to register, provide a passport, carry documentation and keep their “registration documents” on their person. Any implication to the contrary is dishonest. Even should the individual loose or have all of their documentation stolen, the person can be identified if they deal with the local authorities in an honest manner and identify themselves. Every alien who enters this Country legally creates a “data record” that the LESC can access.

The Court again returns to discuss cases that are not on point. The Court notes that, “a system by which aliens’ papers are routinely demanded and checked” are disfavored. The Courts, in fact, do not “disfavor” Law Enforcement authorities completing immigration checks or individuals taken into “custody”, there is not a single instance of a Court “overruling” an “immigration check” completed on a person who has been taken “into custody”. The status check is, technically, completed by the Executive Agency that receives the inquiry. The “detaining” or “investigating officer” requests a “status determination”, as is specifically outlined in Federal Immigration law.

to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on itschallenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.  (Page 22, lines 1 to 4)

3. Section 3: A.R.S. § 13-1509

Section 3 states that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a).” A.R.S.§ 13-1509(A).13 The penalties for violation of Section 3, a class 1 misdemeanor, are amaximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. A.R.S. § 13-1509(H). Section 3 also limits violators’ eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. A.R.S. § 13-1509(D), (E). Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law. The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at 21-22.) “[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power (Page 22, Lines 1 to 22).

 

To be continued:

Read Part 1 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 3)

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 3)

Even if the Government’s allegation that, “It will result in the harassment of lawfully present aliens,” is true, and it is not, the allegation fails to state a claim subject to  one of the three areas of “preemption”. A claim of harassment may lend itself to a “civil rights claim”, it is not a within the “class of claims” to be considerd under the Federal preemption doctrine.

Example: A suspect is arrested and it is alleged that the suspect had 10 tons of cocaine in his possession. After the suspect is placed under arrest he is charged with bank robbery. Even if the Judge assumes the suspect had 10 tons of cocaine in his possession, the Judge must dismiss the bank robbery charges, because those charges do not apply to the facts alleged.

Even if the Government’s allegation is true, that the Arizona Law will “result in the harassment” of lawfully present aliens”, such action does not give rise to a claim of preemption.

Claim 2:  “it will burden federal resources and impede federal enforcement and policy priorities.”

Does this allegation state a basis for a “preemption claim” or is this claim one of “administrative inconvenience”. One type of claim is protected by the Constitution, one is not.

Is this a claim of Express Preemption? No, the DOJ doesn’t allege that Congress “reserved” enforcement for the Federal Government, such a claim would be unsustainable.

Is this a claim of Field Preemption? No, the DOJ has not alleged that the Congress intended to preclude the States from supplementing the enforcement of our Immigration Laws.

Is this a claim of Conflict Preemption? No, the allegation fails to state a claim which, even if it were true, would fall within the criteria of “conflict preemption”. The allegation is one of “administrative inconvenience” not of “conflict preemption”. The Holder DOJ has not alleged that the Arizona Law creates the situation where “compliance with both federal and state regulations is a physical impossibility”… the Holder DOJ just states that compliance will be difficult … the DOJ does not state that it is impossible.

What was the Congressional Intent?

Despite being instructed by both the Federal Appellate Courts and the U.S.  Supreme Court to, “look to the intent of Congress” prior to interpreting Immigration Law, this Judge failed to do so.

Title 8, Chapter 12, § 1252c, (b) Cooperation

We know what Congress intended  when Congress passed Title 8, Chapter 12, § 1252c, (b) Cooperation; because Congressional expressly stated what Congress wanted the Attorney General, the Department of Justice and the Department of Homeland Security to do; Congress instructed, “The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.”

This Congressional statement is the exact opposite of an “express preemption” of Federal Law, the statement is, in fact, an “express invitation” to the States. Congress’ language evidences an “express invitation” by Congress to the States, an invitation for the States to assist in the enforcement of Federal Immigration Law. The language also “orders” the Attorney General and his DOJ and the DHS to supply the necessary information.

Title 8 U.S.C. § 1373(c),

Title 8 U.S.C. § 1373(c), This Court makes reference to this section of Title 8 later in this opinion. The Court states. “DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status …

Who placed this obligation on the Department of Justice and the Department of Homeland Security? The Congress imposed this requirement, this obligation. Unequivocal evidence of Congressional intent.

The LESC – “The Law Enforcement Support Center”

Later in this opinion Judge Bolton will discusses the LESC, however, Judge Bolton does not discuss the Congressional intent behind the LESC, what the LESC does nor will she acknowledge the accomplishments of the LESC.

From the LESC Website:  http://www.ice.gov/partners/lesc/index.htm   

The Law Enforcement Support Center (LESC) serves as a national enforcement operations center by providing timely immigration status and identity information to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. The LESC operates 24 hours a day, 7 days a week assisting law enforcement agencies with information gathered from 8 DHS databases, the National Crime Information Center (NCIC), the Interstate Identification Index (III) and other state criminal history indices.

So, the LESC was created to comply with Congressional mandates and the specific mission of the LESC is to provide the exact information to be requested under the Arizona Law by Arizona Law Enforcement Officers.

In addition to providing real time assistance to law enforcement agencies that are investigating, or have arrested, foreign-born individuals involved in criminal activity, the LESC also performs the following investigative functions:

The LESC is “chartered” to assist assists law enforcement officers in completing the exact law enforcement duties anticipated under the Arizona Law.

National Crime Information Center (NCIC) – The LESC administers and controls immigration related cases in this nationwide law enforcement consortium and criminal database for Immigration and Customs Enforcement (ICE).

The LESC Communications Center serves the law enforcement community with NCIC hit confirmation information. (As is required under Title 8, Chapter 12, § 1252c, (b) Cooperation.)

You can read the August 1, 1995 GAO report to Congress on the LESC here:  http://www.gao.gov/archive/1995/ai95147.pdf

The LESC defines its mission this way:

The mission of the Law Enforcement Support Center (LESC) is to protect the United States and its people by providing timely, accurate information and assistance to the federal, state and local law enforcement community—365 days a year, 24 hours a day.

The Law Enforcement Support Center (LESC), administered by U.S. Immigration and Customs Enforcement (ICE), is a critical point of contact for the national law enforcement community, providing a wide range of informational services to officers and investigators at the local, state and federal levels.

The primary users of the LESC are state and local law enforcement officers in the field who need information about foreign nationals they encounter in the course of their daily duties.

LESC technicians have ready access to a wide range of databases and intelligence resources, including the following:

ICE immigration databases;

National Crime Information Center (NCIC);

Interstate Identification Index (III);

Student and Exchange Visitor Information System (SEVIS);

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) system; and

National Security Entry-Exit Registration System (NSEERS).

http://www.ice.gov/partners/lesc/lesc_factsheet.htm

The LESC has devised a “computerized contact screen” accessible by State and Local Law enforcement from their squad cars. The LESC “contact screen” has been incorporated into “State” computerized criminal investigation systems.

Over the last 6 years. LESC has processed nearly 10,000,000 (10 million) information requests from State and Local Law Enforcement Officers.

Over 90 percent of the “information requests” submitted to the LESC are submitted electronically. (Just like the NCIC System). Over 90 percent of the requests are processed in under 10 minutes … under 10 minutes. In the last 4 years the LESC has processed over 4,000,000 electronic queries. Electronic inquires are system based and system responded … they require no human contact. The NCIC system relies on electronic inquiries/responses.

http://www.ice.gov/pi/news/factsheets/lesc.htm    

NSEERS

From the Official NEERS web site:

The National Security Entry-Exit Registration System (NSEERS) also known as Special Registration, put in place after September 11, 200 , to keep track of those entering and leaving our country in order to safeguard U.S. citizens and America’s borders. NSEERS was the first step taken by the Department of Justice (DOJ)  and then by the Department of Homeland Security (DHS) in order to comply with the development of the Congressionally- mandated requirement for a comprehensive entry-exit program.

Through the Special Registration system, the U.S. government can keep track of the more than 35 million nonimmigrant visitors who enter the United States as well as some nonimmigrant visitors already in the United States. These individuals are required to register with immigration authorities either at a port of entry or a designated ICE office in accordance with the special registration procedures.

Nonimmigrant visitors who do not comply with special registration requirements or other terms of their admission to the United States during their stay will be considered out of status and may be subject to arrest, detention, fines and/or removal from the country.

http://www.ice.gov/pi/specialregistration/index.htm

Brief summary of preemption:

There are there “classifications” of preemption;

1). Express

2). Implied: Field

3). Implied Conflict.

The Department of Justice alleged that the Arizona Law, A.R.S. § 11-1051(B). Section 2(B), was prohibited because, “this section is preempted because (1) it will result in the harassment of lawfully present aliens and (2) will burden federal resources and impede federal enforcement and policy priorities.” Neither DOJ claim qualifies for protection under the Federal Preemption Doctrine. 

“Harassment” claims don’t qulaify for consideration under the “preemption doctine”.

The claim that the Arizona Law will “burden federal resources and impede federal enforcement and policy priorities.” fails to State an allowable  claim under the Federal preemption doctrine. When the alleged “burden” is created by an “act” or “acts” invited by Congress and anticipated  in the Congressional Legislation that created the “complaining”  Executive Agency, a claim of “preemption” cannot be sustained. In non-legal terms, an Executive Agency cannot escape the responsibilities and obligation specifically placed on the Executive Agency by Congress  by claiming, “but if we do our job, we will be too busy to do our job Congress, even if it is the job Congress gave us to do.”

The Congressional intent, manifested in: Title 8, Chapter 12, § 1252c, (b) Cooperation; Title 8 U.S.C. § 1373(c); the creation of LESC and NSEERS, (a creation “mandated” by Congress) gives clear and unequivocal evidence that Congress intends for State Law Enforcement Officers to routinely make inquiry concerning immigration status and that State Law Enforcement Officers  were expected by Congress to make routine contacts with the “Federal Executive Agencies” and obtain immigration status information as part of their daily law enforcement duties. Information that is to be obtained by State and Local Law Enforcement Officers form LESC.

Preliminary Conclusion:

The preliminary allegations of the DOJ do not state a cause of action under the “federal preemption doctrine”. The facts complained of in this case and discussed to this point, do not violate any law of the United States nor are they in vio;ation of the U.S> Constitution. The clear intent of Congress is that State Law Enforcement Officers are to make immigration inquiries and that the Federal Executive Agencies are “required by” Congressional “mandate”  to respond to the requests and that the Executive Agencies are “required” by Congress to provide the requested information. The Congressional intent is clear, expressed and specific. The Congressional intent is unequivocal.

Back to the Bolton opinion.

a. Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.” Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5  Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.) The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as … (Page 15, lines 9 to 25)

FOOT NOTE 5: Arizona acknowledges that this sentence of Section 2(B) “might well have been more artfully worded.” (Id.) (Page 15, line 27 & 28).

dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly. As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release. The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. (Page 16, lines 1 to 28).

And what substantial burden does this activity place on those who are arrested … what is the substantial burden on those taken into custody … the DOJ is required to actually demonstrate a burden .. the DOJ is the moving party here … simply claiming a “substantial burden” does not “cut mustard”. 

The clear and unequivocal intent of Congress is for State and Local Law Enforcement Officers to make such inquiry during their daily routines. After all, the proof is in the fact that the LESC has processed over 10,000,000 requests for information over the last 6 years and that the LESC notes, in its mission statement, that Congress created the LESC specifically to reply to the requests from State and Local Law Enforcement Officials and that these Officials are expected to make such inquiry as a part of their normal law enforcement duties.

“Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens”…

Yes, the operative term in the Hines case is “law abiding”. The Arizona Law is not an “alien registration program”, to suggest that it is silly. An investigation of Immigration status is being conducted not on “law abiding aliens” but on those who have been arrested, before the arrested party is released.

Do you remember how many of the 911 terrorists were encountered by Law Enforcement Officers prior to flying the planes into the World Trade Center? Prior to 911 we lacked the systems to identify those terrorists and the fact that they were in this Country illegally. Today we do not.

The Hines case is not on point. What does a State registration system of those who have not been arrested, have to do with confirming an arrested suspect’s immigration status with the Executive Agencies chartered to provide local law enforcement personal with that specific information.      

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009,

(Page 17, Lines 1 to 9)

I’m so disappointed in this Judge. I expected her to at least try to appear impartial and attempt to hide her political bias.

First: No State Law Enforcement Officer in any State is empowered to determine the “immigration status” of any individual. The DOJ and the DHS are charged by Congress to make that determination. The State Law Enforcement personal are charged with investigation, apprehension and inquiry … to make an immigration status inquiry to the appropriate Executive Agencies cretaed to handle such requests.

“burdens lawfully-present aliens because their liberty will be restricted while their status is checked”.

Truthfully, I’ve never read an argument with less merit or less insight. The Law Enforcement Officer is making an “inquiry” concerning an arrested suspect, so while the person may or may not be “lawfully present” they have been “arrested”.  As a “criminal violator” the individual’s criminal background will be checked through the NCIC data base regardless of immigration status. The NCIC, the National Crime Information Center is administered by the FBI and as previously noted, is linked to the LESC.  The LESC inquiry and the NCIC inquiry will be done electronically and over 95% of those inquiries are completed within 10 minutes. Only those who cannot “identify themselves”, “present appropriate identification” or “refuse to identify themselves” are burdened further.

From the Official NCIC web site: 

The National Crime Information Center, or NCIC, was launched on January 27, 1967 with five files and 356,784 records. By the end of 2009, NCIC contained more than 15 million active records in 19 files. NCIC averages 7.5 million transactions per day.

NCIC helps criminal justice professionals apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists. It also assists law enforcement officers in performing their official duties more safely and provides them with information necessary to aid in protecting the general public.  

http://www.fbi.gov/hq/cjisd/ncic.htm

Even if the DOJ’s laughable argument were true, that the Arizona law “burdens lawfully-present aliens”, the burden cannot be removed by a claim of Federal preemption … Congress, after all, established the system creating the burden … remember the “burden” on the “suspect” is created by making an inquiry to an “Executive Agency” chartered to receive the inquiry in the first place … and the Executivew Agency has been instructed by Congress to respond to the inquiry …

Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.6  The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s Mot. at 30.) (Page 17, Lines 8 to 17)

What a bizarre argument. “The influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.”

As if the executive agencies are allowed to set their own priorities. As if the Executive Agencies are not “tasked” with specific “responsibilities”, specific “duties and specific “obligations” by Congress.

Never mind that fact that the DOJ is asking the Judge to accept the “hypothetical” argument that the Arizona Law would result in an “influx of requests” … so what if the law did create an “influx of requests” … the Executive Agencies receiving the requests were chartered to do just that in the first place …. receive immigration inquiry requests from the State and Local Law enforcement officers.

Can you imagine the DOJ arguing that a state law was unconstitutional because the law resulted in more letters being delivered to the Post Office …. The post office is the “Federal Agency” chartered to receive and deliver mail … can you imagine a claim that a state law is “unconstitutional” because “the influx of” mail to be sorted and delivered by the Post Office or federally-qualified Postal Officials would “impermissibly shift the allocation of federal resources away from federal priorities for mail delivery”.  

If this were not such a serious issue, this argument would be worthy of a good hard laugh.   

State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (expressing concern in preemption analysis for preliminary injunction purposes that burden on DOJ and DHS as a result of immigration status checks could “impede the functions of those federal agencies”). (Page 17, Lines  18 to 28)

The major case cited by the DOJ and Judge Bolton,Buckman Co. v. Plaintiffs’ Legal Comm,  is clearly not on point. In citing Buckman the Court noted, “would create an incentive for individuals to submit a deluge of information that the [federal agency] neither wants nor needs”.

Under the Arizona Law information is not being submitted to the an Executive Agency, it is being sought from it … information the Executive Agency has been instructed, instructed by Congress, to provide …

The information being requested by Arizona Law Enforcement is the very information the Executive Agency is chartered to provide … it is the “reason” for the Executive Agency’s existence and answering the request and supplying the information is an “obligation” imposed on the Agency by Congress … answering the request is not optional … it is the job the Executive Agency was created to complete.

Foot Note 6:  The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB. (Page 17, Lines 26 to 28)

The Judge’s Liberal activist leanings are showing again. The Plaintiff DOJ has not raised the issue of Fourth Amendment problems in this section of their pleadings and as this is a request for a preliminary injunction, it isn’t proper for the Court to consider this issue on its own accord.

Let us return, briefly to Title 8, Chapter 12, § 1252c, (b) Cooperation, for an examination “Congressional intent”.

“The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.” 

Congress did not qualify the duties of the Attorney General or the DOJ. The Congress stated that the Attorney General shall cooperate. Congress did not state that the Attorney General could cooperate when the Department of Justice felt like cooperating, that the DOJ could pick and choose when it wanted to cooperate, that the DOJ could selectively following this “instruction’. That the DOJ was excused from following this Congressional mandate if it were difficult or would strain resources.

Congress was unequivocal –  the DOJ shall respond. The word “shall” is an instruction, a directive, an order to cooperate, not a suggestion that the DOJ might want to cooperate. The Congressional intent is clear and unambiguous.

Read Part 1 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 4 Here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/

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