RECENT ARTICLESTri Valley Students - Habeas Corpus a Remedy?The question has arisen whether a Writ of Habeas Corpus would be an
appropriate remedy to the Draconian use of GPS ankle cuffs by the
Customs and Immigration Service tracking the whereabouts of Tri-Valley
University (TVU) students.
Historically,
the Writ of Habeas Corpus was used to produce an in-custody prisoner
before the courts for a judicial determination as to the legality of the
confinement. This common law writ originating in England survives to
this day in the United States by Constitutional and statutory force.
Habeas is used as a safeguard of individual freedom against arbitrary
state action resulting in confinement. It is the guarantee against any
deprivation of liberty forbidden by law.
Two
issues addressing the threshold question above present themselves for
discussion. First, does Habeas available in removal proceedings? The
answer is yes, a Writ of Habeas Corpus may be used in certain cases of
egregious abuse by the USICE. It should be quickly added that proof of
abuse of the detention process pending the outcome of the removal
proceedings is a condition precedent to the granting of the Writ.
The
more difficult question is whether the forced use of a GPS tracking
cuff on a person who has been noticed with an impending removal hearing
is actually "deprived of his or her liberty," an indispensable condition
precedent to the issuance of the Writ. Here the issue of what
constitutes a "deprivation of liberty" becomes debatable. There have
been cases wherein the petitioner for the Writ was merely on probation,
but otherwise free to go about his or her dally routine, subject only to
the restrictions imposed by the terms of probation. These might
include distance, time of day, or specific location restrictions, as
well as affirmative duties such as random drug or alcohol testing. In
such cases, the courts have utilized a balancing test, whereby the the
impositions made are weighed against the needs of society for the
restrictions.
This analysis
inevitably leads to the question of the GPS cuffs on TVU students. The
answer is that each case would have to be litigated individually, but if
the federal courts issued a Habeas Writ, it might open the flood gates
and result in the discontinuation of such tactics by the USICE. It
should be quickly added that such an inquiry could be a double-edged
sword, by which actual custody may be sought by the government.
A
Petition for a Writ of Habeas Corpus is a very expensive and risky
endeavor. It may be more prudent to weigh each case at removal
proceedings on its individual merits, than to squander resources on a
temporary imposition on one's liberty. That personal choice lies with
each TVU student, based on his or her circumstances and resources
available.
Michael Ross is a
criminal defense attorney in San Francisco with over twenty-five years
experience. He has handled a death penalty case, numerous "Three
Strikes" cases, and nearly five thousand felony and misdemeanor cases
all over California. Further biographical and professional information
is available at: www.mikerosslaw.com
Link to this article:
Michael Ross' Article on Shah Peerally's website While the fate of the TVU students are uncertain, Susan Su and Tri Valley University are getting a “free ride”!
What do you have when the wrong people are being targeted
by the federal government? What happens when the victims of a crime
either get prosecuted and/or have to face removal proceedings, and the
real perpetrator walks away without getting so much as getting her hair
mussed? You have a situation like the Tri-Valley University (TVU)
scandal, that’s what.
As a criminal defense attorney, and a former special
prosecutor, I took an immediate interest in the TVU matter. As with all
cases that I accept, I tried to look at the TVU case both from a
defense lawyer’s and a prosecutor’s point of view. My conclusion? The
wrong people are being targeted, namely, the TVU students who, for the
most part, appear to be acting in good faith and engaged in vigorous
academic study. Indeed, the federal government appears to being
pandering to the current national pandemic of xenophobic,
anti-immigration sentiment that unfortunately does exist in the hearts
of many ill-informed Americans.
The federal government has labeled TVU as a “sham
university,” with its students, mostly from India, painted as the
evildoers who have subverted the educational Visa system. Some of the
students claim, with good reason in my opinion, that they have been
treated “like dogs” by federal investigators. Some have even have been
forced to wear GPS ankle cuffs – even when no charges have been brought
against that person.
What bothers me, and, I respectfully submit, should also
bother federal immigration and criminal prosecution attorneys, is that
the TVU administration has apparently been given a de facto immunity in
exchange for its cooperation with the feds. The so-called forfeiture
proceedings against the “assets” of TVU, mostly virtual as they are, is a
meaningless diverting maneuver from punishing the real wrong-doers in
this mess. As Charles Dickens once wrote, “If the law think this, then
the law is an ass.”
What would I do if I were in charge of the federal case
against the TVU students? Instead of harrassing those who have been
victimized and are now being investigated, I would craft a criminal
complaint charging TVU Dean Susan Su and her board of directors with the
colossal fraud in gulling hundreds of well-meaning Indian students into
enrolling in, and following the procedural rules of, TVU. Add on a
count for wholesale conspiracy to undermine the immigration laws of the
United States, at the expense of the students who have paid so much to
get into TVU, and who may now pay an even higher penalty of being
removed from our country.
We are a nation of immigrants, and I as an American am
very proud of that fact. However, the persecution of those visitors to
the United States who merely fell victim to a major white-collar crime
stands the entire legal system of our country on its head, and if
pursued ti this end, may result in an irremediable perversion of justice
and immutable blot on our history as a nation.
Michael Ross is a criminal defense attorney in San Francisco,
and a former Special Prosecutor. Mr. Ross has handled over five
thousand criminal cases, including a death penalty case. scores of
“Three Strikes” cases, and felony and misdemeanor cases of every type.
Further biographical and professional information is available at www.mikerosslaw.com.
Link to this article: Michael Ross' Article on Shah Peerally's website