February 23, 2009

County Cannot Banish Illegals

Sunday, February 22, 2009 10:34 AM EST

WEST CHESTER — A state appeals court has ruled that a Chester County judge's order banishing a Mexican man from Pennsylvania as part of his drunken-driving sentence crossed the line into an improper attempt to rid the state of illegal immigrants.

The decision by a state Superior Court panel issued earlier this month begins to establish guidelines for what local judges can and cannot do when confronted by an illegal immigrant who stands before them convicted of a crime, said the attorney who appealed Judge William Mahon's banishment order.

"Under the pretext of punishment, and the cover of the sentencing code, (Mahon) has fashioned his own solution to the problem of illegal immigration which has perplexed both state and national legislators," Superior Court Judge John M. Cleland wrote in a 10-page opinion filed Feb. 11.

"The sentencing code, however, cannot be transformed into a tool of immigration reform," Cleland wrote in his opinion.

Mahon had initially ordered the defendant, a Mexican national, deported after he served the minimum 48 hours of his sentence for drunken driving. Mahon later changed that to ordering the man to leave the state within 10 days of his release from prison.

The order comes at a time when courts have begun to rein in attempts by local elected officials in Pennsylvania and across the nation to deal with the problems they perceive with immigrants in the country illegally.

For example, a federal judge in July 2007 struck down an ordinance in Hazleton that sought to punish those landlords found renting to illegal immigrants and also to employers who hire them. The move by Hazleton's mayor had become a symbol of the growing movement to enact local laws to combat illegal immigration, because of a perceived failure to control the U.S. borders or deal with the estimated 12 million illegal immigrants who live in the country.

In his opinion, Cleland recognized the scope of his decision reversing the banishment of Ulises Luna from the state.

"Luna's case presents a case of great public importance," Cleland wrote for the court's three-member panel.

"As Luna's case so vividly illustrates, some state courts, frustrated by what they view as lax enforcement of deportation laws, may search for state remedies that conflict with federal laws preempting the field," he said.

Mahon himself alluded to the impact his action might have when he said a reversal of his banishment order could have implications at the polling booth.

"He was in this country illegally; he committed a crime," Mahon said of Luna. "He has to remain outside the commonwealth — I don't want him here. And if the Superior Court tells me I can't keep him out of the commonwealth, then let them explain that to the voters."

Advocates on both sides of the immigration issue reacted with differing opinions to the Superior Court's decision.

"We think it's a sound decision," said Vic Walczak, legal director of the ACLU of Pennsylvania. He said federal authorities must be in charge of immigation-related issues to avoid a hodge-podge of legal approaches.

"If you left it to each individual state, municipality or locality, then you would have a not-in-my-backyard situation. It's like the Hazleton case. Are you going to allow undocumented immigrants in Maryland but not in Pennsylvania?"

But a former Chester County commissioner who now serves as a national voice on immigration policy decried the court's action.

"Judge Mahon's frustration was entirely understandable," said Colin Hanna, president of Let Freedom Ring USA.

"He saw a potential continuing threat to society by a substance abuser who had no legal right to be here in the first place, and he sought to have that person removed once his prison term had been served," said Hanna, of East Bradford. "The penalty that the judge proposed, banishment from the Commonwealth of Pennsylvania — was a creative one."

The attorney who handled Luna's case, Amparito Arriaga of West Chester, said she was glad to see the court impose some guidelines that she could explain to her clients who are faced with decisions whether to plead guilty to charges against them or fight them in court.

"I have a tremendous amount of respect for Judge Mahon, but there are limited purposes for which you can exclude a defendant from Pennsylvania," she said last week. "I hope that in the future, sentences are tailored to the offense that was committed, and that they don't spill over to areas outside the jurisdiction of the judges. It is important to know what the boundaries are.

"That is what this opinion has done for us," Arriaga said.

Mahon on Friday declined comment.

A spokesman for the county district attorney's office said no decision had yet been made on whether to appeal the matter to the State Supreme Court.

Luna, 23, who lived in Oxford with his fiancee and child, was arrested by state police from the Avondale barracks on June 16, 2007. He was charged with driving under the influence after he was involved in a one-vehicle crash.

Luna's blood-alcohol level was found to be 0.116 percent, according to a court transcript of his sentencing. The state's legal limit for drunken driving is 0.08 percent.

Accompanied by Arriaga, Luna, a freelance house painter, pleaded guilty to DUI on Nov. 19 and was to be sentenced to the standard two-day minimum prison term for a first-time offender.

In the course of questioning Luna about the matter, Mahon, known as a blunt and outspoken judge, asked him where he was born and how long he had been living in the United States. When Luna said he's been in the country a year or two from Mexico, Mahon grew agitated, according to the hearing transcript.

"Why do you think you can come to this country and break our laws?" the judge asked. "My suspicion is that you are in this country illegally.

"I'm old school, Mr. Luna," Mahon continued. "I just have a real problem accepting the fact that someone is here illegally and breaking our laws. I understand that you are a hard worker but that is not enough. If I was in Mexico, illegally and did what you did I would probably be locked up for years and thrown out of the country."

When Mahon announced his intention to order Luna deported, Arriaga stepped in, saying that immigration officials would handle that.

Mahon, who admitted not being an expert of immigration law, nevertheless said it seemed "inconceivable to me (that) someone, who is here illegally, can break a law in this country and not be detained and deported. It's ludicrous."

Luna was actually deported a month later. But Arriaga asked Mahon to reconsider his deportation order, arguing that he exceeded his authority.

"I'm doing this for selfish reasons," Arriaga told Mahon at a hearing on Dec. 13, 2007. "I want to know what the boundaries of a Common Pleas judge are so that I can advise my clients in the future."

She noted that Judge James P. MacElree II, when confronted by illegal immigrants, orders them to report their status to the Immigration and Customs Enforcement (ICE) agency. Many such defendants, it should be noted, already have immigration detainers placed on them before they come to court.

Mahon ultimately agreed to rescind his deportation order but said he would impose a substitute condition that Luna be formally banished from the state.

"He is to leave the commonwealth," Mahon said. "I can certainly do that."

"I don't believe that you can," responded Arriaga. "I mean, he is entitled to due process rights."

In the Superior Court decision, Cleland said Mahon was correct in reversing his deportation order, since such an action was out of his authority. Only immigration courts can deport illegal aliens, he said.

But Cleland said banishment from state was also out of order. Such actions are only legal when they serve "either the defendant's rehabilitation or the protection of public safety," Cleland wrote. "(Mahon) offered no explanation why 'deportation' from Pennsylvania relates to, let alone promotes, the rehabilitation of a defendants convicted of driving under the influence — or enhances the protection of our citizens."

And because Mahon said his order was directed at Luna's immigration status alone, it violated sentencing rules, the court ruled.

"We assume (Mahon) does not propose to protect the citizens of Pennsylvania from drunk(en) drivers by banishing from Pennsylvania everyone convicted of a DUI," Cleland wrote.

As an aside, Cleland also noted Mahon's suggestion that any rejection of his banishment order would have to be explained to the voters.

"We caution that intemperate comments of that nature are not appropriate," Cleland said in a footnote. "It is the obligation of judges, especially those who find themselves embroiled in controversial public issues, to refrain from such polemics."

Arraiga said she was pleased with the decision and is waiting to see what its ultimate impact would be. "I am curious to see what is going to happen now," she said.

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