Thread: NC: Judges focus on case not immigration status

Judges focus on case not immigration status
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August 17, 2008 - 3:19PM
By Keren Rivas/ Times-News

GRAHAM, NC - Should judges try to identify the legal status of the defendants who come before them?

That's the question judicial candidate Keith Whited has raised by making immigration enforcement a part of his campaign for a district court judge seat.

In an open letter to members of the Republican Party sent out in May, Whited promised that if elected in November, he would ``identify and process illegal aliens who are violating our laws through ICE program here in Alamance County.''

Those who are already on the bench say it's not the judges' responsibility to identify the legal status of defendants. Some judges even said attempting to do so can be an equal protection issue.

``The judge's role is to listen to the evidence that is in front of him or her, make a decision based on that evidence, enter a verdict and then decide a sentence,'' said Alamance County Chief District Court Judge Jim Roberson. They do all this, he said, by applying North Carolina law.

Roberson said that just as judges never make ``insular inquiries'' into whether the person in front of them has committed other crimes such as not paying taxes, they don't question people about immigration violations.

And while he is not in favor of illegal immigration, he said he has a duty to be fair and impartial.

``Immigration and Customs Enforcement has its own set of rules and authority,'' Roberson said. ``I am not an ICE officer. I just deal with the case in front of me.''

He said that if judges were to engage in this type of questioning, this would not only slow down the judicial process dramatically, but it could potentially infringe on the constitutional protections everyone is entitled to.

For instance, he said, if judges were to ask about immigration status, they would have to do that with each person who comes in front of them. ``That's what equal protection and due process is all about,'' he said. ``We don't just pick on people because of the way they look.''

District Court Judge Wayne Abernathy agreed.

``I don't believe in activist judges who try to legislate or investigate from the bench,'' he said. ``A judge has to be fair and impartial and not pick on any nationality or race.''

However, if evidence is presented during trial that a defendant is involved in an illegal activity, such as living in the country illegally, ``that's a different story,'' he said. In that situation he would notify the proper federal authorities, something he has done in the past.

Besides that exception, ``We don't have the time to start investigating when we have a room full of people,'' Abernathy said. If judges were to be investigators then they would be part of the prosecution team.

He said that though he acknowledges that illegal immigration is a large problem in the county, that is not the case in district court because the 287(g) program already identifies people who are in violation of an immigration law before the person comes in front of a judge.

BECAUSE THIS PROCESS is already in place, immigration is ``a non-issue'' for judges, said District Court Judge Tom Lambeth, the incumbent who Whited is running against.

Lambeth said that those defendants who have already been identified as being in the country illegally through the 287(g) program are automatically put under a federal detainer. This means that no matter how the state charges are disposed of, the person remains in federal custody while deportation proceedings take their course.

He said that almost all the defendants identified as illegal immigrants who have come in front of him have come to plead guilty and have received sentences of time served in return. This puts an end to their cases in district court and accelerates their federal cases, he said.

Resident Superior Court Judge J.B. Allen said he doesn't seek the legal status of a defendant unless the defendant takes a plea. ``I just follow the (plea) transcript,'' he added.

As part of the plea transcripts used in superior court, a judge is required to ask defendants the following question: ``Do you understand that, if you are not a citizen of the United States of America, your plea(s) of guilty or no contest may result in your deportation from this country, your exclusion from admission to this country, or the denial of your naturalization under federal law?''

Allen said that if after asking this question he establishes that the person is not a citizen and is in the country illegally, he does not place the defendant on probation. ``If they are in the country illegally, I don't think they should be on probation,'' he said. He's made his stand clear to prosecutors.

As opposed to superior court judges, district court judges do not use a plea transcript.

When determining whether to place someone on probation, Lambeth said, he takes into consideration the evidence that's been put in front of him. He said that as a condition of probation he always instructs defendants not to violate any laws.

If somebody is illegally in the country, he said, and the probation officer discovers that then, the person would be in violation of probation and processed accordingly. Lambeth said he has concerns about illegal immigration but that as a judge, he has been sworn to uphold the law, not to take the role of law enforcement.

Michael Gerhardt, constitutional law professor and director of the Center for Law and Government at the UNC School of Law in Chapel Hill, echoed the opinions expressed by the judges.

``I think that if there are immigration issues that are before the judge he should try to deal with them,'' he said. ``But I think that's as far as a judge needs to go. It's not the judge's responsibility to go beyond that.''

He also said that in his opinion it's not the judge's responsibility to shape the public dialogue about immigration law. He said that there are judicial canons that call on judges not to get involved in politics and take public stands on issues that have not yet come before them.

Roberson agrees.

``I want judges to stick to being judges,'' Roberson said. And while he doesn't control how the other district court judges handle their court, he said that they are all bound to treat people equally under the law.

``It is just a matter of fairness for everyone,'' he said.
http://www.thetimesnews.com/news/judges ... court.html

Just how do ILLEGAL immigrants have constitutional protections against investigating that from a judge, law enforcement official or other designated official to their being ILLEGALLY in the country?

They certainly don’t have any civil rights: Civil rights pertain ONLY to citizens. The Merriam-Webster online Dictionary defines civil-rights as: “The nonpolitical rights of a citizen; especially: the rights of personal liberty guaranteed to U.S. citizens by the 13th and 14th amendments to the Constitution and by acts of Congress.â€

The DA should E-Verify everyone.

And bring it to the judge's attention that ICE's has been called in on the individual in question because of flight risk.

Well, it sounds like there needs to be a little fine-tuning of the law. I am astounded that judges have no interest in previous crimes have been committed, like being here illegally. Is this the judicial version of the don't-ask, don't-tell policy?

Should judges try to identify the legal status of the defendants who come before them?


Are you kidding? Of course they should. How many repeat illegal alien criminals have had numerous encounters with law enforcement and the courts and NO ONE ever checked their immigration status? In many instances a simple check would have prevented many of them from bonding out or being released back into our community post-sentencing. How many criminal illegal aliens are deportation fugitives and a judge shouldn't know that?

Every single law enforcement and judicial officer should know the status of the persons before them as arrestees, inmates, and/or criminal defendants.

Should judges try to identify the legal status of the defendants who come before them?

Well DUH!!!!!!!!!!!

For instance, he said, if judges were to ask about immigration status, they would have to do that with each person who comes in front of them. ``That's what equal protection and due process is all about,'' he said. ``We don't just pick on people because of the way they look.''


Ignore the way anyone "looks". Ask each person if they are a legal resident of the country.

Good point, magyart. They should not only ask but demand proof.

Ignore the way anyone "looks". Ask each person if they are a legal resident of the country.

So simple! They sure don't hesitate to ask me any variety of questions so what would 1 more be? But then again the non-citizens might feel uncomfortable and we don't want that! They don't want equal rights, they want special rights.

So --the only responsibility iof a judge in NC--is to look at the charge(s) and pass judgment, thus giving someone here illegally the same justice (or better) than a natural American??

No wonder why the Carolinas are in such deep trouble and will be known as Chihuahua North.