Judge to decide illegal's fate

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Judge to decide illegal's fate
In first-of-its-kind appeal, a judge will decide if an illegal immigrant can enter early release program.
Saturday, June 03, 2006
By RUSS FLANAGAN
The Express-Times
EASTON | A Northampton County judge will decide whether an illegal immigrant charged with shoplifting should be allowed to enter a program for first-time offenders that would wipe his record clean.

District Attorney John Morganelli said he has the discretion to deny any applicant admission into the Accelerated Rehabilitative Disposition program. He said his office has blocked hundreds of illegal immigrants from the ARD program but the case of 33-year-old Chinese national Chang Yao Zou is the first to be challenged.

Morganelli said he has the power to bar Zou from the program because Zou first broke the law when he entered the U.S. illegally then broke it again on Aug. 24 when he stole $256 worth of merchandise from the Home Depot in Palmer Township.

Morganelli said denying Zou entry into the ARD program does not violate the equal protection clause or the due process clause in the Constitution. He cited the 1982 case of Plyler v. Doe in which a judge ruled illegal immigrants are not a protected class and do not have the same rights as citizens.

In that case, the court ruled being labeled an illegal immigrant voluntarily entered the country illegally, and therefore, committed a crime.

But Zou's attorney, Daniel A. Rendine of Philadelphia, claims illegal immigrants do have equal protection because the law protects "people," not just citizens.

Northampton County Judge Edward G. Smith is reviewing the matter.

If offenders admitted into the ARD program comply with probation department requests during a pre-set period, their criminal record is wiped clean.

Records say Zou waived his preliminary hearing on Sept. 21 with the expectation he would be accepted into the ARD program. He filed the ARD application Sept. 29 but it was denied Dec. 8 because he was found to be an illegal immigrant, records say.

Zou, who lives in Philadelphia, wrote Morganelli a letter on April 11 asking to be admitted into ARD, but his request was denied the next day.

Morganelli was a panelist Thursday night on CNN's "Lou Dobbs Tonight" talking about the illegal immigration issue.

Reporter Russ Flanagan can be reached at 610-258-7171 or by e-mail at rflanagan@express-times.com.

OH,MY,GOD, we are lost if they leave it up to a judges's discreation, we know how most of them lean, far left, liberal!

http://www.mcall.com

From The Morning Call
June 5, 2006
Morganelli rejects ARD request
He says illegal immigrant doesn't deserve 'privilege.'
By Tyra Braden Of The Morning Call
A man accused of stealing from a Palmer Township store says Northampton County District Attorney John M. Morganelli is violating his constitutional rights by refusing entry into the Accelerated Rehabilitative Disposition program.

Morganelli says Chang Yao Zou is an illegal immigrant and therefore has no right to participate in ARD.

Zou, 33, of Philadelphia, who is free on $500 bail on a third-degree misdemeanor retail theft charge, was arrested Aug. 24. Palmer Township police say Zou had stuffed $256 worth of items into other packages he intended to buy from Home Depot on 25th Street.

Under ARD, defendants admit wrongdoing, but no official finding of guilt is made. Defendants are placed on probation, after which the charges are dismissed and the person's criminal record is expunged. The program generally is available to first-time offenders of nonviolent crimes.

Zou filed his ARD application on Sept. 29, but Morganelli denied it, saying Zou is an ''illegal alien.'' Attorney Daniel A. Rendine of Philadelphia in a legal brief filed Friday said he called Morganelli on April 11 and Morganelli ''formally rejected'' Zou's application.

Rendine in the brief asks Judge Edward G. Smith to compel Morganelli to let Zou into ARD. Morganelli filed his own legal brief in which he says he has ''broad discretion'' and is allowed to deny Zou's application.

Morganelli agrees that illegal immigrants are guaranteed rights under the law. However, he said after a brief conference with Smith, ''ARD has been held not to be a right but a privilege.''

Rendine in his brief says Zou has no criminal record and that while a district attorney has ''wide discretion'' about who will be allowed to enter ARD, ''it is clear that the deliberate use by a district attorney of such factors as race, religion or other suspect classifications violates the constitutional principles of due process and equal protection under the law.''

''Suspect classifications'' in the law is interchangeable with ''protected class.''

Morganelli said Rendine has it wrong, because Zou being Chinese did not play a role in his decision. He rejected Zou's application, he said, because Zou is in the country illegally. ''The violation of federal immigration laws provides a rational and justifiable basis to conclude that the defendant is not a good candidate for rehabilitation based on previous failure to honor the law of the United States,'' Morganelli's brief says.

To support Zou's position, Rendine cites case law in which the U.S. Supreme Court ruled unconstitutional a Texas law that required undocumented immigrants to pay for their children's education in ''free'' public schools. Morganelli's brief points out the case Rendine cites also says that ''those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. Children of illegal immigrants, however, have little control over the decision to enter the country illegally.''

Smith will rule later.

tyra.braden@mcall.com

610-253-5751