Using Immigration Law to Prosecute Terrorism Charges: Double Jeopardy or Fair Play?

875413_balance.jpgThe case of Lyglenson Lemorin, a lawful permanent resident from Haiti facing terrorism charges in immigration court, raises interesting questions about the use of immigration law to prosecute terrorism cases. This phenomenon, known less-than-affectionately as “Crimmigration“, has been used to remove (aka deport) immigrants convicted of a variety of crimes after they have served prison time. But in what one immigration official calls the first case of its kind, Mr. Lemorin was acquitted of terrorism charges by a federal jury in Miami in December, yet faces nearly identical “material support” conspiracy offenses in immigration court this week.

Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government must meet only the clear and convincing evidence standard in establishing that Lemorin conspired to engage in terrorist activity. In addition, he loses not only constitutional protections awarded to criminal suspects as well as the protections of the Federal Rules of Criminal Procedure, but the Federal Rules of Civil Procedure and the Federal Rules of Evidence don’t even apply in immigration court. One might say that the cards are stacked in favor of the government. Instead of a jury, Mr. Lemorin will be tried by an immigration judge, the perils of which are outlined in my recent article “Refugee Roulette.”

This particular case — lodged against a lawful permanent resident, a married father of two whose family now struggles to support itself — has drawn criticism not only from immigrants’ rights lawyers but also from Prof. David Martin, the former general counsel of the administrative agency formerly known as INS (now the Department of Homeland Security). Martin sees potential unfairness in the authorities’ ability to essentially try Lemorin twice for the same crime. But some might say that, like using tax laws to prosecute the Mafia, the immigration laws are fair game for ferreting out potential terrorists — after all, all’s fair in love and war. Isn’t it?

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2 Responses

  1. wm. tyroler says:

    How is the situation described in the post any different from an acquittal not barring a subsequent revocation of (parole, probation, or comparable supervision) at an administrative hearing? It’s settled that there’s no DJ bar in that latter setting, and I can’t see, at first glance anyway, why there isn’t a decent analogy to be made to deportation proceedings.

  2. Matt Lister says:

    It seems to me that one of the real problems in this area is the use of secret evidence. Obviously this sometimes a problem in contexts other than immigration court when we are dealing with terrorism charges, but my impression is that secret evidence is _used_ more in immigration court, or at least has been. In the past, in some of the most famous cases, it seems that what was so secret about the evidence was that there was none. Obviously insofar as secret evidence (or “evidence”) is used to deport people there is a pretty serious worry about injustice being done. Since Jaya is something of an expert on this topic (and I’m not!) I hope she’ll post something on it soon.