Time for Local Communities, the Media, and Both Parties to Wake Up to the Dangers of MS-13
'This story may be updated'
On Thursday, the U.S. Attorney's Office for the Middle District of Tennessee announced that a grand jury had handed down a 16-count indictment against seven MS-13 members, alleging drug-trafficking and firearms charges in a scheme to distribute cocaine and marijuana in the Volunteer State. It is a wake-up call to both parties (and all communities) about the dangers the gang poses.
Three of the seven are specifically identified as foreign nationals: Jose Pineda-Caceres, 22, who goes by "Demente", and Franklin Hernandez, 21, alias "Happy," both of Honduras; and Gerson Serrano-Ramirez, 33, known as "Frijole," of El Salvador.
The immigration statuses of four are not listed: Carlos Ochoa-Martinez, 31, who uses the moniker "El Serio"; Jason Sandoval, 35, who has apparently adopted the chilling nickname "Bin Laden"; and Jorge Flores, 28, alias "Peluche," all of whom are described as being "from Nashville"; and Juan Melendez, aka "Shaggy", reportedly a resident of Lebanon, Tenn. Of course, that does not mean that they are not U.S. citizens, but it does not mean they aren't, either.
In testimony before the House in June 2017, ICE Homeland Security Investigations (HSI) Special Agent-in-Charge (SAC) New York Angel Melendez explained that in New York: "MS-13 are primarily immigrants or descendants of immigrants from the Northern Triangle – El Salvador, Honduras and Guatemala." There is a distinction there – immigrants are aliens, and "descendants" are likely citizens.
Respectfully (and regrettably), it does not make much difference. A fact sheet issued in February 2018 by the White House focused on the gang, and stated (as HSI New York SAC Melendez largely averred): "MS-13, short for Mara Salvatrucha, is a violent transnational gang primarily composed of immigrants or descendants of immigrants from El Salvador."
This followed up on statements that President Trump made at his 2018 State of the Union address, in which he focused on MS-13 crimes to call on Congress to close "glaring loopholes in our laws" that enabled gang members "to enter the country as illegal, unaccompanied alien minors" (loopholes I have also identified in the law).
Interestingly, that prompted the president's critics to push back and soft pedal the dangers that the gang poses. For example, the Washington Post in April 2018 ran a "Perspective" piece that stated: "Just as the FBI has recently portrayed MS-13 in the United [States] as taking orders 'from MS-13 members in El Salvador,' law enforcement at the time imagined a vast network of Black Hand members slipping back and forth through immigration control."
The author was referencing a criminal organization that was the target of federal enforcement at the turn of and into the 20th century, believed to be composed of Italian immigrants. If the group sounds familiar, it may be because Don Fanucci – a character in Mario Puzo's novel "The Godfather" – was identified as being a member of the Black Hand.
The author of the Post piece cites a then-contemporary source ("Joseph Petrosino, an Italian immigrant and the New York City Police Department's resident expert on Italian crime"), who contended that the Black Hand was a "myth" (in the author's terms, not Petrosino's). Be that as it may, MS-13 is plainly not a "myth".
As for the author's excoriation of the FBI's then-recent portrayal of MS-13 in this country "as taking orders 'from MS-13 members in El Salvador,'" at least the Feds were being consistent. Here is what President Obama's Treasury Department had to say when designating MS-13 as a "significant transnational criminal organization[]" in October 2012:
Local MS-13 cliques [in the United States] take direction from the group's foreign leadership for strategic decisions involving moves into new territories and efforts to recruit new members. Money generated by local MS-13 cliques in the U.S. is consolidated and funneled to the group's leadership in El Salvador.
Inasmuch as three of those indicted are listed as being residents of, respectively, Honduras and El Salvador, it suggests that the Tennessee case involves international cooperation, supporting the assertions of the Trump and Obama administrations.
Nor, assuming that the grand jury was correct, is MS-13 the "bogeyman" that the Post author accuses Trump of making the group. Here is how DOJ summarized the charges:
The indictment alleges that beginning in 2014 and continuing until yesterday, the defendants conspired with each other to obtain bulk quantities of marijuana and cocaine for redistribution in and around middle Tennessee. Once the drugs were received, the defendants would reduce them into smaller quantities and sell them in and around nightclubs in Nashville and from the parking lots and restrooms of these establishments. In order to maximize drug distribution in these nightclubs, the defendants would threaten rival and competing drug dealers who sold and attempted to sell cocaine and marijuana in the nightclubs.
In order to protect their drugs, territory and proceeds, the defendants would acquire, carry and discharge firearms and to maintain and extend control over their drug distribution they would commit acts involving murder, intimidation and assault against individuals who jeopardized its operations, including rival drug dealers.
It is beyond cavil that drugs plus guns equals violence (as was true in this case). That was the theme of the HBO series "The Wire", and as an erstwhile resident of Baltimore (where the series was set), "The Wire" was an accurate representation of the deadly and vicious effects of the drug trade there (and perhaps even an understatement).
Curiously, surveying the various articles that contest President Trump's assertions with respect to the gang, most accuse the president of using the gang to target immigrants and their communities. I say "curiously" because those communities are the targets of the gang itself, as ICE admits:
In the United States, MS-13 preys upon Central American immigrant communities by extorting small businesses, peddling street level narcotics to those with substance abuse issues, aggressively recruiting the youngest and most vulnerable community members into the gang, and by inciting violence from rival gang members.
Nothing I have read has ever contested that assertion. You can read the many posts I have written about the gang, and you will come to the same conclusion.
The sadly ironic thing is that those immigrant communities are usually located in areas that are designated as "sanctuary jurisdictions", that is areas that refuse to cooperate with ICE in identifying, arresting, or removing alien criminals in one way or another. They usually – either directly or obtusely – contend that they are doing so to protect the immigrant community.
Having spent almost three decades in and around law enforcement, I have no idea how you protect immigrant communities by allowing aliens involved in armed criminal enterprises there to escape removal. None whatsoever.
I could add the fact that ICE rarely ever targets non-criminal aliens (91 percent of the aliens removed in FY 2019 had criminal convictions or were facing criminal charges), or the fact that proceeds from MS-13 crime flow back to the countries from which most of those immigrants hail to sow even more violence, but you get the point.
President-elect presumptive Joe Biden has vowed to only deport aliens who have committed felonies in the United States (after his first 100 days, when he promises not to deport anyone). Whether that was simply a campaign talking point or a serious contention is yet to be seen. Should he ascend to the Oval Office, however, he – like his predecessors – should target MS-13 (which he could likely do and still keep his somewhat legally questionable promise).
And communities across the country should wake up to the gang and its activities. I have my own bone to pick with the local officials and media in my birthplace, Baltimore County, Md., over their treatment of the gang in light of the murder of 16-year-old Gabriela Ardon.
In relation to that murder, a grand jury indicted five men officials believe "to be affiliated with the MS-13 gang", three of whom are aliens (now with ICE detainers). Those five are also charged in the attempted murder of a 17-year-old male eight days after that murder occurred (in a case with links to another killing and attempted murder). "MS-13" has not appeared in the hometown Baltimore Sun since its announcement of the indictments in Ardon's case on August 31.
That piece ends: "This story may be updated." It hasn't been.
With the likely sunset of the (perhaps first) Trump administration, and the diminution of Trump as an anti-immigrant "bogeyman" himself, perhaps more serious attention by both parties, local officials, and the media will be directed toward MS-13, and the dangers it poses. I certainly hope so, and so I too will end: "This story may be updated."
THIS HAD NO IMPACT ON HER AMNESTY AND OPEN BORDERS PLATFORM.
https://kamala-harris-sociopath.blogspot.com/2020/10/kamala-harris-laws-of-lawless-bribes.html
A known MS-13 Gang member, living illegally in the United States, was arrested but went unprosecuted by then-San Francisco District Attorney Kamala Harris’ office months before he murdered a California family.
“However, I would like to encourage my fellow Democrats to approach Senator Harris with a healthy dose of skepticism. As a prosecutor and California State Attorney General, Harris has engaged in blatantly unethical behavior for her profession and embraced positions that actively hurt her constituents.”
JESSER HOROWITZ
"This is how they will destroy America from within. The leftist billionaires who orchestrate these plans are wealthy. Those tasked with representing us in Congress will never be exposed to the cost of the invasion of millions of migrants. They have nothing but contempt for those of us who must endure the consequences of our communities being intruded upon by gang members, drug dealers and human traffickers. These people have no intention of becoming Americans; like the Democrats who welcome them, they have contempt for us." PATRICIA McCARTHY
DOJ Releases MS-13 Report
74 percent of gang defendants charged were unlawfully present in the United States
By Andrew R. Arthur on October 23, 2020
On Wednesday, the Department of Justice (DOJ) released "Full-Scale Response: A Report on the Department of Justice's Efforts to Combat MS-13 from 2016-2020". It is well worth the read, detailing the department's efforts to eradicate Mara Salvatrucha-13 (MS-13), which was designated as a significant transnational criminal organization (TCO) during the Obama administration in 2012, worldwide. The most interesting — but not shocking — takeaway is that some 74 percent of the MS-13 defendants prosecuted by DOJ during the past four years are in the United States illegally.
MS-13 is not a new topic on these pages, but it is, oddly enough, one that does not draw much attention — even in communities in which the organization operates. For example, on September 4, I wrote "Five MS-13 'Affiliates' Held in Rural Baltimore County Killing of 16-Year-Old Girl". The victim, Gabriela Alejandra Gonzalez Ardon, was slaughtered in the woods beside a walking trail near an upscale Maryland neighborhood.
It turns out that three of those indicted in that case were unlawfully present in the United States, having entered as minors, as my colleague Marguerite Telford reported. The five were easy for the police to apprehend, as they were already in custody for assault and attempted murder on a 17-year-old male who had reportedly been targeted by the gang for recruitment (he was abducted from the local public library, no less). That assault allegedly occurred eight days after Ardon's murder.
It was briefly a local story in Baltimore, and then — nothing. So, I wrote a second article, "If a Girl Dies in the Forest, Does Anyone Other than Me Care? Gabriela Alejandra Gonzalez Ardon, MS-13, and the odd lack of coverage — and outrage". I received one radio interview in response, but I cannot find anything in the local paper of record (the Baltimore Sun) about MS-13 since they reported on the charges in her case on August 31.
Worse, you can watch the pusillanimous response of Baltimore County Executive Johnny Olszewski when asked about the gang in September 2019. Why was the county executive asked about the gang more than a year ago? Because a few days before, ICE identified six of the seven individuals involved in the stabbing death of a 21-year-old man in Towson as illegal aliens and MS-13 gang members. Note that Towson is the county seat — that is, where Olszewski works, and runs the government.
In any event, back to the DOJ report. It explains:
MS-13 operates in the United States, El Salvador, Honduras, Guatemala, Mexico, and other countries. Each year, MS-13 is responsible for violent crimes in the United States, including murders, extortion, arms and drug trafficking, assaults, rapes, human trafficking, robberies, and kidnappings. For decades, MS-13 has exploited weaknesses in U.S. immigration enforcement policies to move its members in and out of the United States and to recruit new members who have arrived in the United States illegally.
Astoundingly, that report estimates that there are 10,000 MS-13 members in this country, and tens of thousands more abroad.
The genesis of that report was a February 9, 2017, Executive Order (EO 13773), "Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking". In that EO, President Trump called on the executive branch to strengthen and prioritize the federal response to TCOs and other criminal organizations, including MS-13.
As I reported in April 2017, then-Attorney General Jeff Sessions thereafter announced "zero tolerance" for criminal gangs, with a special emphasis on MS-13. Subsequently, in October 2018, Sessions announced the formation of a Transnational Organized Crime (TOC) Task Force made up of experienced federal prosecutors to coordinate the government's efforts against the identified groups, including not just MS-13, but also narcotraffickers like the Cartel de Jalisco Nueva Generacion (CJNG), the Sinaloa Cartel, and the Gulf Cartel, as well as Lebanese Hezbollah.
As the DOJ report explains, in August 2019, Attorney General William Barr created Joint Task Force Vulcan ("JTFV"). JTFV was charged with coordinating and leading the efforts of DOJ and other U.S. law enforcement agencies to eradicate MS-13. DOJ explains that JTFV has increased coordination and collaboration between law-enforcement in the United States and international law enforcement partners, including El Salvador, Mexico, Honduras, and Guatemala.
This international cooperation is crucial, because MS-13 is essentially a large foreign criminal pyramid scheme with illicit franchisees, as the 2012 designation of the group as a TCO made clear:
Local MS-13 cliques take direction from the group's foreign leadership for strategic decisions involving moves into new territories and efforts to recruit new members. Money generated by local MS-13 cliques in the U.S. is consolidated and funneled to the group's leadership in El Salvador.
The money that is funneled back to Central America funds the group's criminal activities in the region (as I will discuss below), fueling violence that is a major push factor driving migrants to enter the United States illegally.
As an immigration judge, I heard dozens, if not hundreds, of asylum claims based on MS-13 extortion, coercion, and recruitment efforts. Eradicating MS-13 in the United States and abroad thus improves security in the countries from which the majority of migrants entering the United States illegally hail — reducing that push factor.
JTFV has also "designated priority targeting of prosecutions against MS-13 cliques and leaders who have the most impact on the U.S." and "coordinated significant MS-13 indictments in United States Attorneys' Offices across the country."
DOJ reports that, since FY 2016, it has charged 749 MS-13 defendants, and obtained (to date) at least 504 convictions. Some 37 of those defendants have been sentenced to life. In addition, the department is seeking the death penalty in two MS-13 cases, one out of the Eastern District of New York, and one out of the Eastern District of Virginia.
The indictment in the New York case charges the defendant, Alexi Saenz, with seven murders. Four of the victims were high school students, and six were killed with a machete and/or baseball bat.
The indictment in the Virginia case names one Elmer Zelaya Martinez, who is alleged to be "a high-ranking member of the Park View Locos Salvatrucha clique". Martinez is charged with coordinating the "stabbing and hacking deaths" of a 14-year-old and a 17-year-old.
DOJ has gone after MS-13 members on a laundry list of charges, ranging from RICO, murder, robbery and extortion, kidnapping, and human trafficking to "Conspiracy to Provide and Conceal Material Support to Terrorists" and "Conspiracy to Commit Acts of Terrorism Transcending National Boundaries".
The latter two charges (among others) have been lodged against Armando Eliu Melgar Diaz, a twice-deported Salvadoran national currently living in that country. Since his second deportation, according to DOJ, he has become the leader of the "MS-13 East Coast Program", overseeing the activities of 20 of the gang's cliques in this country (including in Virginia, Maryland, North Carolina, Tennessee, Texas, New York, Massachusetts, New Jersey, California, Ohio, Rhode Island, Oklahoma, Louisiana, and the District of Columbia), as well as MS-13 undertakings in El Salvador, Guatemala, and Honduras.
DOJ notes: "The money Melgar Diaz received from members in the United States was used to support MS-13's violent activities in El Salvador, including by purchasing weapons." Proving my point, above.
Also detailed in that report is a case that I discussed in August, in a post captioned "Honduran Minor Brutally Exploited by MS-13 Gang: Fairfax County's sanctuary policies turns a blind eye (at a minimum) to such offenses". The facts are so heinous, I will not repeat them again, but suffice it to say that it involved the serial beating and sex trafficking (in both Virginia and Maryland) of a 13-year-old girl.
How has MS-13 managed to wreak such carnage? The report explains that MS-13 was able to exploit "weak immigration enforcement policies" in this country for decades, recruiting and using aliens here to carry out its criminal activities.
Specifically, of the MS-13 related individuals charged by DOJ in the past five years, 74 percent were in the United States illegally, 3 percent are aliens legally present in the United States, and 8 percent are U.S. citizens (the status of an additional 15 percent are "unknown", for reasons that are unclear).
There are three key points in that report: (1) MS-13 is an exceptionally brutal, but well-organized, criminal organization operating both in the United States and abroad. (2) DOJ and a slew of other federal agencies are focusing significant resources on bringing MS-13 members, including key organizers and leaders, to justice. (3) Lax enforcement of U.S. immigration law has allowed that gang to flourish, to the detriment of not only communities across this country, but also to the citizens of and civil society in countries across the region.
Sanctuary communities nationwide should pay heed to this report. As should clueless local politicos and the media.
Topics: Gangs
More than 600 MS-13 Gang Members Since 2017
29 Oct 20208
4:37
President Trump’s Department of Justice (DOJ) has arrested more than 600 MS-13 Gang members since the start of his presidency, the overwhelming majority of whom are illegal aliens.
A comprehensive report by the DOJ reveals the agency’s efforts to tackle the El Salvador-based MS-13 Gang — where members often kill for sport — over the last four years. Since 2016, DOJ prosecutors have charged 749 MS-13 Gang members with crimes, resulting in at least more than 500 convictions.
Since Trump took office, about 378 MS-13 Gang members have been convicted — including 37 of which who were delivered life sentences for their involvement with the gang’s criminal activity. Another 154 MS-13 Gang members, since 2017, were sentenced to at least 61 months in federal prison.
California: 22 MS-13 Gang Members Charged with Brutal Machete Murders https://t.co/u7f53zesXj
— Breitbart News (@BreitbartNews) July 17, 2019
In February 2017, Trump signed an executive order that directed the federal government to dismantle transnational criminal organizations, which includes the MS-13 Gang. As part of the order, Trump requested the DOJ work more closely with other federal agencies to take down criminal organizations.
Then, in August 2019, Attorney General William Barr created a task force for the sole purpose of eradicating the MS-13 Gang from the U.S. with increased coordination from officials in El Salvador, Mexico, Honduras, and Guatemala.
“In 2017, the President directed the Department of Justice to go to war against MS-13, and we did just that,” Attorney General Barr said in a statement.
DOJ officials write that the MS-13 Gang has been able to grow exponentially in the United States thanks to lax enforcement of federal immigration laws and loopholes at the southern border. The result has meant that the MS-13 Gang now has a presence in about half of all U.S. states.
(Screenshot via Department of Justice)
In total, about 74 percent of all MS-13 Gang members arrested since 2016 have been illegal aliens living in the U.S. Another three percent of those gang members were legal immigrants and 15 percent did not have a known immigration status.
“For decades, MS-13 thrived in the United States by taking advantage of weak immigration enforcement policies,” the report states. “MS-13 recruited and utilized foreign nationals, most often from Central America, who were in the United States illegally.”
(Screenshot via Department of Justice)
Currently, the DOJ is seeking the death penalty in two MS-13 Gang cases. In one case, MS-13 Gang member Alexi Saenz is accused of murdering seven individuals between 2016 and 2017 in New York. Four of the victims were local high school students and six of the seven victims were killed with a machete or a baseball bat.
The DOJ is seeking the death penalty against Saenz.
In another case, MS-13 Gang member Elmer Zelaya Martinez is accused of helping to coordinate the murders of a 17-year-old victim and a 14-year-old victim in 2016 in Virginia. The DOJ is seeking the death penalty against Martinez.
Trump, during a speech in Long Island, New York in 2017, promised that his administration would “destroy” the MS-13 Gang’s presence in the U.S.
“Together we’re going to restore safety to our streets and peace to our communities and we’re going to destroy the vile, criminal cartel MS-13 and many other gangs,” Trump said in the speech.
Part of dismantling the MS-13 Gang includes closing loopholes at the U.S.-Mexico border to stem the flow of illegal immigration and the exacerbated use of the Unaccompanied Alien Children (UAC) program where child border crossers, who arrive alone, are released into the interior of the country.
The majority of UACs are teenage boys, and thus the program is widely used by the MS-13 Gang to recruit new arrivals to their ranks.
This Fiscal Year, the Trump administration has hugely reduced the inflow of UACs released into the interior of the country. From October 2019 to August 2020, less than 16,500 UACs have been released into the U.S. — a reduction of about 70 to 77 percent compared to Fiscal Year 2019.
REVEALED: A known MS-13 Gang member went unprosecuted by then-San Francisco District Attorney Kamala Harris' office months before he murdered a family. https://t.co/dexxN2vlS1
— Breitbart News (@BreitbartNews) October 21, 2020
John Binder is a reporter for Breitbart News. Follow him on Twitter at @JxhnBinder.
Gov. Newsom Issues Pardons for Aliens Convicted of Drug Crimes
The recipients are still likely removable, and if so, may not be eligible for any relief
- On November 10, California Gov. Gavin Newsom issued six pardons to aliens who appear to have been convicted of drug-trafficking crimes.
- Two of those crimes involved marijuana, one involved cocaine base, and the remaining three (logically) involved other federally defined controlled substances.
- Under Board of Immigration Appeals precedent, all six would still seemingly still be removable under the INA, despite the pardons that each received.
- Some, any, or all of them may seek to apply for cancellation of removal under section 240A(a) of the INA. Under a strict reading of the INA, however, they may not be eligible to apply for that relief.
- The Supreme Court, in a decision that I believe was wrongly decided, has excluded from the definition of "aggravated felony" under the INA many state drug-trafficking crimes involving marijuana. That decision, however, does not apply to California drug-trafficking convictions for the drug.
Drugs are in the news — and in my recent posts. On November 10, California Gov. Gavin Newsom (D) issued six pardons for aliens convicted of drug-trafficking crimes who are facing removal. Those pardons raise some important issues — including the Supreme Court's illogical treatment of marijuana trafficking convictions as aggravated felonies, whether the aliens who received pardons are still removable, and whether any or all of the aliens who received pardons are eligible for relief.
Newsom's Pardons
I previously wrote about three of Newsom's 22 November 10 pardons (two for voluntary manslaughter and one for second degree murder and attempted second degree murder) in a November 16 post. In addition to those three, the governor also pardoned six other individuals — identified as Ray Aranjo, Efrain Barajas Meraz, Tung Do, Laura Flores, Nicolas Salgado Espinal, and Carlos Vasquez Salazar — for each of whom deportation is "impending".
Aranjo was convicted in 2005 for possession of marijuana for sale. Barajas Meraz's conviction came in 2013, for possession of marijuana for sale, planting or cultivating marijuana, and transportation or sale of marijuana. In 2000, Do was convicted of possession or purchase of cocaine base for sale. Flores's conviction came in 2003, for purchase for sale of an unidentified controlled substance. In Salgado's case, the crime was possession — again of an unidentified controlled substance — for sale, and the conviction again was handed down in 2003. Vasquez Salazar's conviction is the oldest — in 1990 — for possession of, transporting, or selling a controlled substance (once more, unidentified).
California State Law on Marijuana
Possession of marijuana (technically "cannabis") for sale is a violation of section 11359 of the California Health and Safety Code. There are a variety of punishments, but garden-variety possession for sale is a misdemeanor. Planting, cultivating, harvesting, drying, or processing marijuana is a violation of the preceding section, 11358 of the Health and Safety Code. Six or fewer plants gets you a fine (unless you divert water or violate the Fish and Game Code, among other wrinkles); more than six is a misdemeanor, again, with variations.
Section 11360 of the California Health and Safety Code criminalizes transportation for sale, importation into California, sale, furnishing, administration, or the giving away of marijuana, as well as offers and attempts to do any of those acts. If the quantum of pot is 28.5 grams or less (or four grams of concentrated cannabis), the crime is an infraction; otherwise, it is a misdemeanor unless the recipient is under the age of 18 or the offender has priors.
California decriminalized the personal use and possession of marijuana in 2016's Proposition 64, hence the comparably light punishments (assuming minors aren't involved or there aren't special circumstances) for those crimes. The convictions of Aranjo and Barajas Meraz (again, for which they were pardoned) predated the amendment, but they nonetheless received light sentences: probation and 90 days and 270 days in jail, respectively.
California State Law on Other Controlled Substances
Possession for sale or purchase for sale of "controlled substances formerly classified as narcotics" is a violation of section 11351 of the Health and Safety Code, and can net you a sentence of two to four years. Those substances are identified in specific subdivisions of sections 11054 (opiates, opium derivatives, stimulants, depressants, mescaline, peyote, and tetrahydrocannabinols), 11055 (opium and certain other opiates), and 11056 (something called "dronabinol (synthetic) in sesame oil" in an FDA-approved gel tab).
Transportation for sale of those controlled substances is a violation of section 11352 of the California Health and Safety Code, and can get you three to five years (crossing over into a noncontinguous county can get you three to nine years). Possession for sale or purchase for sale of cocaine base (its own separate provision, section 11351.5) carries a sentence of two to four years.
Federal Criminal Law on Trafficking in Controlled Substances
The primary federal law relating to trafficking in controlled substances is 21 U.S.C. § 841, part of the Controlled Substances Act (CSA). That section criminalizes the manufacture, distribution, or dispensing, or possession with intent to manufacture, distribute, or dispense, of a controlled substance, punishable as a felony. It generally does not distinguish between marijuana (technically "marihuana" under federal law) and other controlled substances (all are generally felonies), with one exception: under section 841(b)(4) of the CSA, distribution of a "small amount" of marijuana for no remuneration is a misdemeanor.
That exception goes back to an amendment debated in 1970, the parameters of which were explained in a written statement by then-Sen. Edward Kennedy (D-Mass.) on October 7 that year. Kennedy asserted:
Many youngsters may be in a situation where they are with friends, where they give a marihuana cigarette or a small quantity of marihuana to one or two others — not as professional pushers, not to make a profit, but in a casual and informal way.
In other words, sharing a joint or giving a friend a small baggy of marijuana for free is not a federal felony. That exception, however, has largely swallowed the rule as it relates to removability for many more significant marijuana transactions, as explained below.
Trafficking in a Controlled Substance as an "Aggravated Felony" Under the INA
Section 101(a)(43)(B) of the Immigration and Nationality Act (INA) defines the term "aggravated felony" to include "illicit trafficking in a controlled substance" as defined in the CSA, "including a drug trafficking crime (as defined in section 924(c) of title 18)." Under the latter section, "a 'drug trafficking crime' means any felony punishable under the" CSA.
Section 237(a)(2)(A)(iii) of the INA renders removable a lawfully admitted alien who has been convicted of an aggravated felony under section 101(a)(43) of the INA. There is no aggravated felony ground of inadmissibility under section 212 of the INA, but many crimes classified as "aggravated felonies" are also grounds of inadmissibility (including "[c]ontrolled substance traffickers").
The Limitations of the "Categorical Approach" to Assessing Aggravated Felonies
Most drug crimes are punished at the state level, and therefore to determine whether that state offense is an aggravated felony for purposes of the INA, the court refers (generally, but not exclusively) to the aforementioned section 841 of the CSA. Simply put, if the state drug crime would be punishable as a felony under federal law, it is an aggravated felony that renders a lawful permanent resident or nonimmigrant removable.
To make that determination, the court applies the much-derided "categorical approach", which I explained in a January 2018 post. Somewhat overly simply, under that analysis the court compares the elements of the state offense to see whether they match the elements of a generic federal definition (in this case under the CSA). If they do (or if the state offense is more restrictive that the generic federal definition), then there is a categorical match, and the crime is an aggravated felony.
"Much-derided" because the focus is not on what the alien actually did — only the minimum acts that are required for the state conviction. The court cannot look far behind the state conviction records to assess what specific provision of state law the alien was convicted of, and many state conviction records are less than clear on this point. Not because state courts are sloppy or lazy, but because judges, juries, and clerks in those courts are usually focused on convictions — not removability.
Moncrieffe v. Holder and Marijuana Convictions Generally
All of which brings me to Sen. Kennedy's exception. In Moncrieffe v. Holder, the Supreme Court held that a Jamaican national who had been convicted under Georgia law of possession with intent to distribute marijuana had not been convicted of an aggravated felony for purposes of the INA. That law was not as specific with respect to sharing a joint or giving a friend a small amount of marijuana as the CSA is as relates to distribution.
The government had argued (correctly in my opinion) that 841(b)(4) is a "mitigating exception" to the general rule that marijuana distribution is a felony under federal law, and that such a crime is "presumptively" a felony at the federal level under the CSA. Justice Sotomayor, writing for the majority, was having none of it.
She admitted that "the burden is on the defendant [in federal prosecutions} to show that he qualifies for the lesser sentence under §841(b)(4)." Despite this fact, sticking tightly to the language in section 841 generally, the majority concluded that the alien there was not removable on aggravated felony grounds. In dissent, Justice Alito made the implications of that decision clear: "Under the Court's holding today ... drug traffickers in about half the States are granted a dispensation."
Effect of Moncrieffe on California Marijuana Convictions
Given all of this, why did Gov. Newsom need to issue the two pardons to Aranjo and Barajas Meraz at all?
Under prior iterations (in effect at the time of their convictions), section 11359 was an aggravated felony as defined in section 101(a)(43)(B) of the INA, as the Ninth Circuit held post-Moncrieffe in its 2014 decision in Roman-Suaste v. Holder, and therefore California was not one of the states referenced by Justice Alito. Similarly, in U.S. v. Reveles-Espinosa, the Ninth Circuit held that a conviction under section 11358 is an aggravated felony, as well. Section 11360(b) mirrors (more or less) section 841(b)(4) of the CSA, as the Supreme Court noted in footnote 10 in Moncrieffe.
Effect of Moncrieffe on Other Controlled Substances Convictions
Notwithstanding its breadth, Moncrieffe did not have any effect on drug-trafficking convictions involving other controlled substances, as section 841(b)(4) of the CSA only addresses marijuana.
One issue arises, however, where the state drug schedule and the federal drug schedule do not match up. Some states control drugs that the CSA and its implementing regulations do not. Specifically, the Ninth Circuit has noted: "California law regulates the possession and sale of numerous substances that are not similarly regulated by the CSA."
With respect to Newsom's pardons where the controlled substance was not identified, I note that the governor stated that deportation was a "collateral consequence" of the convictions for Flores, Salgado Espinal, and Vasquez Salazar, so I will presume (logically) that the drug involved is listed in the CSA and/or the regulations. Therefore, it appears that each would have otherwise been removable under section 237(a)(2)(A)(iii) of the INA, as an alien convicted of an aggravated felony.
Cocaine base is a schedule II drug by regulation, and the Ninth Circuit has held that section 11351.5 categorically qualifies as a drug trafficking offense under the CSA (in a non-immigration federal sentencing case), so therefore Do appears to have been convicted of an aggravated felony, and was removable on that ground, as well.
Effect of Newsom's Pardons
Interestingly, the pardons in the six cases do not mean that those aliens are no longer removable. They are simply not removable on aggravated felony grounds.
As I explained in my November 16 post, under section 237(a)(2)(A)(vi) of the INA, the criminal grounds of removal in sections 237(a)(2)(A)(i) (for a crime involving moral turpitude (CIMT)), (ii) (for two CIMTs not arising out of the same course of conduct), (iii) (for an aggravated felony or felonies), and (iv) (for high-speed flight from an immigration checkpoint) do not apply to a conviction if the alien "has been granted a full and unconditional" gubernatorial pardon.
Section 237(a)(2)(B) of the INA renders aliens who have been convicted of "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance" — as defined in the CSA — "other than a single offense involving possession for one's own use of 30 grams or less of marijuana" deportable.
There is no provision similar to section 237(a)(2)(A)(vi) of the INA limiting removability for drug-related offenses under section 237(a)(2)(B) of the INA, even where a pardon has been issued. Given that fact, and assuming that the drugs involved in each of these six offenses is covered by the CSA, those aliens would still be removable — just not on the aggravated felony ground.
This conclusion is reinforced by the decision of the Board of Immigration Appeals (BIA) in Matter of Suh. The respondent there had been convicted of sexual battery of a minor under Georgia law, and was removable as an alien convicted of an aggravated felony as defined in section 101(a)(43)(A) of the INA ("sexual abuse of a minor").
The respondent subsequently received a pardon for that conviction. The BIA held, however, that he was still removable as an alien convicted of a crime of domestic violence or child abuse under section 237(a)(2)(E)(i) of the INA, concluding that it could "find no legally supportable basis for inferring that a waiver is available where the statute so clearly states which removal grounds may be waived." (Emphasis added.)
Relief from Removal
That raises the question of whether the six would be eligible for any relief from removal. Given the age of their convictions, and the fact that each appears to be an alien otherwise lawfully present in the United States, any, some, or all of them may be eligible for cancellation of removal under section 240A(a) of the INA (42A cancellation).
To be eligible to apply for 42A cancellation, an alien must have been a lawful permanent resident for not less than five years, have resided in the United States for not less than seven years, and not have been convicted of an aggravated felony. It appears, as noted, that each has been convicted of an aggravated felony under section 101(a)(43) of the INA — albeit one for which they have each received a pardon.
The definition of "conviction" is contained in section 101(a)(48) of the INA. It states, in pertinent part:
(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
There is no reference in that provision to a pardon, or the effect of a pardon, therein, nor is there any in section 240A(a) of the INA.
Given these facts, and inasmuch as pardons only appear be effective in restricting the ability of DHS to remove aliens on certain grounds pursuant to section 237(a)(2)(A)(v) of the INA, it could reasonably be argued that these aliens would all be barred from 42A cancellation, notwithstanding Gov. Newsom's pardon in each of their cases (and assuming they would be removable under section 237(a)(2)(B)(i) of the INA).
There is only one somewhat applicable, contrary precedent, a 1956 case, Matter of H-. The BIA held there that an alien who received a pardon for a 1944 larceny conviction for which she had received a two-year sentence was not precluded from showing "good moral character" (GMC) under section 101(f)(7) of the INA, in a case governed by the original iteration of the INA, the INA of 1952.
That 1944 conviction was the respondent's third. She had been convicted of larceny from a store twice before (in 1937 and 1938, respectively, both crimes involving moral turpitude), and therefore was removable under then-section 241(a)(4) of the INA (1956).
As relief from deportation, she applied for suspension of deportation under then-section 244(a)(5) of the INA (one of the precursors to the current 42A), for which she was required to show GMC for the preceding 10 years. Section 101(f)(7) of the INA has not been amended since 1952, so then and now, GMC cannot be shown if the alien has been confined for 180 days or more in the statutorily defined period as a result of a conviction.
The BIA concluded that the pardon respondent there received for that 1944 conviction "immunized [her] from all consequences flowing from that act" — including the bar to GMC (although it conceded that there were contrary, non-precedential, decisions on a similar point).
That 64-year-old precedent is called into question not only by the numerous amendments to the INA since, but also by Matter of Suh, where again the BIA limited the scope of the pardon power to the specific provision in the INA that referenced pardons.
In my next post, I will examine how ICE is likely to handle these cases under the administration of a President Biden, and how the Supreme Court is likely to interpret the pardon provision.
Border Patrol Cocaine and Fentanyl Seizures Up in October
Not all drugs come through ports of entry
CBP has released its enforcement statistics for October (the first month of FY 2021). It shows that seizures of cocaine and fentanyl are up slightly over September (the last month of FY 2020). There is an additional, more interesting statistic that you really have to look for, as well – Border Patrol drug seizures at the border, as opposed to at interior checkpoints. That statistic suggests the border is more porous when it comes to drugs than many imagine.
In October, Border Patrol agents at interior checkpoints nabbed 307 pounds of cocaine, 848 pounds of meth, and 105 pounds of fentanyl. In September, by comparison, Border Patrol agents at those checkpoints apprehended 291 pounds of cocaine, 1,197 pounds of meth, and 102 pounds of fentanyl.
But wait a second, you might note – 1,197 pounds of methamphetamine is more than 848 pounds. You would be right, which brings me to my second point.
In total in October, Border Patrol apprehended 878 pounds of cocaine, 1,388 pounds of meth, and 137 pounds of fentanyl. That means that agents at and near the border itself (as opposed to at interior checkpoints) seized 571 pounds of cocaine, 540 pounds of meth, and 35 pounds of fentanyl. That is more than half a ton of the hardest drugs on the planet.
Interior checkpoint seizures by the Border Patrol are always a source of contention as it relates to smuggling and border-barrier questions, for the following reasons.
In the debate over border barriers, critics often argue that "walls" are not effective because "the vast majority of narcotics enters through U.S. ports of entry, not the wide swaths of border in between where additional barriers could be erected", or some variation thereof.
Well, that is certainly true of drug seizures. In October, CBP officers at the ports seized 10,180 pounds of cocaine, 21,203 pounds of methamphetamine, and 1,075 pounds of fentanyl – far outstripping Border Patrol seizures (I will write about that in my next post). But then, if you have ever entered the United States across a land border, it would not be surprising that such seizures are high.
Every driver (and many passengers) of every vehicle and every pedestrian coming into the United States at one of those ports is questioned by a CBP officer. (I seem to get the extended questioning every time.)
There are drug-sniffing dogs, and paperwork checks. CBP utilizes "large-scale X-ray and Gamma-ray imaging systems, as well as a variety of portable and handheld technologies" to detect contraband on people and in vehicles. I could not imagine a more inhospitable environment for drug smuggling than a port of entry.
It would be like a drug dealer having to walk into a police station before moving product, only ten times worse, because the technology is ten times better at the port than the precinct house.
Compare that, on the other hand, to the border. Agents can question those crossers they apprehend – but they have to apprehend them first. Aliens claiming credible fear want to get caught to apply for asylum and remain indefinitely. Aliens hauling cocaine, meth, and fentanyl could be facing 10 years to life in federal prison (depending on how much they have). And, cartels really don't like to lose their drugs – and are not the sort of employers you would want to disappoint. Smugglers coming across the border, therefore, have every incentive not to get caught by Border Patrol agents.
Not that smugglers at the ports get off easier (or face less wrath from the cartels if caught) – there are just more tools to catch them.
So, are the drugs seized at interior checkpoints simply drugs that were missed at the ports, or were they instead schlepped across the border to a vehicle and transported to the interior where they were found?
There is no way to know for sure (and some drugs are plainly missed at the ports or they would never end up in the United States), but given the fact that most checkpoint questioning is cursory, and Border Patrol agents at checkpoints lack the tools that CBP officers have at the ports, it is more likely to be the latter than the former.
That conclusion is reinforced by the large quantity of drugs seized by the Border Patrol at the border between the ports. More than half of the cocaine, almost 39 percent of the meth, and a quarter of the fentanyl Border Patrol seized last month was at or near the border, as the figures above show. Again, that was seizures – not the sum total of drugs smuggled. We will never know that figure for certain.
Unfortunately, monthly sums of total Border Patrol seizures are not available for preceding years, so I cannot compare October's border seizure totals to September's. But, I can compare last year's checkpoint seizures to Border Patrol seizures as a whole, and it tells a similar (if not even more significant) story.
In FY 2020, Border Patrol seized 2,929 pounds of cocaine, 12,015 pounds of meth, and 405 pounds of fentanyl at checkpoints. In total, the Border Patrol apprehended 15,360 pounds of cocaine, 20,795 pounds of methamphetamine, and 809 pounds of fentanyl. That means more than 80 percent of the cocaine, 42 percent of the meth, and 50 percent of the fentanyl that the component nabbed was at or near the border rather than at the interior checkpoints.
That is not to say that the majority of drugs that are smuggled into the United States don't come through the ports of entry. Even Vice President Mike Pence admitted that (in a roundabout way) in January 2019. But, I also cannot tell you that a significant percentage of the drugs that enter the United States don't enter between the ports – no one can.
CBP officers and Border Patrol agents are good, but not foolproof. And the border is a big place, and agents are stretched thin. There are likely a whole lot more drugs that make it across the border both through and between the ports than we will ever know.
Border barriers are a force multiplier, because they slow down migrants generally and smugglers in particular, giving Border Patrol more time to respond to incursions (nothing is going to stop migrants or contraband bound and determined to enter entirely). Plus, they push more traffic to the ports, where again, there are better detection tools.
Barriers would definitely make the entry of those drugs more difficult – and costly – as smugglers would have to find new and more expensive ways to get their merchandise to market.
Again, though, in the absence of such barriers every place where they are needed, there is some evidence as to how large a quantity of drugs are smuggled along the border between the ports, but seizure numbers likely do not tell the whole story – and successful smugglers aren't telling.
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