Illegal aliens
- The prosecutors decided to offer me a carrot. They brushed aside the fact that I was an illegal alien and told me
that they would send a letter to the Immigration and Naturalization Service (INS) recommending against taking any
action against me if I plead guilty. They include this 'promise to recommend' as a clause in the Plea Agreement.
They also send two letters in compliance with the Plea Agreement, lying to the INS in both instances that I am a
permanent resident alien. They could have cared less what happened in the immigration case after they
got their conviction.
The INS brought deportation proceedings against me despite all these recommendations. The Government
lawyers could not bring forth the fact that I was an illegal alien for else I could contest my plea agreement.
They treated me at all times as a legal alien. I appealed to federal District Judge Ronald Whyte anyways. In
my brief I told him that I was an illegal alien and that my case had to be retried because the plea agreement
was made on the basis that I was a legal alien. He ignored the matter entirely.
Nevertheless, I won in Immigration Court. However, the INS appealed. The argument was that it was clear that
the US Attorneys had intended for me not to be deported. Immigration Judge Sean Keenan agreed. However,
the INS convinced the Board of Immigration Appeals in Virginia to send the case back to court. I subpoenaed
the U.S. Attorneys to question them in Immigration Court about their intentions and representations made in
the federal case. The U.S. Attorney's office denied the request. Just as simple as that! The judge did not
enforce the subpoenas.
Therefore, I raised a second issue. I was not deportable because the US Attorney had stated in writing that
they would regard the two felonies as a single crime of moral turpitude, a legal term that according to the law
at the time meant that the individual was not legally deportable. The judge cleaned his ass with the letter and
prevented me from subpoenaing the federal prosecutors to testify with respect to the intent of the letter. Keep
in mind that both the U.S District Attorney's Office as well as the Immigration Service both report to the same
U.S. Attorney General.
I appealed my criminal case and told Judge Whyte that the US Attorneys made the promise to recommend
against deportation to the INS knowing that I was an illegal alien. This was easy to prove with both my
Argentine passport showing that I had entered both in 1974 and in 1977 as a tourist and overstayed my B2
visa on my last entry. I also had the FBI report stating that I had entered legally, but as a tourist. Judge Whyte
wiped his ass with my argument. As far as he was concerned I was a legal alien (for otherwise he would have
to overturn his decision) and that was that! (I wonder how many Mexican wetbacks have the same trouble
convincing the US Government that they are illegally in the country.) My appeal to the 9th Circuit and to the
Supreme Court ended up with the same results. The courts simply ignored my statement to Judge Whyte
that I was an illegal alien and took the side of the Government on the other issues. For instance, the Court
of Appeals held that:
- "the government promises to recommend to the Immigration and Naturalization
Service ("INS") that no action be taken against Gaede's immigration status. At
sentencing the district court emphasized that the INS could decide to do something
different."
Yes. But the district court did not say that deportation was one of them. The US Attorney clearly stated that the
3 years they gave me constitute "full and complete vindication by the United States for defendant's misconduct."
The immigration prosecutor argues that "it matters not whether Respondent's punishment in his criminal case
is a full and complete vindication of the United States for Respondent's misconduct because Respondent's
deportation proceedings are purely civil in nature, not criminal." What neither he nor the judge knew is that the
courts have established perfectly well that deportation constitutes additional punishment. Therefore, the
immigration court erred as a matter of law
To summarize...
- 1. The US Attorneys Office in SFO offered to make my conviction non deportable (crime of moral turpitude)
in exchange for my plea although they realized that I was in the country illegally. I had no problem with such
arrangement because deportation and separation from my family would have been greater punishment than
the 3 years in prison that they were offering.
2. The same Justice Department (i.e., the Immigration and Naturalization Service - INS) decided not to follow
the 'recommendation'.
3. The INS 'reinterpreted' my crime as an aggravated felony although both by law and pursuant to the federal
prosecutors' letters the two statutes I was charged with didn't qualify as such.
4. On appeal I tell the judge that the prosecutors offered me a plea in exchange for not deporting me although
they knew I was an illegal alien.
5. The judge pocket vetoes the issue and simply addresses the issue that I was told the INS could do
'something different' without specifying what that 'something different' was.
6. The Appeals Court reinforces the judge's decision although nowhere in the court transcript does the judge
mention the word deportation. Deportation has been held to be punishment and the prosecutors wrote in the
Plea Agreement that my 3 years was 'full and complete vindication' for my crime.
7. The Supreme Court denies certiorari (to hear the case).
I suppose that when the US wants to deport you at all costs, the Government will reinterpret the laws and
intentions as much as it has to. When the British took over the Falklands and allowed the locals to have a
referendum, the Yanks took their side. When the Russians took over the Crimea much closer to home and
did the same, the Yanks did everything to penalize them. Obviously, the US doesn't like playing by the rules.
In January 1996 the U.S. District Attorneys sent me, among other things, a
copy of the FBI report that James King and Bob Baker wrote on September
1, 1992. On the first page, at the bottom of the page, it very clearly states
that I entered the United States as a tourist, first in 1974 and then again in
1977. Both the FBI agents as well as the federal prosecutors were well
aware that I was a wetback... and so was the Immigration and Naturalization
Service (INS).
However, the U.S. District Attorneys wanted a conviction at any cost. On
the one hand, they didn't want to disappoint AMD or Intel and, on the other,
this was an important case for their personal careers. I had just fired my
7th court-appointed lawyer and was representing myself pro se (by myself)
against the objection of US Attorney Tony West. What they feared the most
was my Motion to Dismiss which I planned to debate in court on March 18th.
As a minimum, this motion would have opened the way for an eventual
legal appeal to the Supreme Court.
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