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