“And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe – the belief that the right of man come not from the generosity of the state, but from the hand of God.” – John F. Kennedy

This paper will focus on the fact that our Federal Dept. of Justice and our Immigration and Naturalization Service are operating under the "color of law"[1] and systematically denying the People of our right to the "due process of law." [2] Our prisons are filled with people to the point that the "land of the free" now has the highest prisoner per capita rate in the world.

Common Law crime, which requires a victim with injuries or damages, has not produced enough business for our criminal justice system. By using statutory law and hiding the necessity for implementing regulations this system has been able to increase it's number of customers by more than eight times without there being any increase in crime, as there are no additional victims (other than the person being prosecuted under the color of law.) The principle of necessity for the regulation applies to all statutory law, whether state or federal.

The following was learned from a true story of an arrest and prosecution under U.S. Code Title 8 (Aliens and Nationality). We will use this case as an example, but it is typical of many thousands of cases involving immigrants. These principles apply to all immigration cases.

The many cases were all prosecuted under the statute §1326 (Reentry of removed aliens) of the Immigration and Naturalization Act[3], passed by Congress and signed by the President. The Act was codified into Title 8 of the U.S. Code of Statutes, where you can read the statutes in their entirety and learn of the penalties prescribed for violations.

It is an operation of law that statutes be implemented by regulation for general application. How do we know that? Let’s check the U.S. Supreme Court for their opinion and insight into this 1960 criminal case.

U.S. vs. Mersky

The result is that neither the statute nor the regulation are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other. U.S. vs. Mersky (361 US 431,4 Led 2nd 423)(underline added)

In the framework of criminal prosecution, unclarity in a statute or a regulation, issued thereunder is, of itself, enough to resolve doubts in favor of the defendant. [Headnote 10, U.S. vs. Mersky (361 US 431,4 Led 2nd 423)]

Regulations promulgated by an administrative agency under an act of Congress imposing criminal sanctions upon a violation of such regulations are governed by the same requirements of definiteness as are statutes defining criminal action.[4]Such regulations most be explicit and unambiguous in order to sustain a criminal prosecution, and must adequately inform those who are subject to their terms as to what conduct will be considered evasive so as to bring the criminal penalties of the statute into operation.⁴Indefiniteness in such regulations cannot be cured by an interpretation by the administrative agency, so as to sustain a criminal prosecution.^{4 “} [Reference 2 (96 L ed 379) of Headnote 10 for U.S. vs. Mersky (361 US 431, 4 Led 2nd 423) Anno: Indefiniteness of Penal Laws § 3. Administrative regulations.]

Is that clear enough? If so, all we need to do is locate the corresponding regulation for implementing the Statute §1326. We can then all be assured that the convictions of those many thousands of cases we mentioned earlier are in order, and that none of those people have had their "life, liberty, or property seized without the due process of law". See Article 5 of the Bill of Rights, the Fifth Amendment to the Constitution.

Do you think we will be able to find this regulation that is required by law? Do you think we would be writing this paper if there were a regulation for this statute, §1326? That’s right, there is no implementing regulation for these two statutes of the Act. There never was, there isn’t now, and there probably never will be. How do we know? And more importantly, how can you know? Later we will show you how to look them up, or rather look for it, as you will be unable to find it either.

At the time of this writing we know of six defendants who have moved in Federal Court for the U.S. Government to bring forth the regulation(s) for 8 USC §1326 or have the court dismiss the case. No hearings have been held regarding these motions. Do you wonder why no one (except the defendants) wants to discuss the regulations or the lack thereof?

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In the Immigration and Naturalization Act, Congress states the powers and duties of the Attorney General in §1103(a) to include:

(3) “He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”

(5) “He shall have the power and duty to control and guard the boundaries and borders of the United States against illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the service as to him shall appear necessary and proper.”

The law requires that an administrative agency be clear about how the statute will be implemented and who is subject to regulatory police powers. That is why the regulation is needed. The Dept. of Justice and the Immigration and Naturalization Service are administrative agencies.

According to the Administrative Procedures Act found in Title 5 U.S. Code §553, the regulations promulgated by the Attorney General under the Immigration and Naturalization Act must first be published in the Federal Register for public comment and debate by interested persons. Once the rulemaking process is lawfully finished, the regulation is listed in the Code of Federal Regulations (CFR). Looking in the Parallel Table of Authorities and Rules we first checked from the beginning of Title 8 if there were any range of statutes that included §1326, and found none. We then found the regulations for the Title 8 statutes from sections 1322 to 1330, in the following table:

Excerpt from the Parallel Table of Authorities and Rules

STATUTES IN TITLE 8 IMPLEMENTING REGULATIONS IN

U.S. CODE SECTION CODE OF FEDERAL REGULATIONS (cfr)

1322……………………………. 8 Part 280

1323 …………………………… 8 Parts 273, 280

1324 …………………………… 8 Part 274, 28 Part 9

1324a-1324c ……………….….. 28 Part 68

1324a ………………………….. 8 Part 274a

1324b ………………………….. 8 Part 3, 28 Part 44

1324c ………………………….. 8 Part 270

1330 …………………………… 8 Parts 241, 280

In the above table Statutes 1322 through 1324 all have implementing regulations as required. They have been implemented into law and have force and effect of law. The regulations tell whom the statute will apply to and the administrative procedures to be followed. Do you see Statute §1326? They do not appear in the tables as they are without regulation. To confirm the requirement for regulation within government agencies let’s look at another U.S. Supreme Court ruling.

California Bankers Association vs. Schultz

Under the Act, the Secretary of the Treasury is authorized to prescribe by regulation certain record keeping and reporting requirements for banks and other financial institutions in this country. Because it has a bearing on our treatment of some of the issues raised by the parties, we think it is important to note that the Acts civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing the Act itself would impose no penalties on anyone. California Bankers Association vs. Schultz (416 US 21, 39L.Ed.2d 812, 94 S Ct.1494) (underlines added)

In the past we thought the laws had been corrupted, but after looking up statutes and regulations everything makes sense. You must have them both. The concept is almost too simple to grasp. This is how the Inalienable Rights are protected, and how the “ Due Process of Law “ works within Administrative Agencies.

Some people think the lack of regulations, (usually this only occurs where prison sentences are involved), is an oversight. Others think in this case the Attorney General (since 1952) has been derelict in his duty to bring forward the regulation. We don’t think so. Publishing a regulation would confirm that these are administrative issues for people involved within the agency, (those registered with the I.N.S.), and that they are not a criminal matter, as pretended, since there is no victim with injuries or damages. If the principle of regulation was understood this would result in our government being unable to enforce the scheme of casting immigrants and migrants into our prisons at the People’s expense for years on end (currently the maximum penalty is 20 years).

If this principle of regulation was known and stopped, the result would be a shrinkage of our huge prison industrial complex, which is now set to at least double every 8 to 10 years at our expense. As our country’s corporations continue to move manufacturing jobs offshore and out of the United States, the Prison Industry is set to grow quickly, as business is very good right now. In January 2000 the I.N.S. estimated that there were seven million illegal aliens in the United States. I wonder how many of them know their future may be under the supervision of the Bureau of Prisons in a Federal Penitentiary. I wonder what Americans who support this scheme would think if their ancestors (most all of whom were immigrants) had been treated in this manner and where they themselves would be today.

Many of us feel only Americans Citizens have “Rights” and anyone else should be denied the “Rights”. Most of these people have no idea of what the “Rights” are and where they come from. Many seem to think the source is our Constitution. These rights were known of long before our constitution was written. In fact the Founding Documents were based on the principle that the “Rights” are God-given to all men as equals and that they are inalienable (unalienable or inseparable), from man at birth.

As framed in our “Bill of Rights,” perhaps the most important “Right” is the “Right” to the “Due Process of Law”. Once this “Right” is gone it will be very difficult to get it back. It is just about gone now. As this most important “Right” disappears quickly for immigrants it also disappears for citizens of this country. Our appeal is to the people living in the United States to wake up and stand for your Rights before it is too late.

In a recent settlement of a class action suit, the I.N.S. agreed to notify all arrested aliens of important due process rights, e.g., the right to speak with an attorney or representative; the right to request a list of free and low cost legal services; the right to a hearing before an Immigration Judge; the right to release from detention on bond; the right to communicate with a consular or diplomatic officer of their home country; and the possibility of relief from deportation if they are married to a U.S. citizen or permanent resident or have lived in the U.S. longer than seven years. Along with the notice, the I.N.S. must distribute a Request for Disposition, which asks arrested aliens whether they would face harm if they returned to their home country. If so, the case will go to an Immigration Judge, pursuant to the rule §17.03[2] [d] of the Immigration Law and Procedure Desk Edition 17-12

The following is the typical procedure for defendants charged with violating

Title 8 U. S. Code § 1326 – illegal re-entry:

After the suspect’s arrest he (or she) is held without bail. Sometime after the arraignment and indictment government attorneys in the Department of Justice then offer a plea agreement of a 30-month prison sentence followed by deportation. This is passed on to the defendant by his attorney (usually a Public Defender), who tells him that it’s a “good deal and that he should take it. The attorneys then add that the only alternative is to go trial where a conviction is certain, resulting in a much longer sentence. Let’s see if this is true.

Looking in the Statutory Index of the Federal Sentencing Guidelines under Immigration, Title 8 USC §1326, it refers us to §2LI.2 of the Guidelines. The following is an excerpt from §2 L 1.2 and the Sentencing Table of the Guidelines of November 1, 2005 (Note: This guideline still stands as of August 16, 2006).

§2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(D) a conviction for any other felony, increase by 4 levels; or

(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels. §2L1.2. (b)(1)(A)

Federal sentencing GuiDELINES MANUAL (as of November 1, 2005 )

SENTENCING TABLE

(in months of imprisonment)

Criminal History Category (Criminal History Points)
	Offense Level	I	II	III	IV	V	VI
	Offense Level	(0 or 1)	(2 or 3)	(4, 5, 6)	(7, 8, 9)	(10, 11, 12)	(13 or more)

Zone A	1	0-6	0-6	0-6	0-6	0-6	0-6
	2	0-6	0-6	0-6	0-6	0-6	1-7
	3	0-6	0-6	0-6	0-6	2-8	3-9

	4	0-6	0-6	0-6	2-8	4-10	6-12
	5	0-6	0-6	1-7	4-10	6-12	9-15
	6	0-6	1-7	2-8	6-12	9-15	12-18

	7	0-6	2-8	4-10	8-14	12-18	15-21
	8	0-6	4-10	6-12	10-16