Attorney Allison Margolin's Motion on Jurisdiction
“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"
and systematically denying the People of our right to the "due process
of law."  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, 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
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
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)
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,
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. 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.4 Indefiniteness 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
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?
In the Immigration and Naturalization Act, Congress states
the powers and duties of the Attorney General in §1103(a) to include:
“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.”
“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
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
from the Parallel Table of Authorities and Rules
IN TITLE 8
IMPLEMENTING REGULATIONS IN
CODE OF FEDERAL REGULATIONS (cfr)
8 Part 280
8 Parts 273, 280
8 Part 274, 28 Part 9
28 Part 68
8 Part 274a
8 Part 3, 28 Part 44
8 Part 270
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.
Bankers Association vs. Schultz
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)
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
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
[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;
(C) a conviction for an aggravated felony, increase by 8 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)
sentencing GuiDELINES MANUAL
(as of November 1, 2005 )
months of imprisonment)
The Federal Sentencing Table is used by 1) find the offense level, and 2.) read across until the proper Criminal History Category is intersected. If you have no prior felony convictions or limited misdemeanor convictions you will be Criminal History Category 1, and your charge of §1326 begins with a basic Offense Level of 8. The two intersect at 0-6 months in the Table. If you have an extensive criminal history, you need to add the additional offense levels to the basic one of 8, so the 30-month plea offer might be then be a good deal.
Does your attorney’s recommendation of signing your own conviction for a 30-month prison sentence still sound like a “good deal” to you in your case? If you don’t mind doing the extra two years or so, it might be a good deal as room and board are free at the Big House as well as prison uniforms. In addition you will have a lot of time to rest and relax. If this sounds good to you, say nothing and sign the deal.
On the other hand if you prefer your liberty you might want to ask your attorney how the government came up with such figures and why he would recommend such a deal to you? If you should happen to get a coherent response to the question, please contact us so that we may know the answer as well. The only response we have heard so far is that since 9/11/01, the U.S. Dept. of Justice, under Attorney General John Ashcroft, has decided to prosecute “illegals” to the fullest extent of the law. We are wondering what law they are talking about? We are also wondering what has happened to the Due Process of Law? *
To our knowledge, these sentencing discrepancies were first uncovered in 2003 by a Mexican immigrant, who was being detained at the Federal Detention Center in Dublin, California. After arriving there he started doing some legal research in the law library. He had a prior conviction for 8 USC §1326 (a misdemeanor) and a State of California conviction for drug possession (a felony). The prosecuting attorney was calling the drug conviction an aggravated felony. Further research found federal case law saying otherwise. While continuing his research his attorney started pushing him hard to sign up for the “good deal” of only 30 months in prison, as the government was becoming irritated and would soon move to trial. This would result in him being convicted at trial and then receiving a much longer sentence. Up to twenty years is the statutory maximum, which is used as a threat to hurry up and sign the deal before the government takes the deal off the table. You see the system is based on intimidation, coercion and the denial of your right to the due process of law.
About a week later, his attorney came to see him for his last chance at the plea deal, and told him he was making a big mistake by not signing up. This is when he presented his attorney with the facts he had uncovered regarding the sentencing guidelines. A week or two later his attorney came back with a new deal the government was offering. If he would plead guilty to a violation of §1326 and agree to deportation he could go home with time already served. He signed the deal and about three weeks later (long enough to go to court and then process his release) he went back to Mexico, thus saving himself almost 2 years in prison. By the way this man had asked his attorney several times if §1326 had been implemented by regulation as required, and never received an answer. We only know of one other “illegal” who did not hurry and sign for 30 months. The last we heard of this second “illegal” was that the government would release him with time served and he would go to an Immigration hearing with the I.N.S.
In both the above cases the defendants were fluent in English. If you are not real good in English you will have to ask someone to help you. Also, when you go to court or meet with your attorney, demand an interpreter. Perhaps someone who reads this and is bilingual would be moved to translate it into Spanish for the benefit of all the immigrants yet to be arrested on immigration violations.
We would like to add that earlier in 2003 U.S. Attorney General John Ashcroft’s boss, President G. W. Bush, stated that “ the U. S. welcomes immigrants “. We are not sure if he is aware of how the Attorney General welcomes immigrants. Perhaps he is not, as he is busy with affairs in many other countries around the world. In fact the only people we know of who are aware of current Department of Justice policy regarding immigrants are the people caught up in the system and some of their friends and family. Which brings us to the point – if we want to see real changes in these failed immigration policies it will take an organized effort by people who have knowledge of what is really happening. If you have read this paper and understand it you are one of those people who have knowledge of how the fraud works. If you have friends or family who are considered “illegal” you might want to pass a copy of this paper on to them as well as individuals or groups that support or advocate for immigrants. Even a small percent of the seven million “illegal” immigrants, who are educating and informing each other, would have a major effect on the current situation.
Color of Law: The appearance,
without the substance, of a legal right. An action done with the apparent authority of law but
actually in contravention of law. – Law Dictionary, 4th Ed.,
Stephen H. Gifis.
 due process of law: Implies the right of the person affected thereby… to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.
 Act: Action of Congress that governs conduct through one or more statutes.
 M. Kraus & Bros. V. United States (1946) 327 US 614, 90 L ed 894, 66 S Ct 705.
Code; Congress passes Acts, composed of statutes and labeled Sections within a
Title, or volume, of Code.
Code of Federal Regulations (CFR) implementing the statutes specifically as law.
CFR Parallel Table of Authorities and Rules lists implementing regulations under
authority of U.S. Code (statutes) This gives information if a regulation exists
for a statute, or if it applies to a specific case.
The Federal Sentencing Guidelines Manual.
To our knowledge the
preceding information is correct and accurate at the time of this writing.
If you find any errors or omission, or have comments, please contact us.
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Spanish Translation of this
article is available.
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