Law Fish News for 01-19-2018

The case is unusual, but marriage fraud isn't, officials say

Since becoming an attorney in 1989, David Agatstein has built up a successful law practice helping clients with personal-injury, criminal, domestic, and immigration matters. Martin says his client was nabbed as a result of an earlier federal investigation into an Eastern Shore “Marriage broker” named Richard Hatfield who became a government cooperator. “On the Eastern Shore,” Martin continues, “There are many employees from Eastern Europe who come here, get in on a work visa for the summer, and then they’d find some way to stay.” Some would go to Hatfield for help in fraudulently marrying U.S. citizens in order to become lawful permanent residents and get on a path to citizenship, according to Agatstein’s plea agreement, which says Agatstein “Knowingly assisted up to five aliens to submit immigration petitions” based on false information. On one of those visits, Agatstein was recorded saying, “I’ve never seen a case where they’ve prosecuted a spouse when the marriage was a fraud in a long, long time.” “It’s been going on forever,” Martin says of immigration marriage fraud, recalling that the Maryland U.S. Attorney’s Office brought such cases decades ago, when he was a federal prosecutor. City Paper was unable to find another such case in Maryland on the online federal-courts database, known as PACER. The case against Agatstein was investigated by U.S. Immigration and Customs Enforcement Homeland Security Investigations. ICE spokesperson Nicole Navas calls marriage fraud “a commonly employed tactic” used “To unlawfully obtain legitimate immigration benefits.” She describes a typical case involving “a broker or facilitator” who recruits a U.S. citizen to marry an alien “Who may or may not already be” in this country. “The alien pays the broker as much as $60,000,” she continues, and the U.S. citizen “Can earn approximately $5,000 to $10,000.” The citizen “Then files materially false paperwork with U.S. Citizenship and Immigration Services” and “The sham couple also appears before USCIS for an interview, in which they provide false statements about their ‘marriage’ and life together.” David North, a longtime immigration expert who writes for the nonprofit Center for Immigration Studies in Washington, D.C., says, “The number of times the government says no to a visa-creating marriage is low, though occasionally something pops up and something is done about it. Generally, the issue of immigration marriage fraud is back-burnered. I don’t sense a lot of urgency on the part of the government for coping with this.” Navas highlights several recent prosecutions and enforcement data to contend the federal government is making life difficult for marriage fraudsters. “Trying to prove that two people don’t really love each other is very hard,” he says-especially since “The vast majority of marriage frauds are one-sided, in which the American thinks, Hey, I’m in love, while the alien is just using the marriage to get immigration benefits.” Seminara and North both say it’s hard to say how many of the approximately quarter-million visa-creating marriages each year are fraudulent, but of those that are, those that involve both spouses working together to hoodwink the system are a minority. In Maryland, Agatstein’s case is among more than a dozen prosecutions involving marriage fraud in the last decade, according to court records and government press releases reviewed by City Paper. In addition to Agatstein and Hatfield, who in 2009 was sentenced to three months’ probation, the Eastern Shore investigation resulted in the convictions of two others for marriage fraud: Siarhei Dziamiadau, a citizen of Belarus who received a 10-month prison sentence, and Nino Taraeva, a Georgian who was put on a year’s probation. ICE Homeland Security Investigations’ William Winter, the special agent in charge in Baltimore, has some cautionary words to others who, like Agatstein, would facilitate marriage fraud. “Marriage fraud poses a significant vulnerability to our national security and exploits America’s legal immigration system. Whether you are marrying one person under false pretenses or various people, or facilitating the fraud, know this-you will be found, arrested, and held accountable for your actions.”

Keywords: [“immigration”,”Marriage”,”Agatstein”]


The District Court made extensive findings of fact about SOCF on the basis of evidence presented at trial and the court’s own observations during an inspection that it conducted without advance notice. On appeal to the Court of Appeals for the Sixth Circuit, petitioners argued that the District Court’s conclusion must be read, in light of its findings, as holding that double celling is per se unconstitutional. The Court of Appeals disagreed; it viewed the District Court’s opinion as holding only that double celling is cruel and unusual punishment under the circumstances at SOCF. It affirmed, without further opinion, on the ground that the District Court’s findings were not clearly erroneous, its conclusions of law were “Permissible from the findings,” and its remedy was a reasonable response to the violations found. A. The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: they cannot be “Cruel and unusual.” The Court has interpreted these words “In a flexible and dynamic manner,” Gregg v. Georgia, 428 U.S. 153, 171, and has extended the Amendment’s reach beyond the barbarous physical punishments at issue in the Court’s earliest cases. In assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries “Spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Bell v. Wolfish, 441 U.S., at 539. The court found that adequate lawbooks were available, even to inmates in protective or disciplinary confinement, to allow effective access to court. The basis of the District Court’s assertion as to the amount of time that inmates spend in their cells does not appear in the court’s opinion. No one familiar with litigation in this area could suggest that the courts have been overeager to usurp the task of running prisons, which, as the Court today properly notes, is entrusted in the first instance to the “Legislature and prison administration rather than a court.” Ante, at 349. The Commissioner of Corrections of New York City, a defendant in many lawsuits challenging jail and prison conditions, has stated: “Federal courts may be the last resort for us …. If there’s going to be change, I think the federal courts are going to have to force cities and states to spend more money on their prisons…. I look on the courts as a friend.” Gettinger, “Cruel and Unusual” Prisons, 3 Corrections Magazine 3, 5. III. A reviewing court is generally limited in its perception of a case to the findings of the trial court. 16 The District Court in this case was unable to identify any actual signs that the double celling at the Southern Ohio Correctional Facility has seriously harmed the inmates there; 17 indeed, the court’s findings of fact suggest that crowding at the prison has not reached the point of causing serious injury. Among the States in which prisons or prison systems have been placed under court order because of conditions of confinement challenged under the Eighth and Fourteenth Amendments are: Alabama, see Pugh v. Locke, 406 F. Supp. After extensive hearings concerning the effect of court litigation on the correction of unconstitutional conditions in state-operated institutions, Congress emphatically endorsed the role of the courts in the area by passing the Civil Rights of Institutionalized Persons Act, Pub. Jackson v. Bishop, 404 F.2d 571, cited by both JUSTICE BRENNAN, and by JUSTICE MARSHALL in dissent here, was, I believe, one of the first cases in which a federal court examined state penitentiary practices and held them to be violative of the Eighth Amendment’s proscription of “Cruel and unusual punishments.” I sat on that appeal, and I was privileged to write the opinion for a unanimous panel of the court. The Court goes further, adding some unfortunate dicta that may be read as a warning to federal courts against interference with a State’s operation of its prisons.

Keywords: [“Court”,”prison”,”cell”]

Law Fish News for 01-18-2018

The Case Against the Death Penalty

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES. In 1972, the Supreme Court declared that under then-existing laws “The imposition and carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. Half a century ago, in his classic American Dilemma, Gunnar Myrdal reported that “The South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “Legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half were black. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “Constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty. More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment, asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “Useful” deterrent, it would still be an “Example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. In 1995 Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “Importance and novelty” of the question “Whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “Deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “Historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. “In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs”approximately 42 percent more than a case resulting in a non-death sentence. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime. Politicians could address this crisis for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “Cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s only protection against the most aberrant miscarriages of justice. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “Progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime.

Keywords: [“death”,”penalty”,”state”]