A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Tuesday, September 08, 2009

Immigration, Meet Laches

Laches (f. French, lachesse, laches ) [1] is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim's being barred by laches. Laches is a form of estoppel for delay.

I can't link to the story, because it's an Incisive Media, National Law Journal, Daily Business Review "you want to read online you gotta pay story," but here's the short version:

Guy comes to American from his native Italy at the age of 13 in 1961. In '77 he's convicted of arson and criminal mischief. I don't know the details, but with the attachment of a criminal mischief charge, I can't imagine it was a raging wildfire.

He's paroled in '84, marries a U.S. Citizen in '91, has four children and ran a restaurant.


Then he goes to Italy and is detained upon returning to the U.S. He's released while the gubmnit decides what to do, which is eventually to have him deported, sorry "removed." (Sounds so much nicer)

In 2001, 24 years after his conviction, he's ordered back to Italy, the country he left 48 years ago.

I know, I know, "he should of thought of that when he lit the fire," "We need to get rid of all these criminals," etc..... I know where this country's collective head is on this issue.

The "reluctant" 2nd Circuit Court of Appeals cited "considerable confusion" in federal court decisions around the country and left it to Congress and Homeland Security to "reconcile."

Our courts appear to happily stay out of two places, Immigration, and the Bureau of Prisons. These agencies have almost unbridled power.

I have a personal story here.

A friend, convicted of "driving the car" during a small drug trafficking operation was convicted and sentenced to 2 years in prison. He was also ordered deported.

Upon his release from prison, he walked out, and started his life. He got married, started a business, got credit, all under his real name. The gubmit did nothing, for 22 years.

Then, at 6:30 a.m. one day. they came and got him. He now lives in his native country. He hasn't been there in over 25 years.

He was and is no threat to anyone. The gubmit knows this.

This goes on everyday. Some stories are noticed, others just a "day in the life" of our sick twisted immigration policies.

All in the name of "public safety," right folks?

It's time to introduce the concept of Laches as a defense on immigration cases. This is a pathetic, draconian use of our laws, and it's time a valid defense of Laches is permitted in these cases.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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