Fair shake or an offer they can't refuse? The protection of cooperating alien witnesses under United States law.

• Author: Avery, Ryan

1. INTRODUCTION

   Nazmi Rranci paid a smuggling operation to bring him into the United States from Albania and was detained shortly after crossing the U.S. border. (1) He then served the U.S. Department of Justice (DOJ) as a material witness in a criminal case against his smuggler, an alleged chieftain of Albanian organized crime. (2) Rranci's testimony led to a successful conviction for the DOJ and, for Rranci, the fear of violent retribution upon any future return to Albania. (3) Following completion of the Government's case, Rranci expected reasonable protection from his former associates, protection allegedly promised to him and which formed the basis of his decision to testify. (4) Instead, the Immigration and Naturalization Service (INS) immediately initiated removal proceedings against Rranci, as if his cooperation with the DOJ and status as a government witness were matters of pure fiction. (5)

   Federal courts of the United States are frequently challenged to clarify U.S. obligations toward aliens who provide information in cases involving transnational crime. (6) Part II of this Note will examine the importance of aliens who cooperate in the investigation of transnational crime as cooperating witnesses, and the immigration proceedings often initiated against them. (7) Part III will describe the patchwork of federal legislation and constitutional doctrine that U.S. federal courts often grapple with in cases involving alien informants. (8) This section will also discuss international agreements, aimed at protecting these aliens, to which the United States is party. (9) In Part IV, this Note will analyze the inherent shortcomings of the current protective framework, including the exercise of congressional plenary power and the broad discretion granted to executive branch agencies charged with enforcing U.S. immigration policy. (10) Finally, Part V of this Note concludes that comprehensive legislation implementing Article 24 of the United Nations Convention Against Transnational Organized Crime must be adopted in order to protect aliens who assist U.S. law enforcement officials in the investigation of criminal activity. (11)

2. TRANSNATIONAL CRIME AND THE USE OF COOPERATING ALIEN WITNESSES

   1. The Need for Witnesses

      Cases like Nazmi Rranci's are typically characterized by investigation into activity falling under the title of 'transnational organized crime.' (12) Some form of transnational organized crime affects virtually every country in the world today as criminal networks continue to diversify their operations and fuel the trafficking of drugs, human beings, and stolen property, as well as other activities including money laundering, counterfeiting, fraud, and political corruption. (13) In many regions of the world, these activities threaten both development and government stability. (14)

      As with any criminal investigation, cooperating witnesses are vital to the successful prosecution of transnational organized crime. (15) In the United States, investigators encourage inadmissible and deportable aliens possessing ties to foreign crime syndicates to assist them with building cases against syndicate leaders. (16) Federal agents often tap these aliens for the role of informant or cooperating witness upon arrest or detention at the border. (17) Promises of negotiated immigration status or withheld removal from the United States often induce their decision to testify or cooperate. (18)

      In either case, aliens who implicate their former associates and countrymen face severe peril if returned to their country of origin. (19) States that possess a weak rule of law and experience rampant government corruption are often unable, or unwilling, to provide the necessary protection to those who face retaliation from criminal organizations. (20) In some cases, aliens fear prosecution or torture from the very bodies meant to protect them--including military personnel, prison guards, and police officers--who may themselves be involved in the investigated crimes. (21)

   2. Removal Proceedings Before U.S. Immigration Court

      The DOJ, through the Executive Office for Immigration Review (EOIR), oversees the immigration system of the United States. (22) Fifty-four courts and (220) immigration judges located across the country compose EOIR and adjudicate residency applications, orders for removal, and issues of inadmissibility and deportability. (23) Once an immigration court orders the removal of an individual, that individual possesses an automatic right of appeal to the Board of Immigration Appeals (BIA). (24) The BIA is an administrative body charged with reviewing immigration court decisions; authorities will not deport a person from the United States before a BIA appeal is heard. (25) An individual may petition for review of a final removal order from the BIA to the U.S. Court of Appeals located in the circuit where the original EOIR proceedings took place. (26)

      Only issues of statutory interpretation and U.S. constitutional law will be heard in federal court, including habeas corpus petitions. (27) Once the government orders the removal of an alien, it must select the destination for removal. (28) The country of destination should be that from which the removable alien arrived, unless that country will not accept the alien or is contiguous to the United States. (29)

3. FRAMEWORK OF PROTECTION CURRENTLY AFFORDED TO REMOVABLE ALIEN WITNESSES

   In the United States, the authority or obligation to protect an otherwise removable alien witness may arise from substantive due process under the U.S. Constitution, an international treaty, or a federal statute. (30) The protections afforded to cooperating alien witnesses are mainly the product of immigration legislation passed by Congress over the past fifteen years. (31) Pursuant to the plenary power doctrine, U.S. federal courts afford vast constitutional deference to congressional action in the field of immigration. (32) Although the plenary power doctrine has recently lost favor on a number of legal fronts, courts continue to uphold the exercise of discretionary immigration relief granted to the executive branch by Congress. (33)

   1. The U.S. Visa Protection Regime

      Congress has granted to the DOJ and the Department of Homeland Security (DHS) increasing regulatory power over the U.S. visa application process. (34) Named after the statutory sections from which they originate, a number of visa classifications today allow executive branch agencies, at their discretion, to provide immigration relief to noncitizen applicants. (35) Currently, three cooperating witness categories are available to aliens facing a final order of removal. (36)

      1. S-Visas for Information on Organized Crime

         The S-visa provides an alien temporary nonimmigrant status for up to three years during an ongoing investigation and prosecution. (37) To acquire an S-visa, a cooperating alien must first find a state or federal law enforcement sponsor to file the appropriate application form on his or her behalf. (38) Next, the alien must possess "critical, reliable information concerning a criminal organization or enterprise," and his or her presence must be deemed "essential" to the investigation's success by the U.S. Attorney General. (39) Legal permanent residency may be granted to aliens awarded S status if the provided information "substantially contributes" to a successful prosecution. (40) Only 200 S-visas are available for issuance per annum. (41)

         S-visa protection is a highly frustrating mechanism in practice. (42) The glaring weakness of S-visa regulatory law is its reliance on law enforcement to move an application up to the DOJ. (43) Investigators induce aliens with the offer of S status in order to encourage cooperation, only to later abandon their efforts to secure relief in light of the numerous layers of bureaucracy involved. (44) Between 2000 and 2004, the United States granted a total of only 179 principal S-visas. (45)

      2. The Trafficking Victims Protection Act: T & U Status

         With the intent of protecting survivors of violent crime, Congress passed the Trafficking Victims Protection Act (TVPA) in 2000. (46) In passing the TVPA, Congress recognized that "the effective prosecution of transnational crime requires survivors to testify," thereby risking their lives and the lives of family members. (47) Specifically, the TVPA created two new cooperating witness categories under which temporary visas may be issued, each carrying with it the possibility for lawful permanent resident status. (48)

         1. T-visa for Victims of Human Trafficking

            Similar to S visas, the T-visa represents a nonimmigrant visa classification upon which recipients may live and work in the United States legally for up to three years. (49) Applicants for T status must meet three core requirements: first, they must be victims of a "severe form of trafficking in persons"; second, applicants must show that removal from the United States would cause them to suffer "extreme hardship" involving unusual and severe harm; and third, applicants must comply with any reasonable request for assistance in the investigation or prosecution of their trafficking. (50) Unlike the application process for S status, aliens may file for T status on their own behalf. (51)

            The availability of the T-visa has failed to make a major impact on the protection of alien witnesses. (52) Although T-visas may be issued to the family members of a victim, in reality this will only occur after the completion of an often-lengthy criminal investigation or prosecution. (53) Many victims, therefore, choose not to cooperate with law enforcement, fearing immediate reprisal against their family members abroad. (54) Moreover, T status affords protection only to witnesses who are victims of human trafficking; this pool of applicants is further watered down by statutory language requiring a "severe" form of trafficking and the likelihood of undue hardship upon return home. (55)

         2. U-visa...