Judge Asks Napolitano to Do the Right Thing

"A man who fears his cooperation with a narcotics prosecution in the 1980s will get him killed now that he has been deported to his native Macedonia has lost his attempt to have his guilty plea thrown out.  Adnan Asan pleaded guilty to a lesser charge and earned the plaudits of the government for his cooperation in testifying against major figures in an Eastern European narcotics shipping conspiracy in 1983 and 1984.  But after returning to his family life in the United States, where he was a legal immigrant and holder of a green card, the Department of Homeland Security, based on his guilty plea over two decades earlier, had him deported to Macedonia in 2007, where he now claims his life is in danger.  Asan filed a petition for a writ of error coram nobis, seeking to have his guilty plea vacated based on ineffective assistance of counsel.  His counsel at the time of the guilty plea and cooperation was Jed Rakoff, now a federal judge but then an attorney in private practice at Mudge, Rose, Guthrie, Alexander & Ferdon, who was appointed to represent Asan under the Criminal Justice Act.  Asan claims Rakoff was ineffective because Rakoff failed to apprise him of the potential immigration consequences of a guilty plea.  But Southern District Judge Charles Haight, who presided over Asan's guilty plea and sentenced him to three years of probation because of his extraordinary cooperation, has denied the petition in Asan v. United States, 11 Civ. 5370.  Haight's decision comes after a two-day May hearing in Manhattan, where Rakoff testified in person and Asan testified by closed television hookup from the U.S. embassy in Macedonia." - NYLJ, Nov. 27, 2012.

[Nevertheless, in dicta, footnote 8, Judge Haight stated: "The decision in 2007 to deport Adnan Asan from the United States to Macedonia was made by the Secretary of the Department of Homeland Security, within whose structure ICE is found.  I am of course aware that in all likelihood, the actual decision was made by immigration officials within the Department, without the participation or perhaps even the knowledge of the Secretary.  But  the  authorized acts of  Executive Branch officers are frequently characterized  in  legal proceedings as the acts of “the Secretary” in whose name the officers act.  In what follows, I make use of that practice of personalization.  I have been the District Judge presiding over the underlying criminal case since its inception, and am familiar with the entire record.  The case has passed through the stages of indictment, plea, sentencing, and two coram nobis petitions, of which this is the second.  It began when the United States Attorneys Office for this District conducted an investigation into a major drug conspiracy whose objective was the importation of heroin and other narcotics from eastern Europe into the United  States.  Mr.  Asan,  resident  in  this  country,  was one of numerous facilitators of that conspiracy, not an architect.  Having agreed to cooperate with the Government and plead to a lesser charge, and at considerable personal risk, Mr. Asan gave trial testimony material to the conviction of a number of principal conspirators.  When this Court sentenced Mr. Asan on his guilty plea in 1984, the Government spoke with such force and eloquence about the nature, extent and importance of his cooperation that I sentenced him to three years’ probation.  Mr. Asan completed his probation without adverse incident.  He continued to live in the United States with his wife and children, leading from all indications a law-abiding and honorable life.  In 2007, the Secretary decided to deport Mr. Asan to Macedonia, where a number of drug traffickers against whom he had testified, having served their sentences in this country, were now residing. That decision to deport was based solely upon Mr. Asan’s guilty plea to the lesser narcotics charge in 1983, in compliance with his cooperation agreement.  The Secretary decided to deport Mr. Asan after (and notwithstanding) his crucial cooperation with Government prosecutors in a major narcotics case, and after 23 years of law-abiding and productive life in this country as the head of a family.  The United States Attorney, in fulfillment of the Government’s promise in the cooperation agreement, wrote to officers in ICE, again describing, praising and emphasizing the value of Mr. Asan’s cooperation with the Government in the underlying case.  The Secretary, or those acting in her behalf, replied in substance to the United States Attorney: “We have your letter. It doesn’t make any difference.” This Court, rejecting the first coram nobis petition, held that the decision to deport rested with the Secretary and was not subject to judicial review.  Mr. Asan was deported.  The Secretary has never sought to justify the agency’s decision to deport Mr. Asan.  That is not surprising, since no justification is discernible, given the circumstances of the case.  However, the Secretary retains the power she can exercise now.  Even amid the multiple demands and responsibilities of her vital office, this case presents an opportunity for the Secretary to pause, choose not to pass by on the other side of the road, and take the executive steps necessary to allow Mr. Asan to rejoin his family in the United States.  With all due respect, this Court hopes that these words may come to the attention of the Secretary or other responsible officers in the Executive Branch,  who will act upon them and thereby fulfill the hallowed maxim “Fiat justitia ruat coelum”:  “Let justice be done, though the heavens fall.”  If in the name of justice Mr. Asan is now permitted to return to this country and his family, there is no reason to suppose that the heavens would then fall, or (to focus upon the Secretary’s particular responsibility) that the security of the Nation would be compromised."]