What will US do with the terrorist Carriles?
Campaign News | Tuesday, 21 June 2005
US lawyer explains the case
June 20, 2005
The author, a Cuban lawyer, explains the case of Luis Posada Carriles, who entered the United States illegally in March. He also predicts the outcome of legal proceeding against him in the U.S. Carriles is a former CIA operative who is suspected of masterminding the bombing of a Cuban passenger aircraft, killing 73 people.
Luis Posada Carriles’ lawyer insists his client is not an undocumented alien. He has told an El Paso, Texas court and the mass media that Posada Carriles is a permanent resident of the US, and on Aug. 29 he will demonstrate the truth of his client’s status to the court.
Luis Posada Carriles’ asylum request will not be contested that day, for the simple reason that the judge must first prove his true legal status. If the magistrate concludes that Posada Carriles is not a resident [of the US] he will then proceed with the asylum case. This will not be necessary of course, if it is determined that Posada Carriles is a resident.
What do press reports say about the proceedings that took place in El Paso this past Monday?
The U.S. Department of Homeland Security has recognized that Posada Carriles became a legal resident of the US in 1962, but the charges presented to Judge William Abbot allege that the defendant lost his residency and entered the country illegally without presenting a green card; that is to say, his residence or reentry card.
We know that Posada Carriles arrived in Venezuela in 1967 and was made a Venezuelan citizen two years later - with identity card number V-5.304.069 - when he was named head of the Department of Intelligence Security and Prevention [Venezuela’s secret police] under the pseudonym "Commissioner Basilio." According to declassified CIA and FBI documents published by the National Security Archive at George Washington University, the CIA transferred Posada Carriles to Venezuela, after which point he worked simultaneously for the secret services of that country, in Guatemala, El Salvador, Chile and Argentina.
When Posada Carriles was arrested and charged with having organized the Oct. 6, 1976 bombing of a Cubana Airlines passenger plan, nearly one decade had passed since the terrorist had established his place of residence outside the U.S.
When he escaped from prison [disguised as a priest] in 1985 on the eve of the appeals court’s decision, he established residence in San Salvador [in El Salvador], where he worked at Illopango Air Base helping the CIA channel money, arms and equipment to the Nicaraguan Contras.
He reappeared in the U.S. at beginning of this year [in March] after having entered the country illegally -- a total of 28 years after he first left his old American home. If these records are analyzed according to established North American law, there is no doubt what should happen. There is a legal precedent that says a person who remains outside of the country for more than a year loses his permanent U.S. residence. That precedent is strengthened or weakened by [legal] tests that determine the "so-called" resident’s intentions.
In order to prove that his absence from the country was temporary, Posada Carriles would have to prove that his journey abroad in 1967 had a fixed return date and that during his absence he maintained a residence and family ties in the United States. To argue that a trip lasting 28 years was temporary is laughable. No immigration judge would accept such an argument.
Posada Carriles’ lawyer argued on June 13 that his client had not lost his residency status despite leaving the country -- because he worked for the US government.
The argument that Posada Carriles could not return to his "address" in the US since he was imprisoned abroad is also untenable, because it does not take into account the 13 years during which the terrorist lived with impunity, first in Caracas and later in San Salvador. Nor is there evidence that he returned to the US each year, as the law requires. In fact, he was a fugitive from Venezuelan justice, a country that in those years had excellent relations with the North American government.
Posada Carriles’ legal team is deliberately ignoring that, aside from abandoning his residence, the Department of Homeland Security has also accused him of entering the country illegally: that is to say, without having passed through immigration.
Posada Carriles and his lawyers admit that he entered the US secretly without passing a through a North American immigration checkpoint. There is evidence that he entered by sea in the Santrina shrimp boat; the terrorist and his defenders say that he entered by land. At any rate, everyone accepts that his entrance was illegal.
Entering the country without documents is not acceptable - even for a resident. A resident who decides to avoid the legal process of entry into the US, who does not pass through immigration, who does not pass through customs is deportable for that reason alone.
In order to not lose his legal status as a resident, Posada Carriles must have, at a minimum, returned to the US annually, maintained a home in the country, paid his federal taxes every year on income earned abroad and entered with legal documentation, such as a residence card or a reentry permit. There is no evidence that Posada Carriles fulfilled these minimum requirements.
Therefore, we can anticipate the results of the Aug. 29 hearing in El Paso: Posada Carriles is not permanent resident of the US. He forfeited his legal status due to his long absence. He entered the country illegally, without papers. He can be deported. If he wants to do so, he will have to proceed with the asylum defense. The judge will then choose another date for his asylum hearing.
Editor’s note: US authorities arrested former CIA agent Posada Carriles - a longtime opponent of Cuban leader Fidel Castro who is wanted in Venezuela on terrorism charges - on May 17 in Miami. The US turned down an initial request for his extradition from Venezuela on grounds the request lacked legal foundation. Venezuela wants to try Posada Carriles for a third time on charges related to the 1976 bombing of a Cubana Airlines plane, which killed 73 people.]
Jose Pertierra is lawyer specialized in immigration law in the US. His practice is in Washington, DC.