13B: Fear Has A New Address

We are looking for news anxiously in the next steamer which will be next week. Oh! how many more true sons of the North have been slain before the Moloch[C] of America. I fear many more will be made to pass through the fire before the Dagon[D] is fully destroyed, although Dagon has fallen on its face; but I fear that the head ones will try to put him up in his place again. I suppose you are all looking for the first of January. I am glad that the President has taken one step in the right direction. It would be greater rejoicing if all the slaves were to be set free. And when they are set free there is such a hatred feeling of the whites against the blacks it will require stringent laws to protect them in their rights. I cannot but help think that there is too many generals in the Northern army that are in sympathy with the South and I fear even the President is leaning too much that way. Things look dark. Even this Emancipation act has been wrung out of him by the true men of the North. I hope that the day is not far distant when all will be free and equal in their rights as citizens I am fearful that the war is not ended yet and it will be some time before it is closed. All things are in the hands of him that orders all right and when the Nation has humbled itself and put away its sins, then God will let his chastizing hand go of our beloved nation.

13B: Fear Has a New Address

Eventually, the car arrived at a motel where the defendant got out and tried to get a room. He was unsuccessful because the motel required a credit card and he did not have one. Undeterred, he drove to another motel where he registered successfully and returned to the car with a room key. Although Smith was fearful of going into the room, Johnson persuaded her to go, saying that they were just going to stay there for a couple of minutes and "chill."

Against that factual backdrop, the judge instructed the jury on the so-called presence and nonpresence theories of joint venture liability. See, e.g., Commonwealth v. Ortiz, 424 Mass. 853, 856, 858-859 (1997). The instruction did not address what

No Massachusetts case has directly addressed that question. Across the nation, only two decisions appear to have addressed it, and one of those has done so obliquely. In the first case, decided in 1922, the California District Court of Appeal affirmed the "aiding and abetting" conviction of an hotel owner who rented to an underage couple a room they used for sexual intercourse. People v. Wood, 56 Cal. App. 431 (1922). The court said that the defendant "knew the illegal purpose for which the room was to be used and knowingly both aided and abetted" the principal in commission of the crime. Id. at 432. Accordingly, the court was not required to decide whether knowledge of the illegal purpose was always required for conviction and it offered no opinion on that issue.

To be sure, more difficult problems sometimes may arise when the Commonwealth proceeds under a joint venture theory that does not involve a "present" defendant. The nonpresence theory "is more at large, less contained," than the presence theory, Commonwealth v. Mills, 47 Mass. App. Ct. 500, 504 (1999), and "[w]e have found no Massachusetts appellate cases involving sex crimes where a defendant was convicted on a joint venture theory absent a common victim, physical presence at the immediate scene, or physical participation in the act." Commonwealth v. Parriera, 72 Mass. App. Ct. 308, 312 (2008). Therefore, if the Commonwealth proceeds on a "nonpresence" theory, avoidance of injustice may in some cases require proof that the joint venturer had more specific knowledge about the victim's age than would be required for conviction of the principal. Cf., e.g., Commonwealth v. Benesch, 290 Mass. 125, 134-135 (1935) (when an act is "malum prohibitum because of [a] statute, and nothing more" conviction of conspiracy to violate the statute requires proof "that the defendant knew of the illegal element involved in that which the combination was intended to accomplish," even if "proof of criminal intent is [not] required to sustain a complaint or indictment for the substantive offence"); Commonwealth v. Devlin, 366 Mass. 132, 136 n.4 (1974) (conviction as an accessory after the fact does not require that the accessory's knowledge is such that "he is able to put a name or label on the felony -- only that he is aware of the substantial facts which make up the elements of the felony"). Requiring greater knowledge in appropriate "nonpresence" cases would safeguard the defendant's right to due process of law and prevent realization of the fear expressed by the defendant in this case that "[f]amily planning professionals, pharmacists, or vendors of contraception could become rapists if the products they distribute were to 'aid' someone in achieving sexual intercourse with a person under" the age of sixteen.

The options for safe havens in third countries in the region proved inadequate for the sheer numbers of Haitians fleeing their country, and the George H. W. Bush Administration began treating the Haitians fleeing by boat as asylum seekers. The Coast Guard took them to the U.S. naval base in Guantanamo, Cuba, where they were pre-screened for asylum in the United States. During this period, there were approximately 10,490 Haitians who were paroled into the United States after a pre-screening interview at Guantanamo determined that they had a credible fear of persecution if returned to Haiti. On May 24, 1992, citing the surge of Haitians that month, then-President Bush ordered the Coast Guard to intercept all Haitians in boats and immediately return them without interviews to determine whether they were at risk of persecution. The Administration offered those repatriated the option of in-country refugee processing.15

Since enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (P.L. 104-208), aliens arriving in the United States without proper immigration documents are immediately placed in expedited removal. If an alien expresses a fear of being forced to return home, the immigration inspector refers the alien to a asylum officer who determines whether the person has a "credible fear." IIRIRA requires that those aliens must be kept in detention while their "credible fear" cases are pending.18 As a result, those Haitians who do make it to U.S. shores and do express a fear of repatriation are placed in detention. After the credible fear determination, the case is referred to an Executive Office for Immigration Review (EOIR) immigration judge for an asylum and removal hearing (during which there is no statutory requirement that aliens be detained).

In 2002, DOJ acknowledged that it instructed field operations "to adjust parole criteria with respect to all inadmissible Haitians arriving in South Florida after December 3, 2001, and that none of them should be paroled without the approval of headquarters."25 The Administration of President George W. Bush maintained that paroling Haitians (as is typically done for aliens who meet the credible fear threshold) would encourage other Haitians to embark on the "risky sea travel" and "potentially trigger a mass asylum from Haiti to the United States." The Bush Administration further argued that all migrants who arrive by sea posed a risk to national security and warned that terrorists may pose as Haitian asylum seekers. Critics of the Bush Administration's Haitian parole policy focused on the 167 Haitians detained after their boat ran aground in South Florida on December 3, 2001, a majority of whom reportedly passed the initial credible fear hearing. Critics maintained that the Haitians were being singled out for more restrictive treatment.26 They challenged the view that Haitians posed a risk to national security and asserted that the term was being construed too broadly, being applied arbitrarily to Haitians, and wasting limited resources.27 OIS has reported that Haitians made up 2% of the 378,582 foreign nationals detained by DHS Immigration and Customs Enforcement in 2008.

At least five federal agencies now handle Haitian migrants: DHS's Coast Guard (interdiction); Customs and Border Protection (apprehensions and inspections); Immigration and Customs Enforcement (detention); U.S. Citizenship and Immigration Services (credible fear determination); and DOJ's EOIR (asylum and removal hearings). DHS would take the lead in handling a potential mass migration and has long had a set of operational plans in place to respond to such a situation. In her TPS announcement, Secretary Napolitano warned of the consequences of Haitians fleeing to the United States:

Aliens must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion.

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account. 041b061a72