>

The main problem with this situation is that she was not arrested and retried in the same case, but rather on a new case of breaking the immigration laws. So it's exactly a thing that once a case is done, it should be done for good. She was not re-trialed, it's just that her existence in US was based on permission that was granted based on following certain laws.
And when immigration officers will see that those laws were broken they will arrest that person and set up a hearing to validate if deportation would be necessary.
It can be discussed if Detention Centers are ran in good manner or if powers of immigration officers are abused or not, but ability to re-evaluate residence permits is necessary for any country and taking this power away due to judge being lenient in some other cased is not how immigration policy should work.
One question springs to mind, does your friend have permanent residency? It seems if that DUI/possession charge was the only thing that she has on record it would not result in risk of deportation.
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Your OP tramples all over the concept of federalism.
First let me get this out of the way. What happened to your friend sucks. It sucks big time for her, and it sucks for you too to possibly lose a friend in that manner. But I hope you can see that instances like this, sucky or not sucky, are not enough to completely rewrite how all of government works.
Simply put, immigration is a federal issue. The rules as to who may or may not enter and stay in this country are federal rules. If you think about this it makes sense. The borders between states are totally free. It is not the individual state's job to determine who can or cannot be there.
So when a state judge determines that the court won't push for deportation, this is a person who has absolutely no say in the federal government. No one in the federal government which has total control over immigration policy has vested any power at all in the state court. State courts simply cannot tell the federal government how to run immigration policy. >

Not a lawyer but having some experience with these issues it usually becomes a cross section of local laws, state laws, federal common law (which can vary wildly between circuits literal night/day on some issues), and actual immigration law. Strictly speaking, if you’re friend was not a full blown citizen the law requires that their admissibility be determined/redetermined every time they enter. The judge in her im assuming OWI (Wisconsin) literally has zero authority for deportation and could not make the decision on admissibility let alone a future determination. Further it would at the very least qualify as a crime involving moral turpitude, and possibly an aggravated felony (I remember one local difference being that in Georgia the way a shoplifting statue was wordered rendered even a stolen video game from walmart making someone immediately deportable with essentially no appeal or recourse). I do believe that this can be sometimes heavy handed, but I can spin this as the system working since they “properly” redetermined her admissibility as required and she was screened and held for being a criminal. >

To be clear, where is your friend a citizen and where does she live? >

Back then she was a citizen of Brazil and a permanent resident in the US, her parents moved here when she was 8. She lived in Oregon. She's now a full citizen. >

Are you sure she’s a full citizen?  Swearing in ceremony and all?  Are you sure that she didn’t fail to disclose her conviction on any immigration paperwork? >

Yes, I was at her swearing in ceremony. They knew about the conviction, but as a misdemeanor it didn't block it, especially given how old the conviction was and her record since then. >

You are correct, poor wording. He decided to not refer them, as it wasn't a mandatory deportation charge. >

The main problem with this situation is that she was not arrested and retried in the same case, but rather on a new case of breaking the immigration laws. So it's exactly a thing that once a case is done, it should be done for good. She was not re-trialed, it's just that her existence in US was based on permission that was granted based on following certain laws.
And when immigration officers will see that those laws were broken they will arrest that person and set up a hearing to validate if deportation would be necessary.
It can be discussed if Detention Centers are ran in good manner or if powers of immigration officers are abused or not, but ability to re-evaluate residence permits is necessary for any country and taking this power away due to judge being lenient in some other cased is not how immigration policy should work.
One question springs to mind, does your friend have permanent residency? It seems if that DUI/possession charge was the only thing that she has on record it would not result in risk of deportation. >

She didn't at the time, but she does now. As her lawyer explained to her, stuff like this is common in Houston - they look for any excuse to start deportation. >

So there is a very high chance that there will be no deportation as she can show that she was not committing any crimes since and she started procedure of naturalization and obtained a permanent residence.
But to get back at topic of your OP. What you suggest is that a federal law should be limited by rulings of state judges, which would create a big issue as most of problems that can be uncovered by federal immigration agency will be things that are summarized from many different cases from different states. If your idea was implemented than anyone who does have a record in several states, but was individually decided in each case to not have deportation case handed to federal level, is therefore unable to be deported on basis of those cases.
Which will create a major issue where state cases being closed mean that federal cases cannot be based on them, which can go one of two ways. Either we have unlikely situation that federal immigration laws are unenforceable (and thus giving various loopholes for actual criminals) or we have much more likely situation where there is push on state level to refer every likely deportation cause to federal jurisdiction. Which would mean that next person who gets a bullshit misdemeanor like your friend did, would get a deportation case immediately.
And what would be better - to have this deportation hearing later as an adult who already proven that this case meant nothing and can afford a lawyer, or to be immediately tried as a minior? >

This makes sense honestly. You're basically suggesting that we SHOULD be able to close the cases to further scrutiny, except doing so would likely create an issue where every case goes hard on deportation. While I still believe we should be able to prevent a non-referall from being picked up by another agency AND still use prior cases as examples and argument, that's simply not the system we have.
Δ >


You're basically suggesting that we SHOULD be able to close the cases to further scrutiny

Yep, we could make it so every case like this could result in notion from state judge to federal agency to void this case as non-applicable in deportation cases. But it is likely that agency would not be al lenient and this would result in the same thing that happened to your friend just in shorter timeframe.
Honestly, I think that situation as is should be maintained and state judged can just not notify federal level if they don't feel it's warranted. This gives time for person who committed crime to get everything straightened up and go through naturalization process to obtain citizenship. Ans as they receive citizenship, this case from back then becomes irrelevant.
Your friend had a misfortune of getting picked up by some pissy agent, but also got enough time to build up enough to actually have a good case. Any changes in those laws would mean that on average more people will be in worse situation than that.,

While I still believe we should be able to prevent a non-referall from being picked up by another agency AND still use prior cases as examples and argument, that's simply not the system we have.

And it is a system that is not possible to be implemented unless we have a major change in how US government works in general. Which would mean opening many other cans of worms. >

I would bring up the Jussie smullet situation. Basically his contacts and connections were going to get him off until public outcry.
If one prosecuter chooses not to bring a case others should be able to step up. 
Also see the Ahmad arbrerry case where the DA originally considered the shooting justified. Now 3 men are in jail for his murder. >

This is fundamentally not how the law works in any area. 
A case can be dismissed with prejudice, you can be acquitted, but there is no such thing as an idea that a particular sentencing for any future offense is forever off the table. You can't be acquitted for robbery and then have someone say 'geez that was hard for you so in the future you can't get jail time if you're ever charged with something again.'
She can't be retried for this drug offense. But if she does something else of course they could deport her in the future. Imagine how much more people would decide to deport if the first time they sentenced someone blocked them off from ever deporting them. >

That's not what I'm saying. Of course you should still be able to tried for a NEW offense. The problem is that isn't what happened - they saw that for an OLD offense, sentencing had been completed and the judge opted not to pursue deportation. They picked up the sentencing for the OLD offense, 8 years later, and attempted to deport her for that. >

What? They found her travelling with drug paraphernalia. That was the new offense. >

No? They found her with paraphernalia on the original offense, not in Houston. Apologies if that wasn't clear. >

I was confused by that bit too. >

Must've been wording on my part, my bad >

Unless you've edited,  I thought that was perfectly clear. And I'm particularly good at missing details and getting confused.  Lol >

Agreed, not sure how they got the idea the charge was in houston >

Immigrants should avoid Houston and Atlanta like the plague. >

That's Texas. I don't know why anyone goes there with their bad reputation. And going out of their way to fuck with someone just passing through. >

If people don’t respect our laws then capital punishment. >

Nah. >

AFAIK, there were no additional charges. She was detained for deportation hearings. >

Do you know if this is legal? 
If this kind of action by the border guard is illegal then it's not like anyone could give an argument why illegal action by them should be allowed.
If it is legal to deport someone based on earlier conviction that did not lead to deportation at the time, that is indeed a weird law and I'd also like to see the justification why such law is in the US legal code. >

Essentially as I understand it, it's because when the judge opted not to pursue it essentially left the case "unfinished".
It's completely legal as far as we know. Thankfully, she was able to beat it after the case was transferred back to our home state, Oregon, and is now a full US citizen and working for one of our senators, so this one had a happy ending! >

Your problem is the judge was a STATE level actor. He had no jurisdiction to choose to deport or not deport (or even make a determination on this). All he did was fail to formally REFER this issue to the Federal authorities. 
Only a FEDERAL official can make the deport/don't deport determination. And yes, it is appropriate for the border agent to act as they did when this came to light. The fact is was in Houston is likely irrelevant as any other agent would have been given the same information upon processing - with the same result. 
Its the immigration laws at play here. >

She had made this exact same trip several times with no issue. It was only when she went to Houston it was a problem.
Given the judge opted not to refer for deportation, that should've been the end of it. >


She had made this exact same trip several times with no issue. It was only when she went to Houston it was a problem.

Yes - and I speed frequently without getting caught too. It does not mean the one time I got pulled over was 'different'.

Given the judge opted not to refer for deportation, that should've been the end of it.

The judge in question had zero authority or jurisdiction to rule on that subject.  The only aspect they could do was decide whether to directly refer the person to immigration for processing or not. I don't think you get that a 'State' judge simply cannot 'rule on FEDERAL matters'. >

My knowledge of immigration law and policies is very minimal. 
Maybe you could clear something up. Is it the case that if you are in the US legally, and commit a minor criminal offense (like here, possession of paraphernalia) , the state judge at the time declines to refer the case for deportation at the time, that other actors (I'm not sure of the exact people in the case, border agents, TSA?) can at any time in the future begin/refer the deportation process?
That was not worded well - basically asking if stealing a pack of gum as a 18 year old puts traveling to your home country a risky proposition 30 years later? >


My knowledge of immigration law and policies is very minimal. 

No problem. This is a place to learn.

Maybe you could clear something up. Is it the case that if you are in the US legally, and commit a minor criminal offense (like here, possession of paraphernalia) , the state judge at the time declines to refer the case for deportation at the time, that other actors (I'm not sure of the exact people in the case, border agents, TSA?) can at any time in the future begin/refer the deportation process?

Simply put - Yes.
The US has two tiers of government structure. Our states are semi-sovereign entities and there is a principle called anti-commandeering where Federal level officials are unable to compel state level officials into enforcing federal level laws.
What this means, the case in question is about STATE level criminal proceedings. The judge only has the jurisdiction to address State level questions of law and issue rulings dealing with State level questions/laws. 
This Judge has NO authority to issue any rulings on Federal level issues with Federal level laws. Immigration, is inherently a Federal level policy and all immigration laws are at the Federal level.
The fact the court in Wisconsin did not refer or notify Immigration officials of the case/conviction really does not impact the Federal officals ability to act on this information as they see fit. 
And to be clear, there is a unified system where the Federal officials can search for criminal cases against an individual nationwide. This includes both state level and federal level cases/convictions. 
In this case, all the judge did was not tell the immigration officials to lookup this person to review at the time of the conviction. The conviction and record did still go in the nationwide database.
When the person came through the CBP entry process, this issue was pulled up on their record. This is how CBP became aware of this person and questioned whether they were admissible to the US under US immigration law. This could have happened 8 weeks, 8 months or 8 years later. And if not properly addressed, it could happen again in 8 weeks should the person be denied entry and subsequently tries to re-enter later.

That was not worded well - basically asking if stealing a pack of gum as a 18 year old puts traveling to your home country a risky proposition 30 years later?

So, let me be very clear, this is not a citizen re-entering their home country. These rules are for non-citizens seeking entry into a country (US). Only non-citizens can be denied entry/deported from the US under these rules.
Given that background, the answer to your question is 'it depends'. It really depends on what you were convicted of. And yes, there are crimes that will permanently bar entry into the US for non-citizens. >

All this is great. Thanks for your response. I'm traveling at the moment and I will dig in shortly but my last reference to 'home country' was intended to refer to someone visiting their birth country, in this case Brazil, not the US. >

It is hard to know exactly what happened as the story is told in last person terms, but it sounds like she’s facing a secondary consequence of her initial conviction, which consequence is an inability to enter the US.  She may not have been deported as part of that conviction, but it became a mark on her permanent record.  The secondary consequence was that she likely lost her ability to leave and reenter the US.  The right to avoid deportation and the right to enter the US are two different things.  It’s like how green card holders and legal residents may not be able to leave the US, because if they did so, they wouldn’t be let back in.
EDIT: after reading some of OP’s comments, it’s very tough to tell exactly what happened here. >

She wasn't barred from reentry, though that did happen while the proceedings were on. >

She was detained for deportation. There was no additional charge. >

Are there no facilities at Huston to stay on the seaward side of the Border ? >

There was a different crime similar problem short story a murder gets guilty then the annoying ass lawyer trys to get him out off prison by nagging the judge it somehow works after the 3rd time >

marijuna :D >

Your criminal record is for a lifetime - unless you were a juvenile or had differed adjudication (and I suspect judges can still those). >

The issue at hand here is an already closed case being revisited for further punishment. >

It sounds like a case of double jeopardy.  Unethical and illegal. >

20=\= not a minor. Minor is under 18 >

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Your OP tramples all over the concept of federalism.
First let me get this out of the way. What happened to your friend sucks. It sucks big time for her, and it sucks for you too to possibly lose a friend in that manner. But I hope you can see that instances like this, sucky or not sucky, are not enough to completely rewrite how all of government works.
Simply put, immigration is a federal issue. The rules as to who may or may not enter and stay in this country are federal rules. If you think about this it makes sense. The borders between states are totally free. It is not the individual state's job to determine who can or cannot be there.
So when a state judge determines that the court won't push for deportation, this is a person who has absolutely no say in the federal government. No one in the federal government which has total control over immigration policy has vested any power at all in the state court. State courts simply cannot tell the federal government how to run immigration policy. >

To be clear, where is your friend a citizen and where does she live? >

Back then she was a citizen of Brazil and a permanent resident in the US, her parents moved here when she was 8. She lived in Oregon. She's now a full citizen. >

Are you sure she’s a full citizen?  Swearing in ceremony and all?  Are you sure that she didn’t fail to disclose her conviction on any immigration paperwork? >

Yes, I was at her swearing in ceremony. They knew about the conviction, but as a misdemeanor it didn't block it, especially given how old the conviction was and her record since then. >

You are correct, poor wording. He decided to not refer them, as it wasn't a mandatory deportation charge.