Between June 1, 1997, and October 31, 1998, Elsayed Salim and his wife dutifully filled out paperwork they needed to file with the state to receive financial support and food stamps for their family. Salim didn’t realize, he later said, citing a language barrier, that income from a second side job also needed to be included.

The lapse resulted in a criminal overpayment of benefits of $12,549 — or $782 per month. The dollar amount made the crime a felony, which put Salim, a permanent American resident but not yet a citizen, at risk of deportation. In an agreement with the judge, Salim pleaded guilty, and the judge downgraded the sentence to a gross misdemeanor, handing down a suspended sentence of 364 days (just two days shorter than a felony sentence would have been), probation, and restitution.

But Salim’s odyssey with the criminal justice system wasn’t over. The office of Hennepin County Attorney Amy Klobuchar, with Klobuchar’s signoff, decided to appeal the guilty verdict, arguing that the stayed sentence should be increased by two days, pushing it back into felony territory, which would be grounds for the legacy Immigration and Naturalization Service to begin deportation proceedings. The judge had abused his discretion, Klobuchar’s office argued, by taking the immigration consequences of the verdict into account.

As the trial judge noted, the difference between a misdemeanor conviction and a felony could determine whether Salim was allowed to remain in the country, with the latter opening up the possibility of deportation, while the former would not. The trial judge, at sentencing, explained that “the reason for the departure is to avoid [Salim’s] potential deportation,” adding, “it would be a manifest injustice to accept the plea based upon [Salim’s] immigration status.”

In a split decision, the appeals court gave Klobuchar a win. In May 2001, the court reversed the lower court’s sentence, sending the case back and ordering the judge not to take immigration status into question when issuing a sentence. The appeals court argued that it could not consider the language barrier as having been a mitigating factor, since Salim, promised a plea deal, had not raised it in court. The court offered Salim the chance to withdraw his guilty plea and go to trial, while the dissenting opinion castigated Klobuchar’s office for even bringing the appeal.

Rather than face trial under the new conditions, Salim “self-deported,” a phrase that would later be made famous by Mitt Romney during his presidential bid in 2012. An Immigration and Customs Enforcement official said that he was never officially deported, according to federal records.

Laura Lynch, senior policy counsel at the American Immigration Lawyers Association, said the decision to appeal the Salim case was “deeply, deeply troubling,” saying that it fit a pattern of “overzealous prosecutors that choose to spend limited resources to turn misdemeanors into felonies that result in unjust deportation, which is a very severe penalty.” 

That outcome, she said, was not the purpose of those laws. “The congressional intent of these laws did not prescribe this result. There is prosecutorial discretion and this seems like the kind of case one would choose to exercise that discretion,” Lynch said.

Klobuchar — now a Minnesota senator and presidential candidate — served for eight years as Hennepin County attorney, first elected in 1998. In a statement, a Klobuchar spokesperson said that in appealing the verdict, she was merely following the law. “The Hennepin County Attorney’s Office was following Minnesota sentencing guidelines and prior Minnesota Supreme Court rulings that said that federal immigration and deportation consequences should not be considered in sentencing decisions,” the statement read. “Since arriving in the Senate, Senator Klobuchar has been a strong advocate for immigrants and has fought hard against Donald Trump’s deportation policies. Her office has worked to help thousands of immigrants facing immigration and deportation issues, including helping to stop the deportation of Armando Enriquez earlier this month.”

In her 2006 Senate campaign, Klobuchar ran as a tough crime fighter. “I’m someone who puts people in jail for a living,” she boasted. She turned her high-profile prosecution of the alleged killers of 11-year-old Tyesha Edwards, who was hit by a stray bullet, into a campaign ad, running a commercial featuring her mother praising Klobuchar’s prosecution of Myon Burrell.

But while Burrell is still serving life in prison, serious questions have been raised about his innocence; a recent Associated Press investigation found the prosecution to be deeply flawed.

Sunny Hostin, a host of ABC’s “The View,” pressed Klobuchar hard on the case. “I’ve reviewed the facts of that case, and it is one of the most flawed investigations and prosecutions that I think I have ever seen,” she told Klobuchar. “How do you defend something like that to someone like me, who is the mother of a black boy, a black teenager? This case would be my worst nightmare.”

Klobuchar’s office’s flip attitude toward the immigration consequences of their prosecutions extended to another case around the same time. In July 1999, James Stanford Byron, a legal permanent resident who hailed from Trinidad and Tobago, was charged with felony marijuana sale and possession. The judge in his case stayed imposition of his sentence, handing down three years probation. Thanks to good behavior, he was granted an early discharge from probation in December 2000, and the felony was reduced to a misdemeanor on his record.

Byron thought he was out of the woods and, in February 2003, visited Trinidad and Tobago. On his way back home, he was detained in Miami by immigration authorities, who flagged his felony conviction and put him in the process of deportation.

Byron asked the court to allow him to withdraw his guilty plea, saying he didn’t realize he’d be risking deportation. The court sided with him, and allowed him to withdraw it. Again, Klobuchar’s office stepped in, appealing the ruling to a higher court, and arguing that Byron should suffer the consequences of his felony plea, even if it was later reduced to a misdemeanor. In another split decision, the court sided with Klobuchar. In her dissent, Judge Doris Ohlsen Huspeni called the ruling “draconian” and said she was “convinced that the district court here exercised its broad discretion in a manner that it believed would ensure the fair administration of justice. I can find no abuse of discretion in that exercise and would affirm.” (Attempts by The Intercept to reach Salim and Byron were unsuccessful.)

While the appeals court also sided with Klobuchar with regard to Salim, the dissent in the case, from Judge Jim Randall, was unusually impassioned. “[T]he prosecution whines to this court because the sentencing judge departed downward (mind you, on a stayed sentence, which means no time will be spent behind bars, regardless if it is 364 or 366 days, if the probation conditions are fulfilled) two days! … The difference between 364 days and 366 days is a .0054 downward departure,” the judge wrote, italics and exclamation point in the original.

All the district court did was change the terminology from a felony to a gross misdemeanor to try to help out an immigrant.  I have no idea why the state is in court appealing this case. The issue of deportation, if it arises, is a federal issue, and is in the hands of the Immigration and Naturalization Service (INS) and the federal courts.  The State of Minnesota has neither any standing nor any business being a “gopher” or a “water boy” for the INS. It is just none of their business. The defendant in this case is not “Lucky Luciano,” but rather an immigrant, a resident alien, who failed to report all household income for purposes of continuing to get more welfare and food stamps.  To be sure, it is against the law, but the legally prescribed penalty for this crime is the lowest possible felony sentence that can be given in the State of Minnesota.

Had the legal shoes been reversed, the judge warned, “We might consider sanctions for a defense attorney cluttering up judicial time by appealing an ‘upward departure’ of two days.”

In reviewing the appeal by Klobuchar, the appellate judges disagreed over the interpretation of a line in a Minnesota Supreme Court case suggesting that immigration status is a “collateral consequence” of a conviction. The 2-1 vote by the Minnesota Court of Appeals panel rejected the lower court’s decision to consider the implications of a felony conviction on Salim’s immigration status: “Although our appellate courts have not previously addressed the issue of immigration consequences as a ground for a sentencing departure, the Supreme Court has held that possible immigration sanctions are only collateral consequences of a criminal sentence and as such cannot provide a basis for a plea withdrawal.”

Randall disagreed. “You can call something a ‘collateral consequence,’ but that has nothing to do with whether it is serious or inconsequential, or a tiny part of a whole piece, or, as in this instance, is the whole piece. Possible deportation is the real penalty here, not the stayed sentence and the requirement for restitution, which is standard and to be expected,” he wrote.

Update: February 25, 2020

This story was updated to include comment from Lynch.