Issues surrounding illegal immigration are likely to play a key role in the trial of a former Eastlawn Elementary School principal who is charged with sexually assaulting a student in the fall of 2023 (see related story, this edition).
Jury selection began Monday in the trial of former Eastlawn Elementary School principal Daniel McInnis, 45, white, male, of 632 Country Club Drive, Burlington, who is charged with: statutory sex offense with child by an adult; sex act with a student; indecent liberties with a child; and sexual battery. The alleged victim in the case was six years old at the time, according to the birthdate listed on a motion that the defense filed last week.
McInnis’ attorneys, John W. Cox of Graham and Lisa A. Dubs of Hickory, contend that the victim later recanted his accusation and had falsely accused his principal so he and his family – who are allegedly undocumented immigrants – could obtain a special visa to remain in the U.S., based on motions filed by the defense.
Defense and prosecution disagree on whether immigration expert should be allowed to testify
“One of the biggest differences between a U-visa and other visas, such as student visas, is that they are available to noncitizens who entered the country illegally, have overstayed a lawful visa entry or even have been previously ordered deported,” according to a letter that the defense attorneys filed last week with a notice of their intent to call an expert in immigration law to testify at McInnis’ trial.
“One of the biggest differences between a U-visa and other visas, such as student visas, is that they are available to noncitizens who entered the country illegally, have overstayed a lawful visa entry or even have been previously ordered deported.”
– Defense letter in wanting to present evidence about U-visa standards and requirements
An immigration lawyer based in Winston-Salem, Helen L. Parsonage, is scheduled testify at McInnis’ trial as an expert “on the current state of the law related to U nonimmigrant status (U-visa), eligibility requirements, application procedures,” and other aspects of the process, based on the motion that the defense filed last week, which includes a letter from Parsonage that outlines the process.
Alamance County assistant district attorney Elizabeth Olivier, who is prosecuting the case, filed a motion earlier this month to prohibit the defense attorneys from “inquiring into the citizenship status of the minor child or his family or any matter relating to a U Visa.” She also filed another motion last week, seeking to prohibit Parsonage from testifying.
In her motion, the prosecutor asserted that the defense had supplied her with a report and curriculum vitae (CV) from Parsonage on October 20, “only three days before trial,” and beyond the October 14 deadline they’d been given to file pretrial motions, which were heard last Thursday and Friday. Olivier said three days’ notice wasn’t adequate to locate an expert of her own and prepare a report in response to the one prepared by Parsonage.
Alamance County resident superior court judge C. Douglas Green agreed at the hearings on the pretrial motions to allow the defense to mention the U-Visa application, but not the fact that the victim’s family is supposedly subject to an active deportation order.
In her letter, Parsonage explains, “U visas were created by the Victims of Trafficking and Violence Prevention Act of 2000. They provide a four-year visa and work permit for victims of certain violent crimes, including sexual assault and domestic violence” that resulted in substantial physical or emotional harm.
To be eligible for a U-Visa, the applicant must show that he or she cooperated with law enforcement during the investigation and prosecution of a crime and must provide a “signed certification from the police or prosecutor,” outlining how the applicant assisted, according to the defense’s expert.
“At the end of three years in U-visa status, a noncitizen can apply for permanent residency (green card),” Parsonage elaborates, adding that the applicant must again obtain a certification from law enforcement or the prosecutor that they assisted with the criminal case, all the way through to its conclusion.
An applicant for a U-Visa can include his or her spouse and minor children in the application and, if approved, all receive the same benefits, Parsonage adds in her letter.
According to her resume, Parsonage is a partner in the Elliot Morgan Parsonage firm in Winston-Salem; a contract advisor on immigration consequences of criminal convictions to Indigent Defense Services of North Carolina; an adjunct professor at Wake Forest University’s law school; and has spoken at dozens of immigration and continuing education law conferences in North Carolina and other states since 2011.
Meanwhile, Green warned the defense attorneys on Monday not to make the case about immigration, when Dubs sought reassurance that potential jurors could be questioned about their familiarity with the U-Visa application process.
“It is a Sixth Amendment right, under the facts of this case,” Green said, adding, “Let’s try to keep it about motive.”
On Wednesday afternoon, after the jury pool was excused from the courtroom for the lunch break, Olivier objected to what she described as a line of questioning by Dubs – particularly about news of recent actions involving the U.S. Immigration and Customs Enforcement (ICE) agency – that Olivier argued was prejudicial.
Olivier objected to the defense questioning a potential juror, a Puerto Rican woman, “about her feelings about citizenship,” telling Green that the juror “went into [how] ‘she has sadly seen the news…’”
Dubs countered that she’d merely been trying to gauge jurors’ opinions about whether they think “there should be a path to citizenship” and their feelings about ICE. “The defense would never, argue that these witnesses are not believable because of their immigration status,” Dubs told Green. “I do think the state might want to know, as well, how they feel about these issues. I think we ought to be able to ask some questions.”
Green said he thought Olivier had posed a good question, noting that “despite someone not being in the country legally, they do have the right to equal protection under the law.
“I’m going to overrule the objection but would like to stay away from specific examples of immigration,” the judge said. “Those could taint the jury…despite them being here illegally, they still have the same protections.”
Dubs responded, “The jury is going to know you cannot get a U-Visa without being here illegally.”
The defense attorney added, “I don’t care about a pathway to citizenship,” except as it pertains to the U-Visa application being a possible motive for the accuser’s allegation that McInnis had pulled him out of his class and sexually assaulted him in a bathroom at Eastlawn Elementary School.
