A US immigration expert has said it is "very unusual" that Homeland Security officers took no action against a witness in the trial of Aaron Brady after the man was detained having stayed beyond his 90-day limit.
At the Central Criminal Court in Dublin, Kerry Bretz told defence counsel Justin McQuade BL that in his almost 30 years of experience practising immigration law, he has never seen a case where a visa overstayer was released and told to file their application at a later date.
Mr Bretz told the trial that he analysed the known facts regarding prosecution witness Daniel Cahill.
Mr Cahill has previously given evidence that he heard Mr Brady admit to killing a garda on three occasions while Mr Brady was living in New York. Mr Cahill also told the trial that he entered the US using the 90-day visa waiver programme in 2013 but got a job as a bartender and has lived there since.
Aaron Brady (29) from New Road, Crossmaglen, Co Armagh has pleaded not guilty to the capital murder of Det Garda Adrian Donohoe who was then a member of An Garda Siochána on active duty on January 25th, 2013 at Lordship Credit Union, Bellurgan, Co Louth.
Mr Brady has also pleaded not guilty to a charge of stealing approximately €7,000 in cash and assorted cheques on the same date and at the same location
The trial heard that on July 25th last year, Special Agent Mary Ann Wade and other officers with Homeland Security called to Mr Cahill’s home in New York and on the same day he gave a statement to gardaí investigating the murder of Det Gda Donohoe. He spoke to gardaí again four days later.
Mr Bretz explained that the visa waiver programme allows people from certain countries to stay in the US for 90 days without having to apply for a visa. However, if the person stays longer than 90 days they have no right to appeal their case to a judge and once detained by Homeland Security they can be removed on the next commercial flight to their home country.
Mr Cahill said during his evidence that in July 2019 when he spoke to Homeland Security he was married to an American citizen but had not filed the paperwork to apply for status to remain in the US.
Mr Bretz said that in those circumstances, Homeland Security would have no choice but to make a removal order but they would also have the discretion not to execute the order.
However, he said it would be “highly unlikely” that they would use their discretion in such a case and said he has never seen it happen.
“It is likely he would be removed and deported on the first available commercial flight.”
Mr McQuade asked if the expert witness had ever heard of Homeland Security detaining a visa overstayer and releasing them so they could file an application further down the road. He replied: “Never, no.”
Mr McQuade asked about the presence of an Enforcement and Removal Officer when Homeland Security called to Mr Cahill’s home.
The witness said: “If they were there to ask Mr Cahill, do you want to talk to the guards, there would be no need to bring an Enforcement and Removal officer.”
He added that it would be “very unusual” for Homeland Security to release Mr Cahill and take no further action, particularly in circumstances where a hemp plant and steroids were also found in Mr Cahill’s home.
The witness also said that if Homeland Security is conducting an investigation they use immigration violations as “leverage”. He explained that it is assumed that most people want to stay in the US and when they are facing deportation they are in a vulnerable state. If officers think they could be useful as confidential informants or as witnesses, he said, “that is the time they can make that happen”.
Under cross-examination, Mr Bretz agreed with prosecution counsel Brendan Grehan SC that Homeland Security were assisting gardaí in the investigation of the murder of Det Gda Adrian Donohoe.
Mr Grehan suggested that might give “ample reason” to understand why discretion was used in the case of Mr Cahill and would explain why this case is outside Mr Bretz’ experience. The expert witness said, “it’s possible”.
He also agreed with Mr Grehan that Homeland Security, like all law enforcement agencies, have the power to use their discretion.
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The defence evidence continues in front of Mr Justice Michael White and a jury of six men and seven women.