By Grace Meng
April 5, 2016
Around 6:30 p.m. on a frigid January evening in 2013, Ricardo F. heard a knock at his door. He had just arrived at his New Jersey home, and he was about to head out again to join his wife and twin daughters at a family birthday party. He opened the door to find uniformed men on his porch, telling him that they had a warrant for his arrest. “I knew they were immigration,” Ricardo recalled. When he asked the men why they were arresting him, they wouldn’t say. “You have to come with us,” they repeated.
There was nothing illegal about Ricardo. When he was 11, in 1991, Ricardo’s family left Chile. He grew up in New Jersey, and gained permanent resident status when he was 20. About the same time, Ricardo had his first brush with the law, arrested twice for simple marijuana possession—once outdoors in Union City, and another time when he was out with a friend who was caught smoking. Both times, Ricardo’s public defender told him to plead guilty, pay his fine and move on. He was never ordered to serve jail time.
But that was 12 years earlier, and since then, Ricardo had married and put down roots. He was working two jobs, both with construction firms, and in his free time, he coached his twin 9-year-old daughters’ soccer team. None of that mattered to the agents from Immigration and Customs Enforcement who handcuffed him and stuffed him in the back of a van for a trip to Delaney Hall, an immigration detention facility in Newark.
It was 22 days before he saw a judge to ask for bail. The judge told him because his convictions were drug offenses, bail was out of the question. He would have to fight deportation from the inside. And unlike in his criminal cases, where he was appointed a public defender, if Ricardo wanted a lawyer, he was going to have to pay for one himself.
Ricardo belongs to a group that has been largely ignored in the widespread calls for criminal justice reform. Hundreds of thousands of immigrants, including many legal green card holders like Ricardo, have been swept up by Obama administration policies aimed at increasing the number of deportations of convicted criminals. Even as the White House announced changes to reduce the number of people serving harsh mandatory minimum sentences for nonviolent drug offenses, deportations have increased for people whose most serious conviction was for exactly that. The number is enormous: According to a report by Human Rights Watch, between 2007 and 2012, approximately 260,000 people were deported after nonviolent drug convictions—about 10 percent of the total number kicked out of the country.
And many, like Ricardo, were put through deportation proceedings for old offenses or offenses the criminal justice system had considered so minor, they had been given little or no prison sentence.
U.S. immigration policy, like its drug policy, has been unforgiving of drug dealers and drug users for a long time. Laws passed in the 1980s and 1990s, at the height of the War on Drugs, dictate that any drug offense (other than a single conviction for possessing a small amount of marijuana) is a deportable offense, even for a lawful permanent resident. Any drug sale or potential sale, no matter how small, is considered an “aggravated felony.” In such cases, the judge must order deportation. The judge has no leeway to consider the immigrant’s personal life or the circumstances of the crime. Even convictions that are pardoned or expunged at the state level can still count as convictions under immigration law at the federal level.
Drug deportations began to increase under the George W. Bush administration. But the data show that the increase has been sharpest under President Barack Obama. According to data Human Rights Watch received from the government through a Freedom of Information Act request, from 2007-2012, deportations of people whose most serious conviction was a drug offense increased 22 percent. And deportations of people convicted of drug possession spiked 43 percent over the same period, higher than the 31 percent increase in overall deportations.
The numbers seem to fly directly in the face of Obama’s clarion call to focus less on punishment and more on treatment when it comes to the drug war. He speaks frequently of the devastation drug laws have caused to families. If you’re a low-level drug dealer, Obama has said, “You don’t owe a life sentence. That’s disproportionate.”
But his policies have a blind spot when it comes to people like Marsha Austin.
Austin is a 67-year-old grandmother who the U.S. government is trying to deport as a “drug trafficker” and an “aggravated felon.” A legal immigrant from Jamaica, Austin entered the United States as a permanent resident in 1985 with her husband, now a U.S. citizen, and their children, seven of whom live here as legal residents and citizens. Shortly after Austin’s mother died in 1988, Austin began a long struggle with drug dependency. In 1995, at the height of her addiction, an undercover officer asked her to buy him five baggies of crack cocaine, for which he gave her $5. She was convicted of attempted sale.
Today, Austin proudly proclaims she has been clean since 2010. She celebrated Mother’s Day last year by giving copies of her graduation certificate from her drug rehabilitation program to her children. Her counselor was so moved by the change Austin made to her life, she testified at Austin’s immigration hearing, the first time she had ever done so for a client. But the federal government now insists her 1995 attempted sale conviction constitutes an “aggravated felony” and dictates deportation. Austin’s attorneys applied in May 2014 for a grant of “prosecutorial discretion,” asking the government to choose not to prosecute her immigration case, given her strong family ties and her rehabilitation, but immigration authorities refused. They are still trying to deport Austin today.
Ironically, had Austin committed assault or fraud she might have been able to avoid deportation. As long as the crime is not an aggravated felony, and not all assault or fraud cases are, immigration judges are allowed to consider extenuating factors like family, time in the country and ties to the community. The process is called “cancellation of removal.” But every drug sales case, including ones involving $10 worth of crack cocaine, is an automatic aggravated felony, so Austin’s immigration judge is prohibited from considering those factors.
The reason for the increase in drug-related deportations during the Obama administration has much to do with Obama’s expansion of programs that link local law enforcement to federal immigration officials. Secure Communities, a program begun by Bush but implemented nationwide by Obama, made it easy for immigration authorities to pick up immigrants by linking local fingerprint databases to federal databases.
On the surface, it sounds effective: Surely, if the United States has a chance to locate dangerous criminals and send them back to their home countries, it should make that easier. But the policy also made it easier to find “criminals” charged with minor crimes. Previously, immigration agents had focused on identifying deportable immigrants by meeting with prison inmates at the end of their sentences. Now, immigration agents, who had been alerted by a sometimes flawed federal database, were showing up at local jails to arrest people who had been arrested but not yet convicted. The consequences could be extreme—a minor criminal charge could lead to deportation.
Secure Communities was controversial—and not just among immigration activists. Soon after its widespread implementation in 2008, local law enforcement agencies began to decline the administration’s requests to hold immigrants even without pending criminal charges. Some cited constitutional problems. But many harbored concerns that the resulting cases—which included some high-profile stories of arresting domestic violence survivors and tamale vendors—was destroying the trust between law enforcement and the immigrant community, and endangering public safety.
In 2013, data published by the government suggested that drug and other deportations dipped, most likely a result of legal challenges to the Secure Communities program. In 2014, the administration officially ended the program and ICE agents found it harder to sweep up immigrants from local jails. Perhaps as a result, Human Rights Watch has received reports of an increase in home raids by agents coming to arrest immigrants like Ricardo for old convictions.
For people concerned about the targeting of an unusually vulnerable group of U.S. residents, there are some encouraging signs. The Obama administration in late 2014 outlined new enforcement policies that exclude simple drug possession as a “significant misdemeanor” that would make someone a priority for deportation.
The judiciary may play a role in reform, too. Repeatedly the Supreme Court has been skeptical of the U.S. government’s categorization of certain minor drug offenses as “aggravated felonies.” Recent decisions in the Ninth and Second Circuits have challenged the government’s position that anyone with a single drug conviction (and certain other convictions) is automatically subject to mandatory detention and ineligible for bail. In two cases, Rodriguez v. Robbins and Lora v. Shanahan, the courts found that prolonged detention for criminal convictions is unconstitutional. Immigrants held under this mandatory detention provision must be given a bond hearing after six months, at least those whose hearings are held in the states in the jurisdiction of these circuits.
In October, California Gov. Jerry Brown signed a law that will allow immigrants who have successfully completed a drug diversion program to withdraw their guilty plea upon completion. Previously, under federal law, immigrants who pleaded guilty to enter a drug diversion program ended up with a deportable drug conviction, even if they eventually completed the program. Now, when a California court says that a charge has been dismissed and a conviction vacated, federal law must also recognize that there is no drug conviction. The author of the bill, Assemblywoman Susan Eggman, argued the bill was necessary “to prevent terrible harm to California families and immigrant communities,” including children who are American citizens.
In the meantime, immigrants who grew up in the United States, who have children, spouses and parents who are citizens, whose deportations would devastate their families and communities, continue to be rounded up for drug convictions that are often old or minor, for offenses that are now being decriminalized or legalized, or for which sentences are being significantly reduced.
Ricardo now is back living in his home with his family. Unlike Marsha Austin, he did not have a drug sales conviction—merely possession—so he was eligible for cancellation and the immigration judge, after considering all the factors in his life, decided he should be allowed to remain in the United States. But his life isn’t back to normal. In the three months he spent in mandatory detention, ineligible for release, his family’s life was turned upside down. He wouldn’t let his daughters visit him while he was inside; he didn’t want them to see the barbed wire. His wife, who had been studying to be a therapist, failed her classes as she tried to work part-time and support their family on her own. When she applied for government assistance, she was told she had to sue her husband for child support. They are now in “crazy debt,” he said, with her student loans and legal fees to pay back.
Ricardo and countless others continue to pay the price for the “war on the drugs” that is still being waged in U.S. immigration policy.
For more information, go to: www.beverlyhillsimmigrationlaw.com