Politico
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
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