Monday, March 21, 2011

A refugee, a legal permanent resident, and a Reagan-pardoned immigrant: Why are they up for deportation?

In March of  2009, a BYU sociology research team, UCIP (Utah County Immigration Project) conducted several interviews with ICE-Hold detainees at Utah County Jail. ICE-Hold detainees are immigrants who are not currently serving time for a crime, but are on "hold" under an Immigration and Customs Enforcement (ICE) detainer as they await the federal immigration court proceedings that precede deportation.

I summarize the histories of three particularly interesting detainees here to illustrate the complicated process immigrants go through in the justice system. Some of their quoted statements have been translated from Spanish. The names have been changed.

Thomas is an immigrant from Barquisimeto, Venezuela. As a university student in Barquisimeto, he was involved in political demonstrations. In his own words, "We'd do demonstrations against the president, and that's why my life became endangered and I had to come with all my family over here to the United States." Instead of entering the U.S. as refugees, he and his family simply settled in Arizona and then Utah with illegal status. At the time of the interview, Thomas was 23 years old, and had been living in the U.S. for three years as a plumber.

Thomas's criminal charge was for possession of false immigration papers. As many undocumented immigrants do, he had false papers made up in order to get work (not the same as identity theft). But, his illegal papers were not discovered while he was at work, rather, the circumstances of his arrest were these:
I was at my house, outside my house like at 10 at night talking on the phone, and the [local] police arrived--the police just arrived and he told me, “What you’re doing?” What I was doing, only. That if I want to rob there. And I told him that no, it was my house. And so then he checked me out, and in checking my wallet had false documents and then he brought me over here. But that was it. They saw me at night. There I was in the corner of my house. They did ask me--they asked me for identification. I gave them an identification of when you deposit in the banks. That is, it’s in my name--my pictures, everything the same, but they didn’t accept it. And so then they reviewed me and found in my wallet that [the false identification].
Interestingly, in the interview, Thomas confirmed that it was the local police, not ICE who questioned and arrested him. If he had known his rights, he could have reminded the police that they did not have the authority to search his wallet without a warrant.

Because possession of false I.D. is a felony, Thomas did not qualify for bail. He waited in the jail for five and a half months before his first meeting with the judge. In the jail, he'd taken the opportunity to study English and start earning his GED. At the time of the interview, he had been in jail for a total of 6 months, and was hopeful about his situation.  He explained that he already had his political asylum approved, and expected to be let go in the near future.

By "political asylum," he may have meant that he was going through a procedure known as "Withholding of Removal." In order to achieve legal status as a refugee, foreign nationals must submit an application for asylum within one year of admission to the U.S. (Information provided by Salt Lake City Immigration Attorney, J. Shawn Foster).
Withholding of Removal is a form of relief from deportation or removal that "provides for the protection of an alien if he can demonstrate that his 'life or freedom would be threatened'" if deported to his home country. (Immigration and Nationality Act of 1952) Withholding of Removal requires a higher burden of proof than an application for political asylum, but is available to foreign nationals at any time (Foster). There are, however, certain criminal convictions that would bar an individual from eligibility for Withholding of Removal. If a foreign national has committed a crime of persecution, terrorism, or one deemed by the judge as an "aggravated felony" then he or she would not qualify for Withholding of Removal (INA 1952). The term, "aggravated felony" simply refers to any crime considered to be particularly serious. Whether or not a crime is considered an "aggravated felony" is largely determined by the judge. Sometimes "document fraud" is considered to be an aggravated felony (INA 1952), which is to say that if Thomas was approved for Withholding of Removal, his circumstance is a particularly lucky one.

Ricardo's situation may not be so lucky. Like Thomas, Ricardo left his native country (Guatemala) for political asylum. His father, a Christian preacher, was a victim of violent religious persecution during the Guatemalan Civil War period. The family moved to the U.S. in 1989, when Ricardo was only 5 years old. They lived in Los Angeles until they moved to Utah while Ricardo was in the 7th grade. At the time of the interview, Ricardo was 24 years old, had been living in the United States a total of 20 years, and had had legal  permanent resident status for 12 years. If Ricardo had completed the citizenship application process in a timely fashion, as the rest of his family did several years ago, he would not have been facing the possibility of deportation at the time we interviewed him.

Ricardo told us that in 2005, he was convicted of possession of cocaine. By definition, a conviction for simple possession of a controlled substance is not necessarily an aggravated felony unless the conviction is for possession with intent to distribute (Supreme Court Lopez Decision, Foster).  It is unknown whether or not he was convicted of intent to distribute, however, his case was treated as an aggravated felony. A U.S. citizen convicted in such a manner would serve a prison sentence, participate in a rehabilitation program during probation, and then be let go. However, an immigrant with legal permanent resident status who is convicted of an aggravated felony and serves time will likely be required to appear before an immigration judge who has the power to strip him or her of legal status and order the foreign national be deported/removed. Ricardo served his initial sentence right away, and had been monitored by Salt Lake City Probation since 2006. He had also been attending "Positive Adjustments," an alcohol and drug intensive care unit where his drug tests had been coming out clean.

In 2008, he was arrested for missing court during his probation period. He explained to us that he never actually received the court summons letter, and had been unable to get a hold of his probation officer for several months. For missing his court date, he served a 60 day sentence. Upon his release, ICE issued him a Notice to Appear before an immigration judge, and put him on ICE-Hold at the jail. At the time of the interview, Ricardo said that he and his lawyer were in the process of trying to appeal the immigration charge.

In some cases, foreign nationals are eligible for "relief" from deportation. There are appeal possibilities for immigrants with illegal status in the court system. Following a deportation/removal decision by the Immigration Court, an individual may file an appeal to the Board of Immigration Appeals (BIA). If the individual does not win the appeal at the BIA, he or she may appeal to the circuit court of appeals that has applicable jurisdiction. An appeal must be based on a claim that the previous judge's ruling was in error--that an interpretation of the law was made incorrectly (Foster). In Ricardo's case, in order to successfully appeal, the appeals judge would probably have to be convinced that Ricardo's original crime, possession of cocaine, was not truly an aggravated felony and that his legal residency should be restored.

Ricardo recognized that the likelihood of appeal was slight, and that his lawyer had another possibility in mind. He said his lawyer was having him plead for religious political asylum and trying to get him a "voluntary departure." Judges may grant a voluntary departure period in an immigration proceeding "as a way to persuade a person who has a weak case for asylum or suspension of deportation to withdraw their applications and agree to leave the U.S. voluntarily"(Law Offices of Carl Shusterman). This is a desirable option for many deportation candidates, because it means the possibility of re-entering the U.S. legally. Whereas potential immigrants who have previously been deported from the U.S. are barred from even applying for entrance for ten years (Foster). In countries where the slow legal entrance process takes 5 years, a previously deported immigrant would have to wait about 15 years before entrance. Ricardo explained that he has only one connection in Guatemala, a distant aunt he doesn't know very well. His motivation to return to the U.S. quickly is his family. Toward the end of the interview, he had this to say:
I want to be a good son to my parents, I want to be a good uncle to my nieces and nephews . . . It's a hard time being in here. I mean, like I said, we made our mistakes but we can't do nothing to try to get out of this . . . all we can do is to better our lives and try to start over.
Taika, another interviewee, also fears deportation. Like Ricardo, Taika has no family in her home country, and would be barred for ten years from applying for re-entry to join her family in the U.S. again. Unlike Ricardo, the option of "voluntary departure" would do nothing for Taika, because the ten year bar from re-entry also applies to all undocumented immigrants who have a year or more of unlawful presence in the U.S. (INA Section 212 a.9.B., Foster) After application, intended immigrants wait for a number of years more before they are granted Visas to enter the country legally. This is why most undocumented immigrants can't simply "go home and get in the back of the line."

Also unlike Ricardo, Taika was not convicted of any criminal charge. She was guilty of what the courts technically consider not a crime, but a civil violation: unlawful presence.

Taika first immigrated from Tonga to attend LDS Business college in 1971. She entered the country with a student visa, which gave her legal status from 1971 to 1978. She graduated from the college and briefly attended BYU Provo, before transferring to BYU Hawaii where she attended school for two more years. She moved back to Tonga in 1978. Taika and her fiance (now husband) came to the U.S. on temporary visitor's visas in 1981 to marry in the Salt Lake LDS Temple. They decided to settle there, and presumably their visas expired.

When Taika and her husband returned from a brief visit to Tonga to attend her father's funeral in 1989, they were told they needed to apply for permanent resident status (green cards), which they were eligible to do under the Immigration Reform and Control Act of 1986 (Reagan Administration). This act granted amnesty to immigrants who had resided illegally in the U.S. prior to January 1982. Her husband applied for residency, but Taika did not, because the family didn't have the money for the application process at the time. They had three children, one of whom had cerebral palsy, and while insurance companies consistently rejected him, the medical bills were stacking up. She rationalized that permanent residency status wasn't really mandated for her, because she wasn't employed anyway. "Getting caught" with illegal status was never a concern for Taika, she assumed applying for a green card wasn't urgent or necessary.

In 2009, the ICE informed her otherwise. When Taika and her family moved to Provo, they changed their address with the DMV. ICE somehow received this information; they came to her home with a warrant for her arrest saying, "We've been looking for you since 1990." As they typically do, ICE issued her a Notice to Appear in court, which she did. There were no other criminal charges.

At the time the UCIP team interviewed her, Taika had been in jail (on ICE-Hold Only) for 31 days without yet being granted a trial. During the interview, one of the jail employees suggested cynically that ICE-Hold Only inmates may be kept in the jail for longer periods of time than inmates kept for regular criminal charges, because it makes money for the jail. (ICE pays the jail $69 a day for each ICE-Hold inmate's housing costs, significantly more than the $48 it costs the county jail to house them.) 

Immigration attorney, J. Shawn Foster suggests that the fact ICE has to pay county jails to house their detainees yields the opposite effect: 
As a result, ICE deports foreign nationals as quickly as possible, even if it means foreign nationals' limited due process rights are violated. In fact, every year there are several documented cases of ICE deported U.S. citizens.
The good news is, because Taika has not been convicted of an aggravated felony, she stands a small chance of not being deported. Interestingly, the Immigration and Nationality Act allows for the Cancellation of Removal for undocumented immigrants who have not been convicted of aggravated felonies and who meet the following criteria:
INA 240A(b) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. who:
  1. Has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) "Continuous" means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
  2. Has been a person of good moral character for ten years;
  3. Is not inadmissible under 212(a)(2) or (3) (criminal and security grounds) or deportable under 237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
  4. Whose removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
  5. Special relaxed rules for cancellation of removal apply to battered spouses and children.
  6. Only 4,000 persons may be granted cancellation of removal and suspension of deportation in a single fiscal year (Shusterman).
Apparently, this section of the law seems to acknowledge something that the general law enforcement does not: That not all illegally residing immigrants are "criminals." There are many undocumented immigrants just like Taika: immigrants who have well-established lives in the U.S., immigrants who are known for their good moral character, immigrants who have committed no crimes, immigrants whose departure would cause great hardship for their families. Ironically, such immigrants are not distinguished from those who have committed very serious crimes until they have already been sitting in their jail cells for weeks or months, and are finally granted a court proceeding.

Taika and her lawyer had hope that a doctor's note confirming her son's need for constant care would persuade the judge not to deport her. This makes sense in lieu of criteria #4 above. Although, according to immigration attorney, Aaron Tarin, in the court room, judges rarely consider the criteria of "exceptional and extremely unusual hardship" to be met.
(The Past, Present, and Future of Immigration in the United States, a panel discussion hosted by Salt Lake City Library, Sept. 17, 2010). Tarin suggests that the citizen family member would practically have to be on the brink of death in order for the person on trial to qualify for Cancellation of Removal. Taika's situation may not have been as hopeful as she supposed.

No comments:

Post a Comment