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The Brown Political Review is a non-partisan political publication that seeks to promote ideological diversity. All of the views reflected in BPR’s content are views held by authors and not reflective of the views held by the wider organization or the Executive Board.

Crime And (Over)Punishment

IllegalImmigrationSorayaIn 2003, Raul Valdez, a Mexican immigrant and lawful permanent resident of the United States, was convicted of cannabis-related drug charges. Valdez served 60 days in jail; had he been a citizen this would have been the end of the affair. But in 2014 — nine years after his initial conviction — Valdez was deported for that same crime.

Due to a 1996 piece of legislation, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), stories like Valdez’s are unfortunately far from unique. The IIRIRA reformed immigration law and radically expanded the use of deportation for addressing criminal infractions. While touted as a means of improving public safety, the law’s biggest impact has been threatening legal permanent residents and refugees with deportation, often for drug-related crimes or nonviolent misdemeanors. When it comes to immigration reform, the IIRIRA usually goes unmentioned. That’s a mistake. Deportation of convicted immigrants and refugees, even after they have served their sentences, is often excessive punishment and may constitute unjust action. As the country considers immigration reform, it is high time Congress reformed IIRIRA laws, so that individuals are guaranteed the right to a hearing to assess whether deportation is a just and reasonable action in response to their crime.

Before the IIRIRA reforms, immigrants sentenced to deportation were allowed a hearing in which a judge could consider their ties to the United States and issue a waiver. The IIRIRA, however, ended the possibility of these hearings for a majority of cases, making it hard for an immigrant convicted of a crime to appeal deportation based on any individual circumstances. Making matters worse, because deportation is technically not a “punishment” in the US legal system, returnees are not granted the same rights and protections they would receive in a criminal court. Ultimately, many immigrants are deported without ever seeing a judge.

These provisions are bad enough on their own, but they are far from the only harmful parts of the law. IIRIRA also allows for retroactive application, which means that noncitizens can be deported for crimes committed before 1996, even if those crimes do not qualify them for deportation at the time. Retroactive application includes even those who have served a prison sentence and lived in the United States for years without another transgression. A Supreme Court decision in 2001 successfully challenged the retroactive application provision of the IIRIRA: Noncitizens previously affected by the rule are now allowed to apply for a waiver that permits them to remain in the country. However, the Court’s ruling did not completely solve the problem, since many individuals eligible for a waiver had already been deported, and it remains unclear whether they will be allowed to challenge the decision and return to the United States. Additionally, since there is no statute of limitations for deportation, noncitizens can still receive deportation orders for old convictions.

One particularly alarming case is the story of Antonio Cerami, who immigrated to the United States when he was 12 years old. Cerami became a legal permanent resident and later married a US citizen and became a father figure to her children. In 2003, upon returning to the United States from a vacation in Italy, Cerami was arrested and deported back to Italy for a conviction he had received 19 years earlier and for which he had served three years in jail.

Deportation should not be rejected outright; it is a valuable tool for enforcing immigration laws and should remain in place as a security measure for removing violent noncitizens who pose a real threat to society. The problem is that the legal system frequently invokes deportation for inconsequential infractions. According to US policy, noncitizens are fit for deportation if they are found guilty of an aggravated felony, but a noncitizen can be considered an “aggravated felon” for drug possession — a conviction that merits a prison sentence of more than one year — or a violent misdemeanor. Thus, in practice, people are deported for crimes that are neither violent nor felonious. The numbers confirm this notion: According to Human Rights Watch’s 2007 report on US deportation policy, 64.6 percent of deported immigrants were guilty of nonviolent offenses like drug convictions, illegal entry, and theft, while only 20.9 percent were removed for violent crimes.

Punitive deportations are particularly unjust for noncitizens convicted of drug crimes. During the height of the War on Drugs in the 1980s and 1990s, politicians advocated for harsher deportation laws for drug-related crimes. As a result, noncitizens can be deported for almost all drug crimes, except for the possession of under 30 grams of marijuana. In a recent report, Human Rights Watch found that deportations for drug possession increased 43 percent between 2007 and deportation proceedings are in urgent need of reform, while deportations for “sales, smuggling, manufacture, or trafficking” increased 23 percent in the same period.

While crimes like drug trafficking may sound worse than drug possession, in many cases immigrants are automatically deported for drug trafficking in instances in which the label bears little resemblance to reality. Marsha Austin, for example, is a 67-year-old permanent US resident who struggled with drug addiction after her mother’s death. Austin is fighting a deportation order stemming from a 1995 conviction for the attempted sale of crack cocaine. She received the conviction after she agreed to purchase $5 worth of crack cocaine for a man who turned out to be an undercover police officer.

The rise in deportations for drug convictions has continued, despite the rush of politicians from both sides of the aisle advocating for more lenient consequences for drug offenses. This is because many drug offense reform proposals leave harsh deportation laws untouched, reducing prison sentences for drug crimes but still allowing noncitizens to be deported if they are convicted of a drug offense. Deportations for drug-related crimes have risen to a record high under the Obama Administration, despite its emphasis on deporting “felons, not families.” This stance is flawed because it reflects the idea that anyone with a nonviolent criminal record is a menace to society and incapable of rehabilitation. Furthermore, in practice, the focus on deporting criminals often fractures hard-working and law-abiding families that the Obama Administration ostensibly wants to protect.

Even when noncitizens are afforded counsel, the legal deportation process has remained inadequate. There have been numerous incidents in which defense attorneys gave improper counsel to their clients. Unaware of the strict deportation policies applying to noncitizens, attorneys advise their clients to plead guilty to minor crimes, leaving them vulnerable to unexpected deportation in the future. Noncitizens can sometimes fight their deportations for lesser crimes, but drug offenses automatically mandate detention while the case is disputed. This process can take months or even years without the possibility of release. Even if they ultimately avoid deportation, defendants can suffer greatly in this period of limbo. Arnold Aguayo, for example, was held in detention for seven months while he fought deportation based on drug possession charges; his father died while he was in custody and he was not allowed to attend the funeral.

The perniciousness of deportation is exacerbated by the fact that many noncitizens are ignorant about their residency status and their subsequent risk of deportation. Groups of refugees that arrive in the United States speaking little English are seldom aware of the process for naturalization, and they are particularly defenseless when it comes to changes in immigration policy. Immigrants with a criminal record who try to apply for naturalization years after their conviction are often denied because of the vague accusation of a “failure to establish good moral character,” without room for nuance regarding the seriousness of the crime or close ties to the United States.

Perhaps worse, the US government has gone so far as to conduct deportations without even providing the individuals being deported with valid travel documents. The New York advocacy group Families for Freedom recently released a report containing testimonies from noncitizens who were deported without valid documentation. A man named Carlos, who immigrated to the United States as a young child and was a lawful permanent resident, received a deportation order in 2001, but the Ecuadorean consulate did not have his birth on record and was unable to issue a travel document. Nevertheless, in 2014, the United States deported Carlos with only a sheet of paper that resembled a copy of a passport, which Ecuadorean officials declared a false travel document. Carlos lived in Ecuador as an undocumented man for more than five months.

In comparison with its international peers, the United States has particularly exacting deportation laws. Nearly every nation in Western Europe considers the immigrant’s family ties or the severity of the crime in deportation proceedings. But the IIRIRA and other laws make this impossible. As such, current US deportation laws violate the fundamental principle of proportionality — when it comes to deportation, punishments rarely fit the crime. Therefore, Congress should reform immigration laws so that every noncitizen accused of a crime has the right to a hearing determining whether deportation is a reasonable response. Additionally, laws should be reformed so that only noncitizens convicted of dangerous and violent crimes can be deported. The plight of these legal residents often goes unnoticed, but it constitutes a major human rights issue. And as the United States continues to debate the most significant immigration and criminal justice reforms in a generation, lawmakers must not miss the important opportunity to fix unjust deportation policies affecting both documented and undocumented immigrants.

Art by Soraya Ferdman

About the Author

Molly Hemenway '18 is a US Section Staff Writer for the Brown Political Review.