November 17, 2006

Commentary:

High Court Must Strike Down Mandatory Deportations

By Benita Jain
New America Media

Editor’s Note: The fusing of the war on drugs and the “war on immigrants” has led to the serious misapplication of immigration law, writes Benita Jain, staff attorney at the Immigrant Defense Project of the New York State Defenders Association and a member of the Steering Committee of the Detention Watch Network.

NEW YORK—On Oct. 3, the U.S. Supreme Court heard oral arguments in Lopez v. Gonzales. Its decision could come anytime between now and June next year. The ruling will have a dramatic impact on the rights of 12 million lawful U.S. permanent residents (green card holders), asylum-seekers and their families.

One of them is Lindy Simon, who entered the United States as a green card holder when she was 11 years old. Over the next 32 years, Simon raised a family that includes a U.S. citizen son and a grandson, worked hard as a home health aide, and was active in her church. Today, she continues to live in the same Brooklyn neighborhood where she grew up, caring for her U.S. citizen grandmother and teaching her 4-year-old grandson how to make dumplings. Her living room is adorned with family photographs — baby photos, children’s graduations, portraits of ancestors. This is a typical American family, except that Simon is facing mandatory deportation.

Simon in 1998 was convicted of possessing marijuana and received five years probation. It was her first and only arrest or conviction, and she completed her probation early. The federal government, however, has mislabeled Simon and many others convicted of low-level possession as “drug trafficking aggravated felons.” This harsh misreading of the Immigration and Nationality Act makes their deportation automatic, depriving them of any right to an immigration judge who would otherwise consider the entirety of their lives or their individual circumstances to grant a discretionary pardon from deportation.

Simon’s situation underscores the convergence of the War on Drugs and the War on Immigrants. Ten years ago, Congress passed repressive immigration laws that made deportation a mandatory minimum for a wide range of criminal offenses. The government has been aggressively misapplying these laws, extending them to immigrants beyond what these already harsh laws allow.

The effect is devastating. A green card holder convicted of possessing a controlled substance is deemed deportable; the issue before the Court is whether that deportation will be automatic, with no chance to present evidence of U.S. citizen families left behind or other compelling circumstances.

Fairness must be the face of American justice. Immigrants who have completed their sentences and paid for their mistakes deserve the chance to have an immigration judge consider their life circumstances and the effect their deportation would have on their families — often U.S. citizens.

It must not be lost on the Court that many of these drug possession offenses result in little or no jail time for U.S. citizens. For immigrants, the second punishment in the immigration courts — permanent separation from home, family and livelihoods, sometimes even death at the hands of persecutors in their countries of origin — far exceeds any punishment that the criminal courts could impose.

Fairness requires taking individual circumstances into account. In many instances, the immigration judge may decide not to deport a lawful permanent resident based on certain factors — length of time in this country; hardship on the immigrant or her family if deportation occurs; service in the U.S. armed forces; history of employment; ownership of a small business that provides local jobs; and value and service to the community.

Taking that discretion away from the judge leaves American children without parents and permanently exiles individuals who, but for one mistake, have worked hard, paid taxes and contributed to their communities. “It’s like you miss a mortgage payment, and they come to bulldoze your house,” Simon says. “None of the good we have done in our lives matters. Nothing matters but the conviction.”

Like Simon, half of all people charged as “aggravated felons” since 1997, and thereby subject to mandatory deportation, have lived in the United States for more than 14 years. A quarter amounting tens of thousands of individuals have lived in the United States for more than 20 years. Sweeping decisions and the removal of a judge’s ability to hear relevant evidence do not aid or advance justice. Such rules simply split up families and remove breadwinners from households.

Automatic deportation is also devastating for refugees who are fleeing political, religious or other persecution by seeking asylum in the United States. Under the government’s mislabeling, these individuals are barred from seeking asylum. For many of them, automatic deportation means rape, torture or murder upon their return. It’s senseless and cruel to deny them the opportunity to have an immigration judge consider their claims.

Of course, one court decision won’t change a deportation system so ruthless that it deported almost 200,000 people last year, splitting up countless families. One court decision won’t reform the broken immigration system. However, the Supreme Court has the opportunity to scale back one unlawful, overreaching application of immigration law and thereby protect American families and communities, as well as the critical ability of the courts to make decisions based on individual circumstances.

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