The law mandated detention pending deportation by denying bail to those with past convictions for a host of crimes, including “aggravated felonies,” drug and gun crimes, and two or more offenses involving “moral turpitude.” As a result, many thousands have been imprisoned for many months, even years, often in brutal local jails. Here, too, the Supreme Court stepped in, ruling in 2001 that people could not be held indefinitely while the authorities tried to arrange for other countries to take them. It set six months as a reasonable maximum, requiring release if no foreseeable opportunity for deportation existed.7 The ruling, often ignored, did not prevent a Somali named Keyse G. Jama, for instance, from spending six years locked up after drawing a one-year sentence for getting into a knife fight. At a cost to taxpayers of $200,000 or more, he was flown by a private security company on a chartered jet to a remote part of his homeland, where he was rejected by Somali authorities and returned to jail in Minnesota.8
The 1996 measure narrowed the grounds for waivers, leaving little flexibility to immigration judges, who are not independent in any case; they are administrative employees of the Justice Department, beholden to their bosses and subject to dismissal. That means the entire mechanism resides in the executive branch, without the separation of powers to check and balance the use of the authority to deprive individuals of their freedom as they face immigration charges.
The judges can be quite erratic in those areas of immigration law with murky, subjective standards, varying considerably in granting or rejecting claims of political asylum, for example.9 Where minimal discretion is allowed, as in deportation after a criminal conviction, an ill-trained judge can easily overlook errors in the government’s case against an immigrant. The law may be unforgiving, but it is not simple—it took eighteen pages of concise shorthand for one immigration attorney, Mary Holper, to describe it in a memo for defense lawyers. Yet some of the immigration judges hired by the Justice Department have no experience in immigration law, according to a study by the Transactional Records Access Clearinghouse of Syracuse University. They get less training by the department than they would receive in a single law school course on the subject, and their knowledge is tested inadequately: new judges take an untimed exam online immediately after a day’s instruction on a topic, rather like an eighth-grade quiz on yesterday’s lesson. They are then empowered to alter people’s lives.10
Justice Department officials under George W. Bush admitted using political and ideological criteria to hire immigration judges and make appointments to the fifteen-member Board of Immigration Appeals, ensuring that they were Republicans, most of them recommended by the White House Office of Political Affairs. The law prohibits such political discrimination. One of the beneficiaries, Garry Malphrus, had burnished his credentials by working on the “Bush-Cheney Florida Recount Team” during the disputed 2000 election and had recommended candidates for immigration judge-ships based on “loyalty to the Bush administration.” After just three years as an immigration judge, he was named to the appeals board.11
Only a careful and informed judge will see the narrow possibilities for a legal immigrant convicted of a crime to escape deportation, and only a good immigration lawyer will find the openings. The task is mostly hopeless, “something akin to being an oncologist,” said the late Michael Maggio, who was a private immigration attorney in Washington, D.C. “Sometimes you can save a person or postpone the inevitable, but you’re mostly helping people to adjust to a huge loss. Our clients, just like cancer stages, go through stages: Denial, this can’t be, I’m gonna go see my congressman. Rage. Sometimes, acceptance.”
The best way to avoid deportation is not to commit a crime, obviously—or at least not to accept certain plea agreements. Since lawyers who practice criminal law may know little about immigration law, they mistakenly advise clients to take pleas that may keep them out of jail but get them kicked out of the country. A lawyer bargains and gets what seems like a good deal: instead of a six-month prison sentence for theft, let’s say, a one-year suspended sentence with no actual jail time. The trouble is, that counts as one year under immigration law, which classifies a long list of crimes as “aggravated felonies” if the defendant receives at least a twelvemonth term, suspended or not. This is so even if the offense is labeled a misdemeanor, not a felony, by the state where it occurs.12 So if you want to stay in the United States, it is better to go to jail for less than a year than to get a year suspended, which strikes most prosecutors and defense attorneys as counterintuitive.
Evelyn Greene and her attorney did not know this until it was too late. Although she insisted that she had not stolen a lottery ticket from the 7-Eleven where she worked, her lawyer warned that it would cost too much to contest the charge. Erroneously, he assured her that since the crime was a misdemeanor, it would not mean her deportation, and the prosecutor agreed to a suspended sentence and community service. No similar discretion was shown by government lawyers in the immigration system, however; they launched deportation proceedings against a pregnant mother who posed little or no threat to society.
As the deportation law has been enforced more vigorously since 9/11, immigration attorneys have tried to educate prosecutors, defense lawyers, and trial judges, who are not used to imagining consequences beyond the criminal case at hand. “For example, possession of stolen property is a removable offense, but resisting arrest is not,” explained Bryan Lonegan of the Legal Aid Society in New York City. “Let’s say a person is charged with both. Our recommendation would be to plead to resisting arrest as opposed to possession of stolen property. It’s a criminal conviction, they can get whatever sentence, but it’s not going to have the immigration consequences.”
Some criminal courts began to require that defendants be clearly advised of the immigration implications of pleading guilty—or at least not be misinformed by counsel. Twenty-eight states and D.C. enacted laws requiring judges to warn of the consequences when taking guilty pleas. But the demand was far from universal. Under a pair of New York Court of Appeals decisions, Lonegan noted, a criminal defense lawyer was “ineffective” only if he gave inaccurate immigration information but not if he refrained from telling his client anything at all. This position, supported years later by the Obama administration, would have had bizarre consequences if sustained. Since few attorneys enjoy being deemed ineffective, even to get a client’s conviction overturned, the rulings encouraged silence instead of informed advice.13
But the Supreme Court changed the game in 2010, ruling that a defense lawyer’s failure to warn a noncitizen that a guilty plea could result in automatic deportation constituted ineffective assistance of counsel, a violation of the Sixth Amendment. A Kentucky man—a legal permanent resident for over forty years, charged with transporting a large amount of marijuana in his tractor trailer—was assured erroneously by his attorney that he “did not have to worry about immigration status since he had been in the country so long.” The lawyer seemed to believe that the immigration law was humane and sensible. So the defendant pleaded guilty instead of going to trial.14
From inside the fortified Hampton Roads jail, a train whistle could be heard, beckoning. In the small gym, with one basketball hoop, inmates and lawyers paired up to discuss cases. A man from Trinidad, his face desperately mournful, had come to the United States at the age of twelve, and some time ago had done a year in jail for youthful cocaine possession during “a five-year period when I messed up in my life.” He now had three kids, ages eleven, two, and three months. His wife was American. “I have no family left in Trinidad. It’s atrocious.”
The prison gym was deep in sorrow. Some prisoners arrived with papers in file folders, some with documents folded in quarters and stuffed into shirt pockets. A Vietnamese immigrant, formerly in the South Vietnamese navy, had escaped by fishing boat as Saigon fell in 1975, had been picked up by the U.S. Navy, and had been in the country since. In 1990, he had been convicted of sexually abusing his daughter, given a ten-year suspended sentence, and se
nt to treatment. They had reconciled, at least from his viewpoint. “I said I’m sorry. Still daughter and father, you know.”
But the sin could not be expiated in the eyes of the immigration apparatus. He was targeted by Operation Predator, a sweep of noncitizens with records of sexual crimes. Agents of ICE, the appropriate acronym for Immigration and Customs Enforcement, had appeared at his home at 6:00 a.m., asked him deceptively to come to the immigration office for paperwork involving his citizenship application, and on the way to the car put him in handcuffs.
A tall black man with a goatee, who had arrived from the Netherlands Antilles in 1970, had been ordered deported for two convictions of drug possession and wanted to appeal. He thought he might be a U.S. citizen, since his father had been naturalized before the age of eighteen. The law on such “derived citizenship” is complex, and his mother had hired a lawyer who “took the money and told me he can’t do nothin’,” the man said bitterly.
The CAIR attorney sitting with him in the gym, Paromita Shah, was not taking any money and was instead giving him compassionate candor, explaining the law, the limited grounds for appeal, and the prospective lockup time. He’d stay in jail waiting for a hearing, and after the final order the government would have ninety days to deport him, adding up to months more behind bars. He would be escorted by two federal marshals, part of the cost to American taxpayers to rid the country of nefarious characters. “You’re basically choosing to stay in jail to fight your case,” she told him. “It stinks. The burden’s on you to prove that you derived citizenship.”
Proving anything from a cell is a hardship, and for immigrants with limited English or relatives who are estranged or unsophisticated it is nearly impossible. While the Vienna Convention gives detainees the right to contact their respective consulates, asylum seekers fleeing their own governments certainly don’t want to do that, and some others get no help when they do. Prison systems charge several dollars a minute for collect calls, which are routinely rejected by certain consulates, especially when officials hear that the immigrant has a criminal conviction. “There’s no uniform behavior you can rely on,” said Shah. Saudi Arabia often pays for lawyers, “but India and many African countries are obnoxious.” When they hear it’s a collect call, they hang up.
Incarceration is doubly useful to the authorities, therefore, both to make sure that people don’t become “absconders,” as those who dodge deportation orders are officially labeled, and to make them so fed up with jail that they’ll just agree to leave. Challenging an order is mostly fruitless anyway. The pro bono lawyers of CAIR do not have time to drive around to local courthouses to pull records to see if some error was made in a criminal case, some mitigating circumstance overlooked. They depend on relatives to do the legwork, and that doesn’t always happen. “We know almost every form of release depends on the family,” said Mary Holper. “We can’t put our resources into it if we can’t even get family involved.”
Bela Modi, for instance, was afraid to get her father’s file from the courthouse in Virginia Beach, Virginia. “My driving record is ridiculous, and Virginia Beach is where I have a bench warrant out for me because I missed a traffic court hearing,” she said. “I’m twenty-three now. I think it was driving on a suspended license, suspended on points for speeding.”
So her father, Sevantilal, languished at Hampton Roads jail because of a dubious conviction that an appeals court might have overturned, since he had no lawyer. The case began as a family dispute, as he described it, when he and his wife, later divorced, owned a motel. As his teenage daughter was waiting for him to drive her somewhere, Modi hastened to put a new TV set into the room of a long-term tenant, he said, a woman who “fabricated the accusation that I asked her for a sexual favor” to reduce her rent. A few weeks later she told his wife, who urged her to call the police. They arrested him for “sexual battery.”15
He first turned down appointed counsel because he thought his wife would help him hire his own, but when she refused and he realized that he could not arrange or afford an attorney himself, he requested a state-provided lawyer. Too late, the court told him, and he had to represent himself at trial. He didn’t get a jury, because the charge was merely a misdemeanor, which sounded dubious to Holper, who understood Virginia law to provide a right to a jury if the sentence could exceed six months. The judge found him guilty and gave him the magic number of twelve months, suspending three of them, which instantly converted the misdemeanor into an aggravated felony for immigration purposes. He served 138 days. The following year, when he applied for citizenship, he was denied because of “moral turpitude.”
Then, nearly a decade later, long after he thought that he’d paid a wrongful debt and closed the books, ICE agents came to his door at five o’clock one morning.
“Double jeopardy,” he said again and again in anguished disbelief as he sat on a stainless steel stool at a stainless steel table in the jail. Technically, it wasn’t double jeopardy, which applies to criminal charges; immigration actions are administrative. But the effect was similar: jail time, plus the end of a life he had made in America. Modi was stunned. He had lived in the United States for thirty-six years, all as a legal immigrant, had worked as an engineer in nuclear power plants, and now suffered from diabetes, macular degeneration, and other ailments that he was sure would kill him if he was forced to move to India, where he had only distant relatives. He looked older than his sixty-three years, with a round, exhausted face, wispy white hair, a short white beard. He was losing weight in prison. Finally winning temporary release for medical reasons, he had to report every ninety days. Before ICE could send him back to India, he died in Virginia Beach of colon cancer.16
Modi’s judge and others who sentence lightly probably don’t imagine the hidden sentence they are also imposing. Had the judge given him one day less than a year, the conviction would not have triggered the removal process.17 Had Modi’s right to counsel and jury been observed, he might have been acquitted. But the flaws of the criminal justice process are magnified by the unyielding deportation machine.
Such was the experience of Hemnauth Mohabir of Guyana, whose story was told by his lawyer, Bryan Lonegan. Mohabir arrived in the United States in the early 1990s, married an American, had a child, and acquired technical skills at an air-conditioning school in New York. He loved music, played with a band, and reveled in the freedom to record whatever he wished, something he could not do in Guyana. Everything was going well.
“And then, in 1996,” said Lonegan, “he’s heading to his studio and gets approached by a derelict who says, ‘I desperately need some crack. Where can I get it?’ ” Mohabir says he doesn’t sell, the derelict begs him, please, please, please, so Mohabir says, OK, give me the money, “takes the guy’s $10, goes around the corner, gets it from one of the street sellers, comes back and gives the guy the crack, is immediately arrested.” The “derelict” was an undercover cop.
Charged with a misdemeanor carrying a minimum of two to six years, Mohabir was offered the standard plea since he had no prior record: an attempted sale and five years probation. “Everybody takes it,” said Lonegan, “ ’cause just the risk of going to trial, your word against the cop’s, you just don’t want to deal with it. He refused. He said, ‘No, I’m not pleading guilty, because I’m not a drug dealer.’ ” He presented a difficult defense alleging entrapment, and he won. “The jury found the guy not guilty of criminal sale of a controlled substance. But they did find him guilty of possession of the bag of crack, which was a misdemeanor. And the judge sentenced him to a $250 fine.”
That ended the criminal case. But in 2002, Mohabir’s mother was taken ill, he flew to visit her in Guyana, and when he returned, his conviction popped up in the customs computer at the airport. Drug possession does not have to be an “aggravated felony” to trigger deportation or “inadmissibility” to the country. First-time possession of cocaine is not a felony under federal law, but it’s a deportable offense, and removal can be canceled
only if the immigrant has resided in the United States continuously for at least seven years. The only drug crime that doesn’t activate deportation proceedings is the possession of thirty grams or less of marijuana for personal use.18
If Mohabir had not left the country, and if seven years had run before his crime, he would have been eligible for a waiver (now called “cancellation”). As an “arriving alien,” however, he was ruled “inadmissible” and was subject to mandatory detention without bond. “The judge had no choice but to order his deportation,” Lonegan explained, “and the judge apologized. He said, ‘I’m sorry. I think this is an example of what’s wrong with our system, but I have no choice.’ ”
Mohabir mounted an immigration appeal but abandoned it when he ran out of money for legal fees. His imprisonment continued. He went on a hunger strike and agreed to resume eating only after Lonegan promised to see if the district attorney’s office in Queens would reopen his criminal case, which would permit a late appeal, which in turn would mean that the conviction was not yet final, and the immigration judge could vacate the removal order.
“The district attorney’s office would not do so,” said Lonegan. “They basically said: ‘We don’t agree with the jury’s verdict; we think he’s a drug dealer.’ So much for the jury system.” He was deported in April 2004 after spending two years in jail. “So now his wife and child need to seek public assistance. They’re here. His twelve-year-old son is now without a father. And we’ve done a really bang-up job, for a conviction for a possession of drugs that a judge didn’t think was worth more than a $250 fine, that he wouldn’t have had, had not an undercover cop asked him to go buy it. The situation to me is just absolutely appalling, and it’s not an infrequent scenario.”
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 21