Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  Trying to defend clients in the immigration system is a bit like trying to catch a ball in zero gravity: the familiar laws of physics do not apply. The judges’ lack of independence is one problem, but it might matter less if normal constitutional protections existed. The fact that a noncitizen has no right to be in the United States is the starting point from which other rights erode, even as the person awaiting deportation is locked in the same jail as a criminal convict. If he is charged with auto theft, the Constitution protects him; if he is charged with overstaying his visa and jailed pending deportation, the Constitution is barely relevant. (It kicks in only if his illegal entry is prosecuted as a federal crime, which has been done increasingly in certain jurisdictions along the Mexican border.)

  The Supreme Court has ruled that deportation, a civil not a criminal process, does not violate the Eighth Amendment’s ban on cruel and unusual punishment. The Fourth Amendment’s search warrant requirements are waived by federal law to give immigration agents authority, “within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel … railway car, aircraft, conveyance, or vehicle.” Within twenty-five miles of the border, private land, but not dwellings, may be searched and patrolled without warrants.19

  The Fifth Amendment scarcely applies, and you have to be brave and savvy to invoke it. Immigration agents have the “powers without warrant … to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States,” says the statute.20 This can happen anywhere in the country. The supposed alien could refuse to answer, and the government would then have to prove that she is not a U.S. citizen before proceeding. But it takes a rare grasp of the law to keep silent in the face of insistent questioning about whether you’re a citizen. And if you lie, you can be charged with falsely claiming citizenship and be barred from the country indefinitely.

  Just as police may question people not in custody without advising them of their rights (and people may refuse to answer), so immigration agents may ask about immigration status without providing any warnings. Even in custody, immigration detainees have no constitutional right to a Miranda warning if they don’t face criminal charges. A federal regulation does mandate that ICE agents give similar warnings to people they put into deportation proceedings: the reason for the arrest, the right to an attorney at no government expense, and the possibility that anything they say may be used against them. But these explanations are often provided on forms printed in English, a language some detainees can’t read. Only if criminal prosecution is brought—for illegal reentry into the country, for example—is the Miranda warning required.21

  Once in immigration court, a detainee facing removal could invoke the Fifth, since criminal charges may be possible. In practical terms, however, a potential deportee may have to testify to make his case effectively, “in light of the alien’s burden of proof,” the Seventh Circuit noted.

  “A guy actually has more rights in criminal cases than he does in immigration cases,” said Lonegan. “It’s not so much that they’re violating due process as it is that there’s a lack of due process.”

  The federal rules of evidence, customary in criminal courts, do not apply. “I’m not always entitled to even get a copy of the client’s immigration documents,” said Paromita Shah. Instead, she would file a request under the Freedom of Information Act, a process that could take at least two or three months. “It leads to a noncooperation ethic” among ICE agents and government attorneys, and “you have to negotiate,” she said. At the hearing, the government may present documents that she has never seen; the judge may either give her adequate time to study them or require that she glance through them then and there, and proceed. Furthermore, documents are frequently “redacted,” that euphemism for “censored,” with names of arresting officers blacked out. ICE moves prisoners from jail to jail, so their lawyers can’t readily find them. There is no firm right to summon government witnesses for cross-examination. Their written statements are presumed to be reliable, and most immigration judges won’t require the live testimony of an arresting officer, for example, without substantial evidence that calls his statement into question.

  Finally, the rules seem to change all the time. Immigration lawyers have blogs to share anecdotes, observations, and news of the latest clues to current policy gleaned from remarks and actions by officials of the Justice Department, where immigration judges work, and the Department of Homeland Security, which now houses ICE and other immigration agencies. After 9/11, some regulations that had rarely been enforced were abruptly transformed into ironclad dicta, while others slid along unobserved. A visa overstay was ignored one moment and punished with brutal incarceration the next.

  People slipped out of legal status not always because of their own mistakes but also because of official errors by immigration authorities. James Ziglar, the head of the Immigration and Naturalization Service on 9/11, discovered later that boxes of completed forms and uncanceled checks had been sent unprocessed to storage in a Midwestern warehouse. The system was overwhelmed by massive amounts of paper, leading to either honest error by clerks or a desire to clear their desks. In the process, they left immigrants “out of status,” subject to deportation.

  It seemed as if the speed limit were constantly changing, but Dina Haynes, a law professor and former immigration attorney for the government, took the analogy another step. “This is like the speed limit is a secret,” she said. “One day we’re going to enforce it at thirty-five and the next day at seventy, and you don’t know. And the enforcement will be different based on the color of your skin and whether you have a turban on your head.”

  NARROW ESCAPES

  Nevertheless, outcroppings of mercy can be found in the midst of this cascading misery. The law provides tiny islands of refuge, and if a detainee happens to fit onto one of them, he may end his nightmare by waking up back in the same place he began, albeit with an added sense of vulnerability and estrangement from his adopted country.

  Robert Conteh came from Sierra Leone at age eleven, was arrested for having a small amount of marijuana at age sixteen, was sentenced to rehabilitation classes, graduated from high school, served in the U.S. Marines, was arrested again at age thirty-one for possessing under half an ounce of marijuana, and again was sentenced to rehab and probation. Six years later, ICE handcuffed him and prepared to send him back to a land he scarcely knew.

  He wore his hair in dreadlocks. He was dressed in a blue prison uniform. Surrounded by sliding doors and concrete walls, he seemed in shock. “When somebody is arrested, shouldn’t they give you time to get a lawyer and prepare?” he asked, making a gesture of helplessness at the walls. All he had been able to do was to call the Marriott, where he worked as a chef, and say “an emergency came up and I needed a leave of absence.”

  If only he had taken up the suggestion, made by the marines, to become a U.S. citizen. “When I came to the U.S., I wanted so much to be an American,” he recalled. “As a child, coming to a new environment, you want to be accepted and fit in. I got myself involved with the wrong types of friends. My family was hard on me: go to school, never really had the opportunity to go out and play. During those years, me trying to be more American” meant going along with friends who smoked pot.

  Who was he, though? He looked for himself in the marines, was discharged for a medical problem, went to college for a couple of years, then reached for his roots. On a trip back to see family in Sierra Leone, “I had a whole different perspective about where I came from and wanted to know more.” That took him to a different attitude about U.S. citizenship. “I said no, I didn’t want to. I would stay an African.”

  So the immigration bureaucracy, polishing its efficiency with computerized databases, picked up his adult marijuana conviction, which Virginia law called a mere misdemeanor but which bore the more dramatic label of possession “with the intent to sell, give, or distribute.”

  Federal imm
igration law considers any drug-trafficking conviction an “aggravated felony” for deportation purposes. That’s what this sounded like. But Conteh was lucky enough to have skilled volunteer lawyers who dug up decisions by federal courts and the Board of Immigration Appeals that defined trafficking as “unlawful trading or dealing” of a “business or merchant nature.”22 Trafficking under Virginia law was broader. It didn’t have to be a business venture but could include just the “intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby.”23 A trafficking conviction in Virginia, therefore, did not necessarily rise to the federal definition of trafficking.

  The immigration judge accepted the argument and ruled that Conteh had not been convicted of an aggravated felony, so deportation was not automatic. He wasn’t quite out of the Byzantine labyrinth of the law, however, for the Virginia statute called his crime “accommodation,” which implied more than the simple possession that would have made his offense non-deportable. Instead, it suggested that he was giving the pot away, not necessarily for profit, but not for his own use either, and that put him under the federal statute permitting, but not mandating, removal.24

  Then came the balancing test between factors that argued for and against his deportation. He fit through one of the few openings for a waiver: being a legal permanent resident for at least five years, and living at least seven crime-free years in the country before the conviction. Conteh qualified on both counts.

  Moreover, returning to Sierra Leone, his lawyers argued, would create medical hardship, since he was HIV positive and required two injections daily of a medication that he couldn’t get back home. His industrious attorneys got the manufacturer to confirm that the drug would be unavailable there.

  Combining compassion with admonition, the judge canceled his deportation order but lectured him bluntly that he would not get another waiver if he continued his marijuana use (for medicinal purposes, Conteh claimed) and would instead go home to die alone in Sierra Leone. The government chose not to appeal the judge’s ruling, and after three months in jail Robert Conteh was free—as free as he could be.25

  Unlike columned courthouses the land over, no chiseled words labeled the immigration court in Arlington, Virginia. Its judges sat in an anonymous office building, up an elevator, through a reception area devoid of grandeur. Beyond a security desk, Courtroom No. 3 was furnished with a red carpet and blond wooden benches as hard as church pews. On the left-hand wall hung a map of the world, showing all the countries to which those passing through this small room could be deported, and behind the bench, on the Great Seal of the United States, an eagle in flight held an olive branch in one set of talons and a cluster of arrows in the other.

  At the front right-hand corner of the courtroom stood a television set. This was how most detainees made their appearances, as faces broadcast from scattered prisons to spare the government the bother and cost of transportation to a building considered insecure. From the top of the set, a camera was aimed at the defense counsel’s table, at which Trevor Abel’s fiancée and three of his daughters gathered, looking into the lens as if posing for a family photograph. When Abel suddenly materialized on-screen and saw them at his end, he beamed with delight, waved, and said, “Hi, everybody.”

  He wore a dark green prison uniform against the white cinder-block wall of the county jail in Farmville, Virginia, where he had been awaiting “removal” to Jamaica, the place he had left for the United States twenty-two years earlier. As the immigration judge read through the papers, the smile disappeared from Abel’s face.

  This was his chance to fit through the eye of the needle, and Judge Wayne R. Iskra would decide. The judge looked the part—black robe, glasses, a shock of white hair—and was respected by immigrants’ attorneys as fair-minded, so there was hope. With no stenographer present, he inserted a cassette into a tape deck to make an official record.

  There is no privacy in a hearing to consider a waiver or “cancellation of removal,” which probes into character and draws up a raw balance sheet of faults and virtues. A waiver here was possible only because Abel met narrow criteria: his crime—possession of eight grams of marijuana—came in below the thirty-gram ceiling and was committed after he had been in the United States for seven years without a conviction, and after five years of permanent residence without an aggravated felony.26 His attorney, Paromita Shah, was arguing his case for free, because the CAIR Coalition happened to encounter him on a routine visit to the jail. The factors lined up about as beneficially as they ever do.

  The detailed turbulence of his life was paraded before the court, largely through Abel’s own testimony—he had no incentive to exercise a right to silence in this proceeding. He had nineteen children and stepchildren by several women, including three by his former wife, Sonia. His work record seemed solid: steadily employed as a janitor at the National Institutes of Health, as a welder, a locksmith, then as an electrician.

  His scrapes with the law were ambiguous: a girlfriend made a stalking complaint, later withdrawn, and she would testify by phone on his behalf; a charge of battery against Sonia was dropped; an arrest for narcotics when he was swept up with a bunch of Jamaicans at a store never went to prosecution because “I had no drugs on me,” he said.

  “Do you pay your taxes?” his lawyer asked him.

  “Sometimes I do.” He had filed only intermittently. Shah asked why he skipped some years, even when he was working. “I didn’t have the proper papers. I lost my green card and Social Security card. I didn’t have no form of ID.” The lame excuse had brought no legal action by the Internal Revenue Service, however. His only conviction, the sole provocation for his deportation order, had come as a result of an altercation with Sonia on Christmas Day 1991, when he had gone to deliver presents for her and the children. She called the police. They arrested him, charged him with battery (later dismissed), and found the pot in his jacket pocket.

  He denied it was his and wanted a trial, but his court-appointed lawyer advised him to plead guilty and take six months of probation—the typical pattern. He agreed, not realizing that he had made himself inadmissible if he left and tried to come back. “I never bothered Sonia again,” he told the immigration judge. “It was terrible, terrible. It was a mistake, and I apologized to everybody, and I’m sorry.”

  When his mother died in Jamaica thirteen years later, the funeral was delayed until he could fly down, on a ticket bought for him by his employer. He checked with immigration authorities to be sure he wouldn’t have difficulty returning and was told that everything was in order. But when he landed at Dulles International Airport outside Washington, D.C., officials ordered him to appear the next day with all his papers. He dutifully complied, presenting every police report. He was arrested immediately.

  “To me it doesn’t make any sense,” said his sixteen-year-old daughter Tania before the hearing. “It’s something that happened so many years ago, and he already did his probation. For them to pick it up and bring it back up doesn’t make any sense.” On the witness stand, she testified to his generosity. “I would see him every Friday, on payday. He would call me and we would go out and eat. I’ve had problems with math, and he was real good with math. When I would have problems, I would call him and he’d help. Christmas he got me clothes. I got him shirts. My mom bought them because she knows what he likes. He would give me $50 on payday, ’cause my mother’s sick. I would give it to her to buy medicine.” The judge looked bored, and Abel looked pained.

  “He’s a very nice man,” Tania added. “I know he has his ups and downs, but he’s very nice.”

  Shah presented four other witnesses: The ex-girlfriend said she remained his good friend and had no fear of him, despite the stalking complaint, which she’d made after he’d gotten another woman pregnant. A twenty-five-year-old daughter testified to his caring warmth, saying she “would be devastated” if he were deported. His stepdaughter valued him as a father, since she had nev
er known her own. And his fiancée, a registered nurse who had flown up from Miami, confirmed that he had “a good heart, a warm heart. He’s always there when you need him.”

  “Have you ever seen him do drugs?” Shah asked her.

  “No. If he did, I wouldn’t be here. It’s not my style.”

  Shah had also brought a supporting affidavit from Sonia, who was too ill to attend, and had collected letters from Abel’s employers. Her closing argument emphasized his “continuous working history,” arguing that “he is not a danger to society.” In rebuttal, the government’s lawyer recited his brushes with the law and contended (inaccurately) that he showed no remorse and no inclination to take responsibility. The government’s case for deportation seemed weak, and Judge Iskra seemed to think so as well.

  On the one hand, Iskra said slowly, dictating his ruling onto the tape, Abel had some arrests but no other convictions, the assault on his wife occurred a long time ago, and while the court did “not condone the incident,” it did “place weight on the affidavit of the wife.” The ex-girlfriend’s lack of fear and continuing friendship took on “great weight,” the judge declared. “I balance the negative factors against the lengthy residence of respondent in the United States, and with respect to his family, at least three of his children and grandchildren are present in the United States. Respondent is an ideal father and has good relations with his children. He is working and supporting his family members.… It is the opinion of the court that the favorable factors outweigh the negative factors. I grant relief under Section 212(c).”

  Abel’s face on the screen didn’t show that he understood. Finally, when Shah explained that he had won and would be released, he broke into a broad grin. “Thank you, thank you,” he said. “Thank you, everybody.” Judge Iskra allowed himself a kindly smile.