Immigration Policy Advisor
This Migration and Refugee Services staff paper highlights the Church’s interest in matters relating to the treatment of legal permanent residents of the United States, who are facing deportation as a result of the harsh criminal provisions of immigration laws passed in 1996. It reflects the perspective of Catholic social teaching on these issues and presents specific principles for the development of policies that would provide fairness to immigrants hurt by these harsh provisions and to their families. This paper is being used by the Bishops’ Committee on Migration to further consider public policy initiatives and has been issued with the expressed approval of the chairman.
Mark D. Franken
The author wishes to acknowledge the contributions of the following individuals in the drafting of this paper: Kevin Appleby, Christina DeConcini, Mark Franken, Peggy Gleason, Don Kerwin, Laurie Kozuba, and Rocio Salvador.
Office of Migration & Refugee Policy
Since the enactment of the 1996 immigration laws, the number of persons deported annually has more than doublediii – many unjustly or for relatively minor offenses. As a consequence of the 1996 laws, which greatly expanded the grounds of deportation and drastically narrowed the possibilities for relief from deportation, many long-term legal residents of the United States who have been convicted of minor offenses, or who have been rehabilitated after criminal convictions that occurred long ago, have already been deported or face imminent deportation. Often those who are most victimized by these harsh measures are the children and spouses who depend on those being deported for financial and emotional support. The loss of a parent or spouse to these families can lead to poverty, stress, depression, and emotional and behavioral problems. It can devastate an entire family, as it did in the case of the family of Gerardo Anthony Mosquera. Their tragic story was reported in the Los Angeles Times:
“Gerardo Anthony Mosquera Jr. was a good boy in a tough neighborhood, his parents say. He took his studies seriously, enjoyed sports, stayed away from drugs and worked after school to help support his struggling family, which included three younger siblings and an infant son.Because of the harsh consequences of the 1996 immigration laws, particularly the hardships and suffering caused to families that are torn apart as a result of unnecessary deportations, Congress should repeal these measures and provide for a more just and humane policy for immigrants and their affected family members. This paper outlines principles based on Catholic Social Teaching that legislators and policy-makers should observe when creating laws and policies that affect the due process rights of legal residents.
That the 17-year-old junior at Bell Gardens High School would put a bullet through his brain still seems inconceivable, says his distraught family, except for one painful fact: Gerardo had been despondent since his father--Gerardo Antonio Mosquera Sr., a legal resident of the United States for 29 years--was deported in December back to his native Colombia. The father was removed because of a 1989 conviction for selling a $10 bag of marijuana--enough for one pot cigarette--to a paid police informant.
The tragic case illuminates the darker side of an aggressive deportation campaign that accelerated as part of an immigration overhaul passed by Congress in 1996. Largely untold is the human legacy of shattered loved ones, including U.S. citizens, left behind. Gerardo Jr., his brothers and his sisters were all born in the United States, as was his mother. Some families of deportees, community workers say, have lost their principal breadwinners and been pushed onto the welfare rolls.
With his father's forced departure, relatives say, Gerardo began skipping classes, shutting himself in his room and acting moody. "He became a different person," says his mother, Maria Sanchez Mosquera, haggard from the double loss. "I think he believed my husband walked out on us. . . . That d- - little bag of marijuana. It turned everything around. It cost my husband his papers. It cost my son his life."
Now, she wonders how she can reconstruct a delicately balanced life devastated by the loss of her eldest son and her husband, whose $300-a-week salary as a forklift operator helped keep the family financially afloat. Money for funeral expenses came from charity carwashes and donations. Meantime, Sanchez worries that some of her late son's symptoms--moodiness, depression--may be emerging in her other children. …
Especially singled out in the ongoing deportation crackdown are so-called criminal aliens, a broad category of offenders. Some are murderers, major drug traffickers and longtime illegal immigrants. But others are like Gerardo's father, who came to the United States in 1969 as a legal immigrant along with five siblings and his mother to join his father, a car dealer who had emigrated earlier.
"They sent me back to a country I don't even know," Mosquera, 38, said in a telephone interview from his mother's home in Cali, Colombia, a turbulent country that he hadn't visited since his departure as a child. His Spanish is rusty, infused with Mexican border slang. "I was raised in the U.S.," Mosquera said. "I'm a stranger here. I can't get a job. I don't even know how to look for a job. How the h--- am I supposed to survive?"
An aggressive INS task force tracked Mosquera down last November, a few days before Thanksgiving. The agents arrived at the family apartment just before dawn, as they usually do, hoping to find their target at home. But both Mosquera and his wife had already left for their jobs. The officers herded Gerardo Jr. and the other sleepy children into the living room as they poked around, according to the family. "They asked if we were hiding my father under the bed," recalled 14-year-old Fernando Mosquera.
The INS decided the elder Mosquera could stay through Thanksgiving, but not for Christmas. He reported to the INS as ordered Dec. 3 for his formal deportation.
Mosquera is today a man tormented. He is benumbed that so horrific a fate could have been visited upon his family. "I cannot accept my son's death right now," he said, his voice trailing off to tears over the telephone line. "I'm 4,000 miles away. How am I supposed to act and think? . . . I cannot sleep. I've lost 45 pounds. My life is ruined."
Authorities say he has no one but himself to blame. Officials at the U.S. Embassy in Bogota denied him permission to return temporarily for his son's funeral today. "I have to bury my son on Saturday," Mosquera pleaded last week. "I need to be next to my boy, somehow. I need to be with my family. This is the worst point in my life, and all I'm asking is, 'Please let me be there.'" iv
This paper does not attempt to address all of the concerns of the Catholic Church or the United States Conference of Catholic Bishops (USCCB) vis-à-vis the treatment of immigrants in the United States. Rather it focuses only on some of the major problems created by the criminal provisions of the Immigration and Nationality Act (INA) as they affect lawful permanent residents and their families. A number of excellent reports have been published by, among others, the Catholic Legal Immigration Network, Inc. (CLINIC) and Migration and Refugee Services (MRS) of the USCCB, outlining other pressing concerns for immigrants and their families.v The reader is encouraged to consult these reports for a broader understanding of the concerns of the Church for immigrants and their families. In addition, the USCCB has published pastoral letters and statements, and has presented congressional testimony describing more fully the positions of the U.S. Catholic Bishops vis-à-vis immigration and immigrant policy. Many of these documents are available online at /mrs.
Catholic Social Teaching and Immigration Policy
Concern for the immigrant and the experience of immigration are both deeply embedded in Church teaching. The task of welcoming immigrants, refugees, and displaced persons into full participation in the Church and society with equal rights and duties has long been an integral part of the Roman Catholic faith tradition. Church teachings on immigration and the treatment of immigrants derive from three principal sources: 1) the Bible, 2) papal encyclicals and letters, and 3) writings of the Catholic Bishops.vi Together, these sources provide an analytical framework for assessing immigration policy from a Catholic perspective, and a much-needed response to the current environment of legislative restrictionism and hostility towards immigrants.
The experience of the Church in the United States has provided the U.S. Catholic Bishops with a special sensitivity to newcomers in our midst. Arguably no other institution in American life has had as much experience dealing with the integration of newcomers as the Catholic Church, especially through parishes and schools. Since 1976, the Bishops have been clear in their affirmation of the Church(s solicitude for newcomers:
The Church, the People of God, is required by the Gospel and by its long tradition to promote and defend the human rights and dignity of people on the move, to advocate social remedies to their problems and to foster opportunities for their spiritual growth.viiIn addition to its emphasis on welcoming the stranger, Catholic Social Teaching emphasizes the inherent value and sacred nature of the family. Policies that have an impact on families should be designed to strengthen, rather than undermine, the family unit. As the U.S. Catholic Bishops have noted:
Economic and social policies … should be continually evaluated in light of their impact on the strength and stability of family life. The long-range future of this nation is intimately linked with the well-being of families, for the family is the most basic form of human community. viiiThis emphasis on evaluating policies in light of their impact on families is especially important in the context of immigration policy. Family unity has been a cornerstone of U.S. immigration policy since 1965 when amendments to the Immigration and Nationality Act made the emphasis of our immigration laws that of reuniting families.ix Family unity must continue to be a central feature of U.S. immigration policy.
Furthermore, U.S. immigration policy has a direct effect on U.S. citizens, many of them children. One in ten families in the United States is a “mixed status” family – that is, a family with both U.S. citizen and non-citizen members.x In fact, citizen children live in a majority of immigrant families.xi Thus, almost all policies that have a negative affect on non-citizens will subsequently have a negative affect on their citizen family members, especially children.
Finally, Catholic Social Teaching recognizes that justice should be linked with mercy and forgiveness. For those who transgress society’s laws, punishment is appropriate, but should not be vengeful. According to the Catechism of the Catholic Church, punishment by civil authorities for criminal activity should serve three principal purposes: 1) the preservation and protection of the common good of society, 2) the restoration of public order, and 3) the restoration or conversion of the offender.xii In developing immigration policies that affect those with criminal convictions, we must keep these purposes in mind.
The current political atmosphere presents many challenges for policy makers seeking to create just and humane immigration policies. The tragedy of September 11th has been used, by some, as a rationale for implementing ever-harsher policies against immigrants. Some immigration restrictionists have attempted to equate immigrants with terrorists, creating a climate of fear and hostility towards those who were not born in the United States. Long-term legal residents have become easy targets for those who oppose immigration generally. We must not allow our legitimate concerns about terrorism to be used an excuse for mistreating those who do not present a security threat, based on their ethnicity or immigration status.
In the wake of the terrorist attacks on our nation, the U.S. Catholic Bishops expressed their grief and horror at this atrocity, as well as their solidarity with the American people, and our government, in responding to the attacks and protecting ourselves against future acts of terrorism. While noting that, “[o]ur nation must continue to respond in many ways, including diplomacy, economic measures, effective intelligence, more focus on security at home, and the legitimate use of force”xiii the Bishops also cautioned against reacting in ways that undermine basic rights and human dignity. In acknowledging the special vulnerability of immigrants and refugees, the Bishops reminded us that:
… our government must continue to respect the basic rights of all persons and in a special way of immigrants and refugees. Care must be taken to avoid assigning collective guilt to all newcomers or undermine our history as a land of immigrants and a safe haven for the world's persecuted. The United States must not shrink from its global leadership role in offering protection to refugees who flee terror in their homelands. Proposals to ensure the security of our legal immigration system and refugee program must avoid harming immigrants and refugees who represent no security threat.xivWelcoming the stranger, supporting the family, practicing mercy toward our brothers and sisters, and maintaining our core values as a nation – even in difficult times, should be the guiding principles that lead our analysis of current immigration policies and recommendations for reform. The following recommendations are based upon these principles.
Among other things, the 1996 changes to our immigration laws eliminated the most important waiver of deportation previously available to legal permanent residents with criminal convictions, expanded the list of crimes that would make one deportable, allowed for retroactivity in the application of these provisions, increased the number of immigrants in detention,xv and created new, expansive definitions for terms that are critical to determining whether a person is deportable. As a consequence of these changes, individuals with relatively minor criminal records, or those whose convictions occurred long ago, or those whose convictions have been expunged or otherwise removed from the record, can now face deportation, in some cases without the possibility of ever being permitted to return to the United States. Relief that was available in the past to individuals who could show that they were rehabilitated and had substantial equities in the United States has been all but eliminated under the new law.
As a result of these measures, more and more legal permanent residents of the United States who have built lives in this country, and are contributing to the community and supporting families, face compulsory deportation for crimes they committed long ago or that were relatively minor. Important changes must be made to our immigration laws in order to restore fairness to immigrants and their families. In order to accomplish this, the USCCB recommends the following:
- Restoring opportunities to seek relief from deportation, and access to administrative and judicial review of decisions on those applications;
- Detaining immigrants only when necessary; i.e. when they present a danger to the community or a risk of flight;
- Repealing the retroactive application of immigration laws;
- Creating reasonable and fair definitions for terms such as “aggravated felony,” “conviction,” “term of imprisonment,” and “continuous residence” as they are used in immigration law; and
- Making the punishment fit the crime; i.e., the decision whether or not to deport should reflect the severity and circumstances of the offense.
Restoring opportunities to seek relief from deportation, and access to administrative and judicial review of decisions on those applications
An important component of immigration law historically has been access to administrative and judicial courts for immigrants who are charged with being deportable by the Immigration and Naturalization Service (INS). Prior to 1996, in most cases, a long-term legal resident facing deportation based on a criminal record could seek a waiver of deportationxvi from an immigration judge, who was independent from the INS.xvii The immigration judge would consider a number of factors in deciding whether to waive deportation or order the individual deported. Those factors included:
- family ties within the United States
- residence of long duration in the United States
- evidence of hardship to petitioner or petitioner(s family if deportation occurs
- service in the United States Armed Forces
- a steady employment history
- the existence of property or business ties in this country
- community service
- any other evidence fairly indicating petitioner(s good character.xviii
Unfortunately, under the 1996 laws, much of the discretion immigration judges had to waive deportation for deserving immigrants has been eliminated. Now, in the vast number of cases where an individual is in immigration proceedings based on a criminal record, the immigration judge has no authority to exercise discretion. These cases either never go to court, or when they do go to court, the outcome of the case has already been determined by the statute and the immigration judge must find the individual automatically deportable.
Discretion that used to rest with the immigration judge now lies with the INS, which has been granted wide (prosecutorial discretion( to determine who will and will not be placed in deportation proceedings (not whether to grant a waiver of deportation). A favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the immigration service(s enforcement authority as permitted under the law.xx Thus, even an individual who is automatically deportable can avoid deportation if he or she can convince the INS not to initiate proceedings or to drop the case.
An INS memorandum providing guidance on the exercise of prosecutorial discretion lists factors to be taken into consideration when deciding whether to exercise such discretion.xxi Among these factors are the following:
- Immigration status: Lawful permanent residents generally warrant greater consideration. However, other removable aliens may also warrant the favorable exercise of discretion, depending on all the relevant circumstances.
- Length of residence in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity.
- Criminal history: Officers should take into account the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation. It is appropriate to take into account the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the alien’s age at the time the crime was committed and whether or not he or she is a repeat offender.
- Humanitarian concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the alien’s family; the fact that an alien entered the United States at a very young age; ties to one’s home country (e.g., whether the alien speaks the language or has relatives in the home country); extreme youth or advanced age; and home country conditions.
- Honorable U.S. military service: Military service with an honorable discharge should be considered as a favorable factor.
Now, in most cases, immigration judges are prohibited from exercising discretion based on such factors as family ties and rehabilitation. However, low level DHS officers may consider such factors when determining whether or not to place an individual in deportation proceedings. When DHS officers exercise this discretion, it is done informally without oversight or review. In many cases the factors are not taken into consideration at all, and persons who would have been granted a waiver of deportation by a judge in the past, are instead placed into proceedings by the DHS and are “automatically deported.”
This transfer of the exercise of discretion from independent judges to officials who are employed by an agency which often sees its job as that of deporting people is, at a minimum, problematic. Judges are trained to exercise discretion; it is the task with which we entrust them. They are charged with viewing the case from a neutral and objective perspective and reaching a decision which fairly applies the law based on the facts of the case. Immigration officials do not have the formal training or experience to apply immigration laws that are often complex and arcane.
In addition, when this discretion is carried out by immigration judges, there is the possibility of appeal. If an individual feels that the judge has not fairly applied the law, he or she may appeal to the BIA and have the decision reviewed. In the past, cases could also be appealed beyond the BIA to the federal courts. This appeal process exists for the purpose of safeguarding the rights of individuals and minimizing the possibilities for unjust or capricious decisions. When prosecutorial discretion is substituted for the discretion of judges, this appeal process, and its concomitant safeguards are lost.
The transfer of authority to exercise discretion from immigration judges to DHS officers is unacceptable for a number of reasons. First, it eliminates, in most cases, the independent review of DHS decisions which immigration judges and appellate bodies provide. Second, the DHS cannot, through its exercise of prosecutorial discretion, provide relief to individuals. Third, there is no finality in the DHS(s exercise of prosecutorial discretion. If the DHS chooses not to place someone in proceedings today, it can change that decision tomorrow, and place the person in deportation proceedings.
There is a place for prosecutorial discretion. However, the current scope of power granted to the DHS, and denied to immigration judges, is inordinate. The DHS itself recognized the shortcomings of this arrangement. A fact sheet released by the DHS on November 28, 2000 stated the DHS(s concerns about transferring discretion from immigration judges to the DHS:
Prosecutorial discretion is not a full or adequate substitute for the forms of relief previously available from an immigration judge prior to the changes in the law in 1996. In many cases, the exercise of prosecutorial discretion by DHS leaves a person in limbo, at risk of future immigration enforcement action and unable to travel outside the United States without the fear of being denied readmission.As the DHS itself recognize, there must be legislation to restore authority to immigration judges to grant relief from deportation to deserving immigrants. The power of immigration judges to exercise their discretion after a full and fair hearing and to determine whether, considering all the relevant facts of the case, including a person(s family ties and responsibilities, an individual will or will not be ordered deported is critical to due process for immigrants. It is only by restoring this discretion that we can have a just and humane immigration policy that respects the fundamental values of fairness and family unity.
... [T]he exercise of prosecutorial discretion does not grant a lawful status under the immigration laws, and there is no legally enforceable right to the exercise of prosecutorial discretion.
Ultimately, DHS believes that a complete solution requires legislation to restore, to certain aliens affected by the 1996 changes, the possibility of a grant of relief by immigration judges during the removal process.xxii
Detaining immigrants only when necessary, i.e. when they present a danger to the community or a risk of flight
Another change brought about by the 1996 amendments to our immigration law is the requirement that most individuals in immigration proceedings be detained by the INS while awaiting a hearing or their deportation. Under the 1996 laws, mandatory detention, with no opportunity for release on bond, applies to anyone who a) has been convicted of an aggravated felony, b) has been convicted of two crimes involving moral turpitude, c) has committed a drug, firearm or miscellaneous crime, d) has committed a crime involving moral turpitude which resulted in a one-year or longer sentence, or e) has been involved in terrorist activity.xxiii While these categories seem to describe serious crimes, it is not unusual for the underlying offense to be a minor, nonviolent crime, or for the individual in detention to be entirely rehabilitated.xxiv
As a result of the mandatory detention laws, the number of immigrants in detention has skyrocketed. From 1994 to 2000, the average daily detention population more than tripled from 5,532 to 18,518 individuals.xxv Currently, there are approximately 22,000 INS detainees on any given day.xxvi Sixty percent of them are held in local and county jails.xxvii The rest are detained in INS facilities, Bureau of Prisons facilities, and private facilities.xxviii While some of these persons should be detained, the decision whether to detain should be made based on a consideration of the facts in each case.
Prior to the mandatory custody provisions brought into effect by the 1996 immigration laws, the INS could exercise its discretion to release a particular detainee.xxix Those who were not released pursuant to INS discretion could ask for a bond hearing before an immigration judge.xxx The immigration judge considered factors relevant to whether the individual was a flight risk or danger to the community and, based on these factors, determined whether or not to release the individual on bond. That decision could be appealed to the Board of Immigration Appeals by either the respondent or the INS.xxxi
Under the old law the INS or the immigration judge could release an individual who posed no danger to the safety of others and was likely to appear for future hearings. Thus, a legal resident with strong ties to the United States, such as U.S. citizen family members, a stable job, and a home, could be released from detention while his or her case was decided.
Release from detention is critical to maintaining stability in the lives of immigrants and their families while immigration proceedings are pending. It can take months, or even years, for a case to be finally decided. For someone who is eligible for relief, prolonged detention can be nearly as devastating as deportation. That person will almost certainly lose gainful employment, and will likely lose other valuable possessions, such as a house or car. If the person is ultimately granted relief from deportation, he or she will have to start over, finding a new job, housing, transportation and other necessities. Very often the person in detention has been supporting a family financially and emotionally. In these cases, the families suffer as much as the individual in detention.xxxii Their resources are cut off or drastically reduced and children and spouses experience anxiety, fear and grief at their separation from a loved one.
Detention also makes it more difficult to win relief from deportation. While immigrants remain in detention, they face obstacles to securing legal counsel and communicating with an attorney once one has been found.xxxiii When their clients are in detention, attorneys are hindered in their attempts to fully develop their clients’ claims in a variety of ways. Attorneys have had difficulty gaining access to their clients in detention and often have no privacy in discussing their clients’ claims with them.xxxiv Detainees are sometimes moved, without notice, to other detention centers far from their attorneys, making it difficult or impossible for them to continue representation.xxxv
“Mr. G-, a 26-year-old Tanzanian, fled his homeland after finding his father, a prominent member of an opposition political movement, brutally murdered by the government. After his father’s death, his mother went into hiding; Mr. G- has not heard from her since.While the human toll exacted by mandatory detention, and aggressive use of discretionary detention, is immeasurable, the financial toll is not. In response to a request from INS, the Vera Institute of Justice conducted an evaluation of supervised release programs for persons who would otherwise be detained by the INS. The study concluded that supervision costs only $12 per day, as compared to the $61 cost per day for INS detention.xxxvii
A relative helped Mr. G- escape the country on a student visa and he arrived in the United States in January 1998. Unfortunately, after he resettled in Maryland, his relatives in Tanzania encountered financial difficulties and could no longer afford to pay his tuition. Desperate for tuition money, he accepted the offer of two men to open bank account and deposit phony checks for them.
He knew his actions were wrong, but believed they would earn him enough money to cover his college tuition and comply with his student visa. Instead, he was arrested. Mr. G- was convicted of attempted theft of less than $300 and received a one year suspended sentence and 11 months of probation.
After his conviction in December 1998, the INS arrested Mr. G- and placed him in detention. At the time Mr. G- was interviewed by representatives from the Catholic Legal Immigration Network, Inc., he had been in INS detention for more than a year.”xxxvi
Many of those detained by INS do not present a danger to themselves or their communities and are not a flight risk. Detaining such individuals wastes valuable federal resources that could be put to better use. Detention is not only costly in terms of dollars; it is costly, as well, in terms of human suffering as people are needlessly separated from loved ones. The law should be changed to allow for discretionary release from detention for immigrants who are not a danger to the community or a flight risk.
Repealing the Retroactive application of immigration laws
“Catherine Caza asked the immigration judge what would happen to her 7-year-old American daughter if she was deported. ''Ma'am,'' the judge said, ''some of these situations are absolutely heart-wrenching. I will tell you that the law changed and there are no waivers for these things now. I'm not unsympathetic to your situation, but . . .'' He ordered her deported.One of the most controversial aspects of the 1996 laws is the retroactive application of its criminal provisions. Crimes, which under the old law were not deportable offenses, or which were deportable offenses, but where deportation could be waived, have become a basis for deportation without the possibility of relief, even if the crime was committed before the enactment of IIRIRA and AEDPA.xxxix
Ms. Caza, born in Sault St. Marie, Ontario, was brought to the United States at the age of 3, in 1960. She has lived here ever since: 37 years. Her story has twists that make it unusually harsh even by the standards of deportation cases.
In 1980 in Florida, where she lives, Ms. Caza was taking amphetamine pills prescribed by a doctor. Her boyfriend, as she thought he was, repeatedly asked her to sell him some of the pills. She finally sold him 21, and he turned out to be an undercover Florida policeman. In 1981 she pleaded guilty to a drug charge and was put on probation for five years. The drug offense made her deportable. On Feb. 3, 1982, the Immigration and Naturalization Service issued an “order to show cause” why she should not be deported.
Ordinarily the I.N.S. presents such an order to an immigration judge within weeks of issuing it. In this case the service did nothing for 15 years. It filed the order against Catherine Caza in immigration court on Feb. 24, 1997. The delay is of excruciating significance for Ms. Caza. In 1982 she was eligible for what is called waiver of deportation, which could be granted when deportation would cause extreme hardship to someone who had lived in this country for seven years or more. Changes in immigration law in 1996 made her and others like her ineligible for a waiver [at the time of her hearing]. Why did the I.N.S. move against Catherine Caza [in 1997] after doing nothing for 15 years? Why did it act only after she had lost the legal opportunity for a waiver of deportation?”xxxviii
In criminal proceedings such retroactive liability would be barred by the Ex Post Facto Clause of the U.S. Constitution which prohibits criminal liability for acts committed before they became criminal offenses.xl However, the Ex Post Facto Clause applies only in criminal proceedings, and immigration proceedings are civil, not criminal. Therefore, this constitutional protection does not apply.xli There are, however, restrictions on the retroactive application of civil provisions when they “attach new legal consequences to past conduct.”xlii However, not all retroactive applications of law are impermissible, and it has been established that in some contexts Congress may constitutionally attach new immigration consequences to past criminal conduct.xliii While the legal analysis regarding what constitutes an impermissible retroactive effect can be complex (and is currently developing in the immigration context), the concept of fair play in such matters is not.
The consequences of deportation are surely as severe as, sometimes more severe than, the consequences of criminal liability, such as imprisonment or probation. It is surely a harsh consequence for the person being deported, and for his or her family members. Rather than concern ourselves with the technical legal definitions of the terms "ex post facto" and "legal consequence," we should focus on the spirit of these protections and the values underlying them. Our constitution provides protection against "ex post facto" application of criminal laws, and the Supreme Court has found that a statute may not attach "new legal consequences" for past conduct, because of the manifest injustice of creating a new penalty for past behavior, which is precisely what the 1996 laws do.
One of the particularly cruel twists of the 1996 laws is that many of the individuals who have been deported under this new law were convicted of crimes which were deportable offenses even at the time they were convicted, under the old immigration law. However, they were never placed into proceedings by the immigration service under the old law ( when they would have been eligible for a waiver of deportation if they could show that they were rehabilitated and had substantial equities in the United States.xliv If they had been placed in immigration proceedings at the time of their convictions and had won waivers of deportation, they would not be deportable at this time. Instead, the immigration service waited until after the enactment of the 1996 laws to start aggressively rounding up people who had been convicted of deportable offenses in the past and placing them in proceedings.
Before 1996, these individuals were not considered such a danger to the public welfare that they had to be deported. Many of them lived in this country for years, following the laws and contributing to their communities, without ever hearing from the INS, in spite of the fact that even under the old law they could have been placed in deportation proceedings. Only after the INS concluded that their possibilities for relief from deportation had been eliminated by the 1996 laws did it decide to place them in deportation proceedings.
The INS was able to delay placing such persons in proceedings because of their exercise of prosecutorial discretion. In other words, the INS has the discretion to decide whom it will place in immigration proceedings and when. The INS used this discretion under the old law to keep many people out of proceedings who were later placed in proceedings under the new, much harsher law. Many of these individuals have been deported based upon the INS position that they were completely ineligible to seek relief based upon the date they were placed in proceedings, regardless of the date of conviction. That interpretation has since been found to be incorrect by the U.S. Supreme Court.xlv But for those who have already been deported, it may be too late.xlvi
In an important victory for immigrants, the Supreme Court recently held that discretionary relief that was repealed in 1996 is still available for certain individuals with criminal convictions which pre-date the 1996 laws.xlvii However, for those who have already been deported under the INS's incorrect interpretation of the law, there is no relief. The proposed regulations promulgated by the INS to implement the Supreme Court decision do not provide any mechanism for those wrongly deported to re-enter the country to apply for relief from deportation or to apply for relief from abroad.xlviii That means there will be no reunion for John Gaul and his family. Shortly after his deportation, his local newspaper described his and his family’s ordeal.
“After bringing home the toddler she and her husband adopted from Thailand, Pam Gaul felt her life was complete. Twenty years later, it's being ripped apart. On Monday, immigration officials deported her only child to Bangkok, with little prospect of his ever returning to the United States. Gaul plans to fly there Wednesday to help her son adjust to his native but completely unfamiliar country.In spite of a partial victory on the retroactivity issue, there continue to be many areas of our immigration laws where retroactive application is being upheld.l In the interest of promoting a just and humane immigration policy that respects the central importance of family unity, the retroactive application of the 1996 immigration laws should be repealed. Individuals have the right to know the consequences of their actions at the time they commit them. Just as we have decided, as a nation, that no one should be criminally liable for an act that was not a crime at the time the person committed the act, we should also insist that no one be automatically deportable for a crime which was not an automatically deportable offense at the time of its commission.
John Gaul III's fate is the result of a get-tough Congress, forgotten paperwork and a teenage run-in with the law. As he trades his American life for an uncertain future in Thailand, his mother vows to continue fighting to change federal law, even if her son's battle is lost. "The purpose of the original legislation was to combat terrorism," she said. "It was not to tear families apart."
Until Monday, Gaul sat in a Bradenton jail cell through months of unsuccessful appeals. Finally, his mother said, she stopped the process to save Gaul's spirit. "He went through a spell where he was languishing," Pam Gaul said. "The light had gone out of his eyes." And while she's happy he will be able to get on with his life, she's angry at lawmakers who passed the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The law expanded the list of felonies for which non-citizens could be deported and made it retroactive. It's harsh, Gaul said, and should address hard-core criminals, not people like her son.
"Unless we turn this law around and regain our sensitivity to the family," she said, "he will never return. Never." Because he and his mother appealed his case, Gaul, 25, will not be allowed to petition to return to the United States for 20 years, and his mother doubts he would be granted approval even then.
And so, as she prepares to help him start a new life, she mourns that she won't be there to share it with him. She plans to stay in Bangkok for two weeks but must return to the United States and her job as a respiratory therapist to support her son financially through his transition.
Her heart's longing for motherhood led Gaul and her husband, John, to adopt their son from Bangkok through an international agency in 1979. In the first photo they saw of him, he was sickly and small for a 2-year-old. The process took more than two years. The Gauls and the child they named John III exchanged pictures and mail as they waited.
She remembers seeing him for the first time at JFK International Airport in New York. "When he saw us, he started shouting, "Mai! Pai!' "she said, which in Thai means "mom" and "dad." She began to cry. "That was my son."
After completing the adoption in New Jersey, where they lived at the time, they were issued an American birth certificate, which they filed with the state. They kept keepsakes of his heritage: a Peter Pan tape in Thai, some bracelets and a Buddhist medallion. "At first it was very relevant," Gaul said, but "he became Americanized."
In 1982 Pam and her son moved to Tampa -- she and her husband had separated -- where John attended private school and played soccer, baseball and basketball. Though his parents later divorced, John remained close to his father. When John was 17, the family planned an overseas trip. He applied for a passport. It was denied.
"Even though he had an American birth certificate and American parents, he was not recognized as being a citizen," Pam Gaul said. Because he was adopted by American parents, John could have been granted automatic citizenship if the Gauls had filed the proper application with the U.S. authorities before John became an adult. But they never knew that, Pam Gaul said. After they learned of the situation, Pam Gaul immediately applied for her son's citizenship. The Immigration and Naturalization Service rejected it because she submitted the wrong fee. She submitted a second packet with the correct fee while her son was still 17, she said, but by the time it was processed and a hearing scheduled, John Gaul had turned 18. At that point, he was no longer eligible for automatic citizenship through adoption.
The family was devastated. "We talked on the way home," Gaul said, "about how he could study, take the test. Then he got into trouble, and that was that." The trouble she referred to was a gang called the Latin Kings, which Gaul believes her son joined to find an identity.
At 19, he was convicted in Tampa of writing worthless checks and stealing a car, both felonies. He served 20 months in state prison and planned to apply for citizenship when he was released Dec. 31, 1996. Neither he nor his mother was aware of the changed law, she said. When he was released, immigration officials took him straight to the deportation center in Bradenton, where he stayed four months before his mother bailed him out.
Despite an immigration judge's ruling that the INS was "totally to blame" for taking too long to process Gaul's application, there was nothing anyone could do: The 1996 law also took away immigration judges' discretion to overturn contested deportation cases. Last July, Gaul was ordered back to the Bradenton jail cell to await deportation, which finally happened Monday.
Now Gaul is carrying a letter written in Thai, which he does not understand, explaining his situation to Thai immigration officials and asking that he be turned over to Holt International, the agency that arranged his adoption. This is his mother's only comfort: The same two social workers who were his caseworkers when he was a toddler are meeting Gaul today when he arrives at the Bangkok airport. They have been working to find him a place to live and a school to attend.
Although her son has been tutored in Thai culture, Gaul fears Thai officials will see him only as a U.S. criminal outcast. But that's not her biggest fear. "It's that he might feel so rejected," she said through tears, "that he will lose hope.” We're all part of an American family, and this is the total rejection." xlix
Creating reasonable and fair definitions for terms used in immigration law
Another change enacted in 1996 which has had harsh consequences for immigrants and their families is the expansion of the definitions of a number of critical terms in immigration law. Three that have been particularly devastating for immigrants are the new definitions of aggravated felony, conviction, term of imprisonment, and continuous residence.
In 1993, Olufolake Olaleye was charged with shoplifting baby clothes from an Atlanta store. Olaleye appeared in court without a lawyer and told the judge that she had purchased the items, but entered a guilty plea to end the matter quickly. She was fined $360, and given a 12-month suspended sentence and 12-months probation, which was terminated two months later when she paid the fine in full. The INS considered her neither a felon nor a threat to society when it approved her application for citizenship in October 1996, after classifying her shoplifting conviction as a petty offense. However, in August 1997 the INS reopened Olaleye's citizenship case to consider the impact that the 1996 legislation had on her misdemeanor conviction. Two months later, she was denied citizenship because IIRAIRA automatically reclassified her shoplifting offense as an aggravated felony. Based on the conviction Olaleye was ordered deported. How could Olaleye's misdemeanor shoplifting offense -- which was neither aggravated nor a felony -- become both [aggravated and a felony] retroactively? Since when does our country pass retroactive laws? The short answer -- never before IIRAIRA. Indeed, it is currently under challenge as an unconstitutional ex post facto law.The term “aggravated felony” was introduced into immigration law in 1988.lii Initially, the term was defined to include only serious offenses, such as murder, drug trafficking and money laundering. Over time this definition has been expanded to include even minor crimes, such as some shoplifting offenses, as in Olufolake Olaleye’s case.
Did Congress really intend to expel people like Olaleye? Is the hard-working mother of two, with no other offense, a threat to our society? Did Congress really intend this law be used to separate a mother from her children, or to uproot her children from their country of citizenship?li
There is no requirement that the offense that is classified as an aggravated felony itself, be a felony, or that there be any aggravating circumstances. In addition, the definition applies retroactively.liii So someone who committed an offense at a time when the offense was not considered an aggravated felony will now be considered to have committed an aggravated felony, if that offense is currently defined as an aggravated felony for immigration purposes.
At the same time that the definition of aggravated felony was being expanded, the availability of relief from deportation for persons convicted of an aggravated felony was narrowing. Currently, the only form of relief from deportation available to an immigrant who has been convicted of an aggravated felony is under the Convention against Torture (CAT).liv CAT relief requires a showing that one is likely to be tortured by state actors if deported.lv Obviously, very few persons will be eligible for this form of relief.
Because of the expansive definition of the term aggravated felony and the lack of relief available, many legal residents face deportation without the possibility of relief from deportation. When a long-term legal resident is deported for a minor criminal offense, no one’s interests are served. The individual and his or her family members are devastated by their separation. In many cases, the larger society is deprived of a contributing member.
Some crimes warrant deportation. The more serious the offense, the more likely that deportation is a reasonable response. However, minor crimes should not be the basis for automatic deportation of legal residents. If immigration law is to have a separate category of crimes called aggravated felonies, which allow for little or no relief from deportation, this category should be reserved for the most serious crimes.
What constitutes a “conviction” for immigration purposes is critical for immigrants facing deportation. How a conviction is defined within immigration law can make the difference between whether or not one will be found deportable. Under our current laws, an immigrant can be found to have a conviction for immigration purposes, even without having a conviction for any other state or federal purpose. This is because of the extremely expansive definition of conviction created by the 1996 laws.
Under the pre-1996 immigration law, the term “conviction,” for immigration purposes, was not defined in the statute but had been developed over the years through case law.lvi This definition required that a conviction be (final( before it could serve as the basis for deporting someone.lvii Therefore, convictions that had been expunged, deferred, or otherwise removed from the record were generally not considered convictions for immigration purposes.lviii Convictions on direct appellate review were also not sufficiently final to support an order of deportation.lix
Since 1996 a conviction for immigration purposes has been defined by statute. The statutory definition encompasses a much wider range of legal outcomes than ever before. For example, expunged convictions and deferred adjudications are now considered convictions for immigration purposes, although they were not in the past, and are not considered convictions for most other purposes.lx Even an admission of facts necessary for an individual to enter a rehabilitation program can be a conviction for immigration purposes.
This definition, like many other criminal provisions of immigration law is effective retroactively.lxi Therefore, for example, someone who admitted to certain facts in order to enter a rehabilitation program at a time when there were no immigration consequences for doing so could now face deportation as a result. If the facts admitted by the individual could constitute the basis for a finding of criminal liability, that person will be deemed to have a conviction for immigration purposes, in spite of the fact that he or she does not have a conviction under criminal law, and may have admitted to the facts in exchange for avoiding a conviction.
Because of this expansive definition of conviction, far more immigrants are being caught in the net of deportability than in the past. Many of them have worked hard to build lives for themselves and their families in the United States. Often, they have paid for their acts by serving out sentences of imprisonment, probation or community service, or by completing rehabilitation programs. Now they find themselves facing a new, and in many cases harsher, penalty – that of deportation.
To deport individuals for legal outcomes which are not considered convictions under criminal law and, in some cases, were not considered convictions under immigration law at the time the acts were committed, not only penalizes them unduly, but also works a severe hardship on their families, as innocent children and spouses are often the ones who are hurt most by the deportation of a parent or spouse. In order to promote a just and humanitarian immigration policy, a careful and judicious definition of conviction which respects the importance of finality and the authority of legislatures to pass laws which give individuals a second chance by expunging their convictions or deferring adjudication should be adopted.
Term of Imprisonment
The new definition of conviction includes a new and encompassing definition of “term of imprisonment.” This is significant because for many criminal offenses the term of imprisonment will determine whether or not the offense is a deportable one, and whether any relief from deportation is available. For example, a theft offense with a term of imprisonment of at least one year is an aggravated felony for immigration purposes.lxii However, this statement of the law can be misleading. In fact, a person convicted of a theft offense can be found to have been convicted of an aggravated felony without ever having spent a day in jail. That is because of the overbroad definition of term of imprisonment under current immigration law.
Until 1996, term of imprisonment was not defined in the statute, but was interpreted according to its ordinary meaning. A term of imprisonment meant the period of time that someone was imprisoned. However, with the new definition of conviction in 1996 came a new statutory definition of term of imprisonment. Now term of imprisonment means any period of imprisonment ordered by a court whether or not the sentence is ever served or executed.lxiii In other words a suspended sentence will be considered a term of imprisonment under immigration law even if it is never served.
Very often when probation is granted, it is granted with an identified sentence to be served in the event of a probation violation. If the person serves out probation without violations, no prison time is served. However, certain probation violations will result in imprisonment. Under current immigration law a person who is sentenced to one year of probation with a one year prison sentence to be served in the case of a probation violation will be deemed to have a term of imprisonment of one year under immigration law.
Interpreting term of imprisonment to include court orders that do not involve incarceration leads to very unjust results. For example, a person with a minor theft offense who receives a one year suspended sentence or one year of probation will be deemed to have committed an aggravated felony under immigration law. As a result he or she will not be eligible to seek relief from deportation.lxiv
Some forms of relief from deportation available to legal residents have a “continuous residence” requirement. This means that in order to be eligible to seek relief one must have continuously resided in the U.S. for the period of time required for that particular form of relief, in order to be eligible to apply for the relief.lxv Similar requirements existed in immigration law prior to 1996.lxvi However, in 1996 a method for calculating continuous residence, referred to as the “stop-time” provision, was introduced, making it nearly impossible to meet the continuous residence requirement for relief. lxvii
The stop-time provision works in the following way. There is a form of relief that requires, among other things, seven years continuous residence in the U.S. after being admitted.lxviii In the past, those seven years would have been calculated from the time the person was admitted to the U.S. until the time the application for relief was made. If that period was at least seven years and the person applying for relief had resided continuously in the U.S. during that time, the continuous residence requirement would have been met.
The stop-time provision cuts off the accrual of continuous residence at either the point at which the individual is placed in proceedings, or the time of the commission of an act that makes the person deportable, whichever occurs first.lxix So someone who has, in fact, resided continuously in the U.S. for more than seven years may not be eligible to seek relief because the offense which forms the basis of the deportation proceedings occurred within seven years of that person’s admission into the U.S.
There is no basis for conflating the continuous residence requirement with the commission of a deportable offense, except to make it more difficult for legal residents to gain relief from deportation. The underlying offense should be considered separately when weighing the factors that are relevant to the decision whether or not to grant relief. It should not be used as tool for preventing an otherwise eligible immigrant from meeting the continuous residence requirement.
Making the punishment fit the crime; i.e., the decision whether or not to deport should reflect the severity and circumstances of the offense
“Over several years, Ana Flores, a lawful permanent resident from Guatemala and mother of two U.S. citizen children, complained to the police that her husband was assaulting her. In June 1998, during one of their disputes, her husband sat on her and hit her. Defending herself, she bit him. He called the police, who arrested her. Ms. Flores was charged with domestic assault. In a 10-minute hearing, a Virginia judge urged her to plead guilty without a lawyer. When she did, he sentenced her to six months’ probation and 30 days in jail, to be suspended if she finished the probation. She did. She is now separated from her husband. At 5 in the morning on Jan. 13, 1999 two agents of the Immigration and Naturalization Service came to her home and arrested her for deportation. Why? The charging document . . . cited a section of the 1996 Immigration Act calling for deportation of anyone convicted of ‘a crime of domestic violence.’” lxxThe 1996 immigration laws went beyond the bounds of fairness in meting out punishment to immigrants with criminal records, and their families. These individuals have already paid a price for their convictions, whether in the form of a prison sentence, probation or community service. Now, they are being penalized again, sometimes more severely, as a result of the 1996 laws, which mandate the detention and deportation of thousands of long-term legal residents who are rehabilitated, contributing to their communities and supporting families in the United States.
In many cases the suffering they are forced to endure far outweighs that warranted by their transgression. U.S. law does not recognize deportation as a penalty. Therefore, arguments that deportation is too harsh a punishment, in some cases, will not succeed in court. However, policy makers and others can surely understand that deportation is indeed punitive. Exiling someone from a country that has become his or her home – where family, friends and security are – to a place that may be alien in terms of language and culture, or where the individual has not lived for many years, causes suffering and hardship that are certainly punitive to the individual and family members left behind.
Our laws need not be unduly punitive. In some cases, it is reasonable to deport someone who has committed a criminal offense. But this must be done thoughtfully and with consideration of the merits of the individual case. The effect on family members must also be considered, for they too will suffer as a result of a loved one’s deportation.
The United States prides itself on being a country that cherishes (family values.( Politicians take pains in their campaigns to portray themselves as supporting (family values.( While there may be differing opinions on what precisely (family values( means, we can all agree that tearing loving, self-sufficient families apart does not promote (family values.( Unfortunately, in too many cases, this has been the unintended effect of the 1996 immigration laws. While this paper does not address all of the concerns that the USCCB has regarding these laws, it attempts to shed light on some of the problems created by the 1996 laws vis-à-vis immigrants with criminal convictions and make constructive recommendations for reform.
At the time they voted for these provisions, it is unlikely that our elected officials knew what the far-reaching consequences would be for families. However, now that we have seen the devastation that this law has wrought on families, it is time for those officials to make the necessary changes to the immigration law ( changes that will provide fairness to immigrants and restore the central importance of family unity underlying U.S. immigration policy. Only once these changes have been made can we have a truly just and humane immigration policy ( a policy that promotes the well-being of families and of our society as a whole.
i. Illegal Immigration Reform and Responsibility Act of 1996, Public Law 104-208 (Sept. 30, 1996).
ii. Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-132 (Apr. 24, 1996).
iii. “Under pressure from Congress and the strict new law, the INS increased deportations from 114,179 in 1997 to 172,312 in 1998, a 51 percent increase, and a 148 percent increase from the 69,536 deported in 1996.” U.S. Committee for Refugees 1999 Country Reports: United States (1999).
iv. Patrick J. McDonnell, “Tragedy: Teenager kills himself after his father--a legal U.S. resident for 29 years--is sent to Colombia because of $10 marijuana sale in 1989: Grieving mother struggles with effects of strict new U.S. policy,” Los Angeles Times, March 14, 1998, Metro Section.
v. See for example, “The Affidavit of Support and its Effect on Low-Income Families,” CLINIC (August 2000); “The Needless Detention of Immigrants in the United States,” CLINIC ((August 2000); “Work without Justice: Low Wage Immigrant Laborers,” CLINIC (2000); “Citizenship at Risk: New Obstacles to Naturalization,” CLINIC (2000); “Chaos on the U.S. – Mexico Border: A Report on Migrant Crossing Deaths, Immigrant Families and Subsistence – Level Laborers,” CLINIC (November 2001); “Immigration Policy for the 21st Century: The Case for Legalization of Undocumented Immigrants,” Walter Ewing, USCCB (March 2002); “Children on the Move: The Plight of Immigrant and Refugee Children,” Nathalie Lummert, USCCB (June 2000).
vi. For an excellent introduction to Catholic Social Teaching on immigration See Terry Coonan, “There are no Strangers among Us: Catholic Social Teachings and U.S. Immigration Law,” 40 Catholic Lawyer, No. 2 at 105-164.
vii. National Conference of Catholic Bishops, (Resolution on the Pastoral Concern of the Church for People on the Move,( November 11, 1976.
viii. “Economic Justice for All, Pastoral Letter on Catholic Social Teaching and the U.S. Economy,” U.S. Catholic Bishops, 1986.
ix. The Immigration and Nationality Amendments of October 3, 1965 (79 Statutes-at-Large 911), among other things, abolished the national origins quota system, eliminating national origin, race or ancestry as a basis for immigration to the United States, and established allocation of immigrant visas for relatives of U.S. citizens and permanent resident aliens for the purpose of family reunification.
x. “All Under One Roof: Mixed-Status Families in an Era of Reform,” Michael Fix and Wendy Zimmerman, The Urban Institute. June 1999.
xiii. “Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice, A Statement of the Catholic Bishops of the United States,” USCCB, November 15, 2000, at 12.
xiv. “A Pastoral Message: Living With Faith and Hope After September 11,” U.S. Conference of Catholic Bishops, November 14, 2001.
xv. The reason for this dramatic increase was succinctly expressed by Anthony Tangeman, head of the Detention and Removals Program at the INS, who noted in remarks he made at the Center for Migration Studies 24th National Legal Conference on April 5, 2000:
In recent years the Detention and Removals program has witnessed dramatic growth. With the passage of the new immigration law in 1996, Congress expanded the number of crimes that render individuals subject to removal. That law also eliminated INS( discretion to release certain aliens by requiring that virtually any non-citizen subject to removal on the basis of a criminal conviction, as well as certain categories of non-criminal aliens, be detained without bond. As a result, INS is required to detain a much larger number of people.
xvi. The most commonly used waiver of criminal grounds of deportation was found at section 212(c) of the Immigration and Nationality Act (INA). This waiver was repealed by section 304(b) of IIRIRA.
xvii. The Executive Office for Immigration Review (EOIR) was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization which combined the Board of Immigration Appeals (BIA) with the Immigration Judge function previously performed by the Immigration and Naturalization Service (INS). Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS, the agency charged with enforcement of Federal immigration laws.
xviii. Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978).
xix. "The Anti-Terrorism and Effective Death Penalty Act of 1996: a death sentence for the 212(c) waiver,” Rannik, Julie K., 28 University of Miami Inter-American Law Review, No. 1, Fall 1996.
xx. Exercising Prosecutorial Discretion, Memorandum to Regional Directors, District Directors, Chief Patrol Agents and Regional and District Counsel from Doris Meissner, Commissioner of the Immigration and Naturalization Service. November 17, 2000. at 2.
xxii. Fact Sheet: Prosecutorial Discretion Guidelines, U.S. Department of Justice, Immigration and Naturalization Service, November 28, 2000.
xxiii. See INA §236(c) (The constitutionality of this provision is currently under review. At least one circuit court has found it unconstitutional)
xxiv. For example, certain shoplifting offenses are aggravated felonies; individuals in proceedings for such offenses are not eligible for bond.
xxv. See note 15. (Comments of Anthony Tangeman at Center for Migration Studies 24th National Legal Conference on April 5, 2000.)
xxvi. This is a figure which has been reported by the INS in meetings where representatives of NGO(s, including the Catholic Legal Immigration Network (CLINIC), have been present.
xxvii. Testimony of Bishop Thomas G. Wenski, Auxiliary Bishop of Miami on behalf of National Conference of Catholic Bishops( Committee on Migration before The House Judiciary Subcommittee on Immigration and Claims, May 15, 2001.
xxix. See INA §242(a)(1)(1994); 8 C.F.R.§242.2(b)(2) (1988).
xxx. See INA §242(a)(1) (1994); 8 C.F.R. §242.2(b)(2)(c) (1988).
xxxii. “Locked Away: Immigration Detainees in Jails in the United States,” Human Rights Watch, Vol. 10, No. 1 (G), September 1998.
xxxvi. Excerpted from “The Needless Detention of Immigrants in the United States,” CLINIC (August 2000) at 30.
xxxvii. “Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program,” Final Report of the Immigration and Naturalization Service, August 1, 2000.
xxxviii. Anthony Lewis, “Abroad at Home: That’s the Way it is,” The New York Times, December 19, 1997, Editorial Section.
xxxix. For example, the new definition of aggravated felony provides that: “Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996,” See INA § 101(a)(43).
xl. U.S. Constitution, Article I, sections 9 and 10. While the Constitution itself does not state that the Ex Post-Facto clause applies only in criminal cases, the Supreme Court has held that the Ex Post-Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U.S. 499, 505. The Ex Post Facto clause has been said to encompass “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed,” Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J)
xli. See e.g., Galvan v. Press, 347 U.S. 522. 531-32 (1954); Harisiades v. Shaugnessy, 342 U.S. 580, 594-95 (1952); Matter of Gomez-Giraldo, 20 I&N Dec. 957 (BIA (1995); Matter of C --, 20 I&N Dec. 529 (BIA 1992). (All holding that the Ex Post Facto Clause does not apply to deportation statutes.) Deportation has long been held not to be a penalty. Therefore, constitutional protections that apply in criminal proceedings do not apply in immigration proceedings.
xlii. Landgraf v. USI Film Prods., 511 US 244 (1994).
xliii. Lehman v. United States ex rel. Carson, 353 U.S. 685, 690 (1957); Harisiades v. Shaugnessy, 342 U.S. 580, 594-95 (1952); Ignacio v. INS, 955 F. 2d 295, 298 (5th Cir. 1992); Matter of Gomez-Giraldo, 20 I&N Dec. 957 (BIA 1995).
xliv. Before 1996 these individuals would have been eligible to apply for relief under section 212(c) of the INA.
xlv. See INS v. St. Cyr,533 U.S. 289 (2001).
xlvi. The USCCB has strongly objected to the lack of availability to relief for those wrongly deported. In comments submitted to the Department of Justice on October 8, 2002, in response to the proposed regulations, the USCCB called for the creation of a mechanism for allowing persons abroad to apply for relief.
xlvii. See note 46.
xlviii. See Federal Register, Vol. 67, No. 156 (August 13, 2002).
xlix. Amy Herdy, “Crimes, law return son to land he hardly knows,” St. Petersburg Times, February 23, 1999.
l. For example, another retroactive application of the law which has been overturned by one circuit is the retroactive application of IIRIRA(s reinstatement of removal provision codified at INA (241(a)(5). The Ninth Circuit has ruled that the application of reinstatement of removal cannot be applied retroactively. See Castro-Cortez v. INS, No. 99-70267 (9th Cir., January 23, 2001. However, the rest of the circuits continue to apply reinstatement of removal retroactively.
li. Philip S. Anderson, Editorial, Miami Herald, April 9, 1999.
lii. The term "aggravated felony" was first introduced into the Act by §7342 of the Anti-Drug Abuse Act of 1988 ("ADAA").
liii. See note 40.
liv. The United States became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (U.N. General Assembly resolution 39/46, 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1)) (CAT) in 1994. Under Article 3 of the Convention Against Torture (Article 3), the United States has agreed not to ‘‘expel, return (‘refouler’) or extradite’’ a person to another state where he or she would be tortured by a state actor. The U.S. implemented this obligation by regulation in 1999. It is codified at 8 C.F.R. 208.17.
lvi. Prior to 1996, the definition of conviction used in immigration law had been articulated by the Board of Immigration Appeals in Matter of Ozkok,19 I. & N. Dec. 546 (BIA 1988). That definition provided that:
A conviction exists for immigration purposes where an alien has had a formal judgment of guilt entered by a court or, if adjudication of guilt has been withheld, where all of the following elements are present: (1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, (2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding his guilt or innocence of the original charge.
lvii. See Pino v. Landon, 349 US 901(1955).(holding that an “on-file” conviction was not sufficiently final to support a deportation order.)
lviii. See e.g. Martinez-Montoya v. INS, 904 F. 2d 1018, 1025 (5th Cir. 1990).
lix. See e.g., Marino v. INS, 537 F. 2d 686 (2d Cir. 1976).
lx. See e.g. Matter of Roldan, Int. Dec. #3377 (BIA 1999).
lxi. See IIRIRA §322(c).
lxii. INA §101(a)(43)(G)
lxiii. INA §101(a)(48)(B)
lxiv. The only relief available under these circumstances would be that under the Convention Against Torture, discussed previously, which is extremely limited.
lxv. Short absences are permissible pursuant to INA § 244(c)(4).
lxvi. The continuous residence and physical presence requirements for section 212(c) relief and the relief of suspension of deportation are examples.
lxvii. The “stop-time” provision is codified at INA §240A(d)(1), and applies to eligibility for cancellation of removal for lawful permanent residents. The stop-time rule also applies to eligibility for relief under §212(h), but in that case it is only the serving of the charging document that stops accrual of time, not the commission of a crime.
lxviii. This form of relief, known as cancellation of removal for certain permanent residents, and codified at INA §240A(a), replaced the former §212(c) relief that was available to certain lawful permanent residents with criminal convictions.
lxix. See INA § 240A(d).
lxx. Anthony Lewis, “Abroad at Home: The Mills of Cruelty,” The New York Times (Dec. 14, 1999).