I’m going to give you a few scenarios that may or may not be true.[1] Sometimes, I get emotional describing these cases because they’re so ridiculous, so unfair and so unfathomable, but this is how the intersection of criminal convictions and federal immigration law comes into play.
Case 1: Stealing Bacon from Walmart and a Joy Ride in a Neighbor’s Bike
Imagine coming to the United States with your family as a child: you grow up here, you have no accent or dialect, you went to school here, you’re enrolled in College and about to start your future in a STEM field. It barely registers that you are not a citizen because you have not left the United States since you arrived as a toddler. You don’t even know where your passport is. You know you can’t vote, but you hate politics anyway. Life is all good.
But, when you turn eighteen (18) years old, you steal some food from Walmart. Rather than fight the case, you pay a small fine and it’s over. Or, let’s say you steal a video game and you enter into the county’s ARD program (first time offender program), successfully completing it. Neither of these situations have an effect on your immigration status so you forget about it until your senior year of College. During a party, you drink a little too much and take a neighbor’s bike for a ride. You always intended to bring the bike back, but the neighbors call the cops and you’re stopped, arrested and charged. It is technically your second offense theft case. For American citizens, a second offense theft case with a value of over $150 would normally result in a little jail time, fines and probation. For non-American citizens and green card holders, a second offense theft case in Pennsylvania with a value of $150 means you are now an ‘aggravated felon’ who is subject to mandatory detention in an ICE processing facility and possible permanent deportation from the United States. You will not be allowed to even apply to return to the United States until ten (10) full years have passed outside the United States. Even after this time, your ability to return is slim to none.
Does the punishment really fit the crime for this case?
Case 2: Teenage Student With Limited Family Support Held During High School Junior Year
Imagine an even worse scenario: you and your family flee a genocidal war in a foreign country. Everyone is still grappling with mental and physical issues, but you still push forward and work hard in school. Because of the requirements for schooling, you turn eighteen (18) years old in your junior year of high school. You have scholarships for college sports just in reach. Coaches and teachers adore you. One night, friends convince you to snatch a classmate’s brand new Jordan sneakers. You do it quickly, but you get caught. The law sees you as an adult-aged armed robber and your bail is set at $10,000.00. Your family does not have the money to bail you out and your parents don’t understand what else to do as they are unfamiliar with the U.S. legal system. No one visits you for months. You’re only released when a new Public Defender is assigned to your case and tells you to plead out. You missed three months of school, but you go back, graduate, and try to move on with your life.
Technically, you are a convicted adult-aged armed robber, so all anyone and everyone tells you is the ‘should haves’. You should have known better. You should have had better parents. You should have paid for a private lawyer. You should have known what you were pleading to before you were gifted the opportunity to get out. You should consulted with an immigration attorney. You should have, should have, should have.
The law doesn’t care about what you should have done. The law doesn’t care about the sympathetic circumstances surrounding your criminal case. The law only cares about the fact that you are an adult, you pled guilty to an aggravated felony and you are now subject to mandatory detention and possible permanent removal from the United States. The law kind of cares that you were a refugee fleeing your life, but that was long ago. The law implies that you need to grow up, own up to your mistakes, concede removability and be okay with permanent separation from your family and children. Oh, and remember that country you and your family fled? A judge doesn’t really believe you are scared to return, so that’s where you have to go.
Does the crime really fit the punishment for this case?
Case 3: A ‘Conviction’ From a Foreign Country
Lastly, imagine being told you pled guilty, but you never stepped foot in a courtroom. You come to the United States on a proper visitor visa. You answer all questions correctly on the visitor visa application, including that you have never been arrested or convicted of a crime.
Years go by and you fall in love with a U.S. citizen and get married. You have four children. You renew your green card and eventually apply for citizenship. At your citizenship interview, the USCIS officer tells you that your case will be automatically denied and you will be sent to immigration court due to falsely answering a question on an application over fifteen (15) years ago. The officer pulls out a flimsy piece of paper you’ve never seen before and tells you that you were convicted of drug smuggling and that piece of paper is the truth. The paper is full of misspellings and bad grammar. It is signed by a judge who is now deceased. You are not allowed to ask how USCIS got it and you are not allowed to have a copy. When you get to immigration court, the government trial attorney reveals this flimsy piece of paper as “proof” you are an aggravated felon, and requests to add the new charge. Now you are subject to mandatory detention and possible permanent removal from the United States.
You file for a Freedom of Information Act (FOIA) on your case, hoping to find out where that piece of paper came from. Because of delays, it takes months and you must sit in detention. You don’t have the money to sue the government to make the FOIA come faster, you don’t have the money to fight the mandatory detention and even if you could fight detention, you don’t have the money for bond. Eventually, your one (1) year old doesn’t remember you. Your wife is struggling and now wants a divorce, thus re-adjusting in court is out of the picture. Now, your only relief is to accept deportation to a country where you never even stepped foot in a courtroom.
Does the crime really fit the punishment for this case?
Thoughts
I give you these cases as food for thought. Reading them, you should think about a few additional legal issues. First, immigration courts are not criminal courts, so you are not entitled to a public defender. Immigration courts are civil in nature, but require due process. Second, the courts are few and far between. Some people might have to drive 8, 9 or even 10 hours for a simple master hearing. Third, immigration judges are not elected, but appointed by the President. While they are independent in decision-making, they also serve under the Executive Branch. In sum, immigration courts are not criminal courts. ‘Law and Order’ will never correctly portray an immigration hearing.
As we debate immigration reform under this new President, I urge people to constantly ask: does the punishment really fit the crime? Is a person suddenly unworthy of an American lifestyle because of a conviction? Does permanent removal from the United States for petty charges really make our country safer, or fairer? These are the questions we – immigration attorneys – have to ask and answer every day.
[1] In the event some details are true, I received consent to post from my client(s).