Conference on Criminal Aliens and Immigration

February 10, 1999

Co-sponsored by The International Migration Policy Program of the Carnegie Endowment for International Peace and the Fundacao Luso-Americana para o Desenvolvimento

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter "the 1996 Immigration Act" or "the 1996 Act") represented the culmination of several trends in United States immigration policy. First, the 1996 Immigration Act made it even more difficult for immigrants facing possible removal (deportation) to obtain "equitable relief" that would allow them to remain in the United States. In many cases, immigration judges can no longer exercise their discretion to allow an immigrant to remain in the United States based on his or her family ties, employment history, other significant connections to the United States, and (if relevant) rehabilitation. Under the 1996 Act, "aggravated felons" do not qualify for equitable relief from removal, and the list of crimes deemed "aggravated felonies" has expanded significantly. Second, the 1996 Act greatly increased the categories of immigrants, particularly those with criminal records, subject to "mandatory detention." The 1996 Act took away the discretion of Immigration and Naturalization Service (INS) officials to release thousands of immigrants. Third, under the 1996 Act, immigrants who illegally return to the United States following their removal face steeper criminal sanctions, as well as reinstatement of their removal orders. In this and other ways, the 1996 Act continued the trend toward the criminalization of immigration violations. Fourth, the 1996 Act attempted to limit significantly federal judicial review of removal and custody decisions. Making matter more difficult for immigrants, the 1996 Act has been retroactively applied.

Combined, these provisions have led to the mandatory detention and removal of a steady stream of long-term legal permanent residents, with strong family ties to the United States, who committed relatively minor crimes, often years before. The consequences have been severe both in the United States and abroad. In the United States, families have been divided, with immigrants removed at great emotional and financial cost to their United States citizen children and spouses. Immigrants have been returned to countries in which they have few family, economic or even linguistic ties -- countries, in effect, to which they no longer belong. Returning nationals have often proven disruptive, difficult to assimilate, destabilizing, and even dangerous. Embassy and consulate officials receive regular communications from their nationals in the United States who are facing removal, and from their home countries who are attempting to assimilate waves of returning nationals.

Given these developments, the conference had two goals: (1) to explain current immigration law to embassy and consulate officials so they could better advise their nationals at risk of being deported; (2) to begin a discussion of policy solutions to these problems.

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I. PRESENTATION / DISCUSSION OF CASE STUDIES

Peggy Gleason, Senior Attorney, Catholic Legal Immigration Network, Inc. (CLINIC)

Fred Watt, Immigration Attorney (counsel in Goncalves case), New Bedford, MA

Following introductions, the conference began with case studies of foreign nationals with criminal convictions who face removal because of the new laws. In one example, a 51 year old Mexican woman who had been a legal permanent resident of the United States since 1975 was deported because of a 1992 conviction for distribution of a controlled substance. No waiver was available for her despite the fact that she was rehabilitated, and had several U.S. citizen children and grandchildren. In another example, a British woman with a U.S. citizen spouse and children was not allowed to become a legal permanent resident because she had once been convicted of possession of marijuana in the U.K., even though that conviction was later expunged under U.K. law. In a third, a Portugese national with a U.S. citizen wife and child had been denied equitable relief from deportation due to the retroactive application of the law. The latter case has been successfully challenged in federal appeals court.

II. OVERVIEW OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 (IIRAIRA) AND THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (AEDPA)

1. Federal Removal Process

The INS is an agency within the U.S. Department of Justice that has enormously broad authority to enforce immigration laws. Among other functions, the INS controls our borders, administers the naturalization process, investigates and brings charges against immigrants who are believed to be in violation of the immigration laws, and detains and deports immigrants.

Aliens can come into deportation proceedings (now known as "removal proceedings") in many ways. An alien with a recent criminal conviction can be put into proceedings after serving his criminal sentence because the INS has lodged a "detainer" against him while he was in prison. An alien with a criminal conviction in his past can be put into proceedings when he applies for naturalization (citizenship) or adjustment of status (legal permanent residency). Both procedures require the INS to check fingerprints for prior arrests or convictions. Sometimes probation officers review their old files and alert the INS when they think that an alien is deportable. Aliens can also come to the attention of the INS and be put into proceedings when they return from a trip abroad.

When the INS decides that an alien is removable, they issue a charging document called a Notice to Appear ("NTA") with allegations and charges regarding the person’s citizenship, nationality, and grounds of deportability. The NTA is filed with the Immigration Court, after which the alien must present himself at court and answer the charges against him.

The Immigration Court is part of the Executive Office of Immigration Review ("EOIR"), which is another agency in the U.S. Department of Justice. Immigration Court hearings for aliens in detention can be conducted at INS detention centers or at regular jails and prisons where the INS rents space. Unfortunately, many of these facilities are in very remote locations where little or no legal assistance is available, and access to telephones is restricted. For this reason, most aliens in detention do not speak to an attorney before seeing an immigration judge.

At the hearing, the alien will be opposed by an INS prosecutor (called a "Trial Attorney"), usually an expert in immigration law, who argues in favor of the person’s deportation. The 1996 Immigration Act made it much more difficult for judges to use their discretion and grant waivers that would allow otherwise removable aliens to remain in the country. A judge’s decision may be appealed by the alien or the INS to the Board of Immigration Appeals ("BIA"), but judicial review in the federal courts has been greatly curtailed. A new process called "administrative removal," for non-legal permanent residents (e.g., refugees, conditional residents, and asylees), allows the INS to deport aliens without a hearing. These aliens must respond in writing to the charges against them, usually from jail, to the satisfaction of the INS, or they will be deported.

B. Substantive Grounds for Removal

The list of crimes that make an alien removable continues to grow longer. It includes firearms convictions, most violations of controlled substances laws, violations of orders of protection in the domestic violence context, other so-called "aggravated felonies", and "crimes of moral turpitude." Crimes of moral turpitude include serious crimes such as rape and murder, but also some surprising offenses, such as shoplifting. To determine whether or not an offense qualifies as a crime of moral turpitude, an attorney must look at the state statute under which the person was convicted. In some states a crime as serious as kidnapping actually would not be a crime of moral turpitude.

Much confusion surrounds the issue of what constitutes a conviction for purposes of immigration law. Some criminal court dispositions do not constitute a conviction in certain state courts, but they are a conviction as far as the INS is concerned. For example, aliens who have state court dismissals may have a conviction for immigration purposes, although this sounds counter-intuitive. When such an alien applies for naturalization, he may report no convictions on his application, not knowing that the INS will put him into removal proceedings when they look into his case because of his past criminal problems.

Removal can be avoided in several ways. The saying "an ounce of prevention is worth a pound of cure" holds true in these cases. First, consulates should make their nationals aware of the serious immigration consequences of criminal convictions. Most long-time legal permanent residents incorrectly assume that they are entitled to stay in the U.S. indefinitely. Second, consulates should encourage their nationals to become U.S. citizens. Third, when a resident alien is arrested on a criminal charge, the consulate can try to ensure that his criminal defense lawyer is aware of the immigration consequences of certain convictions. In this way a favorable plea agreement or better charges can be agreed upon. For example, an alien who is convicted of a theft may be considered an "aggravated felon" by the INS if the sentence imposed was for one year or more, even if the sentence was suspended and the person did not actually serve a day in jail. Consulates can help their nationals who are still in the criminal justice system by explaining to them the importance of trying to bargain for a sentence of less than one year. Many prosecutors are willing to reduce a sentence from 365 to 364 days. Obviously, this sort of early intervention is most effective before the person has been convicted.

The INS has the burden of proving that someone who has been admitted to the United States is not removable. U.S. citizens are not subject to removal, no matter what crimes they have committed. Many "aliens" are actually U.S. citizens without knowing it because U.S. citizenship laws are arcane. For example, if a child’s parents naturalized before he turned eighteen, he automatically became a U.S. citizen, and cannot be deported. This person may have no idea that he actually acquired citizenship.

C. Relief from removal

Foreign nationals facing removal can seek several forms of relief from deportation, although recent legislation has seriously curtailed the relief available to them. The first strategy should be to investigate whether or not the person may actually be a U.S. citizen. Asylum or withholding of removal may also be an option for aliens who have a well-founded fear of persecution in their home countries on account of their race, religion, nationality, political opinion, or membership in a particular social group. Aggravated felons and others are barred from seeking asylum, and certain criminal histories can also bar aliens from seeking withholding of removal. Another option may be adjustment of status, provided the alien has a qualifying relationship such as marriage to a U.S. citizen or a labor certification. Some minor crimes can be waived for adjustment. Immigration judges may grant "cancellation of removal" to aliens who have been permanent residents for five years, who entered legally, resided in the U.S. for seven years continuously, and are not aggravated felons. In cancellation of removal cases, the judge weighs the undesirability of the alien against the humane social reasons for keeping him in the country. Cancellation is easier to win if the person has bonded out of detention and has participated in programs that show rehabilitation. Other options are cancellation of removal for non permanent residents, registry, the Convention Against Torture, and special relief that exists for some Haitians, Cubans, Nicaraguans, Guatemalans, Salvadorans, and nationals of certain former Soviet bloc countries.

D. Detention of Legal Permanent Residents and Other Aliens

The INS is currently detaining more immigrants than ever, for longer periods, for minor or no crimes, with no opportunity to demonstrate that they are not a flight risk or a danger to the community. Recent years have seen attempts to speed up the removal process so that aliens can be deported as quickly as possible, often from jails in remote locations where there are few or no immigration attorneys to fight on the person’s behalf. Detention is part of this trend.

Whereas the INS formerly had the option to detain some "criminal aliens" who were in deportation proceedings, since October 9, 1998 they must detain most immigrants with criminal records. In the past, the INS could consider whether or not an alien was a danger to the community, or a flight risk, when deciding whether or not they should be detained during proceedings. Mandatory detention is now seen as a way to ensure the removal of criminal aliens who otherwise might not comply with orders of removal.

"Indefinite detention" is also an increasing problem. This phenomenon occurs when an alien has received a final order of removal and is supposed to be deported, but his country will not issue him a travel document. In this case the person is detained indefinitely. When the INS is unable to effect deportation ninety days after a removal order has been issued, the detainee may be released if he is deemed to be neither a flight risk nor a danger to the community. However, many indefinite detainees are not released because the INS has no regular procedure for reviewing their detention.

More than half of immigration detainees are held in local and county jails where the INS rents space. Many are mixed with jail populations who are serving criminal time. Oddly enough, the INS’ own detention standards do not apply to detainees in these facilities, even though they represent the majority of immigration detainees. Detainees in INS facilities, especially those in local and county jails, complain of inadequate medical care, abuses by guards, and other problems.

III. ADVISING IMMIGRANTS

Carol Wolchok, ABA

Peggy Gleason, Senior Attorney CLINIC

Consulates should try to advise their nationals about the harsh, unforgiving nature of immigration laws before they get into trouble. Outreach should especially be done to young people, who may not understand the serious criminal and immigration consequences of activities in which many in their neighborhood may be involved. In addition, consulates should impress upon their nationals the importance of consulting an immigration lawyer when they find themselves in the criminal justice system. Aliens should be aware that re-entering the United States without permission after they have been ordered deported can have very serious consequences, including criminal charges and jail sentences.

If a consulate plans to consult an expert on behalf of a national who is incarcerated, consular officials should first ask their national the following questions:

1. Were either of your parents or any of your grandparents born or naturalized in the U.S.? Might you be a U.S. citizen?
2. How important is it to you to remain in the U.S.?
3. What is your current immigration status? How and when did you acquire that status? How long have you resided in the U.S.? What relatives do you have in the U.S., and what is their immigration status? What is your criminal history (convictions/arrests)?

It is crucial that aliens consult with an immigration expert before going to criminal court, because what seems like a good result in the criminal justice system may have tragic immigration consequences. For example, it may be better for an alien to serve thirty days in jail than to receive a one year suspended sentence. Consulates and embassies should consider retaining an immigration lawyer to provide advice to their nationals. This lawyer should be knowledgeable about how criminal law intersects with immigration law; many immigration lawyers only practice business immigration law, and may not be able to provide good advice on criminal matters.

In general, consulates can give the following advice to their nationals who may have been arrested or convicted in the United States at some time in the past:

1. Do not travel out of the U.S. until you are sure of your status.
2. Do not come forward to the INS to apply for a benefit (e.g., adjustment of status, naturalization, sponsorship of a relative’s immigrant visa, etc.) until you are sure of your status.
3. Obtain a copy of your criminal record from the courts where your cases were tried, including the dispositions.
4. File a Freedom of Information Act ("FOIA") request with the INS to obtain a copy of your A-file.
5. Obtain a copy of your FBI record which can be done by sending in one’s fingerprints for "personal file review."
6. Obtain a copy of the state statutes implicated in your case, and the federal statutes referenced therein.
7. Arrange for a consultation with a reputable immigration lawyer, and discuss the above documents with him or her.

IV. LUNCHEON ADDRESS: COMMENTS ON THE 1996 LEGISLATION

Ed Grant, member of the Board of Immigration Appeals, Executive Office of Immigration
Review, U.S. Department of Justice

Mr. Grant stated that Congress had the following goals when it enacted the 1996 Immigration Act. First, it hoped to "close the back door" on illegal immigration. Second, it wanted to streamline the deportation process to deport aliens more quickly and easily, especially those who had committed serious crimes. Third, it wanted to impose more restrictions on immigration judges’ discretion. Fourth, it wanted to enable the INS to identify and clarify the status of immigrants early on.

IIRAIRA and AEDPA made serious substantive accomplishments in these areas. However, the question of retroactivity still hangs over these laws. The Supreme Court must now decide whether Congress has the constitutional authority to apply new consequences to prior acts in immigration matters, and whether Congress has in fact exercised this authority.

V. LEGISLATIVE PROPOSALS: A VIEW FROM THE HILL

Jim Wilon, from the Staff of Representative Lamar Smith, Chairman of the House Subcommittee on Immigration and Claims

Congressman Lamar Smith was the primary architect of the 1996 Immigration Act. He has an underlying philosophical difference with many who have spoken at the conference. He is less sympathetic to criminal aliens, and more sympathetic to their victims. He believes that aliens who have committed crimes in the U.S. will continue to commit crimes and victimize American citizens. In addition, U.S. taxpayers are unwilling to spend money incarcerating the prison inmates who are foreign-born; it would be better to have deported them. The overwhelming majority of Americans agree with Congressman Smith that criminal aliens should be deported.

Only deserving immigrants should be allowed to obtain their legal permanent residence or to naturalize. Immigration to the United States is a privilege, not a right, and it should depend upon good behavior. Most immigrants actually support Congressman Smith because they are disproportionately the victims of criminal aliens. The 1996 laws were spurred by two problems. First, immigration judges were waiving deportation for too many criminal aliens. Second, the INS was not able to deport enough criminal aliens because they did not detain them. Criminal aliens who had been ordered deported usually did not comply with these orders unless they were detained.

Critics of the 1996 laws allege that they are too harsh, but should remember that only aggravated felons, who are usually dangerous criminals, are barred from relief.

Esther Olavarria, from the staff of Senator Ted Kennedy’s office

A number of Members of Congress now believe that legislative changes are necessary to alleviate the harsh effects of the 1996 Immigration Act, which went too far. One bill recently introduced would restore discretion to immigration judges to waive the deportation of lawful permanent residents who have been convicted of aggravated felonies, but who served sentences of less than five years. Other legislative changes which could be considered include: amending the definition of aggravated felony by limiting it to serious crimes; restoring INS detention discretion to enable persons who are not a danger to the community and are not a flight risk to qualify for release; restoring waivers of deportation for non-permanent residents who commit crimes; eliminating retroactive application of the new laws; and reinstating judicial review. Senator Kennedy is interested in pursuing legislation that helps persons with strong equities; persons with U.S. citizen and permanent resident families; persons who have been rehabilitated; not violent criminals or recidivists.

Ms. Butterfield stated that the 1996 laws did not reflect the will of the American people, and did not result from a fair deliberative process. These laws were enacted after a sham conference proceeding under the cover of night, in a shameful process. No single member of Congress, let alone the American people, fully understood the consequences of these laws. Now we must make Congress understand what it has wrought. Unfortunately, it is much easier to make bad law than to fix it.

AILA would like to restore fairness and discretion to the deportation process, not provide relief for heinous criminals. First, retroactivity should be eliminated because it is unfair to change the rules in the middle of the game. Second, immigration judges should have the discretion to decide if the seriousness of the crime is outweighed by positive factors, in order to give deserving American families a second chance. Third, judicial review should be restored. The prospects for change are not good yet, but we need to bring sympathetic human stories to Congress, and build grassroots support for reform.

VI. CONSULAR LIAISON WITH THE IMMIGRATION AND NATURALIZATION SERVICE

Helping Mexican nationals in the U.S. has been an enormous challenge for the Mexican Government. Mexicans especially felt targeted by IIRAIRA. The Mexican government does not want to support illegality, and recognizes that each country has a sovereign right to implement its immigration laws. However, countries should implement these laws with respect for individuals’ civil rights, and should be mindful of their international obligations.

In its zeal to enforce immigration laws, the INS sometimes violates the civil rights of Mexican nationals in the U.S. For example, during "Operation Last Call" in Texas last September, the INS arrested 110 Mexicans for prior drunk driving convictions. Eighty seven percent (87%) of those arresed were married, 90% had an average of 3.2 children, 82% of their children were U.S. nationals. The detainees had been permanent residents in the U.S. for an average of 21.6 years. This operation was carried out in a way that caused emotional trauma to families -- Mexican families, who are U.S. families too.

In Chandler, Arizona, the INS stopped persons on the street and demanded documentation simply because they had a "Mexican appearance." Lawsuits were filed in response to this operation.

In Salt Lake City, the City Council had to stop the implementation of a pilot program which would have delegated INS authority to the Salt Lake City Police Department, due to the high possibility of mistreatment of migrants by police officials.

To cope with these and other problems, Mexico has made migration one of its main policy concerns in its relationship with the United States. The issue of immigration is frequently addressed by the U.S.-Mexico Binational Commission, a forum for the two countries’ bilateral agenda. For the majority of people in Mexico, no other topic in the bilateral agenda has such a direct impact on the welfare of Mexican families. The U.S. State Department and INS headquarters have supported open communication with Mexico on immigration issues. However, sometimes this support does not exist at the local level. Good personal relationships with local officials can make a real difference.

In order to ensure good communication with nationals detained by the INS, the Mexican government has signed a memorandum of understanding (MOU) with the U.S. government regarding access to detainees. The purpose of the MOU is to promote the enforcement of the law in a way that is consistent with the right of consular personnel to protect Mexican nationals detained by U.S. immigration authorities. Each of Mexico’s 42 consulates in the U.S. has established an individual agreement with their INS District’s Border Patrol and Detention and Deportation divisions. Consular staff regularly visit detention centers and jails to try to help Mexicans detained there. Consular officials even help their nationals to find immigration lawyers. When lack of consular notification has resulted in punitive sentences by U.S. courts, especially in death penalty cases, Mexico has presented diplomatic notes of protest to the U.S. Department of State, underscoring violations of Article 36 of the Vienna Convention and other international accords.

Consulates also hold forums for Mexican nationals to explain their rights to them; these forums have attracted large audiences.

VII. ADVOCACY OPPORTUNITIES

The new laws are problematic because discretion has been taken away from the INS and immigration judges -- the government officials with the most knowledge and closest contact to the immigrants facing removal and detention. We should remember that crime is part the fabric of our society, as much as we may not like it. Many long-term permanent residents who have lived here since childhood learned crime here, not in their home countries. The U.S. needs to deal with its own social problems in the United States. The 1996 laws were enacted because of political considerations.

Jeanne Butterfield, AILA

While waiting for legislative changes, the exercise of prosecutorial discretion on the part of the INS would be very helpful. The INS needs to exercise the authority it has to alleviate the effects of 1996 laws. Also, advocates need to work to put a human face on these laws, to let Congress and the press know about the people who are affected by them.

In pressing for reform, we must shift the terms of the debate. We should refer to U.S. citizen families, and to fundamental notions of fairness that do not square with retroactive application of a law. Another important concept is proportionality; deportation is a disproportionate penalty for many who have served their sentences.

VIII. CLOSING REMARKS

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Conclusions and Recommendations

The presentations and discussion made clear that significant changes must be made in U.S. statutory law and policy. The International Migration Policy Program at the Carnegie Endowment for International Peace here identifies a number of the most salient proposals for reform. (The proposals listed do not necessarily represent the views of all the participants.)

1. Amend federal law to temper the harshness of the expanded removal grounds, including the retroactive application of the new laws. Fundamental fairness demands that persons not be subject to removal for conduct that would not have rendered them deportable at the time it was undertaken. The conference disclosed numerous cases of the unconscionable harshness of the new law. In addition, the expansion of the definition of "aggravated felony" has gone significantly beyond what the term may reasonably mean, covering conduct that may be neither aggravated nor a felony.

2. Amend relief from removal provisions in federal law to restore proportionality. The 1996 amendments to the immigration laws removed long-standing avenues of relief for long-term residents of the United States. The changes violate notions of fairness and proportionality, imposing extremely harsh consequences for minor offenses by persons who are long-standing and productive members of U.S. communities.

3. Permit the release of non-dangerous alien detainees. Flexibility must be restored to the system, either by returning the law to the pre-1996 rules or by making permanent the temporary custody release rules in place in 1997 and 1998. If a person is not a danger to the community, has equities that make him or her not a flight risk, and has a responsible NGO or community sponsor, then immigration judges and the INS should be given discretion to permit release.

4. Restore judicial review. Fundamental fairness requires that decisions of administrative officers with serious consequences be subject to independent review.

5. Ensure compliance with the Vienna Convention. The federal government must take additional steps to ensure that local law authorities are aware of U.S. obligations under the Convention to inform foreign detrinees of their right to contact consular officials and to permit such officials access to the nationals who are in detention.