Due process, a cornerstone of American jurisprudence, cannot be applied selectively. Even if the beneficiaries are immigrants who have already been deported.
That’s the word from the Supreme Court.
In Caruchi-Rosendo v, Holder, the government was stopped from automatically deporting green card holders for minor drug possession convictions.
For lawful permanent residents, the decision represents a a major immigration appeals victory, and perhaps turning point in the ongoing battles against the ill effects of current deportation law.
Aggravated Felonies Under IIRAIRA
Until 1996, most lawful permanent residents (LPRs) facing deportation due to criminal convictions were entitled to a merits hearing at immigration court. An immigrant’s positive equities were balanced against the nature of an immigrant’s convictions. It was possible to win judicial forgiveness and a second chance to remain lawfully in the United States.
This changed when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Many minor non-violent offenses, deemed misdemeanors in state court, were designated as aggravated felonies for immigration purposes. And aggravated felonies lead to automatic deportation orders.
The Supreme Court Clarifies The Misdemeanor-Felony Distinction
In Carachuri-Rosendo v. Holder, the Supreme Court slammed the government’s blurring of the misdemeanor-felony distinction.
A lawful permanent resident, Carachuri-Rosendo had lived legally in the U.S. since he was five years old. He had committed two misdemeanor drug possession offenses. For the first, possession of less than two ounces of marijuana, he spent 20 days in jail. For the second, he pleaded nolo contendre to possession without a prescription of one tablet of Xanax, a common anti-anxiety medication, and received 10 days in jail.
After the second conviction, he was deported for having committed the aggravated felony of “illicit trafficking in a controlled sentence.”
A unanimous Supreme Court held the government’s interpretation that minor drug possession offenses constitute aggravated felonies was counter-intuitive.
“Congress,” wrote Justice Stevens, “like Humpty Dumpty, has the power to give words unorthodox meanings.”
But the English language, he added, “tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that the mere possession of one tablet of Xanax does not constitute trafficking.”
The Impact Of Flawed Deportations
Following the Carachuri-Rosendo decision, 26 legal rights organizations asked the government to implement procedures allowing immigrants – improperly denied the opportunity to defend themselves at court and sent back to their countries of origin – to reopen their cases.
If successful, they would be able to return and live legally in the U.S.
In “For Those Deported, Court Rulings Come Too Late“, New York Times reporter Nina Bernstein shared the plights of three former LPRs, also convicted of minor drug offenses, who might benefit from new reopening procedures:
- Vincenzo Donnoli, 51, had lived in the U.S. since the age of nine. He ran a landscaping business and had five children. He was deported to Italy after two misdemeanor convictions, one in 1988 and the other in 2006.
- Seweryn Smieciuch, 27, was a bricklayer deported to Poland. He had entered the U.S. at the age of ten, when his parents won the green card lottery and moved to Brooklyn in 1993. He spent two days in jail.
- Damon Franklin Spence, 35, had lived in the U.S. since he was 11 years old. He left behind four kids and was running a sneaker store when he was deported to Jamaica. He had been convicted of two possession of marijuana misdemeanors.
In my view, since their deportations were based on misguided interpretations of law, the right to new hearings seems to logically flow from the Court’s reasoning in Carachuri-Rosendo.
Otherwise, the Court’s bark far exceeds its bite.
Reopening Misguided Deportations As A Principle Of Fairness
Family unity has long been a fundamental tenet of immigration law. Conversely, the effect of family separation is a major issue of deportation defense.
It is unknown how many lawful permanent residents (LPRs) were sent back to their home country as a result of the mistaken aggravated felony rules.
However, a recent University of California study estimates the magnitude of family separation on LPR families caused by deportations for minor crimes during the period of 1997 to 2007:
- 87,884 LPRs were deported during the ten year period
- 68% of these LPRs were deported for minor non-violent crimes
- The deported LPRs had lived in the U.S. an average of ten years
- The deported LPRs had a total of 103,000 children
- 88,000 children of deported LPRs were U.S. citizens
- 44,000 children of deported LPRs were under 5 years old
In addition, there were 217,000 other family members (including U.S. spouses, parents, brothers and sisters) affected by the deportation of LPRs.
“American principles of justice,” noted the legal rights groups In their joint letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano (PDF), “require that these immigrants now receive their day in court.”
After more than a decade of flawed deportations, due process demands nothing less.
A Chance, Not A Guarantee, For Permanent Residents To Fight Back
The court, in Carachuri-Rosendo v. Holder, may have spared thousands of permanent residents. These immigrants, who do not have any other convictions, will now be entitled to a deportation and removal trial, before the government can remove them back to their home country.
Prior to the Supreme Court’s decision, the government was allowed to classify many of these minor convictions as “aggravated felonies.” Under the law, if an immigrant has committed an aggravated felony, they faced an automatic deportation.
These deportations would take place without a full hearing on the merits.
As a Riverside immigration lawyer, nothing seemed more unfair than rules which did not permit green card holders to show the court they deserved to be given a second chance to remain here.
In many instances, the immigrant’s predicament was the outcome of the criminal defense bar’s failure to understand principles of crimmigration defense law.
Now, they get an opportunity to present the merits of their requests for forgiveness for minor offenses.
Despite the outcry from immigrant opponents, the Supreme Court’s ruling does not mean lawfully admitted permanent residents can simply walk away from their past convictions.
It means they will not be automatically deported for certain convictions.
It means they can fight back.
It means they will be entitled to a hearing before the immigration court judge to ask permission to remain in the United States.
It means, in immigration deportation proceedings, they can ask for cancellation of removal and other forms of relief – which may enable them to win their immigration court case.
It means they may be allowed to remain in the United States with their family and children.
However, trying to prove you should be allowed to remain in the United States is not simple. Going to immigration court and trying to win a trial is not easy.
Permanent residents who find themselves in this situation should seek the advice of an experienced, competent deportation and removal defense lawyer.
Most immigrants, with criminal blemishes, simply cannot win their case at immigration court alone.
Is this a risk worth taking?
In my view, definitely not.
For over a decade, as noted in Deportation Defense: The Battle To Distinguish Major And Minor Criminal Convictions, immigration judges have been deprived of using discretion to figure out which immigrants deserve a second chance.
The Supreme Court has now restored some balance to the immigration process.
Now, some immigrants, who had no open doors, will have an opportunity to prove they deserve to continue living in the United States.
But that opportunity will be of no avail if evidence supporting the positive merits of an immigrant’s request is not adequately presented.
The Supreme Court has opened an important door for immigrants facing deportation.
For due process to fully work, however, carelessness by immigrants must be avoided.
By Carlos Batara, Immigration Law, Policy, And Politics