All they could tell him is that it had something to do with a felony in Virginia. There were three or four officers and they were forming people into lines. Roland Sylvain saw one officer disappear with another man from his line. “I told them, ‘I need to tell my wife where I’m going,’” said Sylvain, a longtime permanent resident who was married to a U.S. citizen. “She was seven months pregnant and crying on the deck of the ship. But the officer couldn’t—wouldn’t tell me anything.”
By the time Sylvain told me this story, he’d spent the past year repeating it to countless lawyers, describing how he’d been stopped as he disembarked with 20 other family members from a Fourth of July cruise in Tampa. The officers had led him through an empty parking lot and across the street into a white, nondescript building. Inside, he says, more officers took his fingerprints. Then they took his green card and passport.
Sylvain is one of thousands of immigrants who have been charged with “aggravated felonies” by the U.S. Immigrations and Customs Enforcement (ICE). The term, first introduced in the 1988 Anti-Drug Abuse Act, applies specifically to immigrants and asylum-seekers: If they’re convicted of any of the crimes in this category, they can be deported and prohibited from reentering the U.S. for 20 years. In 1988, the list of aggravated felonies was limited to serious crimes such as murder and drug trafficking. But Congress expanded the definition over the years, most extensively in 1996.
The two 1996 laws—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA—came in the wake of the 1993 World Trade Center bombing, when Congress felt pressured to streamline new immigration reform. The measures made more than 20 new crimes into aggravated felonies, including counterfeit, perjury, and obstruction of justice. They also reduced threshold requirements from five years to one, meaning that any immigrant issued a one-year prison sentence could be instantly deportable.
Sylvain’s aggravated felony began with a speeding ticket. A decade before his arrest in Tampa, he'd been pulled over in Virginia for exceeding the limit. Sylvain saw the signature line on the ticket and briefly panicked—his license had been suspended because he owed money on a previous ticket. Instead of signing his own name, he signed the name of his cousin, who was in the car with him. Then Sylvain panicked again and confessed to the officer right there on the spot. He was charged with forging public records and handed two suspended prison sentences, adding up to three years. But he never had to serve any time behind bars, and he never had another criminal conviction.
Allegra McLeod, an associate Professor of Law at Georgetown, examined cases like Sylvain’s in an article last year for the American Criminal Law Review. She writes that between 1990 and 2010, immigration offenses became the most common federally prosecuted crimes in the U.S. After 1996, when the new laws took effect, approximately one million immigrants were been deported as a result of criminal convictions. Moreover, Human Rights Watch's 2009 report Forced Apart estimates that 20 percent of those removed were longtime legal residents, and the majority of their crimes were minor, non-violent offenses.
Last year, newspapers widely reported the story of Lundy Khoy, a green-card holder who was born in a Thai refugee camp in 1980 after her parents fled their native Cambodia. In 2000, when Khoy was a student at George Mason University, she was caught by the police with a handful of ecstasy tabs and arrested for intent to sell them. After serving three months in prison, Khoy was released for good behavior. But in 2004, she showed up for a regularly scheduled probation meeting and found the ICE waiting for her. She was detained and promptly imprisoned for nine more months.
If Khoy had been born in the United States, officials would not have been allowed to imprison her without due process of law. But the 1996 laws also eliminated judicial review for immigrants charged with aggravated felonies. Even President Bill Clinton seemed conflicted when he signed AEDPA into law, noting that it “makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents.” Although Clinton asked Congress to correct those provisions, they were still in place in April 2012 when Khoy learned that she was being recommended for deportation—despite the fact that her family had been in the United States since 1981 and she knew no one in her native Cambodia.
“ICE claims to target criminal aliens, but in reality picks up thousands of people who do not pose an active public safety threat,” says Paromita Shah, an attorney and former director of the Capital Area Immigrants’ Rights Coalition (CAIR). Because the immigrants have no right to appointed counsel, non-profits like CAIR have sprung up to actively seek out and represent them.
Very little is actually known about the number of immigrants deported for aggravated felonies each year, as the government does not publish official statistics. The most reliable source for such numbers is currently the Transactional Records Access Clearinghouse (TRAC), a data gathering a research unit out of Syracuse University. TRAC has been gathering data on U.S. immigration enforcement for the better part of the last decade and reports that aggravated felonies are one of ICE’s primary deportation tools.
The ICE has more or less acknowledged this in an agency-wide memorandum, former ICE Director John Morton wrote: “The removal of aliens who pose a danger to national security or a risk to public safety shall be ICE’s highest immigration enforcement priority.” However, as TRAC has noted, this policy has resulted in a convergence between local law enforcement and federal immigration law. In other words, deportation is no longer a mere administrative matter; it is being used as a punitive measure for the sorts of crimes that are usually accompanied by due process. This is where most immigration lawyers are finding fault within the system.
McLeod’s paper points out that the 14th amendment—which guarantees due process—applies to all people within U.S. borders, not only to citizens. “As early as 1886,” McLeod wrote me in an email, “the U.S. Supreme Court concluded in Yick Wo v. Hopkins, a case involving the rights of Chinese immigrants, that the 14th Amendment's statement, ‘Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,’ is not confined to the protection of citizens.” The Court’s majority opinion left no room for doubt: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws."
What’s more, McLeod writes, “a criminal conviction is not necessarily a reliable indicator of undesirability or dangerousness.” For that reason, the heightened attention on immigrants like Sylvain and Khoy would not seem to be in the public’s best interest. McLeod cites Harvard sociologist Robert J. Sampson, who found that increases in immigration are “associated with reduced crime rates.” McLeod concludes that the diversion of resources to criminally prosecuting undocumented immigrants may be particularly misguided from a public safety standpoint.
After much criticism, the Obama administration has reconfigured part of a program that allowed the ICE to work directly with local law-enforcement authorities. But recent evidence suggests that the ICE is enforcing quotas. Earlier this week, NPR reported on a policy called the “detention bed mandate,” which requires 250 facilities across the country to fill a total of 34,000 beds per day with detained immigrants. And in leaked internal memos earlier this year, an ICE official chided an Atlanta field office for low deportation numbers: “ATL is about 1200 criminal removals under when compared to last year. Please implement your initiatives and reallocate all available resources. The only performance measures that will count this fiscal year is the criminal alien removal target.”
These numbers may soon increase as a result of the Strengthen and Fortify Enforcement Act (SAFE), which has already passed the House Judiciary Committee and is likely to see a floor vote by the end of the calendar year. The SAFE Act would permit both state and local authorities to implement federal immigration law and would deter humanitarian groups from aiding the undocumented. A number of religious groups have already come out against the Act, which would criminalize the transport or care of undocumented immigrants, a common practice for churches and other humanitarian aid groups across the country. In the meantime, Republicans plan to “take up immigration on a piece-by-piece basis,” said Representative Greg Walden, chair of the National Republican Congressional Committee, at a recent breakfast sponsored by the Christian Science Monitor. Any successful legislation is likely to include language concerning the treatment of criminal aliens.
For now, Sylvain awaits his trial in February.
“This case is my D-Day,” says Sylvain. “I could lose everything, my wife, my family. I know no one in Haiti, only what I’ve seen in pictures. I know only America.”
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