In an address last month, President Obama announced an executive order to redirect government resources away from deporting the millions of undocumented immigrants within the United States and towards “actual threats to our security” instead. He took pride in announcing that criminal deportations have increased by 80 percent during his presidency, and vowed to go after “felons, not families.”
My older brother, Saul, was a part of that 80 percent.
The U.S. government initiated deportation proceedings in May 2007 against Saul as he returned from a holiday in Mexico. Saul is a British citizen, born in London, and at the time his removal proceedings began, he had been living in the United States for almost a full decade as a legal permanent resident. He is a consummate American: He bleeds for the New York Jets, he’s a master of the Thanksgiving turkey, and he admits to watching Goodfellas countless times in his effort to rid himself of his English accent. In 2007, he had also been a tax-paying resident for five years, and was looking forward to being able to apply for U.S. citizenship.
As grounds for deportation, the government cited a misdemeanor—check fraud—that Saul had committed at the age of 19. For the next five years, our family was caught in a lengthy battle against the government in an effort to keep Saul in the country. The process involved three sets of lawyers, tens of thousands of dollars, and the unquantifiable cost of not knowing what the future held. It also provided us with an insider view of a broken immigration infrastructure built upon murky laws, high costs, and a complete lack of regard for the documented immigrant in question.
Before moving on, it’s important to acknowledge Saul’s identity: He is white, he is English-speaking, and he is from a family with financial resources. He is not your typical deportee (the vast majority of deportees are Mexican, with Guatemalans, Hondurans, and Salvadorians following close behind), and although there would be no way to prove it, I would find it hard to believe that his distinctive profile didn’t play a factor in our ability to successfully appeal his removal. Another factor that sets Saul apart from many deportees is that he was never held in one of the country’s numerous detention facilities. Many immigrants—documented and not—are not so lucky. But all the things that set Saul apart from the average deportee only emphasize the struggle that most immigrants facing removal endure.
A key part of the struggle is discerning the reason for your deportation. There are a broad range of offenses that can get a green-card holder booted from the country, ranging from drug use to participation in genocide. The most perplexing reasons for deportation are the ones involving “aggravated felonies” and “crimes involving moral turpitude.” Aggravated felonies sound serious, and many of them are (kidnapping, theft, and bribery make the list, among many others), but there are also many misdemeanors that could fall within this term’s scope due to the mismatch between federal and state law. Crimes of moral turpitude are equally tricky. The concept originates from the late-19th century, and although it has never been officially defined in law, it has been accepted in the common-law tradition as referring “generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Some may consider the definition rather Victorian in its sensibilities, but regardless, the commonly-accepted definition is loose enough that many crimes—both misdemeanors and felonies—fall within this category. The fraud that Saul committed, for instance, was a crime of moral turpitude.
Aggravated felonies and crimes of moral turpitude are opaque enough in their definitions that it would be difficult for most immigrants—even English-speaking immigrants—to know whether they are in danger of deportation.
“You could be a wife and mother to U.S. citizen children, contributing to your community and working to support your family, and they could deport you because of a shoplifting conviction you committed 15 years ago, despite years of rehabilitation in the meantime,” says Heidi Altman, an attorney and legal director of the Capital Area Immigrants’ Rights (CAIR) Coalition. And that’s exactly what seems to be happening to many immigrants. A Human Rights Watch report shows that between 1997 and 2007, 77.1 percent of legal immigrants who were deported were deported for non-violent offenses, such as immigration crimes, DUIs, and illegal entry. Moreover, according to a report from the Transactional Records Access Clearinghouse at Syracuse University, the number of deportees who have been convicted “of any criminal offense apart from an immigration or traffic violation has actually declined.” Despite the administration’s claim that it is targeting threats to the public, the numbers tell a different story.
The good news is that if the government files deportation proceedings against you, you have the ability to appeal. The bad news is that if you can’t afford representation or aren’t lucky enough to get your case taken on pro bono, you’re on your own in court. Unlike in criminal court, where anyone—citizen and non-citizen alike—is entitled to counsel, there is no such right in immigration law. As a result, 60 percent of detained immigrants and 27 percent of non-detained immigrants lack any legal representation when facing removal. The importance of having representation cannot be overstated: Immigrants with lawyers are six times more likely to successfully appeal deportation, according to CAIR.
The greatest barrier to having a lawyer, unsurprisingly, is being able to afford one. Fortunately, my family was able to afford a lawyer for Saul, but the cost was significant, amounting to approximately $55,000. Importantly, Saul was a non-detained defendant. Most of U.S. Immigration and Customs Enforcement’s (ICE) detention facilities are located well outside urban centers, increasing the cost of and decreasing accessibility to high-quality representation.
This would potentially not be a significant issue if only a minority of deportees were detained, but this is not the case. Although there are no numbers showing the exact percentage of criminal deportees held in detention, Claudia Valenzuela, associate director of litigation at the National Immigrant Justice Center, told me that detention is the rule, not the exception.
“All individuals convicted of a criminal offense could theoretically come under ICE custody … I would say the majority of individuals would not be eligible for a bond [for release],” Valenzuela said.
With the median household income for immigrants at $43,892, affording representation is usually out of the question, even for those not in detention.
Saul was lucky. He could afford an attorney, and he was able to understand the court proceedings conducted in English (court interpreters only translate communications between non-English-speaking and English-speaking individuals; non-English speakers are left in the dark about all other communication). These factors enabled him to successfully appeal his deportation, which places him in the minority of immigrants facing deportation proceedings.
That doesn’t mean the process was painless, however. The uncertainty of what lay ahead may have been the worst part of the ordeal for our family. As Saul told me, “It is always frightening to know that you may well be forced to leave everything you know.”
Another consequence, ironically, was that Saul became a virtual prisoner within the United States during his deportation proceedings—unable to leave the country because if he did, he would be forbidden from reentering the country for a decade. Saul was forced to stay put while our family in England and Israel got married, had children, and celebrated bar mitzvahs.
“There were people that I had grown up with, and I was unable to witness the most important days of their lives,” he said. “These are things that you cannot get back.”
Last year, the U.S. government deported 216,810 immigrants on the grounds of criminal activity, accounting for 59 percent of all deportations and marking the highest percentage of criminal deportations throughout Obama’s presidency, adding to the upward trend of criminal deportations over the past six years. Given the president’s remarks last month and the need to counter cries from the right of amnesty, immigration authorities will only intensify their efforts against immigrants with criminal convictions even further. Saul is safe now, and on the road to U.S. citizenship.
Meanwhile, hundreds of thousands of families are still waiting to discover whether their loved ones will be able to stay. And under the current legal system, at least 1 million people are one mistake away from the same uncertain fate.
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