Every year, thousands of longtime, legal permanent residents are deported from the United States on the basis of criminal convictions without any opportunity to present evidence of their family ties, employment history or rehabilitation. Many are barred for life from returning to America.
Next Sunday will mark 10 years since the Illegal Immigration Reform and Immigrant Responsibility Act went into effect. This broad legislation, together with the Antiterrorism and Effective Death Penalty Act, took away the power of immigration judges to exercise discretion in most types of deportation proceedings. Congress dramatically expanded the list of offenses resulting in mandatory deportation so that it now includes many crimes that are considered misdemeanors under state law and that result in no jail time. Individuals can be deported for shoplifting, jumping subway turnstiles, drunken driving and petty drug crimes. Some of those who have been subject to mandatory deportation came to the United States as infants and have never known life elsewhere.
Some arrived as refugees fleeing persecution or as children adopted by American couples. One man, a former child refugee from the genocidal regime of the Khmer Rouge, was deported back to Cambodia for urinating in public; while working as a construction manager, he had relieved himself at a job site.
Studies by professors at Harvard and the University of California have shown that immigrants commit crimes at lower rates than do native-born Americans. And in many cases, those who do run into trouble with the law -- often in their teens or early 20s -- go on to become productive members of their communities. Many Uch, convicted at 18 for being an accomplice in an armed robbery, became a small-business owner, Little League coach and volunteer with a youth outreach program. Yet he's been ordered out of the country, and he can't appeal.
Wayne Smith, who was convicted of possession of cocaine and attempted distribution, overcame his addiction to drugs and became a model prisoner. While in prison, he attended classes through the University of the District of Columbia and coordinated Christian services at the prison chapel. After being released he continued to volunteer with the prison ministry, obtained a scholarship to complete his studies, worked as a drug treatment counselor and started a business that employed more than a dozen people. He also cared for his wife, who was ill with breast cancer, and was a loving father to his children. Nevertheless, Smith was deported to Trinidad.
The deportation of longtime residents has had devastating effects on American families. Gerardo Antonio Mosquera, a forklift operator deported after three decades in the United States for selling $10 worth of marijuana to a paid police informant, left behind in Los Angeles a wife and four children, all of them U.S. citizens. His 17-year-old son, despondent over the loss of his father, committed suicide three months later. Mosquera was not allowed into the country to attend the funeral.
It is time to restore immigration judges' power to look at all of the relevant information when deciding whether deportation is warranted. The Child Citizen Protection Act, sponsored by Rep. Jose Serrano (D-N.Y.), would allow immigration judges, when deciding whether to deport parents, to consider the interests of children who are U.S. citizens. No immigration reform package will be complete if it ignores the grave injustices wrought by mandatory deportation.
It is hard to see the rationale behind our inflexible deportation laws given that last year, according to news reports, 12 percent of new Army recruits had criminal records including felonies or serious misdemeanors such as aggravated assault and vehicular homicide. Just as the military considers evidence of rehabilitation in deciding whether to grant moral waivers for enlistment to ex-offenders, immigration judges should be able to consider a longtime resident's complete record in deportation proceedings.
After all, shouldn't anyone who can be trusted with a government-issued weapon also be trusted to live a law-abiding life in the United States?
The writer is a supervising attorney focusing on post-deportation human rights issues at the Center for Human Rights and International Justice at Boston College.