Nearly 1 in 3 of the inmates being released from U.S. prisons this month as part of an effort to roll back harsh drug sentences will not be returning to the states and cities where they were arrested.
Instead, they are being deported.
They are non-U.S. citizens, although some were here legally when they were caught selling drugs and sentenced under the “mandatory minimum” laws that grew out of the 1980s crack cocaine epidemic.
As with all of the 6,000 prisoners selected for the Federal Bureau of Prisons’ largest-ever mass release, non-citizen inmates were found to not be a threat to society. But every one of the non-citizens in the group either had received deportation orders from immigration judges or was being reviewed for deportation before the mass release was planned, Immigration and Customs Enforcement officials said.
The sudden, large-scale deportation is a byproduct of two distinct federal policies: freeing inmates whose drug sentences are now widely seen as excessive, and deporting non-citizens with criminal convictions after they serve their time, with virtually no opportunity for appeal.
Officials at ICE said 763 of the non-citizen inmates in the first mass-release group have final deportation orders and are being sent out of the country swiftly. The remaining 1,026 inmates will be in ICE’s custody until their cases are completed.
“For us this is nothing new. It is what we do every day,” said one ICE official, speaking on the condition of anonymity under agency policy. Securing advance deportation orders “makes sense on many levels,” the official said, because it prevents non-citizen prisoners from going back into U.S. society after release, and possibly returning to crime.
While people who are in this country illegally have the right to appeal deportation orders if they have not been convicted of a criminal offense, that right essentially disappears once a non-citizen — legal or otherwise — ends up in prison.
Advocates argue that non-citizen convicts also should be able to ask a judge to overturn a deportation order, especially if they may be eligible for exemption as an abused spouse, torture victim or on other grounds. But their efforts have gone nowhere, even as the first round of mass releases has begun.
“We’re not asking that all of these people be allowed to stay in the country,” said Joanne Lin, legislative counsel for the American Civil Liberties Union. “They have served their time and have been found to pose no public danger. We owe them a close review and due process, not a double punishment.”
Some conservative critics disagree, saying that expelling a foreigner does not necessarily constitute punishment and that the non-citizens still benefit from leaving prison early.
“If anyone should be deported, it is drug criminals from jail,” said Mark Krikorian, executive director of the Center for Immigration Studies in the District. Even immigrant advocates who oppose most deportations, he added, should say “yes, in this one instance, these people really should be deported.”
One of the prisoners facing deportation is Ramon Caro, 61, an immigrant from the Dominican Republic who had been in the United States for eight years when he was convicted of selling drugs in the late 1980s. He has spent 27 years in federal prisons, using letters and phone calls to stay in touch with his wife, who is a U.S. citizen, and his U.S.-born son and daughter.
“We were as close as one could be with a father in prison,” said Caro’s son, Staff Sgt. Alexander Caro, 28, who lives in Queens. “We always knew he could get deported one day, but this is so sudden. We won’t be able to see him at all now. It seems like an injustice.”
Another longtime prisoner from the Dominican Republic, Maria Polanco, was serving a 22-year sentence for selling drugs with her husband in the Bronx. Polanco was released from prison last Friday and sent to an immigration detention center to await deportation to a country she has not visited since 1981. She has five children and seven grandchildren in the United States.
“All of this time, I lost my children, and after that, my grandchildren,” Polanco told areporter for Truthout, an online news organization.
In an Oct. 29 letter to ICE Director Sarah Saldaña, the American Immigration Lawyers Association joined the ACLU and a dozen other rights organizations to ask that non-citizens approved for early release be allowed to consult a lawyer to determine whether they can apply for humanitarian relief or political asylum.
The letter suggests that there is a deep “schism” between the Justice Department, which championed the sentencing reforms that laid the groundwork for early release, and ICE, which enforces immigration laws. It urged ICE to allow non-citizens a “meaningful opportunity” to seek deportation relief.
“This new policy was intended to make sure sentences are fair and to provide some leniency for prisoners who don’t need to be incarcerated any longer,” said Greg Chen, advocacy director for the lawyers association. “Unfortunately, those who are not citizens are getting a starkly different result.”
Federal public defenders, who have been flooded with prisoners’ petitions for sentence reductions under the new policy, said the majority of those to be released were convicted on federal drug conspiracy charges, in which someone who buys or sells drugs with a partner can be charged with selling the amount both people possessed, thus earning a stiffer sentence.
“I’ve seen people get mandatory life sentences for their first offense,” said Caroline Platt, a federal public defender in Alexandria, Va.“With conspiracy, the more people, the higher the [drug] weight and the longer the sentence.”
Heidi Altman, legal director for the Capital Area Immigrants’ Rights Coalition, said ICE is supposed to focus on deporting immigrants who are “enforcement priorities” and whose “removal is in the federal interest.”
Among those in the mass release group, she said, there are probably “long-term U.S. residents who are leaving behind families they could be supporting” and whose deportation “is not in our interests. ICE needs to be asking those questions and making those individual determinations.”
ICE officials said the majority of immigrants with final deportation orders are from Mexico and Central America; others come from Colombia, Pakistan and elsewhere. The officials did not say what proportion were legal or illegal immigrants, but they noted that immigration judges may revoke legal status, including permanent residency, if a non-citizen is convicted of certain major crimes.
With the nation sharply divided on immigration policy, the Obama administration has pointedly focused its deportation efforts on convicted criminals who are non-citizens. That approach is intended in part to deflect criticism from the administration’s proposals to offer a path to legal residency for undocumented immigrants who are otherwise law-abiding.
Advocates acknowledge that non-citizen convicts are unlikely to garner much public or official sympathy. Still, said Alisa Wellek, director of the New York-based Immigrant Defense Project, “these people have already been punished for their offenses. Now the government wants to punish them all over again without giving them a fair chance to defend themselves. This doesn’t reflect our values as a country.”