Support Our Troops: YOUR TAX DOLLARS AT WORK

In a post below entitled My Message to Congress, I briefly introduced readers to a young man from Ghana, a permanent resident, now in removal proceedings and subject to mandatory deportation because he is an “aggravated felon.” The fact that one year after he obtained his “green card” he enlisted in the U.S. Army, served five years, two of which were in combat in Iraq, and was then honorably discharged, makes no difference. He will be deported. It makes no ounce of difference that he served this country during the war, because this veteran—who is not alone in this dilemma—was convicted of attempted possession of a controlled substance with intent to sell. Under immigration law, any drug offense involving a sale is an aggravated felony, and there is no relief from removal for aggravated felons.

When I mentioned all of this to a dear friend, who is unfamiliar with the more disgraceful provisions of immigration law, he was astounded at the injustice. His straightforward reaction was, “Are you kidding me? They're deporting someone who served this country in Iraq?” When I affirmed this troubling fact, he responded to me that he was "sad, angry and ashamed all at the same time." This candid assessment from an American citizen led me to think even more about the madness of this law.


If the war veteran had simply been convicted of possession of a drug, he would not be automatically deportable. In that situation, he would have available a waiver called cancellation of removal. Therefore, logically, if we could vacate his current conviction and have him re-plead to a simple possession offense, we’d be in fairly good shape. The new conviction would allow him to appear before an immigration judge so that the judge could balance the sacrifice that the foreign-born soldier had made by serving in the U.S. Armed Forces, along with any other equities, against the seriousness of his crime and any other negative factors. One would hope that the judge would find that the former clearly outweighed the later. After all, this young man not only served his adopted country, but was injured in the line of duty. While this sounds like a good strategy, it is also, unfortunately, the point at which I believe things become nonsensical—especially for you and I, American taxpayers.

For the last few decades in the United States, our society has come to consider offenses related to drugs among the most serious of crimes. We often punish drug offenders drastically (especially in New York State under the “Rockefeller laws”), and seldom seem to consider the value of rehabilitating drug users with well-designed, effective programs to help them overcome their substance abuse.
Consequently, we invest millions of dollars in a law enforcement system that prosecutes and incarcerates. Presumably, it is for this reason that the Ghanaian was severely punished for his wrongdoing. The criminal justice system was not the least bit sympathetic that he had enlisted to serve his new homeland in a brutal war, and disabled by his military service. He was still required to plead to the more serious offense of intending to sell the controlled substance which he possessed. And after he served his county jail sentence of six months, Immigration and Customs Enforcement (ICE) placed a hold on him and brought him to their custody, at an estimated cost of $90 per day. He has now been detained by ICE for over two months.

So, if I am now fortunate enough to find a pro bono criminal defense attorney (which is proving to be a difficult task) to make a motion to vacate the conviction on behalf of the Ghanaian, because no veteran deserves deportation after having served in the U.S. military during war, then the already overburdened criminal justice system will be required to once again take a look at this case. Chances are, given what I am told by those with more experience than I in such matters, we would likely prevail in vacating the conviction. But what does this lengthy process realistically cost us? We have already paid for the arrest, prosecution and incarceration, as well as two months of immigration detention in this matter. And, if we are successful in vacating the charge, what does this say about the crimes our society ostensibly considers serious? Isn't it a bit illogical to initially make someone "pay" for a certain offense, then later change our minds when we realize the ramifications and regret our decision? Wouldn’t it have been more efficient to handle such a matter fairly in the first place, and consider all of the relevant factors before accepting the plea, including the defendant’s status as a noncitizen veteran potentially subject to automatic removal from the U.S.? To consider my questions fully, I invite you to read my first post on this blog, The Price of Justice. You may also end up shaking your head in disbelief, like my friend, at all the irrationality. Frankly, the only winners that I can identify in the system that led to the above–described result are lawyers who get paid for their services. But the taxpaying public sorely loses, not to mention the grave impact all of this has on the war veteran and his/her family.

My critique is not limited to the criminal process. I also think there is a major flaw in the immigration system as I have detailed fully in previous posts on this subject (and the recent ABA report confirms this, see post below). However, now I will add one more issue to this debate. Those who represent the interests of the U.S. Government in the removal process are entitled to exercise prosecutorial discretion. This means that they do not have to arrest and/or “prosecute” every deportable immigrant they encounter. Honorably discharged veterans of armed conflict are just the kind of people for whom such discretion should be exercised. It would certainly save a great deal of expense and grief if the Government regularly considered this option as a matter of policy in the true spirit of the bumper sticker, "support our troops." Instead, it would appear that immigration officials would prefer that the immigrant veteran pursue the expensive option of vacating a conviction, which if successful, would render him/her eligible for a defense against removal. However, ultimately, this tactic puts the person in virtually the same position as if the Government had exercised prosecutorial discretion in the first place, yet at much more expense to the taxpayer. And what if the detained, indigent immigrant cannot afford such a costly strategy and no pro bono lawyers are willing to help?

Finally, I must once again turn my frustration to Congress, the branch of Government that passes these laws without fully comprehending their reach, their unjustified cost, and their potential malice.

Note: For more information on the Rockefeller Drug Laws, see http://www.drugpolicy.org/statebystate/newyork/rockefellerd/ and http://www.nyclu.org/issues/racial-justice/rockefeller-drug-law-reform; an excellent book on the issue is Life on the Outside by Jennifer Gonnerman (Picador, 2005).

Note: I am very fortunate to work in a jurisdiction where my opposing colleagues are reasonable, and they have exercised discretion in the past when they believed that the facts warranted it. However, with cases involving drug convictions, I would guess that without a directive from above, they would feel uncomfortable going out on a limb no matter what they think personally about the case. Therefore, a nationwide policy from DHS is imperative unless Congress changes this law.