MY MESSAGE TO CONGRESS: Enough of the 1996 law, It's Time for a Change!

"The same law shall apply to the native as to the stranger who sojourns among you." Exodus 12:14

On this weekend when we commemorate the legacy of Martin Luther King, Jr., one of the world's renowned civil rights activists who recognized human dignity and freedom above all else, I wish to send my own powerful message to Congress.

As explained in my earlier posts, "The Myth of the Aggravated Felon" and "The Price of Justice," immigration law became wholly unforgiving in 1996. At that time Congress passed an extraordinarily mean-spirited law affecting people who had legally immigrated to the United States and established their lives here. It is now time for Congress to roll back immigration law and (re)enact the pre-1996 provisions pertaining to lawful permanent residents ( also known as "green card holders") before more lives are unjustly ripped apart.

Under the current law, a host of crimes, including misdemeanors and non-violent offenses, are deemed "aggravated felonies." Congress decreed that permanent residents who were convicted of these so-called aggravated felonies were ineligible to present a case before an immigration judge setting forth all of the favorable circumstances in their lives in an attempt to avoid deportation. That is, a judge is stripped of the authority to balance an immigrant's equities against their criminal acts and any other negative factors to determine whether, in spite of the criminal conviction(s), the permanent resident should be given a second chance to remain in the United States. I have been a repeated witness to the cruel consequences this law has had over its lifespan of fourteen years. It has split families, left children without a parent, forced mothers and their children onto welfare, and sent men and women back to countries which they left, and in some cases fled, decades ago.

While our country should indeed address the status of some 12 million hard-working undocumented immigrants who have made this country their home following their dream of a better life, we must absolutely address the pain we have wrought upon permanent residents whom we already invited to live and work in our country and to grow deep roots in this land. I sincerely hope that the "throw-away" mentality that permeates many aspects of American culture has not gone so far as to include human beings. We should be willing to forgive those who have made mistakes, even serious ones, when they can establish compensating circumstances. And, of course, we should give them back their day in court, a fundamental democratic principle. It is clear that the impact of the 1996 law mirrors broader, and quite problematic, trends in the United States as manifested by the mass incarceration and punishment of those who violate drug laws, as opposed to any attempts at successful rehabilitation; by the strikingly disproportionate imprisonment of people of color; and by the continuous promotion of a greedy prison industrial complex which places profits above all. I am reminded of the statement made by Fyodor Dostoyevsky: "The degree of civilization in a society can be judged by entering its prisons." (from The House of the Dead).


Prior to 1996, only the most serious of crimes were aggravated felonies under immigration law. Generally, in order to constitute an aggravated felon, one's offense had to carry a sentence of imprisonment of five years. All other permanent residents would have available a hearing to prove they deserved to stay in the U.S., and judges had the discretion to grant a waiver of deportation if the crime was found to be outweighed by family ties, a long period of residency in this country, a steady employment history, rehabilitation and remorse for their wrongdoing, and other favorable conditions. So decisions about whether one should be deported were left in the able hands of immigration judges who heard testimony and considered evidence on all of these equities. A judge could consider the overall effect of deporting the individual to determine whether s/he merited another chance. Plenty of people were deported under this former scheme, but the deserving stayed and rebuilt their lives. Then Congress intervened, believing it knew better, and struck that power from the judges. Since then, I have sat with grown men and watched them break down when they learn this aspect of our law. They are truly stunned when
I tell them that they will be deported without the chance to present a defense.

At the detention center not too long ago, I represented a fortyish year old Laotian man who came to the United States as a twelve year old refugee, after spending five years of his young life in a refugee camp in Thailand. He was ordered deported as an aggravated felon. His aggravated felony offense? In 1987, he had forged his brother’s signature on a check and was sentenced to one year of imprisonment, though he actually served less. He was helping a crack-addicted girlfriend get money for a fix. Under the law, a crime of theft with a one-year sentenced imposed, whether or not it is actually served, is an aggravated felony. So one night, while he was home having dinner with his family, the man was picked up by agents for the Department of Homeland Security, ten years after he'd been released from jail for the forgery. He was ordered deported to Laos, a country from which he and his entire family had fled 33 years earlier. His brother forgave him for the offense when my client paid him back the money he'd stolen. However, the U.S. never did.

Here are more examples of people whose stories will never be heard because they are "aggravated felons":

A Ghanaian man I met recently came to the United States in 2000 with his parents and siblings after they'd won the "green card lottery." Shortly after he immigrated he enlisted in the U.S. Army and was sent to Iraq. According to his DD-214 papers, he was honorably discharged from the military after his five years of service. He was then convicted of selling a drug. The sale of any quantity of any drug at any time is an aggravated felony under Congress's draconian law. He will return to Ghana if he has not already. No one will hear about the trauma of war and how it might lead someone to use drugs to still his nerves. Yet, how much more American can one be? This young man was prepared to sacrifice his life for his adopted homeland. I've known the same to happen to Gulf War veterans, as well as those who were drafted in the U.S. war in Vietnam. In one case, a client of mine had immigrated in 1958, and was a grandfather as well as a veteran. Not surprisingly, his experiences in Vietnam led him to a heroin addiction, which later resulted in a drug sale to support the habit. In fact the problem seems all too common according to sources:
Here and Here and Here

In a "Know Your Rights" session conducted in Spanish at the detention facility, one of the men looked at me quizzically as I spoke to the assembled group. He was born in Central America but could not understand Spanish since he had immigrated to the U.S. as a child and never returned to the country of his nationality. He was now the young father of a disabled boy and a little girl, and was desperately trying to patch his life up. Foolishly, he had sold $200 worth of ecstasy. Coincidentally, in the same group there was a Dominican citizen who had immigrated with his entire family in the 1960's at the age of four, much like me. He was an aggravated felon based upon an offense for which he had been convicted a decade earlier. The Government alleged that it was a violent crime for which he had received a one year sentence, but the criminal system had released him after eight months. He admitted to me that he had developed an alcohol addiction after the death of his beloved father, which had led him into trouble, although he had managed to overcome it.

In the years immediately after passage of the unforgiving 1996 immigration law, I attempted to help a woman with a relatively troubled past involving drug abuse and the sad incidents that plague those who are addicts. She had arrived in the U.S. from Europe as a three-year-old with her mother. She had never known her father. She was deported as an aggravated felon. Upon arrival at the airport in her native country, where the former Immigration and Naturalization service officers left her after accompanying her on the journey back, she had no idea what to do. She lived in the airport for a few days and then decided to contact her estranged father. He came to meet her, but explained that so many years had passed and he had moved on with his life. There was no room anymore for a daughter he hadn't known or seen in over thirty years. He handed her a few hundred dollars and left. But for the Grace of God go I...

EPILOGUE
"And why did they not become U.S. citizens?" I am often asked, "then they would not have been deportable." "Because," I answer, "many felt like citizens already." I sympathize because I know this personally. I immigrated when I was three years old and remained a permanent resident until the age of 22 when I enrolled in law school. I knew that legally I was not a citizen because I kept a "green card" in my wallet which I had to produce whenever I traveled abroad. But I felt like an American; I spoke English as well as any American, and knew this country's history and culture intimately. So why was a piece of paper proving my citizenship necessary?

It is also important to note that the cost of filing for naturalization is also prohibitive for many low income and working class people. The current fee to file a citizenship application is $595. plus the $80. cost for the required biometrics. Add to that the price of two passport photos, which are also required, and you might realize why immigrants do not consider naturalization a priority.