The Myth of the Aggravated Felon

When I look at the small photo on his visa face sheet, the document created by a U.S. consulate when it has granted someone a visa to enter the country as a permanent resident, I see only innocence and lots of hope. Even if the document is just an imperfect, black and white copy, I notice the broad grin, deep brown eyes, and the large, goofy ears of the six year old who is now a grown man sitting beside me in the attorney visitation room of the detention center. I also cannot help but think about his mother. Back then, when Henry was only seven years old, she and her children were about to start their lives over in a country not too far from the patient and fertile shores of their native Jamaica; a prosperous country filled with much more promise for them. I know she would have never guessed then that, almost thirty years later, her son would face banishment from their adopted land for having once sold a rock of crack. She wanted for her sweet boy what all mothers want for their children--a stable and accomplished life.


In the U.S., soft-spoken Henry was raised in a fairly quiet town a hundred miles or so from the chaos of New York City, where other relatives of his had settled. It is not a place where one might have expected to find Jamaican immigrants, but it provided the family with a degree of sanity and comfort they could not have found in New York. Henry graduated from high school and attended vocational school, hoping to become a carpenter. At 19, his girlfriend gave birth to their first daughter. The baby and her mother lived in a nearby town. Though he was not yet ready for marriage, Henry visited as often as possible and provided as best as he could for his little girl. He tried to spend every Saturday or Sunday with her when he was off from work.
In the years that followed, Henry had a couple of minor brushes with the law—a petty larceny charge that was dismissed and a two assault convictions for which he spent no time in jail. He finished his probation for the second assault in three years, and thought he’d left trouble behind him for good. Soon, a second daughter was unexpectedly born, yet Henry was equally committed to her as he was to his first child. He took fatherhood seriously for a young man raised without his own dad.

Henry was close to his mother and had never really known his father, an altogether too common experience these days, especially for men in jail. Henry’s mother had worked as a nurse’s aide in a local senior home for over two decades. She worked long, tiring hours at miserable wages to support her three children by caring for the aged and frail parents of others. Still, she did as much as she could for her kids to instill in them strong values and ensure they would thrive in the world. First and foremost she insisted that they attend church and school. She also proudly clung to her Jamaican roots, though she traveled back only once when her own mother passed away. Time and money were always too short for vacations. Henry spoke to me lovingly about his mother, and in particular, about her traditional cooking. He’d rattle off the dishes she made with a greedy smile on his face: oxtail stew, curried goat, jerk chicken, fried dumplings, red peas and rice. He now wished she had taught him how to cook, but he’d been too "macho," and always too distracted to learn.

Henry was also grateful for the effort his mother had made to keep her children out of harm’s way. He remembered how she would wait outside their apartment building as the sun set with her hands on her hips, until all three of her children were safely inside. He had a friend in Brooklyn whose drug-dealing father had been gunned down before his eyes when the boy was only ten years old. Henry knew that life in "The City" would have posed much more of a challenge for him. There, mothers worked two or three jobs to make ends meet and had little time to keep an eye out for their kids, even if they’d wanted to. Even in the town where he grew up, though, in what seemed like idyllic America, Henry had his share of problems, and he began to challenge his mother’s strictness as soon as he got old and bold enough.
After the upheaval of three convictions, Henry seemed ready to settle down. He married the woman with whom he’d been living for the previous four years, and together they bought a "fixer-upper" at auction. He opened a small clothing store, and worked a part-time job to make ends meet. He saw his daughters as often as he could, and sent them money regularly. Henry’s youngest sister, who was studying engineering at a local university, found her brother inspiring. He pushed her to do her best. Henry’s eldest sister called him a good, solid father and a generous man.

And then, no one can really recall when exactly, Henry was lured by crack. Like many, he had tried drugs in the past from time to time, but this time, they slowly overwhelmed him. They took his mind off his troubles, especially when the bills were too much and his girlfriend and he argued over money, or when he missed his little girls and felt he wasn’t doing enough for them. He got in deeper as much as he tried to resist. He spent more and more of his income on the festering addiction, and unfortunately, spent more time hanging out with other users. His girlfriend often threatened to leave him.
One day, on his way home from work, Henry picked up a guy he’d met at a party a couple weeks earlier. He thinks the man’s name was Mike, but it could have been Marty. The guy was on a street corner smoking a cigarette, and when he recognized the car at a traffic light, he waved for Henry to stop. Henry gave him a ride to someone’s house in a corner of town to which he rarely ventured. Henry had never been to the place before and didn’t know who lived there or what Mike’s business was. He probably should have asked some questions because when he pulled over the car, the police were right behind him. They ordered the two men out of the car, searched it and found six grams of crack, a pipe and several hundred dollars in his passenger’s backpack.

Upon the advice of his defense attorney, Henry pleaded guilty to possession with intent to sell cocaine and was sentenced to a three year term of imprisonment. Luckily, he was eligible for SHOCK, a prison program which operates like a military boot camp, with the aim of rehabilitating non-violent offenders, mostly those convicted of minor drug crimes. According to the U.S. Department of Justice, the programs seeks to foster involvement, self direction, and individual responsibility though a regimen that involves strict, military-style discipline, unquestioning obedience to orders, and highly structured days filled with drill and hard work. I can always easily tell when one of my client’s has been incarcerated in SHOCK. They respond to my questions with either a "ma’am, yes, ma’am" or a "ma’am, no, ma’am." Certainly, Henry reasoned, the fact that the criminal court system had deemed him a candidate for SHOCK indicated that he wasn’t an evil person—the law recognized he’d made a mistake, but was not forever enmeshed in a life of crime from which he could never escape. What he really needed was help with his drug habit.

Unfortunately, immigration law is not the least bit forgiving, thanks to Congress’ "reforms" in 1996. Apparently fed up with crime and illegal immigration, Congress targeted permanent residents who had been convicted of crimes, and overhauled various provisions of the law that affected them. Most notably, it expanded the definition of which crimes to include in the category of "aggravated felonies," and then provided that those who had been convicted of these so-called crimes would no longer be eligible for a special waiver from deportation no matter how long they’d lived in the U.S. legally. What people often do not realize is that an "aggravated felony" can include a misdemeanor or other minor offense.

Since Henry had never applied to become a U.S. citizen, he was deportable for his drug conviction despite the years he’d lived here with a "green card" and the roots he had firmly planted. Even worse, as one convicted of an offense related to the sale of a drug, he was an aggravated felon, and Henry lost the right to tell an immigration judge about his strong ties to the United States, his loving family members, his past accomplishments, and his sincere effort at overcoming his addiction. The Government was basically entitled to put him on a plane back to Jamaica without the chance to be heard. The first time Henry ever heard any of this was on the day he met me. His criminal defense attorney never mentioned this drastic part of the sentence. Henry could not believe he had no hope of remaining in the U.S. There was no one left for him in Jamaica. So instead of being released to the streets after graduating from SHOCK in six months, Henry was picked up by Immigration and Customs Enforcement for deportation and was taken to the federal detention facility in Batavia, a farming town just off the New York State Thruway, halfway between Buffalo and Rochester.

By the time of his release from SHOCK, Henry’s mother had learned that her son was likely to be deported from the United States unless his last conviction could be overturned. She hired a criminal defense lawyer, who agreed to a payment plan for his fees, to look into the possibilities to save her son. The lawyer relied on a provision of law that allows for the vacatur of a conviction that was not properly obtained. In this case, Henry’s lawyer argued that since Henry had never been advised of the immigration consequences of his plea to a drug sale, the conviction should be vacated, or erased from his record. As I told Henry, this wasn’t a slam dunk. The law on vacaturs in New York is tough.

Unfortunately, the conviction had not yet been vacated by the time Henry appeared before the immigration judge for his deportation hearing. He did not have an attorney with him there because immigration law does not provide a lawyer at government expense. There are no public defenders in immigration court, and Henry’s mother’s meager savings were wiped out by the attempt to undo his criminal conviction. Given the state of the law, Henry was ordered deported to Jamaica.

Somehow luck still shone on Henry, and he found an attorney who was willing to appeal the deportation order for a modest fee that his girlfriend could afford. By then, the drug conviction was successfully vacated, though the family was absolutely broke and completely disillusioned by their ordeal. After over six months of immigration detention, more than he’d spent serving for his crime, Henry realized how fictitious his legal rights in the U.S. could be, and how easily he had become undesirable to the community he called home. A legal creation—the term aggravated felon—had turned his life upside-down. He’d come desperately close to losing everything that had meaning for him without the chance to tell his side of the story.

A week after his release from several months of immigration detention, I called Henry. He was at work. When I asked how he was, he sighed in relief. "I’m so happy to just be working." The simple contentment Henry felt struck me.