The NewStandard ceased publishing on April 27, 2007.

Immigrantsâ€TM Stories Expose Murkiness of Deportation Laws

by Michelle Chen

As non-citizens are routinely expelled from the US for even minor infractions, some immigration advocates want a more-personalized, less-mandatory response.

*A correction was appended to this feature article after initial publication.

Feb. 1, 2007 – Camal Marchabeyoglu was looking forward to going home after a few months locked up for petty theft. But as he left the county jail, immigration officials welcomed him back into custody. They had remembered what he had practically forgotten: he was not a US citizen.

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Marchabeyoglu, 46, is a green-card holder who came to America as a toddler, so he wasn’t worrying about his immigration status when he swiped stamps from a San Diego post office while drunk. But his infraction, when combined with prior offenses under California’s sentencing laws, triggered a sentence of lifelong banishment from the only country he had ever known.

When the immigration officers picked him up, he recalled, "I was thinking to myself, well, by the time they fingerprint me and find out for sure who I am, they’re going to say, ‘Oh, this guy’s a legal alien, and he got rights to be here in the United States,’ so they’re going to let me go."

But it took almost seven years of court battles before the government finally stopped trying to remove Marchabeyoglu from the country. And he is considered a fortunate survivor of the deportation system. Each year, tens of thousands of immigrants, many of them long-term, legally authorized residents, are ensnared by a complex set of immigration statutes and ordered out of the country for breaking US laws.

According to federal data analyzed by the Transactional Records Access Clearinghouse (TRAC), a governmental-research group based at Syracuse University, so-called "aggravated felony" charges led to deportation orders for more than 26,000 immigrants in Fiscal Year 2005 alone.

The consequence of an aggravated felony conviction is a uniquely restricted legal process, followed by lifelong banishment from the United States.

The study also found that, among aggravated felons ordered deported by immigration court since 1997, the average time of US residence was approximately 15 years.

The category of "aggravated felony" was initially limited to major crimes, like murder and weapons trafficking, committed by non-citizens. But amid political anxiety over immigration in the 1990s, lawmakers expanded the list. Today, aggravated felonies include violent offenses carrying a sentence of one year or longer, some types of fraud, certain smuggling infractions, and various other nonviolent crimes considered misdemeanors under state laws.

Typically, the consequence of an aggravated felony conviction is a uniquely restricted legal process, followed by lifelong banishment from the United States.

"Once you call someone an aggravated felon, you can basically take away their rights, without anyone asking any questions," said Subhash Kateel with Families for Freedom, which organizes families affected by deportation and detention.

Fast-track to Deportation

Tom Griffin, a Philadelphia-based attorney specializing in deportation defense, noted that deportation proceedings are considered part of civil, not criminal law. "The constitutional protections that arise when being accused of a crime do not arise for a person in immigration proceedings," he explained, "even though they might be imprisoned for months or even years awaiting the outcome of a case."

Under a fair review system, advocates argue, a sweeping deportation policy could not be justified

There is no guaranteed right to counsel in such cases, and detainees cannot be released on bond. Instead they are subject to "mandatory detention" while their case is pending.

"This one individual who could be very important to the fabric of that family and that community is really ripped away," said Victoria Lopez, executive director of the Arizona-based Florence Immigrant and Refugee Rights Project, a legal-services group. The hardship is compounded, she added, if a main income-earner is ultimately deported, leaving dependents to survive on their own.

The law affords people convicted of aggravated felonies few avenues for relief.

Aggravated felons are specifically precluded from seeking asylum status, though they can petition for protection from a significant threat of torture under the United Nations Convention Against Torture.

If the aggravated-felony charge withstands court review, an immigration judge has almost no discretion to block deportation. While special waivers can be granted in other deportation proceedings, for virtually all aggravated-felony cases, the court cannot consider an otherwise completely clean record, the risk of harmful impacts on a family, or the threat of persecution overseas.

A compounding factor, Griffin and other immigration lawyers told The NewStandard, is that since the aggravated-felony designation is made only after a criminal conviction, immigrants often decide to plead guilty not knowing that could lead to deportation later on.

Unlike lawful permanent residents, immigrants who are not legally present in the country and are deemed aggravated felons can be deported without even a guaranteed hearing before an immigration judge. They are subject to "administrative" removal orders, handled internally by Immigration and Customs Enforcement (ICE). According to TRAC, in fiscal year 2005, such orders constituted just over half of deportation decisions for aggravated felons.

Splitting Communities across Borders

As their cases wear on, desperate detainees submit to deportation, just to be freed from detention.

Some see ejecting foreign-born criminals as a rational safety measure.

"I don't think there's any question that the vast majority of people – the public and the government – realize that we don't need more criminals in this country," said Rosemary Jenks, director of government relations with Numbers USA, a group that advocates reducing immigration.

ICE spokesperson Tim Counts defended the fast-tracked deportation of undocumented aggravated felons, arguing, "under the law, people who are in the country illegally and have committed crimes here are allowed only so much due process."

For immigrants generally, Counts said: "US immigration laws say: ‘We welcome you as a guest, but if you commit certain crimes, the deal is off; you must go home.’"

But rights groups say immigrants should be judged by the same standards applied to citizens, including consideration of their circumstances and ties to the community. Under a fair review system, they argue, a sweeping deportation policy could not be justified.

"It’s not about, ‘People should pay the consequences for their crime,’" said Kateel of Families for Freedom. Since aggravated-felony cases often target those who "already served their sentence for their crime" and may now be rehabilitated or play a strong role in their communities, he argued, "All people are really saying is that you should have a reliable hearing in front of a fair immigration judge that can consider all of these circumstances and then decide whether it’s a good idea to deport you or not."

In a criminal case, immigrants often decide to plead guilty not knowing that could lead to deportation later on.

For immigrants who have spent much of their lives in the United States, deportation could mean a forcible "return" to a country where they have no familial, cultural or even citizenship ties, and where they could be vulnerable to persecution.

In Chicago, the family of 22-year old Filmon Mengstab is baffled that a drug-related conviction led the government to order him removed to Ethiopia. Eritrean by descent and born in a Sudanese refugee camp, he is connected to Ethiopia primarily through the civil conflict that displaced his family in the 1980s. Mengstab never officially obtained asylum status in the United States, and because his conviction relates to drug trafficking, federal law now bars him from doing so.

Mengstab’s family told TNS he lacks any citizenship ties to Ethiopia, has no relatives there and cannot even speak the language. They want the US government to either place him in a country where he can live safely or just allow him to remain here.

"He has family here, tons of family from Seattle to Chicago," said Tesfaldet Abraham, Mengstab’s third uncle. "For us as a family, more jail time is better than going to Ethiopia."

A similar forced migration has uprooted Rafiu Abimbola. Though he says there is no worse place for him to be than his native Nigeria, the government nonetheless sent him there in December, after deeming him an aggravated felon based on 1997 convictions related to bank-fraud. After more than a decade of working and attending school in the United States, and then serving a prison sentence for his crime, the 39-year-old former security guard said he is now unable to find decent employment. He is also estranged from his family in New York, and due to his active role in the Nigerian Christian community, Abimbola faces the physical danger of religious persecution.

For several years, Abimbola has battled his deportation order unsuccessfully in court, yet even from overseas, he is still trying to press a petition in the Fifth Circuit appeals court. The possibility of legal relief is slim, he acknowledged, and he sees virtually no chance of reuniting with his wife and children.

Speaking by phone from Nigeria, he said of his post-deportation life: "I feel suicidal a lot of the time … There’s no hope of survival. It’s just bad."

Captivity Without Limits

While deportation is the worst-case scenario for some, other immigrants say the idea of banishment abroad pales in comparison to the misery of mandatory detention.

A recent audit by the Homeland Security Inspector General’s office documented abuses at several immigration detention centers. The reported violations range from alleged physical abuse by staff, to deprivation of medical services and recreation time, to surveillance of detainees’ phone calls.

"It’s inhumane," said Marchabeyoglu, who spent two years at the San Diego Correctional Facility, which was detailed in the audit. "It’s degrading; you have no rights."

Marchabeyoglu was eventually released in 2005, following federal court rulings that narrowed the scope of aggravated-felony laws for certain state-level offenses. But while immigrant-rights groups continue to challenge the statutes through litigation, other detainees stay in legal limbo.

Ira Kurzban, a Florida-based immigration attorney, said the mandatory-detention system serves the government’s interests by discouraging people from waging legal challenges: as their cases wear on, desperate detainees submit to deportation through a process known as "voluntary departure," just to be freed from detention.

For 34-year-old Luis Mejia, whatever the courts decide, the government is defeating him day by day.

Mejia, who came to America as a teen and served in the US military, was swept up by ICE when a routine background check at a border reentry point uncovered a prior assault conviction related to a fight in which Mejia said he was a victim. Although his lawyer says he had a strong defense, Mejia pleaded guilty to avoid the risk of jail time, a move the government now insists makes him an aggravated felon. It has kept him detained since August 2005, separated from his five-year old daughter.

Last year, an immigration court ruled Mejia’s case was not an aggravated felony. But by appealing the ruling, the government has prolonged his detention.

Speaking by phone from the Service Processing Center in Florence, Arizona, Mejia said he is desperate to leave the facility, where he says he suffers from severe isolation and mistreatment by staff. At his lowest point, he said, he contemplated suicide. Now, he may just forfeit his legal fight so he can be deported, preferring freedom in exile to indefinite captivity.

"I know it’s going to be really hard for me to be in Honduras," he said, noting that he has few social ties there, as most of his family lives in the US. But in detention, he said, "it’s like everything you do, they push you back and back, and more and more down. So it feels worthless living here."

Mejia still has trouble grasping how a single act could suddenly draw 17 years in America to a close.

"This is my country," he said. "I wasn’t born here, but I went to high school here, I fell in love here, I got a kid here, my mom is here. I lost everything that I had, but everything that I had was here. I don’t got nothing back in Honduras."


Major Change:

The original version of this article stated the average time of US residence for people ordered deported in the TRAC study was 15 years from fiscal year 1992. The sentence has been changed to reflect that, due to limitations on the available data at the time of the analysis, this figure is based only on immigration-court proceedings from 1997. These are separate from the "administrative order" proceedings that ICE can use for non-green card holders.

 | Change Posted February 3, 2007 at 14:43 PM EST

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The NewStandard ceased publishing on April 27, 2007.

Michelle Chen is a staff journalist.

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