August 9, 2007

Alison Parker, senior researcher for the US Program, testified on July 24, 2007 before the House Committee on Foreign Affairs on the issue of long-term legal residents of the US who are deported for minor violations of the law.

Mr. Chairman, members of the Committee, thank you for holding this briefing and for inviting me to testify on the subject of immigrants deported from the United States because of criminal convictions.

Today’s briefing focuses mostly on the effects that these deportations have had on receiving countries in Latin America and the Caribbean. However, my testimony will shed light on the effects felt inside the United States. My report on this subject, Forced Apart, was publicly released last week and is available on Human Rights Watch’s website.

I would like to begin my remarks with an example.

Joe Desiré, originally from Haiti, signed up for the US military in 1970. At that time, no-one asked Joe if he was an immigrant. A lawful permanent resident, or green card holder, Joe served his adopted country for 4 years. Now a 52-year-old veteran with four US citizen sons, two of whom are in the military themselves, Joe faces mandatory deportation because he was convicted of possession and sale of small amounts of crack cocaine in the mid-90s, for which he spent 16 months in prison.

Some 672,593 immigrants in the US — many of whom, like Joe, were legal residents –have been deported from the country under 1996 legislation that requires mandatory deportation of non-citizens convicted of a crime after they have served their sentence. It does not matter whether the non-citizen has lived here legally for decades, built a home and family, ran a business, or paid taxes. And these laws do not apply only to serious crimes, but also to minor offenses.

Human Rights Watch estimates that 1.6 million adults and children, including US citizens – have been separated from their spouses and parents because of this legislation. Families have been torn apart because of a single, even minor misstep, such as shoplifting or drug possession.

Certain immigrants, for example, immigrants convicted of selling drugs with a 5-year sentence, are subject to deportation without consideration of the fact that they would be returned to persecution. This is the case under US law despite the fact that under the Refugee Convention (a treaty binding on the United States), only refugees who have been convicted of a “particularly serious crime” and who “constitute a danger to the community” of the United States may be returned to places where they fear persecution.

The 1996 legislation prevents judges from considering whether there are compelling reasons for immigrants to remain in the US even though they broke the law. It prevents judges from striking a balance between the reasons for deportation — i.e. the seriousness of the crime – and the length and breadth of an immigrant’s ties to the United States. While it may be fair, for example, to deport an immigrant who commits murder within six months of his arrival in the US, it may be grossly unfair to deport a parent of young children who has legally lived in the US for 30 years and who was convicted of passing a forged check.

Who is Deported for Which Crimes and to Where?

Based on the US Census, Human Rights Watch estimates that out of the 1.6 million family members left behind by criminal deportees, 540,000 were US citizens by birth or naturalization. We have found no way of reliably estimating the numbers of lawful permanent residents within the families of deported immigrants.

For reasons that are unclear, regular press updates by Immigration and Customs Enforcement (ICE) always tout the deportations of violent criminals, but keep vague the other categories of immigrants deported.

Despite the fact that the relevant laws were passed ten years ago, data on the underlying convictions for deportations were released for the first time by ICE at the end of 2006 for fiscal year 2005. These data show that 64.6 percent of immigrants were deported for non-violent offenses, including nonviolent theft offenses; 20.9 percent were deported for offenses involving violence against people; and 14.7 percent were deported for unspecified “other” crimes.

Applying these percentages from 2005 to the aggregate number of persons deported allows us to estimate that 434,495, or nearly a half million people, were non-violent offenders deported from the United States in the 10 years since the 1996 laws went into effect. In addition, we can estimate that 140,572 people were deported during that same decade for violent offenses.

Non-citizens deported for criminal offenses come from the same countries and regions of the world as all immigrants living in the United States. Therefore, the bulk of those deported—or 93 percent—are sent to countries in North and Central America and the Caribbean. Mexico receives by far the largest number of immigrants deported for criminal convictions, followed by the Dominican Republic, El Salvador, Honduras, Colombia, Jamaica, Guatemala, Canada, Haiti and Brazil.

Striking the Right Balance in Deportation Policy

Deportation is a necessary part of every country’s enforcement of its immigration laws. But the exercise of the power to deport should be governed by fair laws tailored to protect legitimate national interests.

Human rights law recognizes that the privilege of living in any country as a non-citizen may be conditional upon obeying that country’s laws. However, a country like the United States cannot withdraw that privilege without protecting the human rights of the immigrants it previously allowed to enter. Human rights law requires a fair hearing in which family ties and other connections to an immigrant’s host country are weighed against that country’s interest in deporting him. Unfortunately, that is precisely what US immigration law fails to do.

In this respect, the United States is far out of step with international human rights standards and the practices of other nations, particularly nations that it considers to be its peers. Many other constitutional democracies require deportation hearings to weigh such defenses to deportation in their domestic practices. In fact, in contrast to the United States, all of the governments in western Europe (except Luxembourg) offer non-citizens an opportunity to raise family unity concerns, proportionality, ties to a particular country, and/or other human rights standards prior to deportation.

Human Rights Watch calls on Congress to reinstate hearings that would allow immigrants facing deportation the chance to ask a judge to allow them to remain in the United States when their crimes are relatively minor and their connections (especially their family ties) to the United States are strong. We ask Congress to take a second look at the kinds of crimes that render people deportable in order to prevent permanent and mandatory banishment from the United States for relatively minor non-violent crimes like theft or drug possession. Providing for proportionality in deportation and protecting family unity are essential to a just and fair immigration policy, and this cannot be accomplished without amending US immigration law to allow for relatively simple balancing hearings.

We recommended Congress amend the immigration laws to:

• Provide a hearing before an impartial adjudicator in which an individual non-citizen’s interest in remaining in the United States is weighed against the US interest in deporting the individual; ensuring that the following are counted in favor of the immigrant in the hearings: family relationships in the United States; the best interests of any children in the family; lengthy legal presence in the United States; evidence of rehabilitation; investment in the US community through business, military service, property ownership, and/or tax payments.

• Protect from deportation individuals whose lives or freedom would be threatened if returned unless they have been convicted of a particularly serious crime and are dangerous to the community of the United States within the meaning of the 1951 Refugee Convention.

• Ensure that only non-citizens who have committed serious and/or violent crimes (not misdemeanor crimes), for which they have served an actual prison term (not probation or drug treatment sentences) are subject to deportation.

• Ensure that offenses that did not trigger deportation at the time they were committed are not used to deport immigrants now.

• Using its oversight role, Congress should require the Department of Homeland Security to publish annual statistics on the convictions forming the basis for all removals from the United States on criminal grounds, the immigration status (i.e. lawful permanent resident, undocumented, etc.) of all persons removed on criminal grounds, and whether non-citizens removed have family relationships with US citizens or lawful permanent residents.

Thank you again for giving me the opportunity to testify. I look forward to answering any questions the members of the Committee might have.

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