July 17, 2007

IV. Deportation Law Based on Criminal Convictions After 1996

Three events-the 1993 World Trade Center bombing,[29] the initial popularity of anti-immigrant legislation in California in 1994 (Proposition 187),[30] and the 1995 Oklahoma City bombing[31]-prompted Congress to restructure United States immigration law in 1996.

The legislative changes were adopted in a rushed atmosphere. During its consideration of the first of the two bills passed, the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress was pressed for time because it sought to adopt legislation prior to April 1996, which was the first anniversary of the Oklahoma City bombing;[32] and in the case of the second bill, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (hereinafter both laws are referred to generally as the "1996 laws"), Congress wanted to pass immigration legislation that emphasized enforcement prior to the run-up to the 1998 national elections.[33]

Although commentators since have focused on the fact that the two bills were adopted very quickly,[34] official debate contains few expressions of concern about Congress's haste. One notable exception is Senator Robert Graham of Florida, who said that Congress was "not in as advanced a position as we should be" when considering the legislative changes contained in IIRIRA. He cautioned,

[I]t was also essentially a closed process. Not only were many of the members of the conference committee not given the opportunity to participate, at the conclusion of the conference they were not even allowed to offer amendments to try to modify provisions which were found to be objectionable. So we have a product today which has not had the kind of thoughtful dialog and debate which we associate with a conference report which is presented to the US Senate for final consideration.[35]

Senator Graham also questioned Congress's narrow focus on an eventually defeated provision that would have granted states the ability to deny public education to undocumented children. Graham said the provision was "so inflammatory that it tended to focus total attention on this legislation on that single provision .… Therefore, we are now focusing for the first time on the totality of this legislation."[36]

The rushed consideration of legislative changes in 1996 was also fueled by a perceived connection between terrorists and non-citizens convicted of crimes. In their statements, members of Congress continually made such connections explicitly or implicitly to non-citizens involved in crime, no matter how petty the offense or how distinguishable from terrorism.[37]

Representative Bill McCollum said that the

[C]riminal alien provisions in this bill [AEDPA] … are also important to the terrorist issue, because oftentimes we find that terrorists or would-be terrorists are criminal aliens and we are not deporting them in a proper fashion …. The sooner we get them out of the country, the better procedures we have for that, the less likely we are to have that element in this country either create the actual acts of terrorism or directing them in some manner. We need to kick these people out of the country….[38]

Similarly, Representative Lamar Smith said that the 1996 laws

Ensure[] that the forgotten Americans-the citizens who obey the law, pay their taxes, and seek to raise their children in safety-will be protected from the criminals and terrorists who want to prey on them.[39]

However, Representative Patsy Mink of Hawaii questioned her colleagues' conflation of terrorists and non-citizens with criminal convictions:

This bill increases the number of criminal activities that legal aliens can be deported for. Most of the additional offenses are not required to be linked to terrorism …. I am deeply concerned that these provisions expand authorization for deportation of aliens without any association with crimes of violence or terrorism.[40]

President Bill Clinton made a similar comment when signing AEDPA into law. He said, "This bill also makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents.…"[41]

Specific Crimes Rendering Non-Citizens Deportable

Aggravated Felonies

The 1996 laws added new crimes to the aggravated felony ground of deportation. First, Congress added 17 additional types of crimes to the category when it passed AEDPA in April 1996.[42]  In September 1996, shortly before Congress adjourned to campaign, it passed IIRIRA, which added four more types of crimes to the aggravated felony definition and lowered certain threshold requirements. For example, before IIRIRA, theft offenses and crimes of violence were aggravated felonies only if the term of imprisonment was five years or more; IIRIRA reduced the term of imprisonment provision to a one-year threshold.[43]

Therefore, since 1996, aggravated felonies include the following broad categories of crime:

  • any crime of violence (including crimes involving a substantial risk of the use of physical force) for which the term of imprisonment is at least one year;
  • any crime of theft (including the receipt of stolen property) or burglary for which the term of imprisonment is at least one year; and
  • illegal trafficking in drugs, firearms, or destructive devices.

The following specific crimes are also listed as aggravated felonies:

  • murder;
  • rape;
  • sexual abuse of a minor;
  • illicit trafficking in a controlled substance, including a federal drug trafficking offense;
  • illicit trafficking in a firearm, explosive, or destructive device;
  • federal money laundering or engaging in monetary transactions in property derived from specific unlawful activity, if the amount of the funds exceeded $10,000;
  • any of various federal firearms or explosives offenses;
  • any of various federal offenses relating to a demand for, or receipt of, ransom;
  • any of various federal offenses relating to child pornography;
  • a federal racketeering offense;
  • a federal gambling offense (including the transmission of wagering information in commerce, if the offense is a second or subsequent offense) that is punishable by imprisonment of at least one year;
  • a federal offense relating to the prostitution business;
  • a federal offense relating to peonage, slavery, involuntary servitude, or trafficking in persons;
  • any of various offenses relating to espionage, protecting undercover agents, classified information, sabotage, or treason;
  • fraud, deceit, or federal tax evasion, if the offense involves more than $10,000;
  • alien smuggling, other than a first offense involving the alien's spouse, child, or parent;
  • illegal entry or re-entry of an alien previously deported on account of committing an aggravated felony;
  • an offense relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or immigration document if (1) the term of imprisonment is at least one year and (2) the offense is not a first offense relating to the alien's spouse, parent, or child;
  • failure to appear for service of a sentence, if the underlying offense is punishable by imprisonment of at least five years;
  • an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year;
  • an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
  • an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of two years' imprisonment or more may be imposed; and
  • an attempt or conspiracy to commit one of the foregoing offenses.

While some of the above examples of aggravated felonies would seem to be severe offenses for which deportation is an appropriate punishment, in practice it is not always clear cut.  For example, Ramon H. (a pseudonym) is originally from Mexico. He married a United States citizen, Pamela H., (a pseudonym) in 1990. In February 1993, Ramon pled guilty to lewd or lacscivious acts with a minor.  After his plea, he completed his probation, according to his probation officer, "in an exemplary fashion."[44] He applied to adjust his status to that of a lawful permanent resident through his US citizen wife in 1996, but in 2001 DHS informed him that he was deportable for his criminal conviction, and he was placed in removal proceedings in August 2004.

The circumstances of Ramon's crime were later described by his niece Kelda in a sworn affidavit that she submitted during his deportation hearing. Kelda explained that during a family gathering, Ramon patted her "lightly on the butt … for no apparent reason."[45] Kelda mentioned the incident to a friend at school, who in turn told a teacher, and the school called the police, resulting in Ramon's conviction and order of deportation.

Some minor drug crimes are considered aggravated felonies. For example, 24-year-old Mario Pacheco entered the United States with his mother in 1981 when he was two months old. He lived in Chicago with his parents as a lawful permanent resident for 20 years, where he attended public schools. Mario obtained his general equivalency diploma (GED) and went to work right away.

At the age of 19, in 2001, Mario was convicted for possession of 2.5 grams of marijuana with intent to distribute, which is a misdemeanor offense under Illinois law, but is also considered an aggravated felony under immigration law. The drugs were discovered in Mario's car after he was stopped for a broken taillight. Mario explained that he was hanging out with the wrong crowd at the time, that he often drove friends in his car, and that the drugs belonged to one of his friends. He was sentenced to one year of "supervision"-a sentence that is less severe than probation.

At this writing, Mario was still trying to appeal his deportation, but his prospects did not look good. Mario works about 60 hours a week in the shipping department at a large warehouse and is the father of three US citizen children, ages two to six.[46]  Mario's parents also spoke with a Human Rights Watch researcher.[47] They both are lawful permanent residents: his mother has worked at the same company for more than 20 years and has a graduate degree in business, which she obtained by attending courses at night while working full time. His mother spoke about how stressful her son's impending deportation was for her and the family: "If you do something very bad, then I'm not saying anything about that. But he's being punished for something he did when he was a teenager. He didn't even go to jail."[48]

Ricardo S. was also facing separation from his US citizen wife and two children because of an aggravated felony drug conviction. He was ordered deported because of a conviction for possession with intent to distribute a small amount of heroin, for which he was advised by a defense attorney to plead guilty. In return for his guilty plea, he received no jail time but was ordered to pay a fine of $500 and serve two years probation, which he completed without incident. Ricardo S. had no other criminal convictions and worked in construction in the Chicago area. His conviction was brought to the attention of the immigration authorities because he and his US citizen wife, who were married in 2001, applied to adjust Ricardo S.'s status to that of a lawful permanent resident. Looking back on his one conviction, Ricardo S. said,

I feel bad about it because of my family. If I was by myself, without my wife or any children, it would have been a lot different. But I feel real bad for them …. Maybe if they would have caught me with a ton of drugs [I could understand them wanting to deport me], or if I ever murdered somebody. But it was the only one …. I wish that [when I applied for my green card] they would have just told me I didn't qualify. I have kids who are citizens and a wife who is a citizen but I wish they would have just let me continue working to support my family….[49]

Deportation under almost any circumstances limits a non-citizen's ability to return, even temporarily, to the United States. Non-citizens previously removed are barred from re-entry for five or 10 years, depending on the circumstances of their removal. For non-citizens with aggravated felony convictions, this bar to re-entry is permanent, unless they can obtain permission to enter from the Attorney General, which is rarely granted.[50] Thus, for families separated due to offenses classified as aggravated felonies, deportation permanently splits the family in two. Spouses and children are often either US citizens or lawful permanent residents, and cannot relocate to the deportee's country of origin. In addition to the strong connections to the United States that these family members often have, parents of school-age children emphasize that the United States is the only home their children have ever known, that their children often do not speak any language other than English, and that their children are being educated in US schools as reasons for not being able to join their deported spouse permanently.

Crimes of Moral Turpitude

Immigrants are deportable if they are convicted of a "crime involving moral turpitude" within five or in some cases 10 years after they enter the United States and their crime carries a sentence of one year or longer.[51]  A non-citizen is also deportable if he or she is convicted of two or more crimes of moral turpitude at any time after admission.[52]  In 1996 Congress did not change the crimes considered to meet the definition of "moral turpitude." However, it did make it more difficult for non-citizens with convictions for crimes of moral turpitude to defend against deportation, primarily because Congress made the standards more rigorous and the determination of who merited cancellation of removal entirely up to the discretion of the immigration judge.

Under the Immigration and Nationality Act (INA) Section 240A(a), non-citizens convicted of moral turpitude crimes can apply for "cancellation of removal":

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable for the United States if the alien:
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years;
(2) has resided in the United States continuously for 7 years after having been admitted in any status;
(3) has not been convicted of an aggravated felony.[53]

For example, Mark Ferguson, a native of the United Kingdom who had lived in the United States lawfully as a green card holder since the age of three, was convicted of two or more crimes of moral turpitude for "mooning" (showing his nude buttocks to) women. Ferguson testified that in the past he had mooned a woman about once every six months, but was under psychiatric treatment for the practice, and under treatment had not re-offended for two years. He submitted expert testimony that he was not sexually aroused by the practice, had an "unusually low" chance of re-offending, and that he had strong family connections to the United States, including because he was a primary caregiver for his deceased sister's children. The Board of Immigration Appeals found that although he was statutorily eligible for cancellation of removal under INA Section 240A, cancellation of Ferguson's removal would not be in the best interests of the United States. On appeal, the court found that it had no power to review that discretionary decision.[54]

Definitions Include Relatively Minor Crimes

In 1996, listeners to Congressional debate were left with the impression that only the most violent non-citizen offenders would be subject to deportation once the 1996 laws were passed. Senator Alan Simpson of Wyoming chose two from the long list of more minor crimes that would require deportation in the new legislation, noting that "domestic violence and stalking are made deportable offenses."[55]

Similarly, focusing on felonies (and ignoring the many misdemeanor crimes that would also trigger deportation under the proposed legislation), Senator Spencer Abraham of Michigan said, "By conservative estimates, almost half a million felons are living in this country illegally. These aliens have been convicted of murder, rape, drug trafficking, potentially such crimes as espionage, sabotage, treason and/or a number of other serious crimes…."[56]

Even after the new laws were in place for a year, there remained some confusion among legislators responsible for the bills' passage as to what kinds of crimes actually triggered deportation. In an article published in the Washington Post in 1998, Congressman Lamar Smith of Texas denied that shoplifting could render someone deportable and characterized this assertion as "a view peddled in the media by immigration lawyers."[57] But, in fact, shoplifting is a deportable offense.

Congresswoman Patsy Mink of Hawaii and Senator Edward Kennedy of Massachusetts were among the few legislators who raised concerns about the minor crimes that would result in deportation under the new laws. Summing up her views on this issue, Representative Mink said,

[I]t is wrong to place upon legal immigrants a higher penalty for crimes which in themselves are not related to terroristic actions. Deportation should be reserved for only the most heinous of crimes rendering the person unfit to remain in the country.[58]

Similarly, Senator Kennedy said,

It applies to all criminal aliens, regardless of the gravity of their offense …. whether they are murderers or petty shoplifters. An immigrant with an American citizen wife and children sentenced to 1-year probation for minor tax evasion and fraud would be subject to this procedure. And under this provision, he would be treated the same as ax murderers and drug lords.[59]

Elimination of Defenses to Deportation

As noted above, prior to 1996, there were several grounds that non-citizens could raise in order to cancel their deportation from the United States: a judicial recommendation against deportation (JRAD); suspension of deportation; 212(h) waiver of deportation; 212(c) waiver of deportation; and withholding. The JRAD was eliminated in 1990. In 1996 Congress eliminated 212(c) waivers and replaced suspension of deportation with cancellation of removal, instituting instead a much narrower waiver under 240A(a) for legal permanent residents (described above). Congress further decided to limit immigrants with criminal convictions' ability to apply for 212(h) waivers and withholding. 

Elimination of 212(c) Waiver of Deportation

The continuing expansion of the aggravated felony definition, culminating in the 1996 laws, has meant that increasing numbers of non-citizens find themselves barred from raising defenses to deportation in their immigration hearings. The very limited relief that does remain in immigration law at this writing, in the Immigration and Nationality Act (INA) Sections 240A and 212(h), is not available to those convicted of aggravated felonies.[60]

Congress chose to eliminate hearings under former INA Section 212(c) with the passage of the 1996 laws. The hearings had allowed seven-year lawful permanent residents who committed crimes to seek discretionary relief from deportation from an immigration judge by showing negative factors were outweighed by positive factors.[61] Negative factors in a 212(c) application included: the nature and underlying circumstances of the reason for deportation; the presence of additional significant violations of the immigration laws; the existence of a criminal record and, if so, its nature, recency, and seriousness; and the presence of other evidence indicative of a respondent's bad character or undesirability as a permanent resident of the United States.[62]

Favorable 212(c) factors included: family ties within the United States; residence of long duration in the country (particularly when the inception of residence occurred while the respondent was of young age); evidence of hardship to the respondent and family if deportation occurs; service in the US Armed Forces; a history of employment; the existence of property or business ties; evidence of value and service to the community; proof of a genuine rehabilitation if a criminal record exists; and other evidence attesting to a respondent's good character (for example, affidavits from family, friends, and responsible community representatives).[63]

Throughout the 1996 legislative debate, Congress never considered these factors in detail, and never analyzed the utility or importance of retaining a hearing in which some or all of them were weighed. Instead, Congress took a wholesale approach and eradicated the hearings altogether.

Legislative discussion on this issue lacked nuance, especially because legislators tended to lump all non-citizens convicted of crimes into one category-neglecting the fact that the legislation under consideration would include legal residents with minor offenses and affect US citizen family members. As a result, Congress chose to eliminate 212(c) across the board.

Congress was motivated by its belief that 212(c) relief was abused, leading to unnecessary delays in deportation. A colloquy between Senator Orrin Hatch of Utah and Senator Abraham revealed a concern on the part of both senators that immigration judges were granting discretionary relief under 212(c) too frequently. Senator Abraham highlighted his concern by stating, "for the past 8 years, however, 212(c) relief has been granted to more than half of all who apply, the vast majority of whom are criminal aliens, amounting to thousands of criminal aliens per year."[64]

By contrast, Immigration and Naturalization Service (INS) officials, who on a daily basis saw the important role that the hearings played, were distressed to see the elimination of the 212(c) provision:

Key officials in the Department of Justice were keenly aware … that the "criminal alien" slogan, for all its power on the campaign trail, embraces a vast spectrum of human character and behavior. Some such criminals are truly dangerous, but a large fraction of this class made single mistakes or had shown genuine rehabilitation and remorse. In the view of those officials, most such deportable aliens should at least be eligible for consideration of release during proceedings and for a discretionary waiver of deportation altogether, as had earlier been possible under INA § 212(c).[65] 

An immigration judge interviewed by a Human Rights Watch researcher for this report said,

It is true that judges often granted 212(c) relief, but that was because immigration judges often saw deserving cases. Congress did not accept that fact, and so took judicial discretion away. Instead, what they created was a statute with so many legal interpretation questions that litigation did not decrease at all after 1996.[66]

Drawing a connection between slow deportation rates and the judicial review that non-citizens used to request once they received an order of deportation, Representative Henry Hyde of Illinois spoke in favor of what he called AEDPA's "criminal alien deportation improvements …. they can get deported with expedition rather than go through another and another and another hearing."[67]

In fact, according to the Department of Justice, on average, 12,043 cases were appealed by immigrants from the administrative level to the Board of Immigration Appeals in the seven years prior to April 1, 1997 (the date the 1996 laws took effect).[68] In the seven years after the laws took effect (up through April 1, 2004), on average, 22,629 cases were appealed each year.[69]

Although many members of Congress clearly thought the elimination of 212(c) was a good thing, Senator Kennedy did not. He argued against the bill's "one size fits all approach" that eliminated hearings balancing non-citizens' interests in remaining in the country against the government's interest in deportation:

[T]his amendment virtually eliminates the Attorney General's flexibility to grant discretionary relief from deportation for long-time permanent residents convicted of lesser crimes …. [T]his discretionary relief would be denied to permanent residents for carrying a concealed firearm, drug abuse or addiction, in which no conviction would even be required, any drug offense involving more than 30 grams of marijuana, and other such crimes. They could live here productively for 30 years and have an American citizen wife and children. But for them, it is one strike and you are out.[70]

Case Study: Deportation in Europe : the Boultif Test [71]

The 47 member countries in the Council of Europe (COE) have adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "European Convention" or ECHR), which places them under the jurisdiction of the European Court of Human Rights (ECtHR).  Any person alleging a rights violation under the European Convention within a Council nation can take their case to the ECtHR, whose decisions are legally binding upon Council member nations. Article 8 of the European Convention covers an individual's right to family life and provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

The right to be free from government interference with family life has been successfully asserted by non-citizens facing deportation because of criminal convictions. In several COE nations, non-citizens have challenged deportation by proving that it would unjustifiably interfere with their right to family life or because the deportation procedures they were subject to gave inadequate attention to their Article 8 rights.

The ECtHR's approach to these questions was established in 2001 by the Boultif v. Switzerland case. The case involved an Algerian citizen who moved to Switzerland in 1992 and married a Swiss woman a few months later. He was soon convicted of weapons possession and then, in 1994, of physically assaulting and robbing a man in Zurich, for which he received a two-year sentence. Shortly after he started his sentence, Swiss authorities refused to renew his residence permit and the Swiss Federal Court held that his deportation did not violate Article 8 of the European Convention, since it was a valid exercise of state power in the interests of public order and security.

The ECtHR rejected Switzerland's judgment. In so doing, the court determined "guiding principles" for this type of case, establishing a four-step framework. In the first three steps, the court determines whether there has been interference with family life, and if so, if it fits with the factors allowing for such interference in Article 8(2) (such as national security or public safety). The fourth and final step asks whether the interference is "necessary in a democratic society," and weighs eight factors:

 (1) The nature and seriousness of the offense, 

(2) The length of the applicant's stay in the expelling country, 

(3) The length of time elapsed since the offense and the applicant's behavior during that time,

(4) The nationalities of the parties concerned,

(5) The applicant's family situation (length and "effectiveness" of the marriage),

(6) Whether the spouse knew about the offense at the time of entering into the marriage,

(7) Whether there are children, and their ages, and

(8) The potential difficulties family members would face in relocating to the applicant's home country.

In Mr. Boultif's case, the court found in his favor mostly by focusing on the potential hardship to his wife in relocating to Algeria and by considering whether he continued to pose a danger to the public. The court noted not only Mr. Boultif's good behavior since committing his crime, but the fact that he had originally received a relatively light criminal sentence. This, in the court's view, undercut the idea that he posed a danger. Based largely on these two factors, the court found that the harm Mr. Boultif would suffer from deportation would be disproportionate to Switzerland's stated goals in expelling him.

Limits on Withholding: Returns to Persecution

During its adoption of the 1996 laws, Congress appears to have paid very little attention to the fact that the expansion of the aggravated felony definition would allow immigration authorities to deport refugees to persecution (refoulement), even if their crimes did not fit the "particularly serious crime" definition as required under the UN Convention relating to the Status of Refugees, which the United States is bound by through its ratification of the UN Protocol relating to the Status of Refugees in 1967.

The 1996 changes to US immigration law mean that the United States no longer meets its treaty obligations to protect from refoulement refugees who meet the Refugee Convention's criteria for protection. IIRIRA made it impossible for any immigrant convicted of an aggravated felony with a five-year sentence to obtain protection from return to persecution. This means, for example, that drug offenders with sentences of five years or more can be sent to persecution by US immigration authorities. By contrast, under international standards, only refugees who have been convicted of a "particularly serious crime" and who "constitute a danger to the community" of the United States can be returned to places where they would be persecuted.[72] 

There are only two scant references to this in the legislative history for the 1996 immigration laws. Senator Kennedy said, "[r]efugees could also be deported to the hands of their persecutors for relatively small offenses";[73] and the UN agency responsible for refugee protection, the United Nations High Commissioner for Refugees (UNHCR), wrote to the Senate Judiciary Committee to raise its concerns that "the particularly serious crime" exclusion ground should only be invoked in "extreme cases" and only after a balancing test has been applied, weighing the degree of persecution feared against the seriousness of the offense committed.[74]

Retroactive Effects

Congress also decided to make the 1996 laws retroactive. The laws render someone deportable for crimes committed at any point prior to the change in law, including crimes that were not deportable offenses at the time of their commission.

Despite this sweeping change, there is little in the legislative history to show that Congress considered the likely outcomes. Former INS General Counsel David Martin recalled that Senator Kennedy and his staff tried to draw attention to sympathetic cases of immigrant families that would suffer drastic effects under the retroactive application of the laws. Kennedy had meetings with Senator Jon Kyl of Arizona and Senator Abrahams to try to "walk through some of the retroactivity scenarios," but "there wasn't much response. I really don't think there was anyone in Congress who anticipated what would happen and even when they were presented with sympathetic facts, they just didn't want to appear soft on immigration, so they left the retroactivity in."[75]

Martin said that the idea originally came from his office, although he ultimately came to oppose the way that Congress dealt with retroactivity:

We proposed the retroactivity because we saw it as a way to clean up the previous aggravated felony provisions from the 1988, 1991, and 1994 laws. These different definitions and effective dates were a nightmare for INS to administer, so we wanted the new definition to clean all that up, and be fully retroactive.[76]

Even though INS wanted the new definition to be retroactive, it expected to be able to continue to exercise discretion to allow compelling cases to remain in the country, particularly those cases in which the immigrant had lived in the United States for a long time and had family ties. In other words, the INS expected 212(c) hearings to remain available. According to Martin,

The key point is that this was at a time when 212(c) was available …. If we had known that [Congress] would ultimately exclude all those people from 212(c) relief, I'm sure we wouldn't have taken that stance [in support of retroactivity].[77]

Case Study: 212(c) Hearings: The St. Cyr Precedent

Due to the Supreme Court case, U.S. v. St. Cyr, 533 U.S. 289 (2001), a small sub-group of non-citizens who entered guilty pleas prior to 1996 on the understanding that they would have had access to 212(c) waivers are now allowed to apply for those waivers.

One such case is that of Ricardo Etienne, who moved to the United States at the age of 11 in 1986, and attended middle and high school in Stamford, Connecticut. His mother, brother, and sister all live in the United States. He is engaged to Marjorie Roc and the couple has three children. Prior to his incarceration and deportation, Etienne supported his family by earning $8 an hour at a series of full-time jobs. During his incarceration prior to deportation, he completed a series of drug rehabilitation programs. Etienne was not allowed a 212(c) hearing and was therefore deported to Haiti. With their main breadwinner deported, Ms. Roc and Etienne's children could no longer afford the apartment in which they had been living and moved to public housing, which was located in an unsafe neighborhood, according to Ms. Roc. They also could not afford to travel to Haiti to see Etienne.

Etienne's case was reconsidered under St. Cyr v. INS, and the reviewing court found that the favorable factors-family ties, substantial rehabilitation, and work history-outweighed Etienne's criminal history and that "there is a reasonable probability that … [Etienne] would have been granted Section 212(c) relief." United States of America v. Ricardo Etienne, 2005 U.S. Dist. LEXIS 976, p. 25 (D. Conn, January 14, 2005).

Other cases decided under the St. Cyr precedent have stopped the deportation of non-citizens with strong ties to the United States. In Matter of Dominos Dias Goncalves, No. A34 744 205, Immigration Reporter, vol. 26 (MB) B1-117 (BIA November 25, 2002), the court prevented deportation, noting "While it is indeed lengthy, the respondent's criminal record includes several arrests for minor offenses which were committed when the respondent was a minor from an abusive and troubled background. Given the strength of the positive factors in this case, including the evidence of the respondent's strong ties in the United States and of his significant rehabilitation, we conclude that the positive factors surpass the cumulative weight of the respondent's criminal record and his substance-abuse history."

These immigrants are "lucky" to fit within the St. Cyr precedent, and therefore had the ability to access the 212(c) waiver. Hundreds of thousands of other immigrants who did not plead guilty in their cases, and whose convictions came after 1996, have not had this same chance.

Congressional Regrets

After watching the effects over the years, several members of Congress have expressed regrets about having changed US immigration law so drastically in 1996. Representative Bob Filner of California characterized what Congress did in 1996 in the following way:

[In] the Immigration Law of 1996 …. people were defined as felons in a new way. They were picked up off the streets in the middle of the night, deported without any due process-and these were legal people, here legally, but may have committed some crime, even shoplifting 20 or 30 years ago.[78]

Some US legislators have sought ways to lessen the blow dealt by the 1996 laws to non-citizens with close family and other ties to the United States. Although several bills have been introduced over the ensuing decade, only one, H.R. 5062, made it out of congressional committee in the US House of Representatives and was introduced in the US Senate-only to die there without being referred to a Senate committee. All of the other reform bills have failed to receive the full attention or consideration of Congress, since they never made it out of the committee process.[79] Therefore, despite some clear signals that Congress regrets its actions in 1996, it has never had the opportunity to carefully consider what was done 10 years ago, including whether some aspects of the laws should be amended to bring them better into line with notions of justice and fair play.

On October 1, 1999, Representative Bill McCollum of Florida, once a proponent of the 1996 laws, introduced the Fairness for Permanent Residents Act, which would have allowed the Attorney General to prevent the deportation of lawful permanent residents who were convicted of certain aggravated felonies, in particular those whose crimes were not serious violent felonies. The bill focused primarily on giving some permanent residents relief from the harsh application of the new definition of aggravated felon. Family ties were not considered. When introducing this bill, McCollum stated,

[I]n 1996, Congress made several modifications to our country's immigration code that have had a harsh and unintended impact on many people living in the United States. These individuals, permanent resident aliens, have the legal right to reside in the country and apply for US citizenship. They serve in the military, own businesses and made valuable contributions to society….  Our bill returns balance to our existing laws by allowing people with compelling or unusual circumstances to argue their cases for reconsideration. The legislation does not automatically waive the deportation order, it simply grants a permanent resident alien the right to have the Attorney General review the merits of his case.[80]

In July 2000, Representative Henry Hyde, who was then chair of the House Judiciary Committee, brought together Representatives McCollum, Barney Frank of Massachusetts, and other interested legislators. Their discussions resulted in H.R. 5062, sponsored by McCollum and co-sponsored by 10 additional Representatives.[81] H.R. 5062 was subsequently passed by the House on September 19, 2000. The bill offered amendments limiting the retroactive application of the new aggravated felony definition to pre-1996 crimes, and gave non-citizens with pre-1996 convictions access to cancellation of removal.

Upon unanimous passage of the bill, Representative Filner addressed the House to "honor [his] colleagues for taking a step forward and unanimously passing H.R. 5062, an important step toward restoring fairness to families split apart by 1996 legislation that was billed in this House as immigration reform."[82] Senate passage of the bill seemed certain, and White House Chief of Staff John Podesta wrote to Senator Hatch of the Senate Judiciary Committee to voice the Clinton administration's support for reforms. However, the Senate became embroiled in a battle over visas allocated to skilled professional workers and no subsequent action was taken on the bill, inaction that was attributed to the 2000 elections.[83]

Representative John Conyers of Michigan sponsored a very comprehensive reform bill, entitled the "Restoration of Fairness in Immigration Law Act of 2000," but known more colloquially as the "Fix '96" bill, which was introduced on July 26, 2000, and was co-sponsored by 47 additional representatives.[84]  Conyers reintroduced the bill in March 2002, together with members from the Congressional Hispanic, Black, and Asian Pacific Caucuses. The bill would have, among many other provisions, improved access to judicial review for non-citizens facing deportation; redefined crimes of moral turpitude, aggravated felonies, and the definition of conviction to limit deportation to the most serious crimes; and it would have allowed judges to exercise discretion in favor of certain non-citizens facing removal whose deportation would result in extreme hardship to their US citizen or legally present family members. The bill was referred to the House Subcommittee on Immigration and Claims, but made no further progress in Congress. When he reintroduced the bill in March 2002, Conyers said that the bill "restores fairness to the immigration process by making sure that each person has a chance to have their case heard by a fair and impartial decision maker. No one here is looking to give immigrants a free ride, just a fair chance."[85]

In the Senate, Senator Kennedy sponsored a bill, S. 3120, introduced on September 27, 2000, and co-sponsored by seven additional Senators,[86] which made the statement that current immigration laws "punish legal residents out of proportion to their crimes," and revised several punitive aspects of the laws, including by eliminating the retroactive effects, eliminating several minor crimes (including aggravated felonies punishable by a sentence of more than five years) from eligibility as deportable offenses, and affording more deportable non-citizens access to cancellation of removal.[87]

Other attempts at reform included a bill sponsored by Senator Daniel Patrick Moynihan of New York, S. 173, introduced to the Senate on January 19, 1999, which would have made non-citizens convicted of an aggravated felony with a sentence of less than five years eligible for cancellation of removal.[88] Senator Patrick Leahy of Vermont introduced a bill on April 22, 1999, which would have lessened the impact of deportation policy on US military veterans, including by making them eligible for cancellation of removal, irrespective of any criminal convictions.[89] Even as recently as January 2007, a bill sponsored by Representative José Serrano of New York was introduced that would provide discretionary authority to immigration judges to allow non-citizen parents of US citizen children to remain in the United States and avoid deportation when such deportation is determined to be against the best interests of the child.[90] Despite these many efforts, at this writing not one of these proposed reforms has received the full and detailed attention of Congress, and none has passed.

[29]John Dillon, "Surge in Immigration to US Raises Public Anxiety, Spurs A Showdown in Congress," Christian Science Monitor, December 17, 1993; Anthony Lewis, "Abroad at Home: Warning, Hysteria Ahead," The New York Times, October 25, 1993; Robert McFadden, "Immigration Hurts City, New Yorkers Say in Poll," The New York Times, October 18, 1993; William Schneider, "Americans Turn against Immigration," The National Journal, July 24, 1993; Michael Tackett and Nicholas Horrock, "Terrorism Prompting Immigration Review," Chicago Tribune, July 13, 1993.

[30]Human Rights Watch telephone interview with University of Virginia Professor David Martin, former general counsel of US Immigration and Naturalization Service from 1995-98, Charlottesville, Virginia, December 1, 2006.

[31]Gerald F. Seib & John Harwood, "Oklahoma City Terror Bombing May Intensify Hard-Line Views on Crime and Immigration," Wall Street Journal, April 21, 1995; Howie Carr, "Bomb begs the question: Do we need immigrants?" The Boston Herald, April 21, 1995; Fred LeBrun, "A Time to Turn Down the Radio," The Times Union  (Albany), April 23, 1995; Tamara Kerrill, "Arab Americans Here Suffer Slings of Suspicion," Chicago Sun-Times, April 23, 1995; Editorial, "Don't Bash Immigrants," The Boston Herald, April 22, 1995; Mary Abowd, "Arab-Americans Suffer Hatred After Bombing," Chicago Sun-Times, May 13, 1995; Peter Brimelow, "Immigration Pendulum has Swung too Far, Now Threatens America's Future," The Augusta Chronicle (Georgia), June 1, 1995; Joe Fitzgerald, "Those of Us who Cherish Sanctity of Life Deplore Actions of Madmen like Salvi," The Boston Herald, December 28, 1995 (noting that "Nine months ago, local airwaves were used to whip up hatred of 'towelheads' and 'immigrant scum' in the hours following the Oklahoma City bombing, then the accused bombers turned out to be as All-American as the cast from 'Happy Days.'").

[32]Human Rights Watch telephone interview with University of Virginia Professor David Martin, December 1, 2006. Of course, a US-born United States citizen was convicted for committing the Oklahoma City bombing.

[33] Ibid. Martin emphasized that the "theme of enforcement" was very strong among politicians at the time.

[34] John H. Blume, "AEDPA: The 'Hype' and the 'Bite,'" Cornell Law Review, vol. 91 (1996), p. 259 (noting that "the use of new statutory language combined with the speed with which Congress enacted AEDPA left the Supreme Court, and lower federal courts, with little guidance regarding Congress's intent.").

[35]"Conference Report to Accompany Illegal Immigration Reform and Immigrant Responsibility Act of 1996," Congressional Record, vol. 142, Section 11514, 104th Congress, 2nd Session, September 27, 1996 (Mr. Graham).

[36]Ibid.

[37]In the post-September 11 United States, conflations between non-citizens convicted of crimes and terrorists abound. For example, President George W. Bush said on April 9, 2007, "that way our Border Patrol can chase the criminals and the drug runners, potential terrorists, and not have to try to chase people who are coming here to do work Americans are not doing."  The White House, "President Bush Discusses Comprehensive Immigration Reform in Yuma, Arizona," US Border Patrol, Yuma Station Headquarters, Yuma, Arizona, April 9, 2007, http://www.whitehouse.gov/news/releases/2007/04/20070409-12.html (accessed May 30, 2007).

[38]Congressional Record, vol. 142, H 2247, H2259-H2260, 104th Congress, 2nd Session, March 14, 1996 (Mr. McCollum).

[39]Congressional Record, vol. 142, H 3605, 3617, 104th Congress, 2nd Session, April 18, 1996 (Mr. Smith).

[40] "Conference Report on S. 735, Antiterrorism and Effective Death Penalty Act of 1996," Congressional Record, vol. 142, no. 55, 104th Congress, 2nd Session, page E645, April 18, 1996 (Ms. Mink).

[41]William J. Clinton, "Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996," Weekly Compilation of Presidential Documents, vol. 32 (April 24, 1996), p. 720.

[42]Antiterrorism and Effective Death Penalty Act (AEDPA) Section 440(e), amending INA Section 101(a)(43), 1996.

[43]Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Section 321(a)(3), 1996.

[44]Letter from Dick Tschinkel, Los Angeles County Probation Department, October 15, 2004 (on file with Human Rights Watch).

[45] Affidavit of Kelda O. (pseudonym), submitted in opposition to Ramon's deportation, October 15, 2004 (on file with Human Rights Watch).

[46]Human Rights Watch interview with Mario Pacheco, Chicago, Illinois, February 2, 2006.

[47]Human Rights Watch interview with Pacheco family, Chicago, Illinois, February 2, 2006.

[48]Stacie Williams, "One Strike, You're Out," The Chicago Reporter, July/August 2005.

[49]Human Rights Watch interview with Ricardo S. (pseudonym), Chicago, Illinois, February 3, 2006.

[50]8 U.S.C. Section 1182(a)(9)(A), 1996.

[51] 8 U.S.C. Section 1227(a)(2)(A)(i)(I) and (II), 1996.

[52]8 U.S.C. Section 1227(a)(2)(A)(ii), 1996.

[53]8 U.S.C. Section 240A(a), 1996.

[54]Ferguson v. Attorney General of the United States, 2007 U.S. App. LEXIS 3100 (3d Circuit, February 9, 2007).

[55]Congressional Record, vol. 142, no. 137, 104th Congress, 2nd Session, September 28, 1996 (Mr. Simpson).

[56]"Conference Report on S. 735, Antiterrorism and Effective Death Penalty Act of 1996," Congressional Record, vol. 142, no. 55, 104th Congress, 2nd Session, page E645, April 18, 1996 (Mr. Abraham).

[57]Lamar Smith, "Immigration Facts," Washington Post, February 16, 1998.

[58]"Conference Report on S. 735, Antiterrorism and Effective Death Penalty Act of 1996," Congressional Record, vol. 142, no. 55, 104th Congress, 2nd Session, page E645, April 18, 1996 (Ms. Mink).

[59]Congressional Record, vol. 141, S 7803, 104th Congress, 2nd Session, (Mr. Kennedy).

[60]IIRIRA, Pub. L. No. 104-208, Section 348, 110 Stat. 3009-628 (2005).

[61]Section 212(c) provided, "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General …. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years." INA 212(c), 8 U.S.C. 1182(c), 1994 (repealed 1996 by AEDPA Section 440(d)).

[62]Matter of Marin, Board of Immigration Appeals, Immigration & Nationality Laws Administrative Decisions, vol. 16, decision 581, August 4, 1978. Matter of Marin cites to the following cases in support of the use of these factors: Matter of Carrasco, Interim Decision 2579 (BIA 1977), aff'd on other grounds; Carrasco-Favela v. INS, 563 F.2d 1220 (5 Cir. 1977); Matter of Edwards, Immigration & Nationality Laws Administrative Decisions, vol. 10, decision 506 (BIA 1963, 1964); Matter of M---, Immigration & Nationality Laws Administrative Decisions, vol. 3, decision 1804 (BIA 1949) (involving the seventh proviso to section 3 of the Immigration Act of 1917); Matter of V---, Immigration & Nationality Laws Administrative Decisions, vol. 1, decision 293 (BIA 1942) (seventh proviso); Matter of G---, Immigration & Nationality Laws Administrative Decisions, vol. 1, decision 8 (BIA 1940; A.G. 1940) (seventh proviso).

[63]Matter of Marin, Immigration & Nationality Laws Administrative Decisions, vol. 16, decision 581, (BIA 1978). Matter of Marin cites to the following cases in support of the use of these factors: Matter of Edwards (see above); Matter of G--- A---, Immigration & Nationality Laws Administrative Decisions, vol. 7, decision 274 (BIA 1956); Matter of F---, Immigration & Nationality Laws Administrative Decisions, vol. 6, decision 537 (BIA 1955); Matter of S---, Immigration & Nationality Laws Administrative Decisions, vol. 6, decision 392 (BIA 1954; A.G. 1955); Matter of M---, Immigration & Nationality Laws Administrative Decisions, vol. 5, decision 598 (BIA 1954); Matter of G--- Y--- G---, Immigration & Nationality Laws Administrative Decisions, vol. 4, decision 211 (BIA 1950; Act'g A.G. 1951) (seventh proviso); Matter of M---, Immigration & Nationality Laws Administrative Decisions, vol. 3, decision 1804 (BIA 1949) (seventh proviso); Matter of V---I--- , Immigration & Nationality Laws Administrative Decisions, vol. 3, decision 571 (BIA 1949) (seventh proviso); Matter of V---, (see above); Matter of G---, (see above).

[64] Congressional Record, vol. 142, S 12294, 104th Congress, 2nd Session (Mr. Abraham).

[65]David A. Martin, "Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis," The Supreme Court Review, vol. 47 (2001), p. 92.

[66]Human Rights Watch interview with an immigration judge who requested anonymity, October 26, 2006.

[67]"Conference Report on S. 735, Antiterrorism and Effective Death Penalty Act of 1996," Congressional Record, vol. 142, no. 55, 104th Congress, 2nd Session, page E645, April 18, 1996 (Mr. Hyde).

[68] Statistics provided by US Department of Justice, Executive Office for Immigration Review, October 31, 2006 (on file with Human Rights Watch).

[69]Ibid.

[70] Congressional Record, vol. 141, S 7803, 104thCongress, 1st Session, June 7, 1995 (Mr. Kennedy).

[71]This text box is based on analysis of the European Court of Human Rights case, Boultif v. Switzerland, (App. 54273/00) Judgment of 2 August 2001; EHRR 497. The case was based on the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which was adopted under the auspices of the Council of Europe on November 4, 1950 for the purpose of protecting human rights and fundamental freedoms in Europe. The ECHR binds the 47 present members of the Council, which are as follows: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, and the United Kingdom.

[72]Although there is some debate as to whether the treaty requires both the "particularly serious crime" and the "danger to the community" prongs to be established, the weight of international authority suggests that both must be satisfied before the bar can be applied. Kathleen Keller, "A Comparative and International Law Perspective on the United States (Non) Compliance with its Duty of Non-Refoulement," Yale Human Rights and Development Law Journal, vol. 2 (1999), p. 183.

[73]Congressional Record, vol. 141 S 7803, 104th Congress, 1st Session, June 7, 1995 (Mr. Kennedy).

[74]Letter to Honorable Orrin Hatch, Chairman, Senate Judiciary Committee, from United Nations High Commissioner for Refugees, Branch Office for the United States of America, September 20, 1996. Another authority on this issue wrote, "The offence in question and the perceived threat to the community would need to be extremely grave if danger to the life of the refugee were to be disregarded, although a less serious offence and a lesser threat might justify the return of an individual likely to face only some harassment or discrimination." Guy Goodwin-Gill, The Refugee in International Law (Oxford, UK: Oxford University Press, 1996), p. 140.

[75]Human Rights Watch interview with University of Virginia Professor David Martin, former general counsel of US Immigration and Naturalization Service from 1995-98, Charlottesville, Virginia, December 1, 2006.

[76]Ibid.

[77]Ibid.

[78]"House Democrats Hold News Conference on Justice Department Policies," Press Statement from Congressman Bob Filner, Washington, D.C., June 5, 2003.

[79]This is true for each of the bills described in this report: H.R. 5035 was referred to the House Committee on the Judiciary on March 28, 2006, and no further action was taken; H.R. 213 was referred to the House Subcommittee on Immigration on February 2, 2007, and no further action was taken; H.R. 4966 was referred to the House Subcommittee on Immigration on August 15, 2000, and no further action was taken; S. 3120 was referred to the Senate Committee on the Judiciary on September 27, 2000, and no further action was taken;  S. 173 was referred to the Senate Subcommittee on Immigration on March 24, 1999, and no further action was taken; and S. 871 was referred to the Committee on the Judiciary on April 22, 1999, and no further action was taken.

[80]Statement by Hon. Bill McCollum to the House of Representatives, October 4, 1999.

[81]H.R. 5062 was co-sponsored by Representatives Andrews (New Jersey); Diaz-Balart (Florida); Frank (Massachusetts); Kennedy (Rhode Island); Rogan (California); Bilbray (California); Filner (California); Frost (Texas); Ose (California); Ros-Lehtinen (Florida).

[82]"Stop Splintering Families, Start Applying American Fairness and Justice," Press Statement from Congressman Bob Filner, September 28, 2000.

[83]Carol Leslie Wolchock, "Legislative Efforts to Restore Immigrant Rights," Human Rights Magazine, American Bar Association, Winter 2001.

[84]Restoration of Fairness in Immigration Law Act of 2000, H.R. 4966, July 26, 2000.

[85]"Conyers re-Introduces the Omnibus 'Fix '96' Immigration Bill," Press Statement from Congressman John Conyers, Jr., March 7, 2002.

[86]The bill was co-sponsored by Senators Dodd (Connecticut); Feingold (Wisconsin); Kerry (Massachusetts); Wellstone (Minnesota); Durbin (Illinois); Graham (Florida); and Leahy (Vermont).

[87]Immigrant Fairness Restoration Act of 2000, S. 3120.

[88]To amend the Immigration and Nationality Act to revise amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act, S. 173, Section 1(a), January 19, 1999.

[89]Fairness to Immigrant Veterans Act of 1999, S. 871, April 22, 1999, Section 3.

[90]Discretionary Authority with Respect to Removal of Parents of Citizen Children, H.R. 213, January 4, 2007 (previously introduced as H.R. 5035 on March 28, 2006).