The Case for Bad Hombres

The current argument of the new administration is that we need to get out “bad hombres.”    And there is little argument that gang members and people with very serious crimes need to be removed.  However, in my practice, I don’t see many “bad hombres” being removed.  The clients I commonly represent have relatively minor convictions, like a first offense DUI, or shoplifting, or drug possession. And even the ones with more slightly more serious charges, the circumstances usually lesson and explain the crime.  Most immigrants don’t get a chance to commit more than one crime, because on the first conviction they are legally deportable and generally end up in Immigration Court.

For instance, Sandra (real client, but not her real name) is a beloved home health aide, working for the same handicapped women for nearly 10 years.  She is married and has two children with her husband, Roy (also not his real name). With great effort, their oldest son recently graduated from high school.  Sandra is beautiful and bashful.  She is hesitant to talk about her tough childhood and rebellious teenage years (Roy is happy to fill in the details).

What Sandra will not mention is that she was once ordered deported as a “criminal alien.”

Sandra came to the United States from Haiti as a Lawful Permanent Resident (“green card” holder) at the age of ten.  She endured a troubled relationship between her mother and step-father and eventually moved out at the age of 18 to live with a cousin.  She admittedly partied a lot.  She hung out with her cousin’s friends, who were not a good influence. Before she was 19 years old, Sandra had a theft charge after she was caught with a stolen Bose Stereo System that she had been given by a boy she was dating. By luck, she did not encounter ICE on the courthouse steps after she pleaded guilty and was given probation.

The law states that aggravated felons are subject to removal. 8 USC 1227(a)(2)(A)(iii)(“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”) Sandra’s stolen stereo classified her as an aggravated felon for Immigration purposes.  The legal definition of an aggravated felony includes, “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 USC 1101(a)(43)(G).

Aggravated felons are ineligible for any relief from removal (with the very small exception for those who will be tortured in their country of removal).  Discretion or favorable factors simply do not matter. Even if an aggravated felon in the Immigration context could change their life be the next Mother Theresa or Albert Einstein, the conviction would control and deportation would be mandatory.

Sandra eventually separated herself from her troubled friends, met and married Roy and began a path to a successful life. Roy has been an unwavering positive influence on Sandra’s life. Sandra went back to school for her CNA degree.  She started going to church. By all accounts from those who know her, Sandra became a different person; she matured and found stable footing. Shortly after the birth of their second child, Roy was diagnosed with a genetic liver disease and needed a transplant.  The donor list was long and Roy became so sick that he was unable to work. Sandra worked, paid the bills, raised the children, and nurtured her bed ridden husband.  Without her Roy would have been hospitalized at an extraordinary cost to Medicaid and the kids would have likely ended up in foster care. Despite receiving a stolen stereo system from a boyfriend many years ago – Sandra does not meet the definition of a “bad hombre.”

Then ICE arrived. Sandra will never forget the day; it was in the afternoon; she was getting ready to leave for work and helping her husband from the shower and back to his bed. Her elderly grandmother was downstairs making dinner for the kids. As Sandra was settling Roy into bed, she heard two officers at the door speaking with her grandmother.  Sandra came downstairs, was asked for her documents, and was taken out of her home in-handcuffs by ICE officers. Roy and his two kids were left in the house with Sandra’s elderly grandmother who could not physically move Roy. Sandra was held in ICE detention for almost a year. We became involved after she had been ordered deported. (Recall, 8 USC 1227(a)(2)(A)(iii) removable because of an aggravated felony) How we managed to reopen her case and get her Green Card back is a complicated miracle and beyond the scope of this post.  But we were able to re-work her old criminal conviction (something that is very difficult or impossible to do), and then get her case reopened.  In the pre-Trump days, ICE was able to help. ICE did so by not opposing the motion to reopen – they didn’t support it.  Roy got his liver transplant, is working, and the family is well.

In some ways, Sandra is lucky that she was picked up by ICE in the “old days.”  Today she would be a faceless “bad hombre.” She would likely be removed promptly to Haiti.  The societal costs of caring for her husband and children, would have been extraordinary as well as heartbreaking.  It’s easy to cheer the idea of getting out all the “bad hombres” but we should be clear what we mean by bad hombre.

There are many, many Sandra’s out there classified as “aggravated felons.”  With the focus on rounding up “criminal aliens,” they will have their green cards taken away and be physically removed to a country where they haven’t lived since a young child. Once gone, they are permanently banned from ever returning.  ICE provides statistics on its removals.  For FY2015 ICE states, “63,539 (91%) of all interior removals were previously convicted of a crime.” Sandra might have been part of that 91%.

How many thousands of others like her are in that number?  Many thousands more are promised by the Trump Administration.

Normally, that is the end of the story

Sandra needed help.  Thankfully we were able to work tirelessly for 3 years to address constitutional infirmities in Sandra’s criminal convictions.  In the end she was detained for more than a year in ICE jail and then another thirty days in state custody.  But Sandra is strong.   Ultimately we overturned the aggravated felony designation.  The case was successful for Sandra.   But for many, many others that is not the case  (See statistic above, more than 63,000 others did not have such luck last year).

What should we do?

Don’t give in to the hysteria.  It’s a catchy sound bite for politicians to claim they are deporting “criminal aliens.”   Keep an open mind.  Some people are bad.  Some people do dumb things.  Some people change, are rehabilitated, and many add to our communities.   We should not have a dragnet solution when it comes to dealing with individual humans.   Just ask Sandra.

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