By Phillip Smith
The US government wants to throw Marsha Austin out of the country. The 67-year-old grandmother came from Jamaica to New York as a lawful resident in 1985, and has lived here ever since with her husband, seven children (two more are in Jamaica), grandchildren, and great-grandchildren. All are legal residents or US citizens.
By her own admission, she had problems with drugs. “I live in a drug-infested area,” she said of her neighborhood in the Bronx, and she succumbed to the lure of crack cocaine in the wake of her mother’s death. Jones racked up several minor convictions before getting popped for making a $5 purchase for an undercover officer in 1995.
That was “attempted criminal sale of a controlled substance in the third degree,” to which she pleaded guilty on her public defender’s advice. The attorney failed to tell her the conviction could lead to deportation.
Her convictions led to little or no jail time, but in 2010, as her husband’s health faltered, she violated probation by drinking alcohol. She did 90 days in jail, but instead of walking out, she was seized by immigration authorities at the end of her sentence and spent the next 2 ½ years in immigration jail awaiting deportation.
Immigration and Customs Enforcement (ICE) repeatedly opposed her release, claiming she was under mandatory detention for her drug offenses, but then released her unexpectedly in 2013. She’s been in treatment since then and now proudly reports that she’s been “clean as a whistle” for the past five years. Now, her husband’s health is failing, as is the health of her daughter, who suffered a breakdown after her own daughter suffered a serious illness.
“My kids and my grandkids, that’s what I’m living for now,” she said.
But she remains in limbo. The US government still wants to send her back to Jamaica, arguing that she is subject to deportation for the “aggravated felony” of buying $5 worth of crack for a narc.
She’s not alone. Beginning late in the George W. Bush years and continuing through the Obama administration, the US has been deporting and trying to deport immigrants for drug offenses at a record clip. According to a just released report from Human Rights Watch, more than 260,000 non-citizens — legal residents and illegal immigrants alike — were deported for drug offenses between 2007 and 2012. Shockingly, 34,000 people were deported for marijuana possession offenses alone.
The trend is upward. The number of people deported whose most serious offense was a drug crime was up 22% over that period, while the number of people deported whose most serious offense was a drug possession offense was up even more, at 43%.
Tens of thousands more have been or are being detained indefinitely in immigration jails fighting pending deportation orders. Such extended imprisonments wreak havoc on the families who husbands or fathers, wives or mothers, are caught up behind bars.
The sweeping action against non-citizens comes as part of the Obama administration’s crackdown on “criminal aliens,” but seems disproportionately harsh when applied to low-level drug offenders, especially people who have lived all or most of their lives here and have strong family and community roots in this country. It is also at odds with the trends toward drug decriminalization and even legalization now at play in the country.
The Human Rights Watch report, “A Price Too High: US Families Torn Apart by Deportations for Drug Offenses,”documents how the US government is routinely breaking up families by initiating deportation proceedings for drug offenses, often ones decades old or so minor they resulted in little or no prison time. Researchers interviewed more than 130 affected immigrants, families, attorneys, and law enforcement officials, and incorporated new data obtained from ICE.
Here are some of the cases examined in the report:
“Raul Valdez, a permanent resident from Mexico who had grown up in the Chicago area from the age of one, was deported in 2014 because of a 2003 conviction for possession of cannabis with intent to deliver, for which he had been sentenced to 60 days in jail.
Ricardo Fuenzalida, a permanent resident from Chile now living in New Jersey, was held without bond for months fighting deportation in 2013 because of two marijuana possession convictions from 13 years earlier.
Jose Francisco Gonzalez, a permanent resident in Anaheim, California, was put into deportation proceedings and held without bond in 2014 because of a 2001 arrest for having two pot plants, despite having successfully completed a California diversion program that promised to erase his criminal record.
Abdulhakim Haji-Eda, a refugee from Ethiopia who came to the US at the age of 13, has been ordered deported as a drug trafficker for a teenage drug sale in Seattle. Now 26 years old, he has no other convictions, and is married to a US citizen with two US citizen children and another on the way.
“Antonio S.,” who came to the US from Mexico when he was 12 and was eligible for a reprieve from deportation as a “DREAMer” under the executive program Deferred Action for Childhood Arrivals, was detained for over a year in Colorado and deported after a conviction for possession of marijuana, a municipal violation to which he pleaded guilty without an attorney.
“Alice M.,” a 41-year-old graphic designer and Canadian citizen, [was barred] from living in the US with her US citizen fiancé because of a single 1992 conviction for cocaine possession she received in Canada in her last year of high school, a conviction that was pardoned long ago in Canada.
“Mr. V.,” a refugee and permanent resident from Vietnam, was ordered deported in 2008 for a 1999 conviction for possession of crack cocaine. Although he has since been granted a full and unconditional pardon from the state of South Carolina, Mr. V. remains under a deportation order and only remains in the US because of restrictions on the repatriation of certain Vietnamese nationals.”
“Even as many US states are legalizing and decriminalizing some drugs, or reducing sentences for drug offenses, federal immigration policy too often imposes exile for the same offenses,” said Grace Meng, senior US researcher at Human Rights Watch and the author of the report. “Americans believe the punishment should fit the crime, but that is not what is happening to immigrants convicted of what are often relatively minor drug offenses.”
The report notes that the Obama administration has been sensitive to the injustices of the war on drugs and urges it to be as sensitive to the harsh effects of its deportation policies related to drug offenses. But it is not just the federal government that can act to improve the situation. Here are the group’s recommendations:
“To the United States Congress
Eliminate deportation based on convictions for simple possession of drugs.
Ensure that all non-citizens in deportation proceedings, including those with convictions for drug offenses, have access to an individualized hearing where the immigration judge can weigh evidence of rehabilitation, family ties, and other equities against a criminal conviction.
Ensure that refugees and asylum seekers with convictions for sale, distribution, or production of drugs are only considered to have been convicted of a “particularly serious crime” through case-by-case determination that takes into account the seriousness of the crime and whether the non-citizen is a threat to public safety.
Ensure that non-citizens who are barred from entering the US and/or gaining lawful resident status because of a criminal conviction, including for drug offenses, are eligible to apply for individualized consideration, i.e., a waiver of the bar, based on such factors as the above mentioned.
Eliminate mandatory detention and ensure all non-citizens are given an opportunity for an individualized bond hearing.
Redefine “conviction” in immigration law to exclude convictions that have been expunged, pardoned, vacated, or are otherwise not recognized by the jurisdiction in which the conviction occurred.
Decriminalize the personal use of drugs, as well as possession of drugs for personal use.
To the Department of Homeland Security
Provide clear guidance to immigration officials that a positive exercise of prosecutorial discretion may be appropriate even in cases involving non-citizens with criminal convictions, with particular consideration for lawful permanent residents and non-citizens whose most serious convictions are for nonviolent offenses, including drug convictions, that occurred five or more years ago.
Provide all non-citizens who have been in detention for six months or more with a bond hearing.
To State and Local Governments
Ensure drug courts and diversion programs do not require a guilty plea from defendants that would constitute a conviction that triggers deportation, mandatory detention, and other immigration consequences even upon successful completion of the program.
Remove barriers to post-conviction relief for non-citizens convicted of nonviolent drug offenses through legal error, including through guilty pleas obtained without adequate advice from defense counsel on the potential immigration consequences of the plea.
Decriminalize the personal use of drugs, as well as possession of drugs for personal use.”
To be comprehensive and thorough, drug reform must encompass immigration law reform, too.
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