Due process, a cornerstone of American jurisprudence, cannot be applied selectively.  Even if the beneficiaries are immigrants who have already been deported.

Aggravated Felonies Under IIRAIRA

Until 1996, most lawful permanent residents (LPRs) facing deportation due to criminal convictions were entitled to a merits hearing at immigration court.  An immigrant’s positive equities were balanced against the nature of an immigrant’s convictions. It was possible to win judicial forgiveness and a second chance to remain lawfully in the United States.

This changed when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).  As a immigration lawyer in San Diego, I witnessed many minor non-violent offenses, deemed misdemeanors in state court, suddenly designated as aggravated felonies for immigration purposes.  And aggravated felonies lead to automatic deportation orders.

The Supreme Court Clarifies The Misdemeanor-Felony Distinction

In Carachuri-Rosendo v. Holder, the Supreme Court slammed the government’s blurring of the misdemeanor-felony distinction.

A lawful permanent resident, Carachuri-Rosendo had lived legally in the U.S. since he was five years old.  He had committed two misdemeanor drug possession offenses.  For the first, possession of less than two ounces of marijuana, he spent 20 days in jail.  For the second, he pleaded nolo contendre to possession without a prescription of one tablet of Xanax, a common anti-anxiety medication, and received 10 days in jail.

After the second conviction, he was deported for having committed the aggravated felony of “illicit trafficking in a controlled sentence.”

A unanimous Supreme Court held the government’s interpretation that minor drug possession offenses constitute aggravated felonies was counter-intuitive.

“Congress,” wrote Justice Stevens, “like Humpty Dumpty, has the power to give words unorthodox meanings.”

But the English language, he added, “tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that the mere possession of one tablet of Xanax does not constitute trafficking.”

The Impact Of Flawed Deportations

Following the Carachuri-Rosendo decision, 26 legal rights organizations have asked the government to implement procedures allowing immigrants – improperly denied the opportunity to defend themselves at court and sent back to their countries of origin – to reopen their cases.

If successful, they would be able to return and live legally in the U.S.

Recently, in “For Those Deported, Court Rulings Come Too Late”, New York Times reporter Nina Bernstein shared the plights of three former LPRs, also convicted of minor drug offenses, who might benefit from new reopening procedures:

  • Vincenzo Donnoli, 51, had lived in the U.S. since the age of nine.  He ran a landscaping business and had five children.  He was deported to Italy after two misdemeanor convictions, one in 1988 and the other in 2006.
  • Seweryn Smieciuch, 27, was a bricklayer deported to Poland.  He had entered the U.S. at the age of ten, when his parents won the green card lottery and moved to Brooklyn in 1993.  He spent two days in jail.
  • Damon Franklin Spence, 35, had lived in the U.S. since he was 11 years old.  He left behind four kids and was running a sneaker store when he was deported to Jamaica.  He had been convicted of two possession of marijuana misdemeanors.

In my view, since their deportations were based on misguided interpretations of law, the right to new hearings seems to logically flow from the Court’s reasoning in Carachuri-Rosendo.

Otherwise, the Court’s bark far exceeds its bite.

Reopening Misguided Deportations As A Principle Of Fairness

Family unity has long been a fundamental tenet of immigration law.  Conversely, the effect of family separation is a major issue of deportation defense.

It is unknown how many lawful permanent residents (LPRs) were sent back to their home country as a result of the mistaken aggravated felony rules.    However, a recent University of California study estimates the magnitude of family separation on LPR families caused by deportations for minor crimes during the period of 1997 to 2007:

  • 87,884 LPRs were deported during the ten year period
  • 68% of these LPRs were deported for minor non-violent crimes
  • The deported LPRs had lived in the U.S. an average of ten years
  • The deported LPRs had a total of 103,000 children
  • 88,000 children of deported LPRs were U.S. citizens
  • 44,000 children of deported LPRs were under 5 years old

In addition, there were 217,000 other family members (including U.S. spouses, parents, brothers and sisters) affected by the deportation of LPRs.

“American principles of justice,” noted the legal rights groups In their joint letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano (PDF), “require that these immigrants now receive their day in court.”

They’re right.

After more than a decade of flawed deportations, due process demands nothing less.