Another (Un?)Intended Consequence: Pot Charges Can get You Deported
Apr. 11, 2016 (Mimesis Law) — It’s become commonplace in our legal system: A person accepts responsibility for committing an offense. He has pled or been found guilty, paid his debt to society, but, upon completion of his sentence, finds out that the “system” is not done with him. He has another fight ahead of him, against the collateral consequences that are triggered by his conviction, and he does not find out about it until the completion of his sentence. It’s as if the government is telling him, “We’re not done with you, buddy. Far from it, actually.”
A recent article by Politico begins with a common scenario involving someone convicted of a low level, nonviolent drug offenses, only to be later snared by immigration authorities:
Around 6:30 p.m. on a frigid January evening in 2013, Ricardo F. heard a knock at his door. He had just arrived at his New Jersey home, and he was about to head out again to join his wife and twin daughters at a family birthday party. He opened the door to find uniformed men on his porch, telling him that they had a warrant for his arrest.
There was nothing illegal about Ricardo. When he was 11, in 1991, Ricardo’s family left Chile. He grew up in New Jersey, and gained permanent resident status when he was 20. About the same time, Ricardo had his first brush with the law, arrested twice for simple marijuana possession—once outdoors in Union City, and another time when he was out with a friend who was caught smoking. Both times, Ricardo’s public defender told him to plead guilty, pay his fine and move on. He was never ordered to serve jail time.
This is when the rubber from criminal justice meets the immigration system’s road. At a time when most sane people have finally realized that the war on drugs has been a disaster (like any other war declared on a noun), when the Drug Enforcement Administration is finally considering removing pot from its Schedule I list, people are still facing a lifetime of banishment from the U.S. for minor drug convictions. Even for convictions involving small amounts of the demon weed, like the ones that Ricardo pled out to.
U.S. immigration policy, like its drug policy, has been unforgiving of drug dealers and drug users for a long time. Laws passed in the 1980s and 1990s, at the height of the War on Drugs, dictate that any drug offense (other than a single conviction for possessing a small amount of marijuana) is a deportable offense, even for a lawful permanent resident. Any drug sale or potential sale, no matter how small, is considered an “aggravated felony.”
And with his two minor pot convictions, he is far from alone:
Ricardo belongs to a group that has been largely ignored in the widespread calls for criminal justice reform. Hundreds of thousands of immigrants, including many legal green card holders like Ricardo, have been swept up by Obama administration policies aimed at increasing the number of deportations of convicted criminals. Even as the White House announced changes to reduce the number of people serving harsh mandatory minimum sentences for nonviolent drug offenses, deportations have increased for people whose most serious conviction was for exactly that. (Emphasis added.)
So much for those press conferences about criminal justice reform.
It appears that Ricardo pled out to the drug charges back in 2000. In 2009, the U.S. Supreme Court issued its decision in Padilla v. Kentucky, where it held that criminal defense attorneys are required to advise their clients of the potential immigration consequences that may arise from a criminal conviction. Absent that advice, the representation is deemed constitutionally deficient, so long as the defendant can prove prejudice. But, even if Ricardo could establish that his defense attorney failed to warn him of the immigration consequences, he would be barred from doing so: The New Jersey Supreme Court has held that Padilla does not apply retroactively (the U.S. Supreme Court was silent on the issue of retroactivity, leaving each State to reach its on conclusion).
Those affected are not only denizens without immigration status who take on jobs no one else will, but legal permanent residents like Ricardo who have established ties to the U.S., paid their taxes, and have children and spouses who are U.S. citizens. Immigration laws enacted in the 1990s have made it tougher to fight back, as those with conviction like Ricardo are kept in custody while their immigration cases are pending (if they can afford to, since even three year olds are not entitled to counsel in immigration court).
And from 2008 through 2014, the Executive implemented the Secure Communities program that linked local law enforcement fingerprint databases to the National Crime Information Center, or NCIC. It was meant to ensure that those dangerous ruffians without papers were kept in local custody until their local cases were finished, so that they would be picked up by immigration and placed on the first plane out of the country. Shockingly, the program netted people who did not fit the “dangerous criminal” profile:
On the surface, it sounds effective: Surely, if the United States has a chance to locate dangerous criminals and send them back to their home countries, it should make that easier. But the policy also made it easier to find “criminals” charged with minor crimes. Previously, immigration agents had focused on identifying deportable immigrants by meeting with prison inmates at the end of their sentences. Now, immigration agents, who had been alerted by a sometimes flawed federal database, were showing up at local jails to arrest people who had been arrested but not yet convicted. The consequences could be extreme—a minor criminal charge could lead to deportation. (Emphasis added.)
The Obama administration no longer implements Secure Communities, which means that people are now picked up at home instead of the local jails; sometimes many years after their cases are disposed, because of limited immigration resources, or simply due to old-fashioned governmental bureaucracy. This is why Ricardo got the knock on his door well after his state cases were closed.
The fact remains that (in custody or not) non-citizens who have drug convictions are, with limited exceptions, facing immigration charges that deprive the immigration judge of any discretion, proverbially tying the judge’s hands no matter what the circumstances. Sound familiar?