Mimesis Law
28 June 2017

That Train Never Stops: Low-Level Offenders Still Deported From The U.S.

June 27, 2016 (Fault Lines) — Don’t let anyone tell us otherwise.  The Obama administration is not only doing a very fine job of rounding up and kicking “aliens” out of the U.S., but those booted from the country include people who have been convicted of, or have pled out* to, a minor crime.  The New York Times has the story:

In November 2014 when Mr. Obama first announced the protection programs, he also set new priorities for enforcement. Since then, immigration authorities say, their focus is on removing convicted criminals and foreigners who pose national security threats. But the administration’s priorities also include deporting migrants from Central America, including children, who came in an influx since 2014. And immigrants who committed minor offenses — or none at all — are often swept up in the operations.

After Thursday’s Supreme Court decision, the president’s protections are gone, but the enforcement plan remains in effect. It is part of a particularly edgy moment for immigrants and their supporters framed by the Supreme Court ruling, Donald J. Trump’s presidential campaign and Britain’s surprise vote, influenced in part by anti-immigrant sentiments, to leave the European Union. (Emphasis added.)

Despite its growly limited resources given the number of people without papers, U.S. Immigration and Customs Enforcement, or ICE, is using its power to chase down and deport illegals who have no serious convictions on their record.  It’s as if ICE was a hunter in the wild who used rounds to shoot off pigeons.

For a moment, let’s put aside the fact that these people — and their families — don’t’ deserve to be kicked out of this country for having pled out to a minor transgression.  Let’s put our collective self-interest first, and only worry about the skin on our backs.  Fair enough.

But the fact that ICE is using its resources to kick these people out means that others who actually pose a threat are less likely to be apprehended and deported.  In order to kick Pepe out, who had a DUI conviction** from 2001, you will need: ICE agents to pick him up; an ICE transitional center jail to warehouse him; and his name needs to be put in a court’s docket so that a government-funded prosecutor can convince a judge to banish him from the country.  In other words, it’s not that easy and requires the use of resources.

But most importantly, those are resources that won’t be used to deport those with multiple felony convictions who are a real threat to society.   That is time, effort, and money ICE used on Pepe that could have been put to better use on that ese from south Central who did 10 years for carjacking.  These kinds of enforcement decisions put people in danger, and it all comes clear once it starts to hit home.

It hit home for Jose Cervantes Amaral from Wisconsin, when ICE showed up at the factory where he worked:

In 2006, Mr. Cervantes said in an interview by telephone on Friday, he was caught up in an immigration raid at a factory near his workplace. Local police who assisted in the raid arrested him, finding — mistakenly, he says — that he was working with documents under a false name.

Mr. Cervantes, a construction worker, pleaded guilty to a minor identity theft offense. A decade later, after he and his wife raised two daughters in Genoa City, Wis., immigration agents came to his door to deport him.

“The shock for my wife was very strong,” Mr. Cervantes said. She has been in treatment at local hospitals for kidney cancer, he said. “If we have to go back to Mexico, I won’t have her for long.”

No matter how destitute Cervantes is, he will need to retain a private immigration attorney because defendants respondents in immigration court are not entitled to one because removal proceedings are considered “civil” and not “punitive” in nature, where not even substantive due process or the Ex Post Facto clause of the U.S. Constitution are applied.  He is on his own when faced with the might of the U.S. government.  At least David had a rock when he took on Goliath.

Recently, the U.S. Supreme Court deadlocked on President Obama’s plan to shield some (about 5 million of the 11 million without papers) of those facing deportation under the guise of Deferred Action, or DACA.  But even if someone is granted Deferred Action, it simply means that he will not be placed in deportation, for now at least.  It simple means the Executive Branch lets that person linger in immigration limbo, as it confers him no rights to permanent residency and there’s no guarantee that it won’t change its mind tomorrow and send ICE agents to his door. Because it can.

Got no papers and a minor conviction on your record? You better watch your back, ese.

*In the context of our immigration laws, it matters not whether one was convicted by a jury of her peers, or simply pled no contest. It is still considered a conviction for immigration purposes.  Many lives have been ruined as a result of lawyers’ people’s misconception in this regard.

**As of November of 2014, those with misdemeanor DUI convictions are an enforcement priority, as per ICE’s Director.

17 Comments on this post.

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  • Rick
    27 June 2016 at 3:22 pm - Reply

    Of course you have to leave aside that those being deported are already felons for having entered the US illegally anyway. I doubt you’re going to get much sympathy for this position in flyover country.

    • Mario Machado
      27 June 2016 at 4:20 pm - Reply

      “Those being deported are already felons for having entered the U.S. illegally.”

      Not exactly. Those in removal proceedings have not necessary been deemed criminally guilty of illegally (re)entering the U.S. That is what happens in federal criminal court. There is a big difference between being charged as entering without papers by the Department of Homeland Security and being indicted for illegal (re)entry by the U.S. Attorney’s office in U.S. District Court. And charging them criminally before placing them in removal proceedings would further delay their repatriation, since they would likely have to serve a federal sentence before they are sent to ICE for their removal.

      I don’t appeal to “sympathy” or feelz to get my point across, be it in flyover country or not. If anything, my post calmly shows proponents of removing anyone and everyone that (i) their plan to do so is counterproductive, if not a logistical impossibility; and (ii) expending scarce resources in removing minor offenders means that dangerous felons are more likely to remain in the country, to everyone’s potential detriment. It’s ironic that if those who want a “better” plan to remove individuals from here would have a better approach should they heed a defense attorney’s advice, at the least on what NOT to do.

      Finally, you should re-read the post, as it is obvious you missed the main point. Trust me, it will make you better informed on the subject. We here at Fault Lines take the time and care to write, re-write, edit, and then edit some more before you get the benefit of clicking on the article.

  • Adam
    27 June 2016 at 11:30 pm - Reply

    “(i) they’re plan to do so is counterproductive, if not a logistical impossibility; and (ii) expending scarce resources in removing minor offenders means that dangerous felons are more likely to remain in the country, to everyone’s potential detriment.”

    I don’t think this post argues the first point very convincingly at all. That ICE is having trouble funding its duties currently has little bearing on whether they could be funded by a government with a mandate and a will to do so. The second point is a better one, and I agree, we probably should be starting eith the low-hanging convicted-felon-in-prison fruit rather than people with 15 year old DUIs.

    As for Obama, it seems both “sides” of this agree he’s doing it wrong, and even agree on some of the fixes (e.g. prioritize convicted felons over DUIs). This makes it confusing to hear you argue that “[Obama is] doing a very fine job of rounding up and kicking “aliens” out of the U.S.”

    • Mario Machado
      28 June 2016 at 2:00 pm - Reply

      I didn’t say/imply that ICE was having trouble fulfilling its duties. I said that they are spending resources in kicking out the wrong type of people. And those resources, even if they are expanded by a government mandate (good luck with that), does not mean that ICE will “fulfill its duties” (whatever that means).

      20K current ICE employees (the greatest proposed spike in ICE agents is Trumps’ suggestion we triple the number), most of whom are not field agents, versus 11 million estimated without papers. This drives home the point that ICE’s ever-finite resources should be used on those who actually pose a threat (at least in theory). This is why I provided a link to my article on Trump’s deportation plan on the second paragraph.

      When I said Obama is doing a fine job, I meant that his numbers surpass that of his predecessors (Google “Obama record deportation”). He is deporting a lot of people. My point is that the executive is focusing on the wrong type of people.

  • Chris
    30 June 2016 at 9:10 am - Reply

    DUI drivers kill, they should absolutely be an enforcement priority. (maybe not THE priority, but a high one all the same)

    • Mario Machado
      30 June 2016 at 1:13 pm - Reply

      Dios mio, man. Yes, driving under the influence does sometimes result in death. Do you know how many DUI convictions there are in the U.S. per year? I don’t. But I can take a guess that there are a lot. With circumstances ranging from the dude who passed out in his car in a parking lot with a BAC of .08 back in 1997 to the maniac who goes black out and T-bones a minivan and someone dies as a result.

      Which means that all DUIs should not be an enforcement priority, given the resources, logistical challenge, and equities of each case.

  • Anonymous
    3 July 2016 at 5:11 pm - Reply

    Due process does apply to removal proceedings.

    • shg
      3 July 2016 at 5:56 pm - Reply

      Read it again. Harder.

  • Anonymous
    4 July 2016 at 7:32 am - Reply

    Shg,

    I assumed the reference to ‘substantive’ due process above was an error. The author suggested that there were substantive due process rights available to criminal defendants that are not available to immigrants in removal proceedings. Did I miss something? Which specific substantive due process rights are those that immigrants don’t have, which makes removal proceedings so unfair?

    • shg
      4 July 2016 at 10:09 am - Reply

      Good. Now you’ve read and realized your last comment was wrong, and you’re trying to move your goal posts to cover your error. That’s okay. Most anon commenters get embarrassed when they realize they wrote something inaccurate and do what they can to pretend otherwise. You’re not special.

      If Mario feels like it, he can explain his words further, but first step is for your comment claiming he was wrong to accurately reflect what was said. Now, as for your need to be anon, are you hiding from the Mossad or just prefer to avoid responsibility for your carelessness? Whatever.

    • Mario Machado
      4 July 2016 at 1:51 pm - Reply

      Sir,

      I didn’t suggest that there were substantive due process rights not available to respondents. I said it, explicitly. The answer to your question lies in my post, and the links within it. But I’m feeling extra nice today (something about boilermakers, bikinis, and porterhouse steaks), so here’s a another link that proves my point.

      http://www.usnews.com/news/us/articles/2016-03-24/lawyers-children-need-lawyers-in-immigration-court

      If you have two hands, hit control+F, and then type “substantive.” It will instantly make you better informed.

  • Anonymous
    4 July 2016 at 5:24 pm - Reply

    Ok…didnt follow that because the right to counsel for criminal defendants is in the 6th amendment.

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