Deportation Madness

by Melissa del Bosque
Texas Observer http://www.texasobserver.org/cover-story/deportation-madness
July 21, 2010

Carlos Roybal always thought of himself as an American. Born in Chile, he’d lived in the United States legally since he was five months old, growing up in a middle-class Miami neighborhood. In 2006, Roybal was studying to become a sound engineer at Miami Dade College. “That was my dream,” he says.


When Roybal—who asked that a pseudonym be used for this story—returned to the United States from a vacation in January 2006, things turned nightmarish. After Roybal presented his permanent resident card to U.S. immigration authorities, they checked it against a Department of Homeland Security database and found that he had a criminal record—dating back almost a decade—of two misdemeanor convictions for possessing half a marijuana joint and a single tab of LSD. That August, Roybal was ordered to appear in immigration court. He was deported to Chile, a country he had not visited since infancy—and where only a few of his relatives remained.

Like tens of thousands of others, Roybal had been swept up in the U.S. government’s push to deport immigrants—legal immigrants included—with multiple convictions. “I never thought in a hundred years that I would be deported,” he tells the Observer, speaking by phone from Chile. His father’s sudden death when he was 18 had led him to experiment with drugs briefly, he says. “I was trying to run away from myself and my problems.”

Roybal made another mistake during that difficult period. Roybal’s father, unlike most of his family, had refused to become an American citizen, declaring himself a proud Chilean. After his death, Roybal decided that he would honor his father by eschewing U.S. citizenship too.

When ICE agents locked him up in a Miami detention center to await his hearing, Roybal remembers thinking there had to be a mistake. “They took my clothes and told me I’d need to sign some papers to get them back,” he recalls. “I signed the papers. Then an agent came to me and said, ‘We’re sending you to Texas.’”

For any detainee, that is bad news. Roybal became one of thousands of immigrant detainees shipped to Texas in recent years—partly because the 5th Circuit U.S. Court of Appeals, which encompasses Texas, Louisiana, and Mississippi, has a well-earned reputation as the nation’s toughest on immigration cases. Immigrant advocates charge that tens of thousands of detainees have been sent to Texas in recent years so their cases will be heard in the 5th Circuit. (Another, more pragmatic, reason: There are more detention beds here.)

Because Roybal wasn’t a U.S. citizen, he had no right to a court-appointed attorney. Unlike 86 percent of detainees in Texas, he had the means to afford a private immigration attorney. Still, he couldn’t stop Immigration and Customs Enforcement from holding his hearing in Texas, though his lawyer and family were in Miami.

Roybal and his attorney got the customary 20 minutes with an immigration judge. “I had already been in detention for two months,” he says. “The judge said I’d be charged with an aggravated felony”—a deportable offense. “My heart just sunk, and I couldn’t believe it. That’s when reality set in.”

Roybal refused to sign his deportation papers. After five months at the Port Isabel Detention Center near Brownsville and the South Texas Detention Center in Pearsall, he gave in. “I had no shoes for two-and-a-half weeks, and the food was so awful I wouldn’t even feed it to a dog,” he says. “They just wore you down.”

By the time Roybal reached Chile, news came that his mother had died back in Florida. His request for a temporary visa to attend her funeral was denied by ICE. “It’s still very hard to think about,” he says. “I was in the United States legally and had never committed any serious crimes. I thought deportation was for the bad guys—drug cartel members and murderers.”

Increasingly, the “bad guys” are people with minor offenses like Roybal's. Under much-disputed federal law, ICE maintains that two misdemeanor convictions for drug possession constitute an aggravated felony that mandates deportation. When you’re convicted, immigration judges are then unable to consider other factors, such as good conduct or family hardship, in deportation decisions.

It all began with the sweeping revision of immigration laws in 1996. This reform removed judicial discretion in cases like Roybal’s and expanded the list of crimes that could be defined as aggravated felonies. During the final years of the Bush administration, a renewed push to deport more immigrants landed thousands more legal residents with multiple misdemeanors on their records in detention centers and immigration courts.

Daniel Kanstroom, a law professor who founded Boston College’s Post-Deportation Human Rights Project, calls it a “radical policy experiment with devastating effects. Deportation was a relatively small-scale operation until the last 15 years or so. Since 1996, though, we have seen a tsunami of deportation because of harsh new laws that, in my view, overreacted to the problem. They removed discretion and mercy, and reduced judicial oversight.”

The results are clear. In 2009, a record 387,000 immigrants were deported. The feds do not report how many were legal immigrants like Roybal, or how many were kicked out of the country for minor drug possession. Immigration attorneys and scholars say the number has skyrocketed. For 2010, ICE set a goal of 400,000 deportations, according to an internal memo unearthed by The Washington Post.

Last month, ICE’s goal became a little harder to reach—and Roybal, along with thousands of others deported for minor drug offenses, got an unexpected shot of hope that he can someday return to the country he calls home.

On June 14, in a decision that received scant media attention, the U.S. Supreme Court unanimously overturned the conviction of Houston resident Jose Angel Carachuri-Rosendo, whose case was strikingly similar to Roybal’s. Carachuri-Rosendo, who had lived legally in the United States since age 5, had been deemed an aggravated felon in immigration court—stemming from two misdemeanor convictions, one for marijuana possession and one for possessing a single tablet of Xanax without a prescription.

In 2006, Carachuri-Rosendo was deported to Mexico by an immigration judge in the 5th Circuit. The University of Houston’s Immigration Law Clinic took up his case, with law students helping clinic Director Geoffrey Hoffman with the appeals. When the case reached the nation’s highest court, the justices were openly critical of the harsh deportation rulings.

“Here we are talking about two crimes,” said Justice Ruth Bader Ginsburg during oral arguments. “One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that.

“If you could just present this scenario to an intelligent person who didn’t go to law school, that you are not only going to remove him from this country, but say, ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill—it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute ...”

“What controls is Congress’ judgment,” interjected U.S. Attorney Nicole A. Saharsky. “And Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens.”

The high court, in a unanimous decision written by Justice John Paul Stevens, disagreed. The court ruled that a lawful permanent resident convicted of minor drug possession offenses does not warrant being convicted under federal immigration law as an aggravated felon. Its ruling will have an immediate impact on thousands of immigrants still in the United States fighting their deportations. “Anyone in proceedings in front of an immigration judge, it will allow them to seek relief,” Hoffman says.

For Roybal and thousands of others already deported, there’s a hitch. “The good news is that the Supreme Court says the government was wrong,” Kanstroom says. “The bad news is there is no mechanism to get back into the country, and now people are living a lifetime in banishment.”

The only hope for those already deported is to sail into the uncharted legal waters known as “post-deportation law.” As Hoffman says, “It’s a very open question as to how the government will handle this.” Attorneys and deportees are awaiting guidance from Congress or ICE about how to mount post-deportation challenges and petition for re-entry. There’s no sign so far that clarity is forthcoming. (Nina Pruneda, a spokesperson for ICE, said her agency would not comment “due to ongoing litigation.”)

Lawyers at Boston College’s Post-Deportation Human Rights Project have been trying to help Roybal, to no avail. That’s partly because he was deported by the 5th Circuit—not only the nation’s toughest with deportation cases, but also with post-deportation cases.

When it passed immigration reform in 1996, Congress gave deportees a chance—one chance—to file a motion to reconsider or reopen their cases. The 5th Circuit has ruled that this was inconsistent with an older federal regulation denying any motion to reconsider cases once a person had been deported. While the 10th has ruled similarly, two other circuits—the 4th and 9th—have taken a different view. If Roybal had been deported in these jurisdictions, his attorney could have moved to reopen his case, and he might already be headed back home.

Another case brought by the Post-Deportation Project challenges the courts’ differing interpretations of the law. The attorneys hope that it will end up in the Supreme Court, where the justices can resolve the inconsistencies in interpreting post-deportation law. “We need to come up with a solution for these people,” says Maunica Sthanki, the project’s Supervising Attorney. Even she won’t hazard a guess what that solution might be.

Roybal could end up being a pioneer of post-deportation law. He’s not banking on it. After experiencing the U.S. immigration system firsthand, he doesn’t expect to be back in Miami anytime soon, if ever. Now 33, Roybal teaches English in Santiago while he works on becoming fluent in Spanish—a language he barely spoke when he was deported. His three siblings, his niece, and his grandmother are all U.S. citizens.

His mother had become a citizen, too, shortly before she died.

Roybal is overcome with emotion as he talks about the last time he saw her. He was behind bars at the Port Isabel Center north of Brownsville, fighting to stay in the United States.

Maybe someday he can visit her grave in Florida, Roybal says. “At least the court ruling gives me some hope.” Hope, for those caught up in the United States’ rush to deport immigrants, is a rare and precious thing.