Final jeopardy

I can still remember the look on the face of our Croatian client in one of the first immigration cases I was involved in. He had been living in the United States as a legal resident since he moved here as a young man in the late 1960s to escape the Communist regime ruling his country. A few years after that, in 1971, he got into a bar fight with some countrymen and plead guilty to assault in order to avoid jail time. 

“Four guys attacked me, so I couldn’t go to trial because it would be four against one,” he explained. I told him it didn’t matter; he plead guilty, and that was that. Now, in his 60s, he had applied for citizenship, he explained, because he wanted to finally become a citizen of the country that took him in those many years ago and gave him so many opportunities. He had raised three sons, all American citizens, and run a successful business. The Department of Homeland Security ran a background check, denied his citizenship claim, and placed him in deportation proceedings. “I was just trying to do the patriotic thing,” he said with a look of ironic and sad bemusement.

One of our next clients was a truck driver from Canada who had lived in the U.S. as a lawful permanent resident for about 30 years. He had been convicted in 1986 of transporting drugs across state lines because he was caught with marijuana in his truck on one of his runs. He said he thought he had put his problems behind him. A few years after that conviction, he became a born-again Christian. He attended church twice a week and was one of his congregation’s most active volunteers. He told me his favorite ministry was the prison visits. He could connect with the prisoners because he could see that they were in the same position that he was before his religious conversion, and that with faith and courage they could change as well. He was tested regularly for his job and had been clean for the last 20 years. I asked him why he didn’t want to go back to Canada. Their social views were too liberal and permissive for his tastes, he explained, and he had an adult daughter with special needs for whom he wanted to be available. “But you can’t escape the past,” he said.

This statement is literally true in immigration law. Unlike in criminal law, there is no statute of limitations for crimes committed by legal residents. They can be, and often are, deported for crimes committed decades ago. There is no allowance for the way people can change over time, or for the fairness of giving people closure so they can move on with their lives. If a non-citizen commits a crime in this country, he can never live it down, no matter what he does or how he changes.

This is true even if the government changes the law after the conviction. In another case, a lawful permanent resident was convicted of passing a bad check in 1991. At that time, she was not deportable and was free to leave and reenter the country, and so she plead guilty for a suspended sentence. However, unbeknownst to her, a change in the law in 1996 meant she could no longer reenter the country with a bad-check conviction. 

The truth is that some of our most cherished constitutional protections for criminal defendants — double jeopardy, statutes of limitations, ex-post-facto laws — do not apply in the immigration context because immigration law is civil, not criminal. Ironically, though, at the same time the government increasingly relies on the civil nature of immigration law to flout these basic principles, they are also increasingly “criminalizing” immigration law.

Currently, more than 50 percent of all federal criminal prosecutions are immigration-related. Whereas in 2003, there were about 20,000 immigration prosecutions, that number jumped to more than 90,000 in 2009, an increase of 450 percent in six years. These immigration prosecutions essentially consist of being found in the U.S. without permission — more than 90 percent are for illegal entry or illegal reentry. Much of the increase is due to Operation Streamline, an “interior enforcement” program designed to dramatically increase criminal immigration prosecutions, often through large-scale raids followed by mass plea bargains.

This program is straining our federal criminal justice system through a number of unintended consequences. For one, other criminal behavior is being neglected because these prosecutions are using up so much of the time of prosecutors, investigators, and judges. Thus, from 2003 to 2009, while immigration prosecutions increased 450 percent, to 91,899 — the number of prosecutions for business fraud dropped from 322 to 82. As we now know, egregious abuses by the financial industry during this period led to a severe economic crisis, and massive frauds like that of Bernie Madoff went undetected and unprosecuted until it was too late. 

This crowding-out of other prosecutions in pursuit of immigration violators includes violent criminal activity. As the New York Times reported last year, “The emphasis `on immigration crimes`, many federal judges and prosecutors say, has siphoned resources from other crimes, eroded morale among federal lawyers and overloaded the federal court system. Many of those other crimes, including gun trafficking, organized crime and the increasingly violent drug trade, are now routinely referred to state and county officials, who say they often lack the finances or authority to prosecute them effectively.” 

A federal judge in Austin, Sam Sparks, recently expressed his frustration at the increasing toll of these prosecutions on his docket. “The expenses of prosecuting illegal entry and reentry cases (rather than deportation) on aliens without any significant criminal history is simply mind-boggling,” Sparks wrote.

This trend of mixing immigration violations with criminal laws can also be witnessed in the Secure Communities program, in which local police agencies agree to contact federal immigration authorities if they come across deportable aliens. The result of this program is that many immigrants, legal and illegal, are afraid to go to the police if they witness or are the victim of a crime. This undermines efforts such as the Violence Against Women Act, which provided specific protections for immigrants to report domestic violence to the police, on the understanding that abusive spouses use the threat of deportation to maintain abusive relationships without facing justice. The singleminded pursuit of immigration enforcement, particularly through the use of the criminal-justice system, is actually undermining the safety and security of our communities.

The government attempts to prosecute any immigration violator they can and to deport anyone who is deportable. Unlike in the criminal setting, there are no plea bargains in immigration and no prosecutorial discretion. There is no statute of limitations, no right to an attorney, and no double jeopardy. There does not even appear to be any thought put into the wisdom of expending enormous resources on indiscriminate deportations and prosecutions. When legal residents like the ones from Croatia and Canada ask me why the government is deporting them now for old crimes committed decades ago, the short answer is because they can. There is no long answer. As a society, we need to get past the reflexive pursuit of immigrants to pursue a rational policy that thinks beyond immediate results and considers the broader implications of our decisions. •

Aaron Haas is a staff attorney with Texas RioGrande Legal Aid. His opinions do not reflect those of TRLA. His next column will appear in the March 17 issue of the Current.