The Aggravated Pains of Deportation
At an immigration master calendar hearing it can take less than 15 minutes before the ‘deportation-decision’ is taken. In these 15 minutes demographical family ties can be cut forever. Some observations from within a San Francisco courtroom.
As part of the course that I have been teaching at UC Hastings College of the Law – Risk, Security and Crimmigration from a European Perspective – I took my students to see one of the Master Calendar Hearings (MCH) at the San Francisco Immigration Court on 630 Sansome St. The San Francisco court, operated by the U.S. Dept. of Justice’s Executive Office of Immigration Review, is one of 59 immigration courts nationwide that are handling record numbers of deportation cases. After going through the necessary security checks, we made our way to the 4th floor where the Hearing would be held. While standing around waiting for the ICE officers to let us into the courtroom, one of my students noted how “They couldn’t have made this place any less appealing”. She was right - standing in the long, grey and windowless hallway I didn’t really feel at ease. It was almost as if you could feel the tension of the many detainees and their family members that must have passed through these hallways, wondering if they would walk back out again as a family, or torn apart from each other. In the fiscal year 2013 ICE (Immigration and Customs Enforcement) conducted a total of 368,644 removals. The leading countries of origin for those removed were Mexico, Guatemala, Honduras and El Salvador.
Master Calendar Hearing
My class and I sat in on one of the Detention MCH’s meaning that the people who were brought before the Judge had been detained on criminal charges prior to dealing with their immigration matter. This could for instance mean that the detainee was staying in the US illegally when he or she was caught for the crime committed, or that the nature of the crime committed qualified for deportation even if the immigrant was in possession of a green card or was otherwise staying in the country legally. The crimes that qualify for immediate deportation are the so-called aggravated felonies, referring to a broad category of criminal offences that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship, or avoidance of deportation proceedings. Anyone convicted of an aggravated felony and removed from the United States must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States.
During the MCH we observed how 16 detainees were – individually – brought before the immigration judge. The detainees were brought in and constantly guarded by three ICE officers, while wearing bright orange prison suits and shackles on hands and feet. Most of them had committed an aggravated felony and 15 out of 16 were male. Only one of them had an attorney present. Another quick observation 14 out of 16 detainees had a Latino/Hispanic background, coming from Mexico, El Salvador, Guatemala and Cuba. After a quick reference to their criminal charges and a brief explanation – either in English or Spanish – of the goal and context of the MCH, the detainees were presented with the potential consequences they were facing and were given the opportunity to tell the Judge which forms of relief they were seeking: asylum, withholding of removal, adjustment of status, cancellation of removal, suspension of deportation or protection under the United Nations Convention Against Torture.
Prior to entering the court room, one of the ICE officers assured me that all detainees present today had committed aggravated felonies and therewith “deserved” to be deported. Knowing the development of this particular legal category, I found this remark somewhat disturbing. Was it really true that these “aggravated felons” should all be considered high security risks to society and should therefore not only be criminally punished for deeds committed but also completely excluded from this society? When the category of "aggravated felonies" was first added to the Immigration and Nationality Act in 1988, as a response to heightened concerns about drug abuse, it encompassed only murder and trafficking in drugs or firearms. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) both tremendously expanded the category. AEDPA added crimes related to gambling and passport fraud; IIRIRA added a great many more crimes, including certain crimes of a sentence of at least a year regardless of whether the sentence has been suspended. Besides the continuously growing scope of the category, there’s another problem. The difficulty with the term “aggravated felony” is that it comes from federal law, yet must be applied to crimes that were most likely prosecuted under a state law. There’s a sort of mismatch, in which state crimes that may sound minor to most people, did not involve violence, and may not even be called felonies are nevertheless viewed as aggravated felonies by federal immigration authorities. A person with a misdemeanour on his or her record could conceivably be told by U.S. immigration authorities that the crime was, in their view, an aggravated felony. Whereas I was ready to debate the “deservedness” of the potential deportations, I decided not to. Being an immigrant temporary working in the US on a short-stay visa myself it seemed safer not to pick a fight with an ICE officer.
Besides not having an attorney present, most detainees also did not have any relatives present. One of them did and it is safe to say that this made this case painfully memorable. The detainees had been found guilty of an aggravated felony and – unless they would invest large sums of non-existing money in an attorney who may or may not be able to do something – were facing deportation. In response to a question by the Judge asking one of the detainees what he was seeking, one of the detainees answered that he just wanted to be deported because he could not handle one more day in prison. Although this is clearly not a good reason to be deported, his wish was granted. His mother, who was sitting in front of me, broke down and could not stop crying. The detainee, a young man in his early thirties, would be deported to Mexico where he had not been since he was born, where he didn’t know anyone and where he said to fear for his life. Since fear for the unknown for not having a support system in the country where one is deported to is not protected by any treaty or law, this young man was facing a lonely, anxious and insecure future. And so was his mother. And his little sisters. And his baby. And his wife.
More ground to cover
Walking back to my apartment, it struck me how much ground there is still to cover in studying and debating issues on the merger of immigration control and crime control – also known as crimmigration. Whereas scholarship on this fairly new phenomena is flourishing, the majority of the research in this area is very much focused on the legal aspects of crimmigration. Although this is obviously also very important, empirical research is still lagging behind. This is especially the case for research focusing on the hidden consequences of immigration policies and practices and the nuanced and layered realities of immigrants’ lives. In their 2012 published book Punishing Immigrants, Kubrin, Zatz and Martinez also call for more research in these areas. Although the book is largely US focused, I think the editors’ call resonates globally. With immigration and crime continuously becoming more connected both in policy and practice we need to expand the legal discussions with empirical insights as well. We need to uncover the hidden realities and make them public.