Deportation

  • November 2, 2012
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). This analysis originally appeared on CAC’s Text & History Blog.


    The Supreme Court was in session Nov. 1 for a rare Thursday hearing, after rescheduling the arguments that were originally to be heard this past Tuesday due to Hurricane Sandy. It was odd to be in the courthouse on a Thursday, and it was mostly empty. Which is a shame, because the arguments in Chaidez v. United States are important and were very well made by both advocates in the case (Jeffrey Fisher for Ms. Chaidez, and Deputy Solicitor General Michael Dreeben for the United States).

    But the Justices, of course, were in the house, and we saw Hurricane Ginsburg make landfall (albeit in her usual elegant, well-mannered, and pointed yet respectful way). However, before getting into this morning’s argument in more detail, it is worth briefly recounting the facts of the case. Petitioner Roselva Chaidez, a citizen of Mexico, came to the United States in 1971 and became a lawful permanent resident in 1977. In 2003, Ms. Chaidez, on advice of counsel, pleaded guilty to mail fraud in connection with an insurance fraud scheme; she received $1,200 from the scheme, and in its entirety the fraud operation netted about $26,000. Ms. Chaidez was sentenced to four years of probation under the terms of her guilty plea. Unfortunately for Ms. Chaidez -- and unbeknownst to her at the time she pleaded guilty -- under federal immigration law, a fraud conviction involving a total loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported. In 2009, after Ms. Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview, reflecting her lack of awareness of its immigration consequences), the U.S. government initiated removal proceedings based on her conviction.

  • August 9, 2012
    BookTalk
    Aftermath
    Deportation Law and the New American Diaspora
    By: 
    Daniel Kanstroom

    By Daniel Kanstroom, Professor of Law at Boston College Law School


    Good news: The major U.S. immigration enforcement agency has reported that “The border has been secured.” Bad news: That was in 1955 and nothing similar has been repeated since. Worse news: INS also recognized that “the prevention of illegal entries…is, in the long run, more economical and more humane than the expulsion process.” Worst news: The undocumented population now approximates 12 million. Despite recent Administration initiatives aimed at so-called “Dreamers” (the most innocent and the “best and the brightest” among the undocumented), massive deportation enforcement remains the dominant reality. Most frustrating news: No set of public policy issues is as widely misunderstood and as intractably resistant to rational solution. A virtual consensus among experts in the field as to comprehensive visa reform including work visas that match the realities of the labor market, better border control, some sort of legalization program for those already here, and flexible future enforcement discretion has yielded no legislation.

    Meanwhile, the United States continues a radical deportation experiment of unprecedented size and ferocity. The experiment has now continued for more than a decade. It is time to consider what it has accomplished and what it has wrought. The story is grim: deportation has cost much, achieved little, and caused tremendous pain and suffering. It is also widely misunderstood. Few realize, for example, that many deportees are not “illegal aliens.” All over the world, hundreds of thousands -- maybe millions -- of former U.S. legal permanent residents, people with green cards, families, and jobs in the United States find themselves scattered in an odd, unplanned new American diaspora. 

    Deportation has developed into a huge, expensive, and dangerous enterprise. If we count deportation events (including various mechanisms for what are technically called “removals” and “returns” through which a person is compelled to leave U.S. soil by government agents) over the last twenty years, the total number is around 25 million

    How did this experiment begin?

  • October 28, 2010
    Guest Post

    By Margaret Colgate Love, an attorney specializing in clemency and restoration of rights. Ms. Love, a former U.S. Pardon Attorney, has advised lawyers representing applicants before Gov. Paterson's pardon panel .
    On October 21, The New York Times reported that Governor David Paterson had received more than 1000 pardon requests from legal immigrants facing deportation because of old or minor state crimes. In May, Paterson (pictured) had announced the creation of a panel to consider such requests, ostensibly to inject fairness into what he described as an "embarrassingly and wrongly inflexible" system that expels immigrants without considering the possibility that deportation in a particular case might be unwise or unjust. Now, his term nearly up, the deadline for decision is fast approaching. Having stirred this pot, whatever he does is bound to be controversial.

    Governor Paterson's decision to tackle his pardoning responsibilities on a systematic basis followed on the heels of his pardon in March of Qing Hong Wu, a 29-year-old information technology executive. Wu, who had not lived in his native China since he was five years old, faced deportation because of his participation in a series of muggings as a 15-year-old. The sympathetic facts of Wu's situation had been detailed in a series of articles in The Times, and his request for mercy had garnered the support of his sentencing judge and the Manhattan District Attorney's Office. Announcing his pardon initiative at an annual gathering of state judges, Paterson declared: "In New York, we believe in rehabilitation."

    With the prospect of dozens or even hundreds of Paterson pardon grants becoming more real, The Times found advocates for immigrants euphoric: "People are being deported for indiscretions of their youth, and it's ripping families apart," one said. Another called for a replication of the pardon panel "far and wide."

    The Federation for American Immigration Reform was reportedly less thrilled: "As a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country." FAIR spokesman Ira Mehlman complained that the governor was superseding the authority of Congress. "This is not his determination to make," he said.

  • March 31, 2010

    A fragmented Supreme Court issued its opinion in the case of non-citizen Jose Padilla, who followed his attorney's advice to plead guilty for marijuana possession and was subsequently deported. Padilla, born in Honduras, has lived in the United States legally for over 40 years and served as a member of the U.S. Armed Forces during the Vietnam War.

    In Padilla v. Kentucky, the Court determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. The Court, however, did not throw out the petitioner's conviction based on ineffective assistance of counsel, setting aside the issue of whether Padilla was prejudiced by his counsel's shortcomings. Rather, the case was remanded to the Kentucky Supreme Court to resolve that question.

    "It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the 'mercies of incompetent counsel,''' Justice John Paul Stevens wrote for the five-justice majority.

    ''To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,'' Stevens wrote. ''Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."