President-elect Trump launched his campaign vowing to get tough on undocumented immigrants, choosing to characterize them as rapists and drug dealers, and this was a very effective and popular stance with his followers. Who could forget the sad mothers he presented during his campaign who had lost children to undocumented drunk drivers? Shortly after his election, President-elect Trump once again promised in a “60 minutes” interview to make deporting “criminal aliens” his first priority: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, where a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate.” This policy seems to be a no-brainer – except nothing is black and white. Here are a few reasons why some undocumented immigrants should be given a second chance.
The purpose of our criminal justice system is not only to punish criminals but to rehabilitate them. In theory, once criminals have served their time, they have paid their debt to society and should be able to go on to lead productive lives. However, attorneys know this is often not what happens, even for U.S. citizens. After being imprisoned for a felony (a crime with a punishment of a year or more in jail), the vast majority find it very hard to find housing and jobs. Non-citizens may not be released at all, but will instead be transferred to an immigration detention facility (usually privately owned, but that is a subject for a different blog) to wait for a judge to decide their fate. If they have families here, the penalties they pay will be doubly harsh.
Our immigration laws are already very tough for immigrants convicted of felonies. It is simply not possible for immigrants convicted of certain crimes to use certain defenses to deportation, such as asylum. Some immigrants may be deported even without a hearing. For the immigrant who was recently convicted of rape or murder, this makes perfect sense. But what about the immigrant who committed crimes 10 years ago, who was released, and did not get in trouble ever again? What if this same immigrant has close U.S. citizen relatives who need them to be here, or if he or she dedicated time to charitable causes? What if all this is true and the immigrant was brought here as a child, only speaks English, and doesn’t have any connections left in the native country? I have had several cases like this. I even have one client who I helped get a pardon from the Governor who still has a removal order hanging over his head.
The case of one of my clients, Mayra, recently made the papers. Mayra was brought here as a very young child from El Salvador while it was undergoing civil war. She was later granted status but lost it as a young woman after she was convicted of crimes relating to forgery and theft. Ten years later, she was picked up on a traffic stop and put into removal proceedings. At this point she had her life together. She had a good job, a U.S. citizen fiancé, and three young U.S. citizen children. She went to church regularly and volunteered for several different organizations. After fighting her case from detention for over a year, she lost everything she worked for and was deported to a country ravaged by crime, where she has no one to help her. Her children have essentially lost their mother because U.S. policy does not allow her to ever return. Was this the right thing to do?
Crimes Committed as a Young Adult and Crimes Relating to Marijuana Possession
Like Mayra, Malik (not his real name) was brought to the United States as a young child. When I first met him, he was in high school and came to me to help him obtain deferred action as a childhood arrival (DACA). His grandmother told me she was concerned because he was hanging around with a “bad crowd.” My mother instinct kicked in, so I took him in my office and I did my best to give him a “come-to-Jesus” talk. “You are not like your American friends,” I told him. “You cannot get into any trouble or have any friends who get into trouble or be anywhere near where there is trouble.” “All you need to be is in the wrong place at the wrong time and you could end up deported.” By his smirk, I knew he didn’t get it. Like nearly every other teenager on the planet, he felt he was invincible. By the time he needed to renew his DACA, he had three misdemeanor convictions for possession of small amounts of marijuana, and his case was denied. Now that he cannot get DACA, cannot continue his education here, cannot get residence through marriage as he could before, and is facing the prospect of an eventual deportation to a country where he has no future, he gets it. Should he be given a second chance? He is a “criminal alien,” isn’t he? Unfortunately, he did not live in Colorado, where he would not have even been prosecuted for possessing marijuana. Should his youth, or the fact that his actions are not considered a crime elsewhere in the United States be taken into consideration?
Misdemeanor Crimes Related to Unlawful Presence
It is very difficult for immigrants here without permission to survive without committing certain crimes, such as driving without a license, criminal impersonation (e.g. using a fake driver’s license or social security number) and working without authorization. They do these things to better support their families. This does not justify their choice or mean they should not be prosecuted once they commit these crimes, but should any consideration be given to the level and type of offense committed when deciding who to target for deportation? Should they be considered “criminal aliens” under the Trump Administration? If they can obtain a driver’s license and or a social security number legally, they will not continue to commit these offenses.
Not all immigrants who have been convicted of crime should be treated the same. In my opinion, judges should not be prevented from granting relief to immigrants who deserve it. President Obama came up with a sound policy for prosecutorial discretion that directed immigration officers who to place into removal proceedings. President-elect Trump should do the same. For every drunk driver here without permission, there is someone else here without permission who is doing good. The latter immigrants are not expendable to their families and communities and can usually be quickly converted to solid, tax-paying residents once their legal status is resolved. To do otherwise is not real justice.
What to Do if You are an Immigrant With a Criminal Record or Arrest
If you have been convicted of a crime, even a misdemeanor, you should consult with an immigration attorney or a criminal attorney to see if it is necessary or possible for you to try to modify your conviction in any way. Expungements do not count for immigration purposes, but in a few situations, there may be waivers available. If you have been arrested but not yet convicted, be sure to understand the immigration consequences of a conviction before you make a guilty plea. Call me if you have any questions.