Can the United States solve the problem of undocumented immigration?

For most people in the United States, undocumented immigration poses a problem. The presence of millions of people who lack authorisation from the US government to be here and who live under the constant threat of being deported is not good for our society, nor is it good for undocumented immigrants.

In recent years, undocumented immigrants themselves have made it clear that they are tired of living in the United States without rights. They and their allies have pushed US lawmakers to do something about the problem. It seems that these struggles are paying off, and immigration reform is on the horizon.

Undocumented immigrants and a recourse

On Tuesday, April 16, a group of eight US senators unveiled an immigration reform proposal that promises to grant a path to legalisation, and eventually citizenship to millions of undocumented people in the United States.

The proposal [PDF] offers a path to citizenship that will take between five and thirteen years or more for most undocumented people. Those people who have been convicted of a felony or three misdemeanours will be ineligible for legalisation. The path to legalisation and citizenship is contingent on the US federal government meeting border enforcement goals. Nevertheless, the proposal offers provisional status to millions of undocumented immigrants.

Undocumented immigrants with a criminal record will be permanently ineligible for the provisional status as well as subsequent legalisation. However, it is unlikely they will leave. Many of these undocumented immigrants with criminal records have been in the United States for decades. The expectation that they will simply leave if there are no legalisation options is unreasonable, especially since many have parents, spouses, and children in the United States.

There needs to be an appeal process such that undocumented immigrants convicted of crimes can come forward and have their cases heard. The alternative to providing an appeals process is clear: these undocumented immigrants with criminal records will stay in the United States, where they will be forced to live in the shadows. With no avenue for legalisation, their incentive to be law-abiding citizens will be very low.

An appeal process for immigrants convicted of crimes makes sense

Many people, even those who favour immigration reform, think that there should be a zero-tolerance position with regard to people convicted of crimes. That position, however, is shortsighted for at least two reasons: 1) these people are unlikely to leave simply because they are denied the opportunity to legalise; and 2) many of these people will have built up a substantial amount of equities during their time in the United States, and judges should have the opportunity to review their cases.

Under the current proposal, a 35-year old with an established business in Mexico who came to the United States on December 15, 2010 will qualify for legalisation and eventual citizenship, whereas a 40-year old who came to the United States in 1983 at the age of two, and has a marijuana possession charge from 1999 will be ineligible for legalisation. This scenario only makes sense if you think that all people convicted of crimes in the United States are irredeemable.

The truth is that the United States is overzealous in its enforcement of drug laws, having locked up millions of primarily black and Latino men since the 1980s. People who have lived their entire lives in the United States and have one criminal conviction from ten, twenty, or thirty years ago deserve a hearing in immigration court. Let’s allow immigration judges to decide whether or not they deserve deportation. Unfortunately, the proposed bill does not provide these immigrants with a day in court.

No judicial discretion for immigrants with a criminal past

The proposed bill also fails to rectify the deeply flawed lack of judicial discretion in aggravated felony cases for people legally present in the United States.

Since the 1990s, people convicted of crimes classified as aggravated felonies face mandatory deportation. This means they are deported without a discretionary hearing where family and community ties can be considered. Once an immigration judge determines a person has been convicted of a crime that can be classified as an aggravated felony, they face mandatory and automatic deportation, no matter what the extenuating circumstances might be. These rules even apply to legally present immigrants.

The absence of discretion in aggravated felony cases means that legal permanent residents who have lived in the United States for decades, have contributed greatly to society, and have extensive family ties in the country, are subject to deportation for relatively minor crimes they may have committed years ago. Immigration judges do not have the opportunity to take people’s family and community ties into account in aggravated felony cases. Nor can judges take into account weak or non-existent linkages to their countries of birth.

The deportation of legal permanent residents without judicial review is in clear violation of Article 13 of the International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified. The ICCPR states:

An alien lawfully in the territory of a State party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except when compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by… a competent authority.

It is remarkable that the United States denies due process protections to legal permanent residents facing deportation, given that these are among the most important Constitutional protections in the United States.

President Obama expressed support for the restoration of judicial review for aggravated felony cases. Although the moniker “aggravated felony” makes one think we are talking about serious crimes, often they are not. Aggravated felony is an immigration term used to refer to almost any crime for which the sentence is one year or more. It also can refer to a combination of two drug charges. Thus, possession of a tablet of Xanax on one occasion and one marijuana cigarette on another occasion has been considered an aggravated felony.

Diallo: Legal permanent resident deported for marijuana possession

In my research in Guatemala City, I met Diallo, who was deported because of an aggravated felony conviction. It is likely the case that, if Diallo had the opportunity to have his case reviewed by a judge, he would have been granted relief.

I met Diallo, who speaks with a strong Boston accent, in the cafeteria of the call centre where he works in Guatemala City. His voice broke and his eyes filled with tears as he explained to me that he spent two and a half years in immigration detention fighting his immigration case. Diallo, who had lived in the United States for nearly 30 years, was deported for being caught with marijuana seeds on one occasion and a marijuana cigarette on another occasion, a decade later.

Diallo moved to the United States when he was eight years old, in 1980. He and his mother sought asylum in the United States because of death threats they received in Guatemala during the civil war. They were granted asylum, and Diallo and his mother became legal permanent residents of the United States.

Shortly after graduating from high school, Diallo was arrested when police found a few marijuana seeds in his car. He had to pay a $50 fine for marijuana possession. After that, Diallo stayed out of trouble for nearly a decade. But, in 2000, he was pulled over and the police officer found a marijuana cigarette in the car, for which he had to pay another $50 fine. Had Diallo been a US citizen, the only consequence for simple marijuana possession would have been these $50 fines. However, in federal law, two drug convictions can constitute an aggravated felony.

In 2004, Diallo was arrested again. When law enforcement agents discovered that he had two prior convictions of marijuana possession, he was sent to immigration detention and ordered deported. Diallo fought his deportation order, but was forced to do so from behind bars. After two and a half years in detention and over $15,000 in legal fees, Diallo discontinued the appeals process. His only recourse was to argue that the two drug convictions were not an aggravated felony. The fact that mother and daughter are US citizens was irrelevant in this aggravated felony case. When he was deported to Guatemala in 2008, his diabetic mother had to find a way to pay her own medical bills and to care for Diallo’s daughter, over whom he had had custody since she was an infant.

People like Diallo should have their cases heard in immigration court. Moreover, immigration reform should include provisions for people like Diallo to appeal their cases from abroad and to come home to their families.

The Supreme Court later decided that two minor drug convictions do not constitute an aggravated felony. However, that 2010 decision came too late for Diallo – who is stuck in Guatemala City. Diallo and others like him should be allowed to appeal their cases from abroad.

The alternative is that people like Diallo’s daughter will grow up without their parents in the United States and undocumented people who have criminal convictions will remain in the shadows.

The time for immigration reform has come, and those immigrants who have old and minor criminal convictions should not be left behind.

Tanya Golash-Boza is an Associate Professor of Sociology at the University of California, Merced. She is the author of Yo Soy Negro Blackness in Peru, Immigration Nation: Raids, Detentions and Deportations in Post-9/11 America, and Due Process Denied: Detentions and Deportations in the United States.