Acknowledgements

We would like to thank all of the immigrants, their children, spouses, parents, siblings, attorneys, social workers, and friends who generously and courageously shared their experiences with us for this report. We would also like to thank the immigration attorneys, criminal attorneys, immigrants' rights advocates and organizations, judges, legislators, and government officials who shared their expertise with us for this report.

Alison Parker, senior researcher in the US Program of Human Rights Watch researched and wrote this report. The full report was edited by Jamie Fellner, director of the US Program at Human Rights Watch; Lois Whitman, director of the Children's Rights Division; Bill Frelick, director of the Refugee Policy Program; Dinah PoKempner, general counsel; and Ian Gorvin, consultant in the Program Office. Also at Human Rights Watch, Ashoka Mukpo and Keramet Reiter, US Program Associates, provided invaluable research and production assistance. Layout and production were coordinated by Andrea Holley and Ashoka Mukpo.

For their contributions to our research, we would especially like to acknowledge the following people and organizations. In Arizona: the Florence Project (Ashley Kaper and Victoria Lopez); in Chicago: the Cambodian Association of Illinois (Nil Samorn), Centro Sin Fronteras (Emma Lozano), Coalition of Asian African European and Latino Immigrants of Illinois (Dale Asis), Centro Romero (Daisy Fuñez), Illinois Coalition for Immigrant and Refugee Rights (Joshua Hoyt and Fred Tsao), Latinos Progresandos (Luis Guitierrez, Laura Pichardo), Midwest Immigrant and Human Rights Council (Oscar Chacon, Mary Meg McCarthy, Sara Rose Weinman), Lisa Palumbo, Esq.; in Florida: the Florida Immigrant Advocacy Center; in Los Angeles: Siu Ming Cheer, Esq., Coalition for Humane Immigrant Rights of Los Angeles, Homies Unidos (Silvia Beltran, Rocio Santacruz, Will Colely), Khmer Girls in Action; in Massachusetts: Dan Kanstroom; in San Francisco: ACLU Immigrants' Rights Project (Cecilia Wang, Esq.), and the law firm of Van Der Hout, Brigagliano & Nightingale, LLP; in New York: the ACLU Immigrants' Rights Project (Judy Rabinovitz), Families for Freedom (Aarti Shahani and Subash Kateel), and the Immigrant Defense Project of the New York State Defenders Association.

The following individuals also contributed to this report: Joshua Franco (Chapter VI); pro bono counsel Paul Kemnitzer and Lauren Aronson Teitelbaum of Sidley and Austin (figure 7); Gloria Borges, Lin Chan, and Jayashri Srikantiah of the Stanford Immigrants Rights Clinic (Chapter VI); John Schaefer (Chapter V), Human Rights Watch associate Lee Anne Hasselbacher; and interns Hanna Bauman, Pat Tomaino, and Karin Orr, who each performed a myriad of tasks in contribution to this report.

For assistance with our still-pending Freedom of Information Act request, we would like to thank Leslie Platt Zolov, counsel to Human Rights Watch; and Ethan Strell and Catherine Sheehy, of the law firm of Carter, Ledyard & Milburn LLP, for their pro bono counsel.

Human Rights Watch would also like to thank Peter Lewis, The Joyce Foundation, and the Open Society Institute, all of whom generously support our work in the United States. Finally, we would like to extend a very special thanks to the JEHT Foundation. Without JEHT's support, this report would not have been written.

I. Summary

Antonio Cerami came to the United States with his family when he was 12 years old. He entered the country as a lawful permanent resident. In 1984, Antonio met Cristina, who is a US citizen, and they were married in 1992. Antonio became stepfather to her four children, and the couple had a son of their own. A unionized dockworker in Chicago, Antonio also worked part-time in the evenings and weekends to provide financial support to his family. The couple purchased a home in the Chicago suburbs and sent their children to local public schools. Cristina told a Human Rights Watch researcher,

"I stayed home until our son was about three years old. Antonio worked two jobs to take care of us. Then, I also got a job in an office and everything was good …. We were fine, we were just a normal-not a rich-family, but very comfortable, right? I went to work, he went to work, we hardly ever saw each other because we worked for 10 hours. But we had a plain old normal life. We moved to a [new suburb] after a few years because … there were better schools and we wanted a home where [each of our] kids could have his own room."[1]

Then, in 2003, Antonio decided to take his young son and wife on a three-week trip to Italy for a niece's wedding. Upon their return to O'Hare airport, Antonio was taken into custody in connection with a conviction he had received 19 years earlier, for attempting with an accomplice to rob a pizza parlor. Antonio had been sentenced to six years in prison, and released after three years for good behavior. He had complied with all conditions of his parole by reporting once a month to a parole officer.

© 2005 private

Antonio was ordered deported back to Italy. Cristina explained what happened when she was called to testify at the immigration court:

When I begged the judge not to take Tony away, the judge said, "You have a job, you can work." Well what happened to America and family unity? What happened to that? Does that not mean anything? No child left behind? Mr. Bush? We pay taxes. My husband paid taxes. He was here for 30 years [before his deportation] …. My daughter, you should have seen the way she was crying … when I saw her face in court, that was a nightmare. He was her dad. He raised her since she was five years old …. My whole family was there. We're decent people. It was a very traumatic experience for my whole family, but mostly for my kids. [2]

Cristina's youngest son had to undergo counseling after his father was deported. She explained, "He's a good boy, but he started using drugs." The loss of Antonio's income and expensive legal fees took their toll on the family. Cristina lost the house in the suburbs. Her oldest daughter moved in with her boyfriend's family and, Cristina explained,

My daughter had problems. I had problems. I cried every day. Right now we don't really have a home. We're living with friends and family. John lives with a friend, Jessica lives with another friend, Danny's with his uncle and Angela lives with another friend. They have really split us up. [3]

Unfortunately, the Ceramis are not alone. Hundreds of thousands of families throughout the United States are being forced apart by punitive and inflexible US deportation policies. Regularly, legal immigrants who have lived in the country for decades with family members who are citizens or lawful permanent residents are being deported from the United States.

Contrary to popular belief, US deportation policy did not become more severe after the terrorist attacks on September 11; instead, drastic changes made in 1996 have been at work for more than a decade, devastating communities across the nation. Also, contrary to popular belief, these policies do not target only undocumented immigrants-they apply to long-term lawful permanent residents (or green card holders) as well. When these members of the community of the United States are deported, their absence is felt because shops close, entrepreneurs lose their business partners, tax revenues are lost, and, most tragically, US citizen and lawful permanent resident children and spouses are forced to confront life without their fathers, mothers, children, husbands, or wives.

Deportation is a necessary part of every country's enforcement of its immigration laws. To be sure, the non-citizens featured in this report are being deported for a reason-they have violated the criminal laws of the United States, making them subject to deportation after they have finished serving their criminal sentences. However, many immigrants being deported from the United States are a far cry from the worst and most violent offenders. Non-citizens have been forced into permanent exile for non-violent misdemeanor offenses, even if they served a short sentence with a perfect record of good conduct. As shown in the case of Mr. Cerami, the 1996 laws have also had sweeping retroactive effects: a criminal offense committed in the 1980s that did not trigger deportation at that time can now render a non-citizen deportable, even if the non-citizen served a prison sentence, successfully completed all terms of probation, and has since lived, worked, and raised a family in the community without ever running into trouble with the law again.

Not only have deportation laws become more punitive-increasing the types of crimes that can permanently sever an immigrant's ties to the United States-but there are fewer ways for immigrants to appeal for leniency. Hearings that used to happen in which a judge would consider immigrants' ties to the United States, most especially their family relationships, were stopped in 1996 for those convicted of a long list of crimes. There are no exceptions available, no matter how long an individual has lived in the United States and no matter how much his spouse and children depend on him for their livelihood and emotional support.

A retired immigration judge shared the frustration he felt when he was unable to prevent deportation because of the strict requirements of the changed laws:

My 30-year career with the Department of Justice has been exciting and stimulating. Each case I hear is a life story. I have been able to grant refuge to persons who have a genuine fear of persecution. I have been able to unite or re-unite families. On the other hand, in many cases I have had to deal with the frustration of not being able to grant relief to someone because of the precise requirements of the statute, even though on a personal level he appears to be worthy of some immigration benefit.[4]

In the United States between 1997 and 2005 (the most recent year for which data are publicly available), 672,593 non-citizens have been deported for criminal offenses.[5] The Department of Homeland Security (DHS) has only recently disclosed general statistics on the criminal convictions that formed the basis for removal orders. In 2005, 64.6 percent of the immigrants deported were removed for non-violent offenses like drug convictions, illegal entry, and larceny; 20.9 percent were removed for violent offenses; and 14.7 percent were removed for "other" crimes.

Unfortunately, we have no idea whether and how many of those 672,593 non-citizens were lawful permanent residents or otherwise in the country with legal permission, and how many were undocumented. There are also no hard data on their family relationships. However, based on the 2000 US Census, we estimate that approximately 1.6 million spouses and children living in the United States were separated from their parent, husband, or wife because of these deportations.

Human rights law recognizes that the privilege of living in any country as a non-citizen may be conditional upon obeying that country's laws. However, a country like the United States cannot withdraw that privilege without protecting the human rights of the immigrants it previously allowed to enter. Unfortunately, that is precisely what US immigration law fails to do-it gives no opportunity to immigration judges to balance the individual's crime against his or her family relationships, length of time in the US, military service, economic ties to the US, likelihood of persecution, or lack of connections to the country of origin.

Without being able to raise these issues in their immigration hearings, people's rights to have these factors taken into account are violated. In this respect, the United States is far out of step with international human rights standards and the practices of other nations, particularly nations that it considers to be its peers. For example, of all the governments in western Europe, the United States joins only Luxembourg innot weighing family ties or providing for some proportionality analysis in all of its deportation proceedings.

In this report, Human Rights Watch charts the various devastating ways in which changes to immigration laws passed 10 years ago have impacted America's families. We reiterate a theme that US President George W. Bush has repeatedly recognized, including in an April 9, 2007 statement about proposed comprehensive immigration reform legislation: "[F]amily values d[o] not stop at the Rio Grande River."[6]

Human Rights Watch calls on the President and Congress, as a part of comprehensive immigration reform or other legislation, to hold true to those words. The United States should reinstate hearings that would allow immigrants facing deportation the chance to ask a judge to allow them to remain in the United States when their crimes are relatively minor and their connections (including their family ties) to the United States are strong. We ask Congress to take a second look at the kinds of crimes that render people deportable, in order to prevent permanent and mandatory banishment from the United States for relatively minor non-violent crimes like theft or drug possession. Providing for proportionality in deportation and protecting family unity are essential to a just and fair immigration policy, and this cannot be accomplished without amending US immigration law to allow for relatively simple balancing hearings.

II. Recommendations

To the President of the United States

Encourage Congress to amend immigration laws to ensure that all non-citizens have access to a hearing before an impartial adjudicator, weighing the non-citizen's interest in remaining in the United States against the US interest in deporting the individual.

To the United States Congress

Amend immigration laws to provide access to a balancing hearing before an impartial adjudicator in which an individual non-citizen's interest in remaining in the United States is weighed against the US interest in deporting the individual.

In the reinstated balancing hearings, ensure that the following are weighed in favor of the non-citizen remaining in the United States:



Family relationships in the United States,





Hardship family members will experience as a result of deportation,





The best interests of any children in the family,





Legal presence in the United States,





Length of time in the United States,





Period of time after the conviction during which the non-citizen has remained conviction-free (evidence of rehabilitation),





Investment in the community of the United States through business enterprises, military service, property ownership, and/or tax payments,





Lack of connection to the country of origin.

Amend immigration laws so that only non-citizens who have committed serious, violent crimes (not misdemeanor crimes), for which the non-citizen has served an actual prison term (not probation or drug treatment sentences) are subject to deportation.

Amend immigration laws to ensure that individuals whose lives or freedom would be threatened if returned are provided protection from return to persecution unless they have been convicted of a particularly serious crime and are dangerous to the community of the United States within the meaning of the 1951 Refugee Convention.

Amend immigration laws to ensure that offenses that did not trigger deportation at the time they were committed are not used to deport immigrants now.

Amend immigration laws to allow state and federal criminal judges to sentence non-citizens convicted of crimes with a judicial recommendation against deportation ("JRAD").

To the Department of Homeland Security

Publish statistics annually that reveal what criminal convictions form the basis for all removals from the United States on criminal grounds, the immigration status (lawful permanent resident, asylee, etc.) of all persons removed on criminal grounds, and whether non-citizens removed have family relationships with US citizens or lawful permanent residents.

To the Bureau of Population, Refugees and Migration

Ensure that individuals who enter the United States through refugee resettlement programs ("refugees") receive information in a language they understand about the naturalization process for themselves and their children.

After the five-year waiting period, conduct follow up through social service agencies with refugees and their children to ensure that they receive support and advice in a language they understand so that they may naturalize.

To the United States Citizenship and Immigration Services

Ensure that individuals who are granted asylum ("asylees") receive information in a language they understand about the naturalization process for themselves and their children.

After the five-year waiting period, conduct follow up through social service agencies with asylees and their children to ensure that they receive support and advice in a language they understand so that they may naturalize.

To Criminal Defense Attorneys

Advise clients on the immigration consequences of criminal convictions or other criminal dispositions such as guilty pleas, court-mandated drug treatment, or probation.

III. Deportation Law Based on Criminal Convictions Before 1996

Early History of the Deportation Power

In 1996, Congress adopted the most sweeping immigration law changes in the history of the United States, focusing in particular on deporting non-citizens with criminal convictions. In the 50 years leading up to these historic amendments, Congress had already made incremental changes to US immigration law. This chapter traces the most significant of these earlier changes, setting the stage for Congress's broad overhaul in 1996.

All governments enact immigration laws to control the flow of people across their borders. The United States is no exception, and has a long history of regulating which non-citizens can enter and live in the country, for how long, and for what reasons. Early laws mostly controlled entry to the country, and were less concerned with deportation.[7] For example, a general immigration law passed in 1875 excluded prostitutes and alien convicts from entering the United States, and the 1882 Immigration Act denied entry to "convicts (except those convicted of political offences), lunatics, idiots, and persons likely to become public charges."[8] An 1891 law refused entry to prospective immigrants who had a "dangerous contagious disease" or were polygamists, and a 1917 law established a literacy requirement for admission to the country.

However, deportation also has a long history in the United States. As early as 1798, the newly established US Congress passed the Alien Enemies Act and the Alien Friends Act, which empowered the president to expel any non-citizen he deemed dangerous.[9] Other changes passed in 1882 made it illegal for Chinese laborers to enter or to remain in the United States.[10] In 1952 the McCarran-Walter Act established the basic structure of US immigration law today, setting up deportation procedures, creating an admissions system with quotas based on nationality, as well as detailed exclusions based on political grounds. Other major changes to US immigration laws have occurred in 1965, 1980, 1986, 1988, 1990, and 1996.

Throughout the history of the United States, many different kinds of non-citizens have been made subject to deportation after criminal convictions. People with lawful permanent resident status (or green card holders), including those who have lived lawfully in the US for decades, are subject to deportation. So are other legal immigrants-refugees, students, businesspeople, and those who have permission to remain because their country of nationality is in the midst of war or a humanitarian disaster. Of course, undocumented non-citizens are also subject to deportation regardless of whether they have committed a crime.

A primary principle of US immigration law is that US citizens can never be denied entry into the US; neither can they ever be forcibly deported from the US. By contrast, non-citizens, even those who have lived in the country legally for decades, are always vulnerable to deportation, especially if they have been convicted of a crime.

Crimes of Moral Turpitude and Aggravated Felonies

Created as a category in 1891, "crimes of moral turpitude" have long been a type of criminal conviction that could render non-citizens subject to deportation. The term "moral turpitude" is undefined in immigration law, and this lack of clarity has left courts to draw their own conclusions as to what crimes fit the definition over time. Courts have generally found that a "moral turpitude" offense must involve immoral or fraudulent intent[11] as an element of the offense.[12] Weapons offenses involve moral turpitude when committed with a malicious intent, but not when committed "passively."[13] Attempts and conspiracies to commit crimes and being an accessory to a crime involve moral turpitude if the primary or substantive offense does.[14]

Broadly speaking, from 1952 until 1996, non-citizens were subject to deportation for crimes of moral turpitude committed within five years after the date of entry and with a sentence of at least one year.[15] Non-citizens were also subject to deportation for violating a controlled substance law[16] or for unlawful possession of an automatic weapon.[17]

With the passage of the Anti-Drug Abuse Act (ADA) in 1988, Congress added to the types of crimes that could render someone deportable and began limiting the procedures available to non-citizens who wished to challenge their deportation. The ADA added a new category of crimes for which non-citizens were subject to deportation, called "aggravated felonies." This category included murder as well as many of the crimes previously categorized as crimes of moral turpitude, including drug and firearms offenses.[18]

Virtually every subsequent change to US immigration law has included an expansion of the aggravated felony definition. The Immigration Act of 1990 expanded the category to include crimes of violence for which the term of imprisonment that the court may impose is at least five years, as well as money laundering and trafficking in any controlled substance.[19] The Immigration and Technical Corrections Act of 1994 added additional weapons offenses, some theft and burglary offenses, prostitution, tax evasion, and certain categories of fraud as aggravated felonies.[20]

Throughout the history of immigration law in the United States until the present day, deportation ensues only after the non-citizen involved has served his or her criminal sentence. Upon release from criminal incarceration or upon payment of the necessary fines, the non-citizen is put into deportation procedures. Up until 1988, non-citizens could be deported from the United States only after a hearing before an immigration judge in which the non-citizen could raise one of several bases (see discussion below) for canceling[21] their deportation orders. If the immigration judge found that the non-citizen failed to meet any of these bases for cancellation, the order of deportation became final. Thereafter, the non-citizen was deported unless he or she chose to appeal the immigration judge's decision to the Board of Immigration Appeals (BIA), an administrative court. Once the BIA reached its decision, the non-citizen could appeal to an independent federal court within six months.

From the 1950s until the 1990s, non-citizens could raise one of several possible bases for canceling their deportation from the United States. These were:

A Judicial Recommendation against Deportation . US immigration law used to allow non-citizens to ask their criminal court judge to issue a binding recommendation that, despite conviction of a crime of moral turpitude, the conviction must not trigger deportation. [22] This basis for stopping deportation was eliminated by Congress in 1990.

. US immigration law used to allow non-citizens to ask their criminal court judge to issue a binding recommendation that, despite conviction of a crime of moral turpitude, the conviction must not trigger deportation. This basis for stopping deportation was eliminated by Congress in 1990. Suspension of Deportation . A non-legal permanent resident of good moral character who had lived in the US for a minimum of seven years could ask an immigration judge to suspend his or her deportation after demonstrating that deportation would cause him or her extreme hardship. [23]

. A non-legal permanent resident of good moral character who had lived in the US for a minimum of seven years could ask an immigration judge to suspend his or her deportation after demonstrating that deportation would cause him or her extreme hardship. Waiver of Deportation (212(h)). [24] Non-citizens who were the spouses, parents, or children of a US citizen or legal permanent resident, upon evidencing that they would suffer extreme hardship, could ask the immigration judge to waive deportation based on a crime of moral turpitude or possession of 30 grams or less of marijuana. [25]

Non-citizens who were the spouses, parents, or children of a US citizen or legal permanent resident, upon evidencing that they would suffer extreme hardship, could ask the immigration judge to waive deportation based on a crime of moral turpitude or possession of 30 grams or less of marijuana. Waiver of Deportation (212(c)). Non-citizens who were legal permanent residents and had lived in the United States lawfully for at least seven years could ask the immigration judge to waive deportation based on a series of factors such as family ties within the United States, duration of residence in the United States (particularly when residence began at a young age), hardship to family if deportation occurred, service in US armed forces, history of stable employment, and other evidence attesting to the non-citizen's good character. Adverse factors included the seriousness of the crime, and whether the individual had a record of immigration or additional criminal offenses. [26]

Non-citizens who were legal permanent residents and had lived in the United States lawfully for at least seven years could ask the immigration judge to waive deportation based on a series of factors such as family ties within the United States, duration of residence in the United States (particularly when residence began at a young age), hardship to family if deportation occurred, service in US armed forces, history of stable employment, and other evidence attesting to the non-citizen's good character. Adverse factors included the seriousness of the crime, and whether the individual had a record of immigration or additional criminal offenses. Withholding. Non-citizens could ask the immigration judge to withhold their deportation if their life or freedom would be threatened in the country of proposed return on the basis of their race, religion, nationality, membership in a particular social group, or political opinion. Non-citizens with a criminal record could not request withholding if they had been convicted of a "particularly serious crime," a term that was interpreted by courts until 1990, at which time Congress decided that aggravated felonies constituted "particularly serious crimes," and therefore prevented non-citizens with aggravated felony convictions from applying for withholding. [27]

With the passage of the Immigration Act of 1990 and the Immigration and Nationality Technical Corrections Act of 1994, immigration law remained in this configuration until the major changes passed by Congress in 1996.

Case Study: Why Not Become a Citizen?[28]

Given the very harsh effects of deportation, it is natural to wonder why immigrants do not become citizens; which is the only surefire way to effectively avoid deportation. Human Rights Watch posed this question to many of the individuals and families we interviewed, and we received many credible answers. For example, Pierre B., originally from the Philippines, lived in the United States from his early childhood as a lawful permanent resident. He was deported from the United States for a criminal conviction. In a telephone interview with a Human Rights Watch researcher, Pierre B's mother, Beth B., explained that she purposefully kept her son from becoming a US citizen since dual citizenship was not an option at the time, and she did not want him to lose his rights to inherit his father's property in the Philippines. Other immigrants claimed it was ignorance (including the ignorance inherent in youth) that kept them from taking the necessary legal steps to become citizens. Juan F., originally from Guatemala, came to the United States with his mother when he was four years old. He lived in the United States for 19 years, during which time, he said, "my mistake was to not listen to my mom. She told me, 'go become a citizen. . .' In reality, it's my fault." Many other immigrants never understood that their status as "lawful permanent residents" was, contrary to the ordinary meaning of the phrase, not permanent (see case study "I am Legally Here," below). Immigrants also fail to apply for citizenship because there is no point in doing so. Individuals who try to naturalize after a criminal conviction often fail to meet the "good moral character" requirement in naturalization law. For example, Kai Tung Chan, originally from China, entered the United States on December 20, 1975, with a visitor's visa issued by the United States Consulate in Hong Kong. In June 1985 Chan married a United States citizen, and in October of that year Chan was granted lawful permanent resident status. In 1993, Chan pled guilty to one count of conspiracy to smuggle aliens, and was sentenced to five years of probation and fined $5,000. Soon thereafter, immigration authorities charged Chan with deportability, but because Chan had accepted responsibility for his offense and because his deportation would cause his family hardship, the immigration judge granted him a waiver of deportation under the previous immigration laws (Section 212(c)). Thereafter, Chan completed his probation and paid the fine without incident. By 2002, Chan had lived in the US for a decade without committing another offense. On March 20 of that year, he decided to submit an application to become a US citizen through naturalization. On his application, Chan acknowledged his past conviction for conspiracy to smuggle aliens. Chan took and passed the naturalization exam. However, his application for naturalization was denied due to his inability to establish good moral character. The decision to deny his application was affirmed by the court of appeals.

IV. Deportation Law Based on Criminal Convictions After 1996

Three events-the 1993 World Trade Center bombing,[29] the initial popularity of anti-immigrant legislation in California in 1994 (Proposition 187),[30] and the 1995 Oklahoma City bombing[31]-prompted Congress to restructure United States immigration law in 1996.

The legislative changes were adopted in a rushed atmosphere. During its consideration of the first of the two bills passed, the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress was pressed for time because it sought to adopt legislation prior to April 1996, which was the first anniversary of the Oklahoma City bombing;[32] and in the case of the second bill, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (hereinafter both laws are referred to generally as the "1996 laws"), Congress wanted to pass immigration legislation that emphasized enforcement prior to the run-up to the 1998 national elections.[33]

Although commentators since have focused on the fact that the two bills were adopted very quickly,[34] official debate contains few expressions of concern about Congress's haste. One notable exception is Senator Robert Graham of Florida, who said that Congress was "not in as advanced a position as we should be" when considering the legislative changes contained in IIRIRA. He cautioned,

[I]t was also essentially a closed process. Not only were many of the members of the conference committee not given the opportunity to participate, at the conclusion of the conference they were not even allowed to offer amendments to try to modify provisions which were found to be objectionable. So we have a product today which has not had the kind of thoughtful dialog and debate which we associate with a conference report which is presented to the US Senate for final consideration.[35]

Senator Graham also questioned Congress's narrow focus on an eventually defeated provision that would have granted states the ability to deny public education to undocumented children. Graham said the provision was "so inflammatory that it tended to focus total attention on this legislation on that single provision .… Therefore, we are now focusing for the first time on the totality of this legislation."[36]

The rushed consideration of legislative changes in 1996 was also fueled by a perceived connection between terrorists and non-citizens convicted of crimes. In their statements, members of Congress continually made such connections explicitly or implicitly to non-citizens involved in crime, no matter how petty the offense or how distinguishable from terrorism.[37]

Representative Bill McCollum said that the

[C]riminal alien provisions in this bill [AEDPA] … are also important to the terrorist issue, because oftentimes we find that terrorists or would-be terrorists are criminal aliens and we are not deporting them in a proper fashion …. The sooner we get them out of the country, the better procedures we have for that, the less likely we are to have that element in this country either create the actual acts of terrorism or directing them in some manner. We need to kick these people out of the country…. [38]

Similarly, Representative Lamar Smith said that the 1996 laws

Ensure[] that the forgotten Americans-the citizens who obey the law, pay their taxes, and seek to raise their children in safety-will be protected from the criminals and terrorists who want to prey on them. [39]

However, Representative Patsy Mink of Hawaii questioned her colleagues' conflation of terrorists and non-citizens with criminal convictions:

This bill increases the number of criminal activities that legal aliens can be deported for. Most of the additional offenses are not required to be linked to terrorism …. I am deeply concerned that these provisions expand authorization for deportation of aliens without any association with crimes of violence or terrorism. [40]

President Bill Clinton made a similar comment when signing AEDPA into law. He said, "This bill also makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents.…"[41]

Specific Crimes Rendering Non-Citizens Deportable

Aggravated Felonies

The 1996 laws added new crimes to the aggravated felony ground of deportation. First, Congress added 17 additional types of crimes to the category when it passed AEDPA in April 1996.[42] In September 1996, shortly before Congress adjourned to campaign, it passed IIRIRA, which added four more types of crimes to the aggravated felony definition and lowered certain threshold requirements. For example, before IIRIRA, theft offenses and crimes of violence were aggravated felonies only if the term of imprisonment was five years or more; IIRIRA reduced the term of imprisonment provision to a one-year threshold.[43]

Therefore, since 1996, aggravated felonies include the following broad categories of crime:

any crime of violence (including crimes involving a substantial risk of the use of physical force) for which the term of imprisonment is at least one year;

any crime of theft (including the receipt of stolen property) or burglary for which the term of imprisonment is at least one year; and

illegal trafficking in drugs, firearms, or destructive devices.

The following specific crimes are also listed as aggravated felonies:

murder;

rape;

sexual abuse of a minor;

illicit trafficking in a controlled substance, including a federal drug trafficking offense;

illicit trafficking in a firearm, explosive, or destructive device;

federal money laundering or engaging in monetary transactions in property derived from specific unlawful activity, if the amount of the funds exceeded $10,000;

any of various federal firearms or explosives offenses;

any of various federal offenses relating to a demand for, or receipt of, ransom;

any of various federal offenses relating to child pornography;

a federal racketeering offense;

a federal gambling offense (including the transmission of wagering information in commerce, if the offense is a second or subsequent offense) that is punishable by imprisonment of at least one year;

a federal offense relating to the prostitution business;

a federal offense relating to peonage, slavery, involuntary servitude, or trafficking in persons;

any of various offenses relating to espionage, protecting undercover agents, classified information, sabotage, or treason;

fraud, deceit, or federal tax evasion, if the offense involves more than $10,000;

alien smuggling, other than a first offense involving the alien's spouse, child, or parent;

illegal entry or re-entry of an alien previously deported on account of committing an aggravated felony;

an offense relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or immigration document if (1) the term of imprisonment is at least one year and (2) the offense is not a first offense relating to the alien's spouse, parent, or child;

failure to appear for service of a sentence, if the underlying offense is punishable by imprisonment of at least five years;

an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year;

an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of two years' imprisonment or more may be imposed; and

an attempt or conspiracy to commit one of the foregoing offenses.

While some of the above examples of aggravated felonies would seem to be severe offenses for which deportation is an appropriate punishment, in practice it is not always clear cut. For example, Ramon H. (a pseudonym) is originally from Mexico. He married a United States citizen, Pamela H., (a pseudonym) in 1990. In February 1993, Ramon pled guilty to lewd or lacscivious acts with a minor. After his plea, he completed his probation, according to his probation officer, "in an exemplary fashion."[44] He applied to adjust his status to that of a lawful permanent resident through his US citizen wife in 1996, but in 2001 DHS informed him that he was deportable for his criminal conviction, and he was placed in removal proceedings in August 2004.

The circumstances of Ramon's crime were later described by his niece Kelda in a sworn affidavit that she submitted during his deportation hearing. Kelda explained that during a family gathering, Ramon patted her "lightly on the butt … for no apparent reason."[45] Kelda mentioned the incident to a friend at school, who in turn told a teacher, and the school called the police, resulting in Ramon's conviction and order of deportation.

Some minor drug crimes are considered aggravated felonies. For example, 24-year-old Mario Pacheco entered the United States with his mother in 1981 when he was two months old. He lived in Chicago with his parents as a lawful permanent resident for 20 years, where he attended public schools. Mario obtained his general equivalency diploma (GED) and went to work right away.

At the age of 19, in 2001, Mario was convicted for possession of 2.5 grams of marijuana with intent to distribute, which is a misdemeanor offense under Illinois law, but is also considered an aggravated felony under immigration law. The drugs were discovered in Mario's car after he was stopped for a broken taillight. Mario explained that he was hanging out with the wrong crowd at the time, that he often drove friends in his car, and that the drugs belonged to one of his friends. He was sentenced to one year of "supervision"-a sentence that is less severe than probation.

At this writing, Mario was still trying to appeal his deportation, but his prospects did not look good. Mario works about 60 hours a week in the shipping department at a large warehouse and is the father of three US citizen children, ages two to six.[46] Mario's parents also spoke with a Human Rights Watch researcher. They both are lawful permanent residents: his mother has worked at the same company for more than 20 years and has a graduate degree in business, which she obtained by attending courses at night while working full time. His mother spoke about how stressful her son's impending deportation was for her and the family: "If you do something very bad, then I'm not saying anything about that. But he's being punished for something he did when he was a teenager. He didn't even go to jail."[48]

Ricardo S. was also facing separation from his US citizen wife and two children because of an aggravated felony drug conviction. He was ordered deported because of a conviction for possession with intent to distribute a small amount of heroin, for which he was advised by a defense attorney to plead guilty. In return for his guilty plea, he received no jail time but was ordered to pay a fine of $500 and serve two years probation, which he completed without incident. Ricardo S. had no other criminal convictions and worked in construction in the Chicago area. His conviction was brought to the attention of the immigration authorities because he and his US citizen wife, who were married in 2001, applied to adjust Ricardo S.'s status to that of a lawful permanent resident. Looking back on his one conviction, Ricardo S. said,

I feel bad about it because of my family. If I was by myself, without my wife or any children, it would have been a lot different. But I feel real bad for them …. Maybe if they would have caught me with a ton of drugs [I could understand them wanting to deport me], or if I ever murdered somebody. But it was the only one …. I wish that [when I applied for my green card] they would have just told me I didn't qualify. I have kids who are citizens and a wife who is a citizen but I wish they would have just let me continue working to support my family…. [49]

Deportation under almost any circumstances limits a non-citizen's ability to return, even temporarily, to the United States. Non-citizens previously removed are barred from re-entry for five or 10 years, depending on the circumstances of their removal. For non-citizens with aggravated felony convictions, this bar to re-entry is permanent, unless they can obtain permission to enter from the Attorney General, which is rarely granted.[50] Thus, for families separated due to offenses classified as aggravated felonies, deportation permanently splits the family in two. Spouses and children are often either US citizens or lawful permanent residents, and cannot relocate to the deportee's country of origin. In addition to the strong connections to the United States that these family members often have, parents of school-age children emphasize that the United States is the only home their children have ever known, that their children often do not speak any language other than English, and that their children are being educated in US schools as reasons for not being able to join their deported spouse permanently.

Crimes of Moral Turpitude

Immigrants are deportable if they are convicted of a "crime involving moral turpitude" within five or in some cases 10 years after they enter the United States and their crime carries a sentence of one year or longer.[51] A non-citizen is also deportable if he or she is convicted of two or more crimes of moral turpitude at any time after admission.[52] In 1996 Congress did not change the crimes considered to meet the definition of "moral turpitude." However, it did make it more difficult for non-citizens with convictions for crimes of moral turpitude to defend against deportation, primarily because Congress made the standards more rigorous and the determination of who merited cancellation of removal entirely up to the discretion of the immigration judge.

Under the Immigration and Nationality Act (INA) Section 240A(a), non-citizens convicted of moral turpitude crimes can apply for "cancellation of removal":

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable for the United States if the alien:

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years;

(2) has resided in the United States continuously for 7 years after having been admitted in any status;

(3) has not been convicted of an aggravated felony. [53]

For example, Mark Ferguson, a native of the United Kingdom who had lived in the United States lawfully as a green card holder since the age of three, was convicted of two or more crimes of moral turpitude for "mooning" (showing his nude buttocks to) women. Ferguson testified that in the past he had mooned a woman about once every six months, but was under psychiatric treatment for the practice, and under treatment had not re-offended for two years. He submitted expert testimony that he was not sexually aroused by the practice, had an "unusually low" chance of re-offending, and that he had strong family connections to the United States, including because he was a primary caregiver for his deceased sister's children. The Board of Immigration Appeals found that although he was statutorily eligible for cancellation of removal under INA Section 240A, cancellation of Ferguson's removal would not be in the best interests of the United States. On appeal, the court found that it had no power to review that discretionary decision.[54]

Definitions Include Relatively Minor Crimes

In 1996, listeners to Congressional debate were left with the impression that only the most violent non-citizen offenders would be subject to deportation once the 1996 laws were passed. Senator Alan Simpson of Wyoming chose two from the long list of more minor crimes that would require deportation in the new legislation, noting that "domestic violence and stalking are made deportable offenses."[55]

Similarly, focusing on felonies (and ignoring the many misdemeanor crimes that would also trigger deportation under the proposed legislation), Senator Spencer Abraham of Michigan said, "By conservative estimates, almost half a million felons are living in this country illegally. These aliens have been convicted of murder, rape, drug trafficking, potentially such crimes as espionage, sabotage, treason and/or a number of other serious crimes…."[56]

Even after the new laws were in place for a year, there remained some confusion among legislators responsible for the bills' passage as to what kinds of crimes actually triggered deportation. In an article published in the Washington Post in 1998, Congressman Lamar Smith of Texas denied that shoplifting could render someone deportable and characterized this assertion as "a view peddled in the media by immigration lawyers."[57] But, in fact, shoplifting is a deportable offense.

Congresswoman Patsy Mink of Hawaii and Senator Edward Kennedy of Massachusetts were among the few legislators who raised concerns about the minor crimes that would result in deportation under the new laws. Summing up her views on this issue, Representative Mink said,

[I]t is wrong to place upon legal immigrants a higher penalty for crimes which in themselves are not related to terroristic actions. Deportation should be reserved for only the most heinous of crimes rendering the person unfit to remain in the country. [58]

Similarly, Senator Kennedy said,

It applies to all criminal aliens, regardless of the gravity of their offense …. whether they are murderers or petty shoplifters. An immigrant with an American citizen wife and children sentenced to 1-year probation for minor tax evasion and fraud would be subject to this procedure. And under this provision, he would be treated the same as ax murderers and drug lords. [59]

Elimination of Defenses to Deportation

As noted above, prior to 1996, there were several grounds that non-citizens could raise in order to cancel their deportation from the United States: a judicial recommendation against deportation (JRAD); suspension of deportation; 212(h) waiver of deportation; 212(c) waiver of deportation; and withholding. The JRAD was eliminated in 1990. In 1996 Congress eliminated 212(c) waivers and replaced suspension of deportation with cancellation of removal, instituting instead a much narrower waiver under 240A(a) for legal permanent residents (described above). Congress further decided to limit immigrants with criminal convictions' ability to apply for 212(h) waivers and withholding.

Elimination of 212(c) Waiver of Deportation

The continuing expansion of the aggravated felony definition, culminating in the 1996 laws, has meant that increasing numbers of non-citizens find themselves barred from raising defenses to deportation in their immigration hearings. The very limited relief that does remain in immigration law at this writing, in the Immigration and Nationality Act (INA) Sections 240A and 212(h), is not available to those convicted of aggravated felonies.[60]

Congress chose to eliminate hearings under former INA Section 212(c) with the passage of the 1996 laws. The hearings had allowed seven-year lawful permanent residents who committed crimes to seek discretionary relief from deportation from an immigration judge by showing negative factors were outweighed by positive factors.[61] Negative factors in a 212(c) application included: the nature and underlying circumstances of the reason for deportation; the presence of additional significant violations of the immigration laws; the existence of a criminal record and, if so, its nature, recency, and seriousness; and the presence of other evidence indicative of a respondent's bad character or undesirability as a permanent resident of the United States.[62]

Favorable 212(c) factors included: family ties within the United States; residence of long duration in the country (particularly when the inception of residence occurred while the respondent was of young age); evidence of hardship to the respondent and family if deportation occurs; service in the US Armed Forces; a history of employment; the existence of property or business ties; evidence of value and service to the community; proof of a genuine rehabilitation if a criminal record exists; and other evidence attesting to a respondent's good character (for example, affidavits from family, friends, and responsible community representatives).[63]

Throughout the 1996 legislative debate, Congress never considered these factors in detail, and never analyzed the utility or importance of retaining a hearing in which some or all of them were weighed. Instead, Congress took a wholesale approach and eradicated the hearings altogether.

Legislative discussion on this issue lacked nuance, especially because legislators tended to lump all non-citizens convicted of crimes into one category-neglecting the fact that the legislation under consideration would include legal residents with minor offenses and affect US citizen family members. As a result, Congress chose to eliminate 212(c) across the board.

Congress was motivated by its belief that 212(c) relief was abused, leading to unnecessary delays in deportation. A colloquy between Senator Orrin Hatch of Utah and Senator Abraham revealed a concern on the part of both senators that immigration judges were granting discretionary relief under 212(c) too frequently. Senator Abraham highlighted his concern by stating, "for the past 8 years, however, 212(c) relief has been granted to more than half of all who apply, the vast majority of whom are criminal aliens, amounting to thousands of criminal aliens per year."[64]

By contrast, Immigration and Naturalization Service (INS) officials, who on a daily basis saw the important role that the hearings played, were distressed to see the elimination of the 212(c) provision:

Key officials in the Department of Justice were keenly aware … that the "criminal alien" slogan, for all its power on the campaign trail, embraces a vast spectrum of human character and behavior. Some such criminals are truly dangerous, but a large fraction of this class made single mistakes or had shown genuine rehabilitation and remorse. In the view of those officials, most such deportable aliens should at least be eligible for consideration of release during proceedings and for a discretionary waiver of deportation altogether, as had earlier been possible under INA § 212(c). [65]

An immigration judge interviewed by a Human Rights Watch researcher for this report said,

It is true that judges often granted 212(c) relief, but that was because immigration judges often saw deserving cases. Congress did not accept that fact, and so took judicial discretion away. Instead, what they created was a statute with so many legal interpretation questions that litigation did not decrease at all after 1996.[66]

Drawing a connection between slow deportation rates and the judicial review that non-citizens used to request once they received an order of deportation, Representative Henry Hyde of Illinois spoke in favor of what he called AEDPA's "criminal alien deportation improvements …. they can get deported with expedition rather than go through another and another and another hearing."[67]

In fact, according to the Department of Justice, on average, 12,043 cases were appealed by immigrants from the administrative level to the Board of Immigration Appeals in the seven years prior to April 1, 1997 (the date the 1996 laws took effect).[68] In the seven years after the laws took effect (up through April 1, 2004), on average, 22,629 cases were appealed each year.[69]

Although many members of Congress clearly thought the elimination of 212(c) was a good thing, Senator Kennedy did not. He argued against the bill's "one size fits all approach" that eliminated hearings balancing non-citizens' interests in remaining in the country against the government's interest in deportation:

[T]his amendment virtually eliminates the Attorney General's flexibility to grant discretionary relief from deportation for long-time permanent residents convicted of lesser crimes …. [T]his discretionary relief would be denied to permanent residents for carrying a concealed firearm, drug abuse or addiction, in which no conviction would even be required, any drug offense involving more than 30 grams of marijuana, and other such crimes. They could live here productively for 30 years and have an American citizen wife and children. But for them, it is one strike and you are out. [70]

Case Study: Deportation in Europe: the Boultif Test

The 47 member countries in the Council of Europe (COE) have adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "European Convention" or ECHR), which places them under the jurisdiction of the European Court of Human Rights (ECtHR). Any person alleging a rights violation under the European Convention within a Council nation can take their case to the ECtHR, whose decisions are legally binding upon Council member nations. Article 8 of the European Convention covers an individual's right to family life and provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The right to be free from government interference with family life has been successfully asserted by non-citizens facing deportation because of criminal convictions. In several COE nations, non-citizens have challenged deportation by proving that it would unjustifiably interfere with their right to family life or because the deportation procedures they were subject to gave inadequate attention to their Article 8 rights. The ECtHR's approach to these questions was established in 2001 by the Boultif v. Switzerland case. The case involved an Algerian citizen who moved to Switzerland in 1992 and married a Swiss woman a few months later. He was soon convicted of weapons possession and then, in 1994, of physically assaulting and robbing a man in Zurich, for which he received a two-year sentence. Shortly after he started his sentence, Swiss authorities refused to renew his residence permit and the Swiss Federal Court held that his deportation did not violate Article 8 of the European Convention, since it was a valid exercise of state power in the interests of public order and security. The ECtHR rejected Switzerland's judgment. In so doing, the court determined "guiding principles" for this type of case, establishing a four-step framework. In the first three steps, the court determines whether there has been interference with family life, and if so, if it fits with the factors allowing for such interference in Article 8(2) (such as national security or public safety). The fourth and final step asks whether the interference is "necessary in a democratic society," and weighs eight factors: (1) The nature and seriousness of the offense, (2) The length of the applicant's stay in the expelling country, (3) The length of time elapsed since the offense and the applicant's behavior during that time, (4) The nationalities of the parties concerned, (5) The applicant's family situation (length and "effectiveness" of the marriage), (6) Whether the spouse knew about the offense at the time of entering into the marriage, (7) Whether there are children, and their ages, and (8) The potential difficulties family members would face in relocating to the applicant's home country. In Mr. Boultif's case, the court found in his favor mostly by focusing on the potential hardship to his wife in relocating to Algeria and by considering whether he continued to pose a danger to the public. The court noted not only Mr. Boultif's good behavior since committing his crime, but the fact that he had originally received a relatively light criminal sentence. This, in the court's view, undercut the idea that he posed a danger. Based largely on these two factors, the court found that the harm Mr. Boultif would suffer from deportation would be disproportionate to Switzerland's stated goals in expelling him.

Limits on Withholding: Returns to Persecution

During its adoption of the 1996 laws, Congress appears to have paid very little attention to the fact that the expansion of the aggravated felony definition would allow immigration authorities to deport refugees to persecution (refoulement), even if their crimes did not fit the "particularly serious crime" definition as required under the UN Convention relating to the Status of Refugees, which the United States is bound by through its ratification of the UN Protocol relating to the Status of Refugees in 1967.

The 1996 changes to US immigration law mean that the United States no longer meets its treaty obligations to protect from refoulement refugees who meet the Refugee Convention's criteria for protection. IIRIRA made it impossible for any immigrant convicted of an aggravated felony with a five-year sentence to obtain protection from return to persecution. This means, for example, that drug offenders with sentences of five years or more can be sent to persecution by US immigration authorities. By contrast, under international standards, only refugees who have been convicted of a "particularly serious crime" and who "constitute a danger to the community" of the United States can be returned to places where they would be persecuted.[72]

There are only two scant references to this in the legislative history for the 1996 immigration laws. Senator Kennedy said, "[r]efugees could also be deported to the hands of their persecutors for relatively small offenses";[73] and the UN agency responsible for refugee protection, the United Nations High Commissioner for Refugees (UNHCR), wrote to the Senate Judiciary Committee to raise its concerns that "the particularly serious crime" exclusion ground should only be invoked in "extreme cases" and only after a balancing test has been applied, weighing the degree of persecution feared against the seriousness of the offense committed.[74]

Retroactive Effects

Congress also decided to make the 1996 laws retroactive. The laws render someone deportable for crimes committed at any point prior to the change in law, including crimes that were not deportable offenses at the time of their commission.

Despite this sweeping change, there is little in the legislative history to show that Congress considered the likely outcomes. Former INS General Counsel David Martin recalled that Senator Kennedy and his staff tried to draw attention to sympathetic cases of immigrant families that would suffer drastic effects under the retroactive application of the laws. Kennedy had meetings with Senator Jon Kyl of Arizona and Senator Abrahams to try to "walk through some of the retroactivity scenarios," but "there wasn't much response. I really don't think there was anyone in Congress who anticipated what would happen and even when they were presented with sympathetic facts, they just didn't want to appear soft on immigration, so they left the retroactivity in."[75]

Martin said that the idea originally came from his office, although he ultimately came to oppose the way that Congress dealt with retroactivity:

We proposed the retroactivity because we saw it as a way to clean up the previous aggravated felony provisions from the 1988, 1991, and 1994 laws. These different definitions and effective dates were a nightmare for INS to administer, so we wanted the new definition to clean all that up, and be fully retroactive.[76]

Even though INS wanted the new definition to be retroactive, it expected to be able to continue to exercise discretion to allow compelling cases to remain in the country, particularly those cases in which the immigrant had lived in the United States for a long time and had family ties. In other words, the INS expected 212(c) hearings to remain available. According to Martin,

The key point is that this was at a time when 212(c) was available …. If we had known that [Congress] would ultimately exclude all those people from 212(c) relief, I'm sure we wouldn't have taken that stance [in support of retroactivity]. [77]

Case Study: 212(c) Hearings: The St. Cyr Precedent

Due to the Supreme Court case, U.S. v. St. Cyr, 533 U.S. 289 (2001), a small sub-group of non-citizens who entered guilty pleas prior to 1996 on the understanding that they would have had access to 212(c) waivers are now allowed to apply for those waivers. One such case is that of Ricardo Etienne, who moved to the United States at the age of 11 in 1986, and attended middle and high school in Stamford, Connecticut. His mother, brother, and sister all live in the United States. He is engaged to Marjorie Roc and the couple has three children. Prior to his incarceration and deportation, Etienne supported his family by earning $8 an hour at a series of full-time jobs. During his incarceration prior to deportation, he completed a series of drug rehabilitation programs. Etienne was not allowed a 212(c) hearing and was therefore deported to Haiti. With their main breadwinner deported, Ms. Roc and Etienne's children could no longer afford the apartment in which they had been living and moved to public housing, which was located in an unsafe neighborhood, according to Ms. Roc. They also could not afford to travel to Haiti to see Etienne. Etienne's case was reconsidered under St. Cyr v. INS, and the reviewing court found that the favorable factors-family ties, substantial rehabilitation, and work history-outweighed Etienne's criminal history and that "there is a reasonable probability that … [Etienne] would have been granted Section 212(c) relief." United States of America v. Ricardo Etienne, 2005 U.S. Dist. LEXIS 976, p. 25 (D. Conn, January 14, 2005). Other cases decided under the St. Cyr precedent have stopped the deportation of non-citizens with strong ties to the United States. In Matter of Dominos Dias Goncalves, No. A34 744 205, Immigration Reporter, vol. 26 (MB) B1-117 (BIA November 25, 2002), the court prevented deportation, noting "While it is indeed lengthy, the respondent's criminal record includes several arrests for minor offenses which were committed when the respondent was a minor from an abusive and troubled background. Given the strength of the positive factors in this case, including the evidence of the respondent's strong ties in the United States and of his significant rehabilitation, we conclude that the positive factors surpass the cumulative weight of the respondent's criminal record and his substance-abuse history." These immigrants are "lucky" to fit within the St. Cyr precedent, and therefore had the ability to access the 212(c) waiver. Hundreds of thousands of other immigrants who did not plead guilty in their cases, and whose convictions came after 1996, have not had this same chance.

Congressional Regrets

After watching the effects over the years, several members of Congress have expressed regrets about having changed US immigration law so drastically in 1996. Representative Bob Filner of California characterized what Congress did in 1996 in the following way:

[In] the Immigration Law of 1996 …. people were defined as felons in a new way. They were picked up off the streets in the middle of the night, deported without any due process-and these were legal people, here legally, but may have committed some crime, even shoplifting 20 or 30 years ago. [78]

Some US legislators have sought ways to lessen the blow dealt by the 1996 laws to non-citizens with close family and other ties to the United States. Although several bills have been introduced over the ensuing decade, only one, H.R. 5062, made it out of congressional committee in the US House of Representatives and was introduced in the US Senate-only to die there without being referred to a Senate committee. All of the other reform bills have failed to receive the full attention or consideration of Congress, since they never made it out of the committee process.[79] Therefore, despite some clear signals that Congress regrets its actions in 1996, it has never had the opportunity to carefully consider what was done 10 years ago, including whether some aspects of the laws should be amended to bring them better into line with notions of justice and fair play.

On October 1, 1999, Representative Bill McCollum of Florida, once a proponent of the 1996 laws, introduced the Fairness for Permanent Residents Act, which would have allowed the Attorney General to prevent the deportation of lawful permanent residents who were convicted of certain aggravated felonies, in particular those whose crimes were not serious violent felonies. The bill focused primarily on giving some permanent residents relief from the harsh application of the new definition of aggravated felon. Family ties were not considered. When introducing this bill, McCollum stated,

[I]n 1996, Congress made several modifications to our country's immigration code that have had a harsh and unintended impact on many people living in the United States. These individuals, permanent resident aliens, have the legal right to reside in the country and apply for US citizenship. They serve in the military, own businesses and made valuable contributions to society…. Our bill returns balance to our existing laws by allowing people with compelling or unusual circumstances to argue their cases for reconsideration. The legislation does not automatically waive the deportation order, it simply grants a permanent resident alien the right to have the Attorney General review the merits of his case. [80]

In July 2000, Representative Henry Hyde, who was then chair of the House Judiciary Committee, brought together Representatives McCollum, Barney Frank of Massachusetts, and other interested legislators. Their discussions resulted in H.R. 5062, sponsored by McCollum and co-sponsored by 10 additional Representatives.[81] H.R. 5062 was subsequently passed by the House on September 19, 2000. The bill offered amendments limiting the retroactive application of the new aggravated felony definition to pre-1996 crimes, and gave non-citizens with pre-1996 convictions access to cancellation of removal.

Upon unanimous passage of the bill, Representative Filner addressed the House to "honor [his] colleagues for taking a step forward and unanimously passing H.R. 5062, an important step toward restoring fairness to families split apart by 1996 legislation that was billed in this House as immigration reform."[82] Senate passage of the bill seemed certain, and White House Chief of Staff John Podesta wrote to Senator Hatch of the Senate Judiciary Committee to voice the Clinton administration's support for reforms. However, the Senate became embroiled in a battle over visas allocated to skilled professional workers and no subsequent action was taken on the bill, inaction that was attributed to the 2000 elections.[83]

Representative John Conyers of Michigan sponsored a very comprehensive reform bill, entitled the "Restoration of Fairness in Immigration Law Act of 2000," but known more colloquially as the "Fix '96" bill, which was introduced on July 26, 2000, and was co-sponsored by 47 additional representatives.[84] Conyers reintroduced the bill in March 2002, together with members from the Congressional Hispanic, Black, and Asian Pacific Caucuses. The bill would have, among many other provisions, improved access to judicial review for non-citizens facing deportation; redefined crimes of moral turpitude, aggravated felonies, and the definition of conviction to limit deportation to the most serious crimes; and it would have allowed judges to exercise discretion in favor of certain non-citizens facing removal whose deportation would result in extreme hardship to their US citizen or legally present family members. The bill was referred to the House Subcommittee on Immigration and Claims, but made no further progress in Congress. When he reintroduced the bill in March 2002, Conyers said that the bill "restores fairness to the immigration process by making sure that each person has a chance to have their case heard by a fair and impartial decision maker. No one here is looking to give immigrants a free ride, just a fair chance."[85]

In the Senate, Senator Kennedy sponsored a bill, S. 3120, introduced on September 27, 2000, and co-sponsored by seven additional Senators,[86] which made the statement that current immigration laws "punish legal residents out of proportion to their crimes," and revised several punitive aspects of the laws, including by eliminating the retroactive effects, eliminating several minor crimes (including aggravated felonies punishable by a sentence of more than five years) from eligibility as deportable offenses, and affording more deportable non-citizens access to cancellation of removal.[87]

Other attempts at reform included a bill sponsored by Senator Daniel Patrick Moynihan of New York, S. 173, introduced to the Senate on January 19, 1999, which would have made non-citizens convicted of an aggravated felony with a sentence of less than five years eligible for cancellation of removal.[88] Senator Patrick Leahy of Vermont introduced a bill on April 22, 1999, which would have lessened the impact of deportation policy on US military veterans, including by making them eligible for cancellation of removal, irrespective of any criminal convictions.[89] Even as recently as January 2007, a bill sponsored by Representative José Serrano of New York was introduced that would provide discretionary authority to immigration judges to allow non-citizen parents of US citizen children to remain in the United States and avoid deportation when such deportation is determined to be against the best interests of the child.[90] Despite these many efforts, at this writing not one of these proposed reforms has received the full and detailed attention of Congress, and none has passed.

V. National Statistics on Deportation for Crimes

The history of the 1996 immigration laws tells a story of unintended consequences-Congress seems to have passed laws that treated some immigrants more harshly than lawmakers anticipated. Regardless of what Congress intended, the effects of the 1996 laws-particularly on families in the United States-have been widespread and devastating.

Aggregate statistics released annually by immigration authorities reveal that since 1997 (when the 1996 laws went into effect), a total of 672,593 immigrants have been deported for criminal convictions. Figure 1 shows that the annual number of deportees has risen most years and predictably jumped the most (61 percent) between 1996, before the new laws took effect, and 1998, when they had been in place for a full calendar year. Each year subsequently, with the exception of 2002 and 2005, the numbers have risen steadily.

Figure 1

Large numbers of these non-citizens deported for crimes receive their deportation orders after appearing in immigration proceedings without an attorney, often speaking with the help of whatever interpretation services the court normally uses. Figure 2 shows that in 2005, 65 percent of immigrants represented themselves in their deportation hearings before the immigration court.

Figure 2

Non-citizens deported for criminal offenses come from the same countries and regions of the world as all immigrants living in the United States. Therefore, the bulk of those deported-or 93 percent-are sent to countries in North and Central America and the Caribbean, as shown in figure 3. Mexico receives by far the largest number of immigrants deported for criminal convictions, shown in figure 4.

Figure 3

Figure 4

The Immigration and Customs Enforcement (ICE) agency within the Department of Homeland Security only recently has made data available about the criminal convictions that form the basis for deportations from the United States. For reasons that are unclear, in its regular press updates the agency always touts its deportations of violent criminals, but keeps vague the other categories of immigrants deported. The secrecy surrounding the criminal convictions forming the basis for deportations has been remarked upon by many attorneys, academics, and statistical researchers. In fact, Syracuse University, which maintains a special immigration data analysis unit, recently observed,

Despite the interest in aggravated felonies, very little is currently known about how often aggravated felony provisions are in fact used. The government publishes no statistics on the number of individuals it has sought to deport, or actually deported, on aggravated felony grounds. A literature search has not turned up any other sources with relevant statistics. [91]

In its regular press releases, instead of simply disclosing all of the offenses that form the basis for deportations, ICE prefers to highlight the worst, most violent offenses. In one press statement, announcing the deportation of 562 "criminal aliens," ICE chose to highlight presumably three deportees who were removed for "aggravated assault," "drug trafficking," and "lewd and lascivious acts on a child." Details on criminal convictions for the 559 additional immigrants deported were not provided. The same release quotes Marc Moore, San Antonio ICE field office director for detention and removal operations:

Our citizens may sleep better knowing that these dangerous criminals no longer pose a threat to our communities. ICE will continue to work to aggressively remove those who have no legal right to remain in the United States, especially those who terrorize our communities. [92]

In another press advisory, ICE announced its deportation of "144 criminals," highlighting three non-citizens who were deported for sex offenses or stalking, and referring to "other individuals" who were deported for "crimes such as homicide, heroin and cocaine smuggling, fraud, weapons offenses, sexual assault, prostitution, and extortion."[93] In yet another release, ICE chose to highlight the deportations of two men: a Brazilian who was convicted for assault with a deadly weapon, domestic assault and unlawful possession of a firearm; and a Jamaican who was deported for "unnatural acts upon a child; providing obscene materials to minors; assault and battery; breaking and entering; larceny; and possession of a controlled substance." But the agency failed to describe the crimes of the 756 other immigrants deported during the same ICE operation.[94]

As figure 5 reveals, newly public data on the underlying convictions for deportations in fiscal year 2005, which were released by ICE at the end of 2006, show that 64.6 percent of immigrants were deported for non-violent offenses, including non-violent theft offenses; 20.9 percent were deported for offenses involving violence against people; and 14.7 percent were deported for "other" crimes, unreported by ICE. Figure 6 breaks down these numbers into more specific offenses for 2005, showing that drug crimes, immigration offenses, assault (non-sexual), and "other" crimes are the top four most common criminal convictions, totaling 81 percent of all deportations on criminal grounds in that year.

Figure 5

Figure 6

Applying these percentages from 2005 to the aggregate number of persons deported since 1997 allows us to estimate that 434,495, or nearly half a million people, were non-violent offenders deported from the United States in the 10 years since the 1996 laws went into effect. In addition, we can estimate that 140,572 people were deported during that same decade for violent offenses.

These broad estimates fail to answer important additional questions. When Human Rights Watch commenced research for this report, we filed a Freedom of Information Act (FOIA) request with ICE to answer basic questions about the legal status of those deported for crimes (how many were green card holders and how many were undocumented), the nature and seriousness of the criminal convictions forming the basis for deportations (e.g. how many convicted of shoplifting, how many of homicide) and the family relationships of those deported (how many had US citizen or lawfully present spouses and children). Human Rights Watch delayed publication of this report for one year while we waited to receive a response to our FOIA request. Unfortunately, as detailed in the Appendix, we have not received the information requested. Worse, the history of ICE's response to our repeated requests suggests at best a lack of commitment to transparency and the goals behind the FOIA legislation; at worst it suggests deliberate stonewalling.

If ICE had responded to our FOIA request, we would have been able to fill in at least some of the blanks left by the publicly available data. That data, for example, do not reveal how many of the 672,593 non-citizens deported for crimes were lawfully present in the country and how many were undocumented. The data also provides the public with little basis for judging the fairness of the deportations in light of the crimes for which the deported immigrants were convicted because criminal categories used by ICE are so broad as to be almost meaningless. The broad category of "sex offenses" may include acts like consensual underage sex (prosecuted as statutory rape), as well as violent rape. The category of "drugs" no doubt includes high-level drug traffickers as well as immigrants deported for simple possession of small amounts of narcotics.

Although Human Rights Watch cannot make reliable estimates of the legal status of the deported immigrants nor the offenses triggering their deportations, we can make reasonable estimates of how many spouses and children were left behind as a result of these deportations. The 2000 US Census found that the 6.3 million households with a foreign-born non-citizen householder[96] in the United States had an average household size of 3.44 persons.[97] If that average household size holds true for the foreign-born non-citizens being deported from the United States for criminal offenses (that is, deportee plus 2.44 relatives in each household), then we can estimate that at least 1.6 million family members, including husbands, wives, sons and daughters, have been separated from loved ones by deportations since 1997.

We can also estimate that many of these relatives are US citizens and lawful permanent residents. The 2000 US Census found that US citizens represented 33 percent of all members of foreign-born households. This means that since the harsh immigration laws were passed in 1996, an estimated 1.6 million spouses and children, of whom approximately 540,000 were US citizens by birth or naturalization, lost a loved one to deportation. (We have found no way of reliably estimating the numbers of lawful permanent residents within the families of deported immigrants.)

VI. US Deportation Policy Violates Human Rights

Since the beginning of the nation state, control over immigration has been understood as an essential power of government. In recent history, governments have allowed limits on their immigration power, recognizing that it may only be exercised in ways that do not violate fundamental human rights.[98] Therefore, while international law does support every state's right to set deportation criteria and procedures, it does not allow unfettered discretion to deport all non-citizens in all circumstances.

When Congress changed deportation law in 1996 it broke with international human rights standards in ways never before attempted in the United States. Four important human rights are violated by US deportation policies as applied to immigrants with criminal convictions: the right to raise defenses to deportation, the principle of proportionality, the right to family unity, and the right to protection from return to persecution. In this chapter, we describe these human rights standards and highlight examples of people who were ordered deported in contravention of these norms.



The Right to Raise Defenses to Deportation

A primary purpose of human rights law is to define rights protecting the individual against the coercive powers of the state. Deportation, which removes an immigrant from the community with which he or she has built close and enduring ties, is an example of a coercive state power. However, the recognized legitimate interests of states in deporting certain non-citizens, combined with the relative ease by which deportation can be accomplished, have caused government officials and the public at large to lose sight of just how serious and coercive the state's decision to deport really can be.

Deported individuals lose their ability to live with close family members in a country that they may reasonably view as "home." They are deprived of raising their children or living in the same country as their parents, they lose friends and communities, and their ability to work may be restricted as well. In their countries of nationality, people deported from the United States for criminal convictions are often stigmatized and have difficulty finding jobs and establishing or reestablishing family and community connections. Most are barred, either permanently or for decades, from ever re-entering the United States, even for a short visit.

A governmental decision to deprive a person of connection to the place he or she considers home raises serious human rights concerns, requiring at a minimum that the decision to deport be carefully considered, with all relevant impacts and potential rights violations weighed by an independent decision maker. Unfortunately, the US fails to do this on a daily basis.

Instead, the United States takes a "one size fits all" approach to deportation. When non-citizens are facing deportation for criminal convictions, immigration judges can do little more than run conveyer belt deportation hearings in which they rubber stamp the removal orders issued by Immigration and Customs Enforcement. Many non-citizens are legally blocked from raising the closeness of their family relationships or other ties to the United States as well as the likelihood that they may be returned to persecution. Without an ability to raise these equities, deportation hearings provided for immigrants with criminal convictions are devoid of justice, and they violate international standards.

The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992,[99] states in Article 13 (to which the United States has entered no reservations, understandings or declarations),

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 where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. [100]

The UN Human Rights Committee, which monitors state compliance with the ICCPR, has interpreted the phrase "lawfully in the territory" to include non-citizens who wish to challenge the validity of the deportation order against them. In addition, the Human Rights Committee has made this clarifying statement: "if the legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13 …. An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one."[101]

Similarly, Article 8(1) of the American Convention on Human Rights, which the United States signed in 1977,[102] states,

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law … for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. [103]

Applying this standard, the Inter-American Commission on Human Rights has stated that deportation proceedings require "as broad as possible" an interpretation of due process requirements and include the right to a meaningful defense and to be represented by an attorney.[104]

While the ability to raise defenses to deportation is provided for in these human rights treaties, not every possible argument against deportation is important enough to call into question the legitimacy of a hearing that denies such arguments' consideration. For example, a non-citizen who for reasons of personal predilection prefers the economic opportunities and climate in one country to another could not legitimately challenge his hearing under human rights law if he was prevented from making this argument as a defense to deportation.

However, some defenses implicate very important and fundamental rights that non-citizens should be able to raise in their deportation hearings in the United States, including the rights to family unity, ties to a country, proportionality, and the likelihood of return to persecution upon return. Without a hearing that allows for the weighing of these concerns, the right to raise defenses to deportation is undermined.

Several categories of immigrants facing deportation for crimes in the United States are barred from having hearings in which their human rights can be weighed.[105] First, there is no mechanism by which immigration courts weigh whether deportation itself is a proportionate penalty imposed for the crimes a non-citizen has committed. Second, immigrants convicted of offenses categorized as aggravated felonies are barred from raising their family relationships or longstanding ties to the United States in a deportation hearing. Third, other non-citizens convicted of crimes cannot raise these issues if they do not fit the very narrow categories contained in the two remaining waivers of deportation (Sections 212(h) and 240A(a)). Fourth, many refugees convicted of aggravated felonies are barred from having their risk of persecution weighed by the courts.

The US policy of blocking certain categories of immigrants convicted of crimes from raising defenses to deportation during their deportation hearings violates international human rights standards. Europe has consistently allowed immigrants to raise these issues during deportation. If deportation infringes on a right protected in the European Convention of Human Rights, such as the right to family life under Article 8, a non-citizen is entitled to "an effective remedy before a national authority" under Article 13.[106] This remedy must provide some basic procedural protections as well as be conducted by an authority with sufficient power to rule on the question of whether the infringement of the right is so severe as to render the deportation unlawful.[107] In addition, in Stewart v. Canada[108]and Canepa v. Canada,[109] the Human Rights Committee has determined that hearings weighing family ties should take place prior to deportation.

Given the strength of these standards, many other constitutional democracies require deportation hearings to weigh such defenses to deportation in their domestic practices. In fact, in contrast to the United States, the laws and practices of 61 governments around the world researched by Human Rights Watch offer non-citizens an opportunity to raise family unity concerns, proportionality, ties to a particular country, and/or other human rights standards prior to deportation.

Figure 7: Human Rights Protections in the Deportation Laws of 61 Countries and Territories

Must weigh family ties as Party to ECHR As a matter of domestic law (DL): must weigh family ties prior to deportation DL: Must weigh proportionality prior to deportation DL: Must weigh ties to a country prior to deportation DL: Must give due process prior to deportation DL: Must consider human rights prior to deportation Albania X X Andorra X Argentina X X X Armenia X X Australia X X Austria X X Azerbaijan X Belgium X X Bosnia & Herzegovina X X Brazil X Bulgaria X Canada X Croatia X Cyprus X Czech Republic X Denmark X X X Estonia X Finland X X France X X X X Georgia X Germany X X X Greece X X Guatemala X Hong Kong X Hungary X X X X Iceland X X X Ireland X X X Israel X Italy X X X Japan X Latvia X Liechtenstein X Lithuania X X X Luxembourg X Macedonia X X X Malta X Moldova X Monaco X Netherlands X X New Zealand X Norway X X X X Poland X Portugal X X Romania X Russia X San Marino X Serbia X Singapore X Slovakia X X Slovenia X X X South Africa X X South Korea X Spain X X Sweden X X X Switzerland X X X X Tajikistan X Turkey X United Kingdom X X X Ukraine X Venezuela X X

Case Study: Deportation and Post-Traumatic Stress: Kannareth C.[110]

Kannareth C., a young man facing deportation to Cambodia, came to the United States with his mother from a refugee camp in Thailand when he was 10 years old. The family entered the United States legally as refugees and became lawful permanent residents. At the age of 15, Kannareth was placed on probation for driving without a license. While he was on probation he was charged with pick pocketing. He also violated his probation by failing to report. Kannareth has a fiancée and a daughter who was three years old when he went to renew his green card for employment purposes and his criminal record was checked. He was placed in immigration detention and in deportation proceedings. Kannareth wrote, "I came to the United States of America legally for the opportunities offered of a good life. I was making the best of those opportunities by attending college to learn a trade for the chance at a good employment career. I held a job at the same time to provide for my family. My fiancée and I plan to marry and raise our daughter together. I value my family and have come to realize how much my family need me to be there for them. The thought of having my daughter ask how come I'm not home, saddens me. I regret putting my family through the strain of not having me home, and I regret this matter is before the court. Please understand that I am not a bad person, nor am I a violent person. I just got caught up and lost sight of direction. I have since gotten back on course …. I can once again provide for my family. I ask that you not destroy my dreams and plans to be a devoted father and husband, and my ambition to provide a good life to my family." Punthea C., Kannareth's mother, spoke (with the help of an interpreter) with a Human Rights Watch researcher. She was under the care of a psychologist because the problems with her son were triggering old memories associated with her flight from Cambodia. She said, "I feel very lost without my son. It happened again like during the communist years and the civil war. Basically, that is all coming back. Now, we are being separated again. It makes my chest feel very tight. I can't talk. And breathing is … in other words it's like something that lumps in your throat and you can't talk … I feel very bad inside for my child. He went all through his life not having a father, not having a father figure. With my situation in the camp … I couldn't give him a normal upbringing, that's one of the reasons why things happened the way they did. After escaping what I went through and escaping from death, now to come to this point. It's a lot to lose." A clinical social worker who is a therapist at the Program for Torture Victims in California gave a professional evaluation of Punthea, reporting that she is suffering from severe post-traumatic stress disorder and major depressive disorder, and that it is her "professional opinion that the deportation of [Punthea's] son to Cambodia would be severely damaging to [Punthea's] psychological well-being. She is extremely fearful for her son's well-being and safety if he is sent to Cambodia, and the thought of him in Cambodia triggers painful and frightening memories of her own torture and the other traumas she experienced in Cambodia."



Proportionality

Since deportation is such an inherently severe sanction, governmental decisions to impose it are subject to human rights constraints. A person's status as a non-citizen, his or her conviction of a crime, or the combination of the two, does not extinguish his or her claim to just treatment at the hands of the government, nor does it free a government to ignore fundamental rights in its actions. Even in an area in which governmental powers are known to be robust, such as in immigration, governments must uphold basic notions of fairness and proportionality. The gravely serious burdens that are imposed as a result of deportation require government to act within bounds of reasonableness.

The idea that infringements upon rights must be proportional is explicitly included in the domestic law of many countries around the world,[111]including the United States.[112] International law uses proportionality to ensure that rights are not denied arbitrarily. Bodies enforcing those laws, such as the European Union, the Human Rights Committee and the International Court of Justice have all applied proportionality when analyzing states' decisions to infringe on important rights, including in the context of deportation.[113]

However, US courts do not consider deportation a form of punishment,[114] and therefore they do not weigh the seriousness of the consequence of deportation against the seriousness of a particular non-citizen's criminal offense. Striking the right balance in the United States is therefore left to the legislative branch. Whether the proportionality analysis is done in a court, or whether it is done by the legislature, and irrespective of whether deportation is considered a punishment under US law, it is a very severe penalty that seems to outweigh some of the crimes that currently trigger it. This is especially so when mitigating and aggravating factors are not weighed in an individualized hearing.

For example, despite the plain meanings of the words "aggravated" and "felony," this category includes misdemeanor crimes, even though misdemeanors are generally less serious and involve less violence than felonies. Figure 8 outlines some of the offenses that trigger deportation from the United States. For some of these offenses, deportation seems a very harsh additional penalty to add to a criminal sentence that is comparatively inconsequential, reflecting the minor nature of the crimes involved.

Figure 8 – Criminal Sentences Contrasted with Penalty of Deportation

Criminal Offense Immigration Consequence Examples of Likely Federal or State (NY law used) Sentence 2 Shoplifting offenses Mandatory detention and deportation[115] For first conviction individual could receive sentence to several days of community service.[116] For second conviction, individual could receive a sentence of up to six months. Tax evasion, causing loss of more than $10,000 Mandatory detention and deportation[117] Fine equaling tax loss plus zero to six months' imprisonment[118] Possessing stolen property within five years of entry to the US Mandatory detention and deportation[119] Restitution of property, plus one year's imprisonment[120] Possession with intent to sell of 35 grams of marijuana Mandatory detention and deportation[121] Between 15 days and up to one year of imprisonment[122]

The case of Suwan provides an example of a relatively minor offense for which deportation seems a disproportionate penalty. He was deported to Cambodia at the age of 34, after living in the United States as a refugee with his wife and two young children. Suwan was a supervisor on a construction crew in Houston, Texas. The crime for which he was deported involved two counts of indecent exposure. Suwan committed these offenses because, according to him, there was no toilet at the construction site that he was supervising, and he was forced to urinate outdoors. After his deportation to Cambodia, Suwan told a CNN reporter, "I think that the crime that I commit … [was not] bad enough to deport me here …. [I had] made it in the States [with my] wife, two kids, a home. Drive to work and back home … I could live the rest of my life [in the United States]."[123]

In another example, Jose A., originally from El Salvador, entered the United States in 1980 and became a lawful permanent resident in 1990. Jose has three US citizen children and 