That's Aggravating! U.S Crimmigration

In 1943, author Carlos Bulosan wrote, “it is a crime to be a Filipino in California.” Over half a century later, immigrants continue to find themselves criminalized under the blurriness of immigration and criminal law. Aggravated felonies can be as minor as writing a bad check or shoplifting, yet immigrants with an aggravated felony are immediately deportable.

Professor Bill Ong Hing of UC Davis, founder of the Immigrant Legal Resource Center, writes in Deporting Our Souls that prior to 1996, legal permanent resident immigrants with aggravated felonies were eligible under the Immigration and Nationality Act (INA) section 212(c) to petition for a waiver of deportation. This allowed a judge to consider the immigrant and/or refugee's case more comprehensively by hearing their individual circumstances, and have the ability to grant relief.

But in 1996, Congress passed the anti-immigrant law, Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which mandated that legal immigrants with aggravated felonies be deported without any option for relief or fully hearing their circumstances.

This has extremely negative consequences for the U.S. citizen children of deported parents. A 2009 report (pdf) by the Department of Homeland Security (DHS) looked at statistics regarding immigrant parents who were deported away from their U.S. citizen children under the new law. DHS found that from 1998-2007, 56.8% were aggravated felons, removed for any one of over 20 possible crimes. Twenty-two percent of deported immigrant parents had no recorded convictions. Over 37% had immigration-related offenses.

Since the 1996 law was retroactive, immigrants can be deported for aggravated felonies 20 years or more after serving their sentence. The Southeast Asian Resource Action Center (SEARAC) details how deportation has negatively impacted the Southeast Asian American refugee community in the U.S., in particular this retroactive application of the law, since many immigrants plead guilty to charges who would not have if they had known that deportation would be the penalty.

Post-9/11, there was an escalation in targeting immigrants with aggravated felonies under supposed "national security" concerns, with time and resources devoted to increased enforcement of the law. Yet a Human Rights Watch report found that 77% of legal immigrants facing deportation had been convicted of nonviolent crimes. It looks like a good chunk of these immigrants aren't exactly 9/11 terrorists posing a threat to national security.

House Subcommittee Chair on Immigration, Congresswoman Zoe Lofgren (D-CA), a immigration law professor at Santa Clara University, wrote in the Stanford Law and Policy Review that judges should be able to consider a few factors like: “service in the United States armed forces; employment history; business ownership; value and service to the community; proof of rehabilitation if a criminal record exists.” A judge could then cancel a deportation triggered by minor criminal convictions, like many aggravated felonies. By refusing to allow any such discretion, Lofgren says these immigrants are being treated as “second-class citizens” by less sympathetic Congressional members.

The lack of due process continuing to plague immigrant communities demonstrates the flaws of the U.S. immigration system. Comprehensive immigration reform could resolve some of these issues in one of its primary tenets: creating a pathway to citizenship for immigrants who are undocumented or out-of-status. It should also restore judicial discretion in deportation hearings so that immigrants can have their cases fairly heard.

Photo credit: Erin Pangilinan