As part of an overall strategy to reduce overcrowding and give fairer sentences for low-level drug offenders, the U.S. Department of Justice granted 6,000 inmates — including nearly 2,000 immigrants — early release from prison earlier this week. But the immigrants among that group may face additional punishment even after they’re no longer behind bars.
Inmates, many of whom were already in halfway houses, will likely be released back into the general population or into supervision. But because of a nearly two decade old law, immigrants are instead directed down a different route — straight into federal immigration custody.
Advocates say that the pipeline into deportation proceedings amounts to a kind of double punishment because these immigrants have already served out their prison sentences and repaid their debt to society. According to Flavia Jimenez, a senior attorney and the Director of Immigrant Justice at the Advancement Project, most of the nearly 2,000 immigrants set to be released have served about eight-and-a-half years in prison and were deemed not to be threats to public safety. Jiminez also stated that most of the immigrants were charged with drug trafficking convictions, though she insisted that they weren’t “drug kingpins,” but rather “low-level couriers.”
Everyone deserves a second chance.
“We were told they would be swiftly deported, which means that folks would not have an ability to integrate back into their communities as the other folks who are being released would have,” Jimenez told ThinkProgress. “Even though they have served long sentences for these non-violent offenses, they will be transferred to ICE and not have any judicial process whatsoever and not be able to meet attorneys, but will simply be deported back to their countries.”
Since 1996, the government has expanded the types of violations that can lead to the mandatory detention of both undocumented and legal immigrants if they are convicted of a drug-related “aggravated felony.” The term has been applied to a slate of low-level state misdemeanors — offenses for which people typically serve little to no jail time — including simple possession of a controlled substance.
The government’s disproportionate response has resulted in immigrants being permanently barred from legalizing their status, regardless of the crime’s severity and how many years ago the offense occurred.
“Everyone deserves a second chance,” Jimenez said.
Manuel Roman, a 32-year-old Mexican immigrant who has been in the country since 1999, was not among the immigrants recently released from prison last week. But his conviction of a misdemeanor simple possession of a controlled substance may lead to deportation, a prison-to-deportation pipeline emblematic of the kind of problems that some immigrants face post-conviction.
Nine years ago, Roman was sentenced to ten days in the Milwaukee County Correctional Facility in Wisconsin for the misdemeanor conviction and paid a $644 fine. When Roman was stopped for a traffic infraction last year, the old conviction showed up. He was arrested and turned over to federal immigration officials — just two weeks after his second child was born. Roman has been detained at the Dodge County detention center in Wisconsin, an Immigration and Customs Enforcement (ICE) detention center, ever since.
“He was young. He tells me that this was something he did without considering the consequences of what that would mean, but that’s the only criminal conviction he has on his record and it’s a misdemeanor,” Arianna Salgado, an organizer with the immigrant rights group Organized Communities Against Deportation that’s advocating on Roman’s behalf, told ThinkProgress. “Technically under the current guidelines, he doesn’t fall any of the priorities [for deportation] based on his criminal record… He wasn’t selling drugs, he wasn’t trafficking drugs.”
He wasn’t selling drugs, he wasn’t trafficking drugs.
When President Obama announced plans to expand executive actions to protect millions of undocumented immigrants from deportation in November 2014, the president insisted that his administration would go after “felons, not families.” The Obama administration has consequently released memos calling on ICE officers to exercise prosecutorial discretion by declining to put certain low-level criminal immigrants into deportation proceedings. That discretion would prioritize criminals over immigrants with strong ties to the United States, notably people with U.S. citizen or legal resident children.
The prison-to-deportation pipeline was put in place long before Obama emphasized that federal immigration officials should go after high-priority criminal immigrants. As a 93-page Human Rights Watch report found, the United States “regularly places legal residents and other immigrants with strong ties to US families into deportation proceedings for drug offenses.” The report found that between 2007 and 2012, deportations after convictions for drug possession increased by 43 percent.
“This release raises some interesting questions about what’s the appropriate punishment and what’s the appropriate way of addressing non-citizens who have drug convictions,” Grace Meng, a senior U.S. researcher at Human Rights Watch and author of the report, told ThinkProgress. “What we really want the government to keep in mind is that they shouldn’t be in their rush to deport them. They should not infringe on their due process rights. They have due process rights like everyone else in the U.S. Some of them may be eligible for visas for victims of serious crimes, or for trafficking. Some of them may be eligible for protection under the Convention Against Torture because they would be tortured if they’re returned to their countries of origin.”
There’s a growing effort to recognize that the punishment they’re receiving does not necessarily fit the crime that they committed.
“There’s a growing effort to recognize that the punishment they’re receiving does not necessarily fit the crime that they committed,” Meng added. “In the immigration context, that same effort to seek balance is missing.”
Nonetheless, meaningful policy change may still be far away. Even in California, a state known for its progressive immigrant-friendly policies, Gov. Jerry Brown (D) recently vetoed a bill that would have prevented deportation for both undocumented and legal immigrants who were convicted with drug offenses. Brown said that the bill “goes too far” and that “the bill eliminates the most powerful incentive to stay in treatment — the knowledge that judgment will be entered for failure to do so.”