Analysis: Immigration and Naturalization Service prepares to change its guidelines for deporting criminal aliens

NPR All Things Considered August 11, 2000 | NOAH ADAMS 00-00-0000 Analysis: Immigration and Naturalization Service prepares to change its guidelines for deporting criminal aliens Host: NOAH ADAMS Time: 8:00-9:00 PM NOAH ADAMS, host: go to website immigration and naturalization

It’s NPR’s ALL THINGS CONSIDERED. I’m Noah Adams.

The Immigration and Naturalization Service is getting ready to change its guidelines for deporting criminal aliens. Four years ago, Congress passed a sweeping immigration law that led to the deportation of thousands of people who had been convicted of minor crimes. The INS has executed the law to the letter, but now the INS is doing a quiet, but official, about-face. It’s preparing to send out guidelines that allow immigration officers to relax their enforcement. NPR’s Barbara Bradley has a report.

BARBARA BRADLEY reporting:

The quandary for the INS boils down to this: When do you adhere to the letter of the law and when do you bend it? For example, in the case of Debra Aaron(ph), should a youthful mistake follow her her entire life? Or can the INS decide to look the other way? In 1976, Aaron was a 20-year-old university student sharing a home in London with several other students. On August 12th, at 7 AM, the police arrived at their home with a search warrant. The police were looking for drugs, and they found them, 54 grams of hashish in a small pouch. Aaron said the drugs belonged to her boyfriend, but her lawyer advised her to avoid a trial, plead guilty and to pay the equivalent of a $15 fine. That’s what she did.

Ms. DEBRA AARON: I went straight downstairs, paid the 10 pounds, and I thought, right, that’s the end of it, it’s over. And little did I know it had only just begun.

BRADLEY: The next year, she met and married an American. She tried to get permanent residency in the United States, but because of her drug conviction, she couldn’t. Finally, in 1993, the INS granted Aaron humanitarian parole. At this point, she was living in California with her husband and three children, all US citizens. Every year, the INS granted parole again which allowed her to stay and work at a non-profit hunger organization. But in 1997, an INS officer in Los Angeles told her the law had changed.

Ms. AARON: And he said, `I’m very sorry,’ you know, `this is extraordinary. I know it must seem very harsh, but this is what the law says and we can’t do anything about it. We’re not going to chase you out of the country, but if you do reapply when this particular parole runs out next year, you won’t be granted it again.’ BRADLEY: The next year when Aaron applied for an extension, the INS ordered her deported. Ben Johnson(ph), an immigration lawyer, says the 1996 law has created thousands of stories like this. It made most drug crimes and any offense with more than a one-year sentence grounds for deportation, even shoplifting, theft or forging a check. Johnson says it doesn’t matter when the crime was committed, nor does it matter whether the person has been rehabilitated. The law treats every immigrant the same.

Mr. BEN JOHNSON (Immigration Lawyer): They may be veterans. They may have large families in the United States. They may be owners of businesses. They may be significant contributors to the US economy or to the society or community where they live. And simple formulaic responses to `You did this; therefore, you will be deported,’ ignores the whole process of proportionality. It’s absolutely mechanical.

BRADLEY: Republican Congressman Lamar Smith, who chairs the House Subcommittee on Immigration, says it’s not the law that’s mechanical, it’s the INS. He says the law lets the INS choose whether to target a shoplifter or a murderer, but the agency hasn’t used good judgment.

Congressman LAMAR SMITH (Chair, House Subcommittee on Immigration): A number of members of Congress, including me, have written letters saying, `You have the power to exercise prosecutorial discretion. Prosecutorial discretion and parole authority is all there for a reason. Why don’t you take advantage of it? Why don’t you exercise that discretion or grant that parole to the cases that cry out for it?’ BRADLEY: The INS says it had no choice, given the language and the tone of the 1996 law. site immigration and naturalization

Mr. CHUCK DEMORE (INS District Director, San Francisco): The message to the officers was, `This is the law. This is the way we want it to be applied. Now apply it.’ BRADLEY: Chuck Demore(ph) is the INS district director in San Francisco. He says many times the INS doesn’t learn about the mitigating factors until it’s too late because the law often requires a snap judgment.

Mr. DEMORE: For example, the alien was convicted of statutory rape. We might find out well after the fact that he was 18, she was 17 and he subsequently married the woman and now they have a United States citizen child and it’s seven years later. And now coming in at our airport, we determine that they’re subject to removal or exclusion based on this criminal conviction.

BRADLEY: They get put into deportation proceedings and then, he says, the INS feels obligated to continue. Others believe the INS is just deflecting criticism for its unyielding policies.

But now, after years of bad publicity, the INS is telling its officers they’re allowed to look the other way. In the next few months, the agency will send new guidelines to all its regional offices telling officers they can, and often should, choose not to deport someone. INS general counsel Beau Cooper(ph) says it’s an attempt to set a tone among the district offices which he says are known for their independence and tendency to enforce the law as they see fit.

Mr. BEAU COOPER (INS General Counsel): What we’re trying to do is to put out a set of principles to help draw the boundaries within which those local decisions will be made.

BRADLEY: He says that could apply to a person with an old crime, a minor one, someone who’s not a threat to the community.

Mr. COOPER: Those are the kinds of things that might lead you to say, `I don’t think it’s necessary to enforce the rules against this person.’ BRADLEY: This may not sound revolutionary, but the fact is the INS has taken years to write guidelines like these just as remarkable as the attitude of Republicans on Capitol Hill. Congressman Bill McCollum, for example, was a driving force behind the 1996 law. Now he says maybe Congress didn’t realize what it was doing.

Congressman BILL McCOLLUM: I think the obvious took place, and that is that you began to see cases come to various congressmen’s offices which had very great humanitarian need. We have private immigration bills; that’s what they’re there for. It is just more difficult, and it’s an extraordinarily lengthy process to take every one of these hardship cases and try to deal with it on a case-by-case basis.

BRADLEY: McCollum is the author of one of several bills intended to soften the ’96 law.

Still, most of these bills don’t address what immigrant advocates consider a huge defect in the ’96 law, the role of immigration judges. In the old days, an immigration judge could weigh the good and the bad; but the new law stripped judges of all their discretion in criminal cases. Debra Aaron, the British woman with a 24-year-old conviction, knows that firsthand. She says during her deportation proceeding last year, she grew rather upset with the mechanical application of the law. Finally, the exasperated immigration judge silenced her.

Ms. AARON: And he said, `Mrs. Aaron, I am trying to help you here. I am trying to find a way for you to stay with your family,’ but that is how he said it. He was looking for any way he could to enable me to stay here. But basically, there wasn’t one; there just wasn’ t one.

BRADLEY: Joe Vale(ph) agrees. Vale served as an immigration judge before and after the ’96 law. A major reason he resigned is because he could not rule in favor of immigrants with compelling stories.

Judge JOE VALE: In all likelihood, they are going to be deported and they are not coming back anytime soon. And while that may look like a good thing on paper to individuals who enacted that law, when you have to deal firsthand, it is extremely harsh and oftentimes results in very unjust results.

BRADLEY: As for Debra Aaron, her case is being considered by the top immigration court. In the meantime, her father in Britain has fallen seriously ill. The INS says if she goes to visit him, she will not be allowed back into the United States. Barbara Bradley, NPR News, Washington.

NOAH ADAMS