Since When Is Every Immigrant A Criminal? (ep. 10)

August 23, 2018
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President Trump often demonizes entire immigrant groups, referring to Mexican people as “rapists” and undocumented immigrants as “animals.” Yet statistics show that immigrants, both undocumented and otherwise, are actually less likely to commit crimes than the average U.S. citizen. How did our American political conversation start to conflate immigrants with criminality? And how has immigration policy changed along with this rhetoric? Cecillia Wang, the deputy legal director of the ACLU, discusses the legal and political history of immigration criminalization. At Liberty is also joined by Ravi Ragbir, an immigrant and activist leader waging a legal battle against his own deportation. 

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LEE ROWLAND
[00:00:04] I'm Lee Rowland. Welcome to At Liberty from the ACLU: a podcast where we discuss today's most pressing civil rights and civil liberties issues.

People coming across the U.S. border have been demonized as “illegals” and “criminals.” Trump himself has referred to Mexican immigrants as rapists and called undocumented immigrants “animals.” But statistics show that immigrants, both undocumented and otherwise, are actually less likely to commit crimes than the average U.S. citizen. And crossing the border, even without documentation, is only a crime in specific circumstances. How did our American political conversation start to conflate immigrants and criminals? And how has our immigration policy changed along with this rhetoric? To help us answer those questions we have with us Cecillia Wang, the deputy legal director of the ACLU. Before that she ran the ACLU Immigrants’ Rights Project and was a longtime public defender. We'll also hear from Ravi Ragbir, an immigrant and activist we spoke to during his deportation fight here from New York.

Cecillia, welcome and thanks for being on today.

CECILLIA WANG
Thank you, Lee.

LEE
[00:01:30] So let's start big picture. I think the interaction between immigration law and criminal law can be really confusing, particularly with the current rhetoric. Let's start with folks crossing the U.S. border. I've heard a lot about a “zero tolerance” approach by the Trump administration. Can you tell us a little bit about how and when border crossing became criminalized?

CECILLIA
I think the story that we are talking about currently is that President Trump, Attorney General Sessions, and Secretary of Homeland Security Kirstjen Nielsen have made a concerted effort to buy into a restrictionist anti-immigrant vision that all immigrants — that all migrants, whether they're asylum seekers or longtime green card holders — present a criminal threat in the United States. And so what you’ve seen the Trump administration do is to try to foment this false notion that immigrants and asylum seekers are here to commit crimes. And one of the things that the Trump administration has done is to ramp up the use of immigration laws that make it a crime to illegally enter the United States, or to illegally re-enter the United States, after someone has been deported.

LEE
And is that is that in any situation where you're crossing the border without the appropriate documents?

CECILLIA
There is a federal statute that makes it a crime to enter the U.S. without authorization. But that law does not apply to people who have crossed the border and are seeking to apply for asylum. And that's one of the fundamental problems we see with the current Trump administration policy.

[00:03:22] So under U.S. law — and under international law — there is a requirement that people who have a well-founded fear of being persecuted if they're returned to their home country have to be given a chance to apply for asylum in the United States. And the way that Congress has implemented that requirement under international law and U.S. law is that they have everyone who has presented themselves in the United States or at a border who says that they have a fear of being persecuted, they get a screening called a credible fear interview. And if the individual is able to persuade a U.S. government official — an asylum officer or a border official — that they do have a credible fear that they're going to be subjected to persecution if they're returned to their home country, then they are permitted to apply for asylum in the context of a deportation case, and the person can then make their asylum claim as a defense to being deported.

LEE
So this asylum policy process as you're describing it: Has it been pretty constant for the last several decades and presidential administrations?

CECILLIA
Yes, the laws pertaining to asylum and providing for this credible fear interview screening process have been on the books in the U.S. for many, many years. What's new about the Trump administration procedure is that they have tried to deter people from applying for asylum, and in particular, they've tried to deter people from Central America from coming to the United States and applying for asylum by subjecting them to criminal prosecution. And so what the Trump administration has done is to say we believe — illegally — that you asylum seekers who are coming to the United States, regardless of whether you are screened in regardless of whether you qualify for asylum, we are going to subject you to criminal prosecution, separate you from your children if you’ve brought them with you, in order to deter you from coming to the United States. All of those methods of deterrence are in fact illegal under both U.S. law and international law.

LEE
[00:05:38] Is this something you've seen before in your career as an immigrants’ rights activist?

CECILLIA
Well, interestingly, the Obama administration illegally tried to deter asylum seekers from coming to the United States starting back in the summer of 2014. In these three Central American countries — El Salvador, Honduras and Guatemala — that have rampant violence as a result of gang activity and also rampant uncontrolled domestic violence where government authorities will not intervene on behalf of women who are being abused by their domestic partners or husbands and partners, women and kids were crossing the border and then turning themselves in to Border Patrol agents and seeking asylum. And the Obama administration, including President Obama himself, Vice President Biden and then-Secretary of Homeland Security Jay Johnson, did something very similar to what the Trump administration is doing now, though it was less draconian.

What the Obama administration did was to say: We are going to detain all of these asylum seekers and then we're going to deport them expeditiously. And the administration officials went so far as to say that these folks from Central America do not qualify for asylum which was a gross violation of the law and the U.S. Constitution, since basically the Obama administration was prejudging the cases of all of these thousands of people.

LEE
But were they also prosecuting those folks during the Obama administration?

CECILLIA
[00:07:14] They were not. That's that's the one difference where the Trump administration has drastically ramped up these sorts of illegal deterrent-type tactics against asylum seekers. Where the Obama administration had been illegally using detention and declaring that people were not eligible for asylum, until they were stopped through ACLU litigation, the Trump administration has been piling on top of that the zero-tolerance policy, which subjects everyone to criminal prosecution, and this grotesque and cruel policy of separating families — of literally tearing children out of their parents arms.

LEE
What happens to folks if they're prosecuted? Do they just get deported with a criminal record or do they go into the American justice system?

CECILLIA
So both things happen. Someone who is being criminally prosecuted for illegally entering the United States first is jammed through the criminal justice system. The use of the illegal entry statute in the federal courts along the southern border of the United States has grossly warped how our federal criminal justice system works. Enormous taxpayer resources are being wasted on criminally prosecuting people including people with valid asylum claims. And people are being given prison or jail sentences. And then they are being put into deportation proceedings, and then sent out of the country. And recent studies have shown that the intended purpose of this criminal prosecution stage, which is to deter people from coming into the United States, in fact isn't working out.

LEE
Are there people lobbying for these rules so we have more folks in the justice system? I mean, how on earth does this make sense as a policy?

CECILLIA
[00:09:11] Well, it's been widely reported that the private prison industry supported Donald Trump's presidential campaign and stands to benefit from a ramping up of the use of the federal criminal justice system in order to slap people, including asylum seekers, with a hefty prison sentence or a jail sentence before they are then put into the deportation process.

And then if they have a valid asylum claim, they may end up not being deported. And so you have two problems there: You have a problem that taxpayer resources are being wasted, but you also have the problem that this is a cruel and illegal policy that is attaching a criminal punishment — a jail sentence — to someone who is an asylum seeker, who has a valid claim to asylum. And so there's a reason why no previous administration has taken on this kind of policy. It makes no sense. It's cruel and it violates U.S. and international law.

LEE
So I want to move to a different group of people. Let's talk about people who are here, who got through the border, who are documented, who are here lawfully and have some form of immigration status. Are those folks vulnerable to losing their immigration status if they're convicted of a crime?

CECILLIA
Yes. The current situation is that a large number of people who are lawful immigrants in the United States, long time green card holders, are subject to being deported away from the only home they know — from their communities and their families in the United States — based on extremely minor kinds of criminal records. And this goes back to the 1996 immigration laws that Congress passed and that President Bill Clinton signed into law. Before 1996, if you were a green card holder and you had a minor criminal conviction — let's say simple possession of marijuana or some other simple possession of drugs or had some kind of brush with the law — you might not have been deportable at all, based upon a minor criminal conviction. In ‘96 what Congress did, and what Bill Clinton signed into law, did two things, or actually three things.

One is that they vastly increased the types of criminal activity for which longtime green card holder, a lawful permanent resident, could be deported for. So, for example, Congress passed a law defining so-called aggravated felonies. Sounds really awful but in fact there are many crimes your average American would not consider to be particularly serious. And yet Congress made those kinds of crimes aggravated felonies that could lead to someone's deportation. Second, Congress, through that same 1996 law, made it impossible for immigration judges to give someone a break. So in the past, if you had a criminal conviction that made you deportable, immigration judges during your deportation case could grant you these forms of relief from deportation saying, “You know you made a mistake, you had this criminal conviction, but I'm looking at all of the factors in your individual case, and I think you deserve to stay in the United States and get a second chance.” Congress did away with a large proportion of those kinds of discretionary relief from deportation. The third thing that Congress did was to institute policies that mandated the detention of people who are fighting their deportation cases, who have some kind of criminal record. So again, for people who might have a minor criminal offense, who have been longtime residents of the United States, legally living here, they were now subjected to being in gross jail-like conditions while fighting their deportation cases. And so, what you've seen since 1996 is a gradual ramping up of the interactions between any kind of criminal record and the path to being deported from the country that you've adopted.

LEE
[00:13:33] Ravi Ragbir can speak to this experience. He is a community activist who has spent much of the last decade fighting for other immigrants and for his own right to remain in this country.

RAVI RAGBIR
I’m Ravi Ragbir, I was born in Trinidad, I’m not gonna tell you when because I do look twenty-five and I moved here because to further my studies. I lived in New York but I did move to New Jersey, studying finance, financial management. [I] stopped that, and became, as most immigrants do, working very different jobs —menial that are just trying to make ends meet, barely making minimum wage but doing two or three jobs at the same time — and finally getting married and having a kid and having to re-evaluate the different jobs I was doing to be able to provide better for my family. And this is why I ended up in the company that created a problem I’m facing right now.

LEE
Ravi arrived in the U.S. in 1991 — he married, had a kid, and got a green card. In the late 90s, he was arrested for fraud, because his employer had been processing fraudulent loan applications. Ravi spent three years under house arrest and another three in prison.

RAVI
You hear that your conviction makes you deportable and that ICE is, immigration is going to pick you up. And you become more aware of not knowing when that is going to happen. I was waiting for the call that ICE was gonna pick me up, and the day before I was released they came looking for me. They had told the prison to hold me, not to release me, so that they could pick me up. That was a shock, not because I wasn’t expecting it, but it didn’t happen until the last minute.

LEE
He was detained by immigration authorities immediately after finishing his sentence. He was ordered deported without a hearing and spent nearly two years in detention centers, first in upstate New York and then Alabama.

RAVI
You are in a space with dozens of other people. Everyone is confused and no one knows what’s happening. Majority of people don’t speak the language so we couldn’t help each other because we were from different countries, different languages and didn’t know what was happening. But what I saw was the verbal abuse from these officers. They would scream at everyone, they would shout at them, they would put papers in front of them to scare them to sign those things, those documents. Because when they put it in front of me, one of the documents was to waive my right to an immigration hearing. And, again, the goal is to destroy you, to destroy your spirit, to deport you so if I had signed that document I would not be sitting here today.

LEE
[00:16:35] Ravi was eventually released and returned to New York. Although his deportation order was stayed — that means stopped by a court — he had to wear an ankle bracelet and report back to immigration authorities regularly. He began, along with his lawyer, to petition to remain in the U.S. while challenging his original criminal conviction. In the meantime, Ravi became an outspoken activist and the executive director of the New Sanctuary Coalition, a group of interfaith leaders advocating on behalf of immigrants and their families.

RAVI
11 million people living in fear, and that 11 million doesn’t include the children of or the spouses of these 11 million people. So what you should be talking about is 20 million people who are living in constant fear. That is not being able to live in dignity. You as a person — as a citizen, you as a person who is not living under this — should be horrified that there are so many, so many, people living under these conditions. You need to step up, need to stop going home and closing that door and saying, okay, it’s not my problem anymore.

LEE
In January 2018, Ravi was detained during what he thought would be another routine check with ICE. Instead he was taken immediately to a detention center in Miami to be deported. Ravi was released only when a judge decided that his unexpected detention had been unconstitutionally cruel because it deprived him of the right to say goodbye to his family. He was released, but his fight against his deportation continues in the courts. Meanwhile, ICE has instructed him to report to his next check in with his bags packed.

RAVI
When they say they want to deport people with criminal convictions, we can answer that in two or three ways. First way is that I have served my time. Why are we now being double punished? Their argument is that, well, you violated our country’s rules, so you should be removed. I come at it from — because I organize people of faith, because this country is supposed to be a country of based upon Christian values: How many people, how many Christians, how many conservatives, talk about values but yet they reject forgiveness because I’m an immigrant? Is it because I have not been born here that makes me less of a human? And you know when you use the word “illegal” and you use the word “alien,” you dehumanize me. I am a human. I am just as good as you are and we are all equal and we need to understand that it is not because I was born in Trinidad that I have to be punished for the rest of my life.

LEE
[00:19:37] Cecillia, if we could back up a bit: Do immigrants have broadly speaking the same constitutional rights as U.S. citizens?

CECILLIA
So the answer to that question is a little complicated. Noncitizens in the U.S. largely do have the same rights as U.S. citizens. They have First Amendment rights, the right to free speech. If they are charged with a crime, in the criminal case they enjoy all the same rights that a US citizen has: Fourth Amendment rights, rights under the Fifth Amendment including the right to due process.

But if a noncitizen is put into deportation proceedings, even though a deportation may be the most drastic form of consequence that a person can face — you know basically being exiled from your home and from your family forever — there are many cases in the Supreme Court that established that deportation is not technically considered a punishment and therefore in deportation case you have fewer procedural protections than you would get if you were a defendant in a criminal case.

[00:20:45] So, if I'm a lawful permanent resident of the United States and I'm charged with a minor crime I have the right to an attorney appointed by the court. If I can't afford an attorney the government has to provide me with one. I have a right to a jury trial. I have a right to all this panoply of rights under the Fourth, and Fifth and Sixth Amendment of the Constitution. And yet, I would then, if I'm put in deportation proceedings, not enjoy a right to a jury trial. If I cannot afford a lawyer well, that's too bad. And therefore I would be facing deportation without anyone to defend me. And that's a situation that the vast majority of people facing deportation in the United States have to suffer through. And you know you can only imagine what kind of horrific situation that is for people who have everything to lose — being exiled from a country without even a lawyer to defend you.

LEE
I’ve heard some really chilling stories about people who are immigrants, who have decades-old criminal convictions, who have built a life here after serving their time and all of a sudden find out that the government is attempting to deport them. Is that something the government can just do?

CECILLIA
Absolutely. There is no limit. And I can give you a really sad example from when Congress passed these really draconian laws in 1996. The ACLU represented a client — I’ll call him Jesús — he had been in the United States and lived in New York since he was an infant as a lawful permanent resident, a green card holder.

And when he was 18 years old, his girlfriend was under age. I believe she was 16. And they had a relationship that her parents disapproved of. And ultimately her parents reported him to the police and he pled guilty to something that became labeled as a sex offense — statutory rape.

LEE
This might be one of these cases where an immigration judge would look at the context and say you shouldn't maybe be sent to another country for this offense.

CECILLIA
Exactly right. And 20 years later, when Jesús was a successful small business owner in New York City, his lifelong home, had a wife and children who were born in the United States, an American like everyone else — except that he wasn't yet a citizen — he went on vacation to his home country. And after the ‘96 law passed, he came home from vacation and upon returning at the airport in New York was placed into deportation proceedings and was subjected to detention, because of this 20-year-old offense that turned out to be all about a consensual sexual relationship he had with his then-girlfriend.

LEE
Something that comes to mind as you're telling that story: there are really people in both parties who have reacted to our American mass incarceration crisis by talking about alternatives to incarceration and particularly rehabilitation.

Often it's really based on a rhetoric about forgiveness. And Ravi Ragbir himself has spoken really eloquently about being more than the sum of one of your human actions over a life of decades. My perception, Cecillia, is that the movement towards alternatives to incarceration, the movement towards rehabilitation has skipped over the immigrant community altogether. Is that true?

CECILLIA
[00:24:25] I think unfortunately, Lee, it is true that these really important values of redemption, of common sense, have skipped over the immigration context. And even as a wide swath of Americans are on board to reduce our prison populations, and to reduce and reform drug sentencing, we are ramping up our detention of people based on their immigration-related conduct. And this notion that immigrants are criminals rather than contributing members of communities is something that the Trump administration has really deliberately tried to put out into the public imagination — and, unfortunately, I think with the large amount of success.

LEE
So Cecilia you yourself are actually going to be in front of the Supreme Court, in this upcoming term, to argue a case that involves the rights of immigrants who have been convicted of criminal offenses. Can you tell us a little bit about this case?

CECILLIA
Yes I'm going to be arguing a case called Nielsen versus Preap, which involves one of the provisions that I mentioned earlier in the 1996 statute that Congress passed and that Bill Clinton signed into law. And that's the mandatory immigration detention provision. So before 1996, the federal government largely did not subject people who were fighting their deportation cases to detention. But Congress decided in ‘96 that they wanted to pass a law that said that if you have committed one of a large number of criminal offenses, including very minor offenses, like marijuana possession, you're subjected to mandatory detention and you're going to have to stay in an immigration jail while you're fighting the case no matter how long it takes.

And so the ACLU has been fighting this mandatory detention law ever since 1996, and we've won a lot of cases that restrict how the government can apply mandatory detention. So the Preap case concerns some specific wording in the statute. The law Congress wrote it says that if the Department of Homeland Security wants to detain you they should detain you as soon as you have finished with your criminal sentence. And what the government is now doing is to pick people up years later. So for example one of our clients, Mr. Padilla, actually was detained 11 years after he served a very short jail term for a minor offense. And by that time he was a grandfather of U.S. citizen kids. He was a father of U.S. citizen adult children. He was gainfully employed. He had completely rehabilitated himself — you know, from his criminal record — and yet the government put him in deportation proceedings. We had other clients in the Preap case who, after being detained for a long period of time, finally got a hearing thanks to our litigation and were released by an immigration judge who found that they weren’t a flight risk or a danger. And then, lo and behold, they won their deportation cases.

In deportation cases, the government can lock you up just because they’ve accused you of being deportable, not because they have yet proved it. And while you're defending yourself against that case, they can keep you detained without bail, without any hearing on whether you as an individual pose a flight risk or a danger. And they're subjecting people to that mandatory detention regime years after they've been released from criminals custody and have a proven record of rehabilitation.

LEE
[00:28:18] And we heard Ravi’s story about being inside one of these detention facilities. And frankly it sounds abysmal. So you’re just basically in front of the Supreme Court asking them to give people stuck in these detention facilities at least an opportunity to prove to a judge that they can safely be out in their communities.

CECILLIA
That's right. All we want is for people to have their day in court in order to show that they can be released — that they'll show up for court, because they have everything to gain by showing up for court, because they want to win the right to stay in the country that they call their own.

LEE
Cecillia, would you say that the current antipathy and rhetoric we're seeing towards immigrants — both undocumented and otherwise — is as bad as you've seen it? Or is this just part of a longstanding reality where immigration policy is a particularly hot political football?

CECILLIA
You know, the history of anti-immigrant sentiment in this country is a long one. One of the first laws passed by Congress was in 1790, when Congress, a brand-new Congress of a brand-new country, decreed that only white men could become naturalized citizens of the United States. That law was not fully repealed until 1952. And so there is a long pattern of jingoism, of xenophobia, of racism in immigration laws and policies. But I do have to say — as someone who started out as an advocate for immigrant communities during law school in the early 90s, and having worked at the ACLU and fighting for immigrants’ rights for more than two decades now — things are as bad as I've ever seen them, because we see an executive branch that really has taken the gloves off, that, in implementing just grossly cruel and discriminatory measures — like the ban on Muslim immigration, like separating families, tearing babies out of their mother's arms, and these are asylum seekers we're talking about, reducing refugee admissions — you know really it is implementing something the likes of which we've never seen before, at least in recent history. And that's why so many of us around the country — not just lawyers not just at the ACLU but Americans around the country — are fighting so hard to reestablish the America that we believe in, that is a beacon to people who want to come to a free country.

LEE
Thank you so much for talking to us today, Cecillia.

CECILLIA
Thank you, Lee. It's been a pleasure.

LEE
[00:31:12] You’ve been listening to At Liberty, from the ACLU. You can subscribe, rate and review us wherever you get your podcasts. Thanks so much for listening.

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