Civil Liberties

Wrong Writing On the Wall

An immigration law signed in 1996 can get legal immigrants deported for such minor crimes as peeing in public.
Sor Vann never thought he would be deported for peeing. A construction worker from Houston, Texas, he urinated at his work site and was convicted of indecent exposure. Later, he did it again and was hauled in for violating his parole, according to The New York Times. In 2002, after serving four years in jail, Vann, 34, was deported to Cambodia, the country he had fled as an 11-year-old during the Khmer Rouge regime.

Vann was detained and deported under a 1996 law signed by President Bill Clinton. Representing a major change in U.S. immigration policy, the Illegal Immigration Reform and Immigrant Responsibility Act increased penalties for criminal convictions of non-U.S. citizens.

The result, according to a report by the National Immigration Forum, is that "legal immigrants who have lived here for nearly their entire lives are being deported for minor crimes committed years – and sometimes decades – ago."

Virginia Kice, spokesperson for the U.S. Immigration and Customs Enforcement (ICE) says deportations have increased in recent years as a result of the legislation handed down by Congress. "When Congress enacts laws, our responsibility is to enforce them," she says.

Before 1996, a category of crimes known "aggravated felonies" was limited to serious offenses like murder and drug trafficking and only applied to crimes such as theft if the sentence was five years or more. The 1996 law lowered the minimum sentence to one year. In what Joren Lyons, staff attorney for Asian Law Caucus in San Francisco, refers to as "a rather Orwellian twist," the law now includes statutory rape, theft, vandalism and possession of stolen property.

Prior to 1996, legal residents facing deportation were entitled to a hearing that took into consideration factors such as their rehabilitation, family ties and community service, unless they had served five years in prison. The 1996 law virtually eliminated the possibility of such a hearing. Once immigration officials have initiated a removal proceeding, an immigration judge must issue a deportation order if the conviction qualifies as an aggravated felony. Removal proceedings can begin when legal residents renew their green card, apply for citizenship or return to the United States after a trip abroad, regardless of how long ago their criminal conviction occurred.

"The policies are written so that someone who has committed murder as well as someone who has urinated in public become eligible for deportation," says Loan Dao, a Ph.D. candidate in the Department of Ethnic Studies at University of California at Berkeley.

"If you do not hold legal citizenship, that means that you are at risk of double punishment, being punished in a way that citizens are not," she says. "Remember, all these people have served their time."

In fact, some detainees spend more time in immigration custody than for their crime, according to a report by Lyons.

In the most recent interpretation of the 1996 law, the Supreme Court this month struck a blow against lengthy detentions, ruling it unconstitutional to indefinitely detain people who have been ordered removed if there is no practical means of deporting them. In a separate case, however, it ruled that the United States may deport immigrants to countries where there are no functioning governments (like Somalia) to engage in repatriation agreements with the United States.

This does not change anything for immigrants from Vietnam, Laos and Cuba, which have flatly refused to accept deportees from the United States. They still cannot be deported, though they continue to be detained and face a removal order that currently carries no weight.

Huyen Thi Nguyen, a 65-year-old Vietnamese immigrant convicted of food stamp fraud, was released last week after spending 16 months in jail while she fought her removal, according to Lyons. Nguyen, who had served four years in a Vietnamese political prison, argued that it would be unsafe for her to return to Vietnam, even though a deportation order would have no immediate consequences. She refused to accept a removal order to Vietnam, despite knowing it would have freed her from detention.

Cambodian immigrants faced a similar situation until 2002, when Cambodia, under pressure from Washington, began to accept U.S. deportees. Immigrants who had signed previously toothless removal orders were suddenly eligible for deportation.

Many, like Vann, had fled Cambodia as refugees in the 1970s when the Khmer Rouge killed off one-third of the population. Deportees to Cambodia now face "the trauma of being sent back to a country whose (collective) memory is starvation, murder, genocide, war and deprivation of human rights," says Dao. The U.S. involvement in Southeast Asia in the 1970s, she says, also calls into question U.S. responsibility to those refugees.

"Deporting people based on the fact that they're non-citizens implies that immigrants carry with them this notion of criminality," adds Dao.

Elena Shore is a writer and editor for New California Media.