Legal Immigrants Deported If They Have a Criminal Past

Returning from her mother's funeral in her native Colombia, Olga Gonzalez had no idea that the immigration check at New York's Kennedy Airport would be any different from the other times she had gone through it in the 25 years she had been a legal United States resident. But it was.

Ms. Gonzalez was arrested and shackled to a chair overnight. She was then interned for two months in the Immigration and Naturalization Service's Manhattan detention center. She would have been deported if it weren't for a reprieve from a judge, who ordered her freed pending a resolution of her case. She still faces expulsion if the INS wins.

Gonzalez was snared under new immigration laws requiring that all legal residents ever convicted in the US of most major and minor crimes be deported.

Quietly tacked onto the anti-terrorism act, the new statutes were signed by President Clinton April 24. They are intended to help reduce the crime rate in the US and cut the costs to prosecute and incarcerate prisoners.

But critics decry the provisions as draconian and say they are an attempt by lawmakers to exploit for political gain the strong anti-immigrant and get-tough-on-crime sentiments that have emerged around the country.

"It's coming from some real ideologues who are vicious and intend to have a zero-tolerance policy on anything related to a criminal conviction," says Jeanne Butterfield of the Washington-based American Immigration Lawyers Association.

Advocates of the new law, however, say the US needs to get tougher on immigrant criminals. "People who commit serious crimes have forfeited their right to come into this country," says K.C. McApline, deputy director of the Federation for American Immigration Reform in Washington.

INS officials are not sure of the number of legal permanent residents convicted of a crime in the US, but they estimate that it is in the tens of thousands. Hundreds have already been detained, mostly as they reenter the US from abroad. Many have been deported with no chance of returning.

The new laws are being challenged in courts as unconstitutional. Civil libertarians say the statutes deny to the legal residents their right - as affirmed by the US Supreme Court - to hearings. They also remove from immigration judges the discretion to exempt from detention and deportation those they determine pose no public threat to society.

"Many people's lives are being destroyed," says Judy Rabinovitz of the American Civil Liberties Union's Immigrants Rights Research Project. "They are in mandatory detention and are being deported. Many of them have kids who are US citizens and spouses who are US citizens." Gonzalez has a teenage son who is a US citizen.

Legal permanent resident status is granted to foreigners who have lived in the US for at least seven years, but do not opt for citizenship, or who have children or spouses who are citizens.

While they are rigorously enforcing the new statutes, INS officials concede that portions could be overturned in court. They also say the laws are counter-productive and costly. Because of mandatory detention, the agency will soon run out of space in its facilities and have to begin releasing illegal aliens to free up beds.

"Essentially, we are maximizing the use of our 9,100 beds now," explains Paul Virtue, deputy INS general counsel. He says the INS plans to seek new funds from Congress. "Removal of criminal aliens is a top priority for the immigration service. But we need the flexibility to deal with the most serious cases," Mr. Virtue says. "Because of these changes, we are likely to be dealing with lesser offenses and some pretty compelling cases."

He says the Clinton administration is lobbying Congress to restore to immigration judges some discretion to waive detention and deportation in deserving cases. The changes could be enacted this month as part of an immigration bill now before a House-Senate conference committee.

Another INS official, speaking on condition of anonymity, fumes at Congress for not providing the agency with the funds it needs to enforce the new laws. "That legislation ... expanded our mission dramatically," he says. "They have told us to pick up anybody with a conviction. It's more than just work. It's more beds."

Previously, legal permanent residents who served five or more years in jail for serious crimes classified as "aggravated felonies" were subject to mandatory detention and deportation. The new laws expanded mandatory detention and deportation to all drug or firearm offenses and crimes that can carry penalties of one year or more in jail. Because of that last link, people convicted of such crimes, but sentenced to less than a year or freed on probation are also subject to mandatory detention and deportation.

The new laws also extended mandatory detention and deportation to misdemeanors classified as "crimes of moral turpitude," the definitions of which differ at state and federal levels. In New York, for example, such crimes include jumping a subway turnstile or giving misleading information to police. Until now, such crimes did not trigger deportation.

In Gonzalez's case, the INS arrested her because of a nine-year-old drug conviction. Gonzalez who came to the US when she was six, was arrested in 1987 in a police raid that targeted her ex-husband, a drug dealer. She served two years in jail, entered a rehabilitation program, and earned a college degree. She then found work as a secretary with former New York City Mayor David Dinkins, who was then Manhattan borough president. She followed him to City Hall in 1990 and after his 1994 reelection defeat, she found a job as a social worker at the Children's Defense Fund in Washington.

She was to have been sworn in as a US citizen on May 30, but she rushed to Colombia the day before the ceremony for her mother's funeral. When she retuned to New York June 18, she was detained.

After two months, an immigration judge ordered her release - despite the new laws - pending a resolution of her case.

"I feel like I am paying twice [for the drug conviction]," Gonzalez says. "This is a nightmare for me and it's not over. It's totally unfair. I have paid my taxes. I have worked from 9 to 5 every day since I got out of prison."

She adds: "If I have made a mistake, I have proven to the community and the whole world that I have changed."