Landmark Supreme Court ruling gives due process to immigrants facing detention

From the Restore Fairness blog.

Martin Escobar was a lawful permanent resident who had lived in the United States for 30 years. He lived in Chicago, working for a tree care company and supporting his wife, four children and grandchildren, putting them through school and college. In the 1990’s, he plead guilty to two drug possession convictions, but never served any time in jail for these minor misdemeanors. 8 years later, an immigration judge ordered him deported on the basis on these convictions. Their family has been divided since then as Escobar and his wife left for Mexico, leaving their children behind in the U.S.

Due to immigration laws laid down in 1996, Escobar’s very minor drug offenses amounted to an “aggravated felony,” forcing the judge to deport him without being able to consider the individual circumstances of the case. Under harsh immigration laws passed in 1996, a whole range of convictions constitute “aggravated felonies” which trigger automatic deportation, but as in Escobar’s case, many of these convictions are neither aggravated nor felonies. Worse, the laws eliminated important legal rights that previously enabled an immigration judge to look at individual circumstances of each case, including the type of convictions, their history and family ties and how long ago the conviction occurred, thereby denying due process and fairness to hundreds and thousands of people deported for life for convictions ranging from shoplifting to possession of small amounts of marijuana.

In a landmark decision this Monday, the Supreme Court unanimously ruled that immigrants who are here legally in the United States cannot be automatically deported for minor drug offenses, and therefore can have an immigration judge look at their circumstances before being sentenced to permanent exile. The ruling comes in response to Jose Angel Carachuri-Rosendo’s case, a permanent resident of the United States who had lived here since he was 5. In 2004, Jose faced mandatory deportation for carrying a single Xanax tablet without prescription. Although it was a minor offense, being his second one, it counted as an “aggravated felony” and caused him to face deportation.

Writing about his case, Justice Stevens wrote-

(a) 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug is at odds with the ordinary meaning of aggravated felony…Carachuri-Rosendo, and others in his position, may now seek cancellation of removal and thereby avoid the harsh consequence of mandatory removal. (But) any relief he may obtain depends upon the discretion of the attorney general.

Speaking about the ruling, Chuck Roth, director of litigation for Heartland Alliance’s National Immigrant Justice Center (NIJC) said-

The Supreme Court’s decision is a commonsense interpretation of the law that protects fundamental fairness for immigrants. All drug offenses subject a person to potential deportation, but this decision gives our clients a chance to fight their cases, to prove that they are rehabilitated and that their presence here is a net benefit to the country and to their families.

This ruling will impact the lives of many legal residents like Escobar, who have been labeled as “aggravated felons” and separated from their lives and families for minor offenses. It is a positive step toward fixing our country’s unfair immigration laws, and reinforces the importance of a fair day in court. Tearing families apart by deporting people who are not threats to our communities is deeply unfair and this ruling remedies this to some extent.

Speaking from Morelos, Mexico, about 100 miles south of Mexico City, Martin Escobar told Deportation Nation that “It would make me happy if I could return to Chicago. All my family is in the United States. They were born there, and now the only person who is here is myself.”

The Carachuri-Rosendo case is the most recent in a number of challenges to the harsh 1996 amendments and given that the rate of deportations is at its highest ever, it goes some way in restoring some degree of due process and fairness to the system.

Photo courtesy of immigrationimpact.com

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Here's a chance for us to renew our commitment to protect human rights

From the Restore Fairness blog.

This week marks the thirtieth anniversary of the monumental Refugee Protection Act of 1980 marking a historic moment which created a legal status for asylum and a formal process for the resettling of refugees from around the world, affirming that the protection of all victims of persecution is an integral part of U.S. policy. Senator Edward Kennedy, who worked tirelessly for over a decade to secure the passage of this Act ensured an impartial and consistent system of asylum and resettlement for anyone

who is unable or unwilling to return to his country of nationality because of persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

In the thirty years since the passage of the Refugee Protection Act, the U.S. has granted asylum to over half a million people and has been responsible for the resettlement of nearly two and a half million refugees. But these successes have been undermined by national security measures post 9/11 which have practically shut the resettlement system down, leading to President Obama having to sign a Presidential Determination authorizing the admission of 80,000 refugees in 2010 because of failures in the system.

In November 2009, a Human Rights First report reported that since 2001, over 18,000 refugees have faced delays or been denied asylum because of the USA Patriot Act of 2001 and the Real ID Act of 2005 that labeled them “terrorists”. Following 9/11, these acts expanded the scope of laws defining material support to terrorist activity so that thousands of men, women and children who had faced rebel armies and fought for democracy in their countries were denied asylum even while they had fought for causes supported by the U.S.

But this isn’t the only way the system has faltered. Increasing numbers of asylum seekers are locked into detention for months, sometimes years, while pursuing their asylum case. Like Jean Pierre Kamwa, who fought for democracy in Cameroon and facing severe mental and physical abuse came to seek protection in the United States, only to be locked up for four months in a windowless detention center in New Jersey, until he was granted asylum. But Jean Pierre was lucky because he got pro-bono help from a lawyer. Many are deported because they do not have enough access to information in substandard detention centers and are unable to explain their cases to an immigration judge adequately.

That’s what makes Senator Patrick Leahy’s introduction of the Refugee Protection Act 2010 so momentous. If passed, the legislation would strengthen legal protections for those seeking asylum in the United States and ensure that more people who deserve protection can benefit from it. Co-sponsored by Senators Carl Levin, Richard Durbin and Daniel Akaka, the bill addresses flaws in the current system including ensuring a nation-wide alternatives to detention program, access to counsel, medical care and family visits while in detention. The bill also eliminates the requirement that asylum applicants file a claim within one-year of arrival in the U.S. giving more leeway to those needing protection, protects particularly vulnerable asylum seekers like the LGBT community by ensuring they can pursue a claim even where their persecution is not socially visible, and modifies the material support and terrorism bars in the law.

While the bill rallies up support to pass the Senate, the National Immigrant Justice Center and 30 nongovernmental organizations, think tanks, and academics are filing petitions with the Department of Homeland Security and the Department of Justice requesting similar regulations allowing the release of detained asylum seekers who pose no danger to the community so that these can be implemented on an administrative level as well while the bill is being debated.

The act would go a long way to reaffirm the U.S. commitment to the U.N. Refugee convention and provide a safe haven for the persecuted so call on your senators to support it.

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