FacebookTwitterGoogle+RedditEmail

Treat Them Like Criminals (They’ll Have More Rights)

by TANYA GOLASH-BOZA

Much of the controversy over Alabama’s HB 56 and Arizona’s SB 1070 is related to those provisions that criminalize undocumented migrants. What is rarely mentioned is that criminal law requires more procedural protections than immigration law. If immigration law treated immigrants like criminals, immigrants would have more rights.

Immigration proceedings in the United States are civil, not criminal, in nature, and do not include all the  due process protections  afforded to people accused of crimes. Non-citizens can be detained without a bond hearing to assess their flight risk or danger to society. They can be deported without due process.

Robert Bautista , currently being detained without bond at York County Prison, is well aware of his lack of legal rights as an immigrant detainee. In 2002, Mr. Bautista was found guilty of 3rd degree attempted arson for carrying a container of gasoline near his own vehicle and was sentenced to five years of parole. Seven years later, in 2009, as he was returning home from vacation, immigration agents arrested and detained him.

When Mr. Bautista was placed in detention without the possibility of a bond hearing, he had been a legal permanent resident of the United States for 25 years, married for over a decade, had three school-age children, and was the owner of a successful business in Pennsylvania. His mandatory detention caused his family business to be destroyed and his family to lose their home. His wife, a U.S. citizen, visits Mr. Bautista every week at York County Prison, often bringing the children with her. Their U.S. citizen children must bear witness to their father being treated as if he were a criminal, but without the procedural protections normally accorded to people charged with crimes.

Mr. Bautista’s two years in immigration detention are not pursuant to any criminal convictions – he has already completed his parole. He is not being charged with any crime; immigration detention is preventative not punitive.  Instead, he is being detained because he faces deportation and is not eligible for a bond hearing.

In 2009, when the Department of Homeland Security (DHS) argued that his 2002 conviction of third degree attempted arson was a Crime Involving Moral Turpitude (CIMT), Mr. Bautista was considered to be seeking admission to the United States, as if he were not present in the country, and as if he had not been living and working in this country for over two decades. As person not technically inside the United States, Mr. Bautista was not protected by the Constitution.  With a CIMT, Mr. Bautista could seek out cancellation of removal: his deportation order could be rescinded. However, just one hour before his hearing, DHS argued that third degree attempted arson is also an aggravated felony, meaning that Mr. Bautista would be subject to mandatory detention and deportation without judicial review.

Mr. Bautista’s lawyer, Raymond Lahoud , contested this classification, as no previous case of 3rd degree attempted arson has been declared to be an aggravated felony. If Mr. Bautista could win the argument that 3rd degree attempted arson is not an aggravated felony, he would have the chance for an immigration judge to hear the equities in his case. In an aggravated felony case, it does not matter if you have lived in the United States for three decades, if you have three children, if you have no relatives in your country of origin, or if your family depends on you for their survival. People convicted of aggravated felonies are not given a fair and reasonable hearing of the sort that would meet international human rights standards.

On October 10, 2011, the  Board of Immigration Appeals  (BIA) heard Mr. Bautista’s case and decided that 3rd degree attempted arson is an aggravated felony.

This determination that 3rd degree attempted arson is an aggravated felony means Mr. Bautista cannot challenge his deportation on the basis of his ties to the United States. Instead, Mr. Bautista faces mandatory deportation to the Dominican Republic, where he will be labeled a criminal deportee and faces a bleak future. The Dominican government treats arriving criminal deportees as if they were criminals – they are booked at the city jail, and their deportation is recorded on their criminal record, making it nearly impossible to secure employment.

Were Mr. Bautista to be afforded the due process protections we give to criminals, he would have had a bond hearing and likely would not have been detained for the past two years; he would have the opportunity to have a trial where a judge could weigh the equities in his case; and he may have been eligible for a public defender. Perhaps we should treat immigrants like criminals and thereby provide them with due process protections before depriving them of liberty.

Tanya Golash-Boza is an Assistant Professor of Sociology and American Studies at the University of Kansas and the author of Immigration Nation: Raids, Detentions and Deportations in Post-9/11 America, published by Paradigm Publishers.

Exclusively in the New Print Issue of CounterPunch

THE SLOW DEATH OF THE ROMAN CATHOLIC CHURCH – Nancy Scheper-Hughes on Clerical Sex Abuse and the Vatican. PLUS Fred Gardner on Obama’s Policy on Marijuana and the Reform Leaders’ Misleading Spin.  SUBSCRIBE NOW

Order your subscription today and get
CounterPunch by email for only $35 per year.

 

Tanya Golash-Boza is the author of: Yo Soy Negro Blackness in PeruImmigration Nation: Raids, Detentions and Deportations in Post-9/11 Americaand Due Process Denied: Detentions and Deportations in the United States. Her new book Deported: Immigrant Policing, Disposable Labor, and Global Capitalism will be published by NYU Press in 2015.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
February 24, 2017
Friday - Sunday
Pierre M. Sprey - Franklin “Chuck” Spinney
Sleepwalking Into a Nuclear Arms Race with Russia
Ajamu Baraka
Malcolm X and Human Rights in the Time of Trumpism: Transcending the Master’s Tools
Jeffrey St. Clair
Roaming Charges: Exxon’s End Game Theory
John Laforge
Did Obama Pave the Way for More Torture?
Mike Whitney
McMaster Takes Charge: Trump Relinquishes Control of Foreign Policy 
Paul Street
Liberal Hypocrisy, “Late-Shaming,” and Russia-Blaming in the Age of Trump
Patrick Cockburn
The Coming Decline of US and UK Power
Louisa Willcox
The Endangered Species Act: a Critical Safety Net Now Threatened by Congress and Trump
Vijay Prashad
A Foreign Policy of Cruel Populism
John Chuckman
Israel’s Terrible Problem: Two States or One?
Matthew Stevenson
The Parallax View of Donald Trump
Norman Pollack
Drumbeat of Fascism: Find, Arrest, Deport
Stan Cox
Can the Climate Survive Electoral Democracy? Maybe. Can It Survive Capitalism? No.
Ramzy Baroud
The Trump-Netanyahu Circus: Now, No One Can Save Israel from Itself
Edward Hunt
The United States of Permanent War
David Morgan
Trump and the Left: a Case of Mass Hysteria?
Pete Dolack
The Bait and Switch of Public-Private Partnerships
Mike Miller
What Kind of Movement Moment Are We In? 
Elliot Sperber
Why Resistance is Insufficient
Brian Cloughley
What are You Going to Do About Afghanistan, President Trump?
Binoy Kampmark
Warring in the Oncology Ward
Yves Engler
Remembering the Coup in Ghana
Jeremy Brecher
“Climate Kids” v. Trump: Trial of the Century Pits Trump Climate Denialism Against Right to a Climate System Capable of Sustaining Human Life”
Jonathan Taylor
Hate Trump? You Should Have Voted for Ron Paul
Franklin Lamb
Another Small Step for Syrian Refugee Children in Beirut’s “Aleppo Park”
Ron Jacobs
The Realist: Irreverence Was Their Only Sacred Cow
Andre Vltchek
Lock up England in Jail or an Insane Asylum!
Rev. William Alberts
Grandiose Marketing of Spirituality
Paul DeRienzo
Three Years Since the Kitty Litter Disaster at Waste Isolation Pilot Plant
Eric Sommer
Organize Workers Immigrant Defense Committees!
Steve Cooper
A Progressive Agenda
David Swanson
100 Years of Using War to Try to End All War
Andrew Stewart
The 4CHAN Presidency: A Media Critique of the Alt-Right
Edward Leer
Tripping USA: The Chair
Nyla Ali Khan
One Certain Effect of Instability in Kashmir is the Erosion of Freedom of Expression and Regional Integration
Rob Hager
The Only Fake News That Probably Threw the Election to Trump was not Russian 
Mike Garrity
Why Should We Pay Billionaires to Destroy Our Public Lands? 
Mark Dickman
The Prophet: Deutscher’s Trotsky
Christopher Brauchli
The Politics of the Toilet Police
Randy Shields
Tom Regan: The Life of the Animal Rights Party
Ezra Kronfeld
Joe Manchin: a Senate Republicrat to Dispute and Challenge
Clancy Sigal
The Nazis Called It a “Rafle”
Louis Proyect
Socialism Betrayed? Inside the Ukrainian Holodomor
Charles R. Larson
Review: Timothy B. Tyson’s “The Blood of Emmett Till”
David Yearsley
Founding Father of American Song
FacebookTwitterGoogle+RedditEmail