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

May 25, 2017
Jennifer Matsui
The Rise of the Alt-Center
Michael Hudson
Another Housing Bubble?
Robert Fisk
Trump Meets the New Leader of the Secular World, Pope Francis
John Laforge
Draft Treaty Banning Nuclear Weapons Unveiled
Benjamin Dangl
Trump’s Budget Expands War on the Backs of America’s Poor
Alice Donovan
US-Led Air Strikes Killed Record Number of Civilians in Syria
Andrew Moss
The Meaning of Trump’s Wall
Leslie Scott
Trump in the Middle East: New Ideas, Old Politics
George Wuerthner
Environmental Groups as Climate Deniers
Pauline Murphy
The Irish Dead: Fighting Fascism in Spain, 1937
Brian Trautman
Veterans on the March
Eric Sommer
Trumps Attack on Social Spending Escalates Long-term Massive Robbery of American Work
Binoy Kampmark
Twenty-Seven Hours: Donald Trump in Israel
Christian Hillegas
Trump’s Islamophobia: the Persistence of Orientalism in Western Rhetoric and Media
Michael J. Sainato
Russiagate: Clintonites Spread the Weiner Conspiracy
Walter Clemens
What the President Could Learn from Our Shih-Tzu Eddie
May 24, 2017
Paul Street
Beyond Neoliberal Identity Politics
Daniel Read
Powder Keg: Manchester Terror Attack Could Lead to Yet Another Resurgence in Nationalist Hate
Robert Fisk
When Peace is a Commodity: Trump in the Middle East
Kenneth Surin
The UK’s Epochal Election
Jeff Berg
Lessons From a Modern Greek Tragedy
Steve Cooper
A Concrete Agenda for Progressives
Michael McKinley
Australia-as-Concierge: the Need for a Change of Occupation
William Hawes
Where Are Your Minds? An Open Letter to Thomas de Maiziere and the CDU
Steve Early
“Corporate Free” Candidates Move Up
Fariborz Saremi
Presidential Elections in Iran and the Outcomes
Dan Bacher
The Dark Heart of California’s Water Politics
Alessandra Bajec
Never Ending Injustice for Pinar Selek
Rob Seimetz
Death By Demigod
Jesse Jackson
Venezuela Needs Helping Hand, Not a Hammer Blow 
Binoy Kampmark
Return to Realpolitik: Trump in Saudi Arabia
Vern Loomis
The NRA: the Dragon in Our Midst
May 23, 2017
John Wight
Manchester Attacks: What Price Hypocrisy?
Patrick Cockburn
A Gathering of Autocrats: Trump Puts US on Sunni Muslim Side of Bitter Sectarian War with Shias
Shamus Cooke
Can Trump Salvage His Presidency in Syria’s War?
Thomas S. Harrington
“Risk”: a Sad Comedown for Laura Poitras
Josh White
Towards the Corbyn Doctrine
Mike Whitney
Rosenstein and Mueller: the Regime Change Tag-Team
Jan Oberg
Trump in Riyadh: an Arab NATO Against Syria and Iran
Susan Babbitt
The Most Dangerous Spy You’ve Never Heard Of: Ana Belén Montes
Rannie Amiri
Al-Awamiya: City of Resistance
Dimitris Konstantakopoulos
The European Left and the Greek Tragedy
Laura Leigh
This Land is Your Land, Except If You’re a Wild Horse Advocate
Hervé Kempf
Macron, Old World President
Michael J. Sainato
Devos Takes Out Her Hatchet
FacebookTwitterGoogle+RedditEmail