Many people are talking about President Bush’s “guest worker” proposal for undocumented immigrants. Right-wingers rebuke it as an ‘amnesty.’ Most immigration and advocates view it as a way to flush out illegals, keeping them at the mercy of greedy employers who can enforce silence about abuses by threatening to fire them, thus subjecting them to immediate expulsion.
Few people, beyond immigration lawyers, have noticed a Bush initiative already in full swing–the detention of more than 63,000 immigrants (as of late January, 2004) over the past year, most legal residents. The Department of Homeland Security says it has already deported as many as 70 per cent. These are mostly men and women with green cards who have been in this country from five to 50 years, and who were convicted of a criminal offense, often decades ago. As Homeland Security press releases point out, they served their sentences and “then got lost somewhere in the justice system.” Lawyers representing some of them insist the number is higher. Leading immigration lawyer, Richard Iandoli of Boston, estimates it at about 100,000. This includes legal immigrants with minor technical violations of immigration law–such as a failure to update addresses and other required information within mandated deadlines.
Few articles have been written about this mass expulsion. Most are about individual cases, and those are often short, perfunctory and depend largely on government sources for information. One of the few articles attempting a more balanced view, focused on only one facet of the problem. “Crime Database Misused, Suit Says,” by Nina Bernstein, New York Times, December 17, 2003) points out that the departments of Homeland Security and Justice have been sued for adding immigration and other civil information to the National Criminal Information Center (NCIC) database, used by the FBI to notify state and local police about those wanted for crimes. Until now, this database was restricted to information about serious felonies. Since June, 2002, the Bureau of Immigration and Customs Enforcement (ICE) has added more than 300,000 names of non citizens. (ICE is the chilling acronym for the revised INS, folded into the Department of Homeland Security, and given additional powers and scope, ostensibly to deal with terrorism.)
There is no law requiring–or even allowing–state and local police departments to routinely arrest people for such violations. A bill introduced last summer to do this, the Criminal Alien Removal Act (CLEAR), faced stiff opposition. Yet Attorney General John Ashcroft announced last summer that local police have ‘inherent authority’ to arrest and detain such people. The legal basis for this has yet to be determined. Legal counsel to President Bush have insisted that “only high-risk aliens who fit a terrorist profile” would be placed in the database.
Since mid-2002, many otherwise legal immigrants have been arrested through a routine database check by local police. Of the 100,000 immigrants picked up last year, more than 5,100 were arrested by state or local police and held in local jails, with numbers increasing month by month. The rest were apprehended by agents of the Office of Detention and Removal within ICE, and held in eight ICE detention centers or seven private detention centers contracted by ICE. Some of the detainees entered the U.S. illegally and others over-stayed tourist or student visas, but many were green-card holding permanent residents. This appears to be the most massive deportation of legal resident aliens since the post World War I ‘red scare.’
Those arrested are held without bond until a deportation hearing or until they waive their rights to such a hearing. Some with serious offenses may be deported without hearings. A Supreme Court ruling in April 2003 held such treatment is justified in cases involving terrorism. The Justice Department now assumes the power to hold without bond in all immigration cases. In some cases, including those not remotely related to terror, Homeland Security has intervened when a Federal judge ordered the immigrants released on bail or personal recognizance.
Those immigrants who can garner public support have sometimes been released pending hearings. On December 29, a Federal District Court judge in Oregon ordered four of nine detained immigrants released. Two of these had been convicted and served parole for offenses which a court had not deemed serious enough for prison time. Willi Aigner, who has been a legal U.S. resident since 1968, was found guilty of fondling a 17-year-old boy in 1993, but–according to his attorney, David Shomloo, he successfully completed sex offender treatment and persuaded the sex offender registry that he should not be required to register. (For this and other information on these cases, see the articles by Ashbel S. Green in the Daily Oregonian, Portland, Dec. 27, 2003, and subsequently.
ICE spokeswoman for the Northwest, Virginia Kile, expressed dismay that these defendants were ordered released. “The immigration laws passed in the 1990s eliminated all forms of legal relief for aggravated felonies,” she noted. “You’re here as a guest, and you should be held to a high standard in terms of your conduct.” Until 1996, ‘forgiveness waivers’ were granted many non-citizens who served time for many crimes, including some major offenses. The 1996 Immigration Reform Act defined these waivers narrowly, and few have been granted since.
The 1996 immigration changes were draconian, yet unevenly enforced until after the 9/11 catastrophe. Since then, any immigrant with a conviction–and in some cases, merely an indictment–is subject to deportation. In the past two years, this has meant sudden arrest and detention without bond until deported.
The ‘crimes’ all sound serious: ‘aggravated felonies’ and ‘crimes of moral turpitude,’ yet aggravated felonies range from murder to assault, theft or burglary, almost all drug crimes (including many misdemeanors), and a range of other infractions such as falsification of documents and forgery. Moral turpitude includes not only child abuse and statutory rape (along with actual rape), but also prostitution, domestic violence, willful tax evasion, marriage fraud and all crimes against children–again including many misdemeanors, as well as kidnapping one’s own children in a custody dispute. Also included as crimes of moral turpitude are some rather dubious categories such as indecent exposure and sodomy, no longer illegal after a recent U.S. Supreme Court ruling.
One example of ‘aggravated felony’ is cultivation of small quantities of marijuana. Marijuana activists have documented many cases of immigrants facing deportation for this. One is a Norwegian immigrant and mother of two young children, Kari Rein–convicted in 1992 of growing six pot plants for personal use. She received probation and community service at the time. Yet last December 30, returning with her children from vacation in Norway, she was detained for three weeks and released on bail of $15,000. Homeland Security has appealed her release and still seeks to deport her. The Oregonian newspaper has urged Oregon’s governor to pardon her. Her attorney, again David Shomloo, who is himself an Iranian immigrant, commented, “It makes the hair on my neck stand up because it reminds me of conditions in Iran, a country we say is the Axis of Evil.” (Oregonian, Jan. 23, 2004). The Norwegian press has condemned the case as evidence of U.S. hysteria in the wake of September 11. (Oslo Forsiden Nyhyten, Feb. 23, 2004).
This past July, Homeland Security announced a new initiative, Operation Predator, spearheaded by ICE. “Sexual predators, especially those who prey on children, will have the highest priority in terms of deportation.” As of late February, 2004, Operation Predator claims to have detained nearly 2000 of these ‘predators,’ since last July alone (see the ICE website–http://www.ice.gov.
Operation Predator and Homeland Security have widely publicized the sheer numbers of detentions–though seldom revealthe names and details of the individuals arrested. Officials seek to validate the link between snagging so-called pedophiles and other sex offenders and anti-terrorism. John Walsh–host of the Fox program, “America’s Most Wanted,” appeared with Homeland Security Secretary Tom Ridge at a press conference in July, 2003, announcing Operation Predator: “If you are the parent of a murdered or missing child, if there’s a predator lurking in your area trying to grab kids in the vicinity of a school, that’s a terrorist….That kind of terrorist is at the top of my list, a terrorist who preys on children.”
All of this provides a sad deja vu. The U.S. government has long used “predator” to stigmatize other groups. Yale Law School Professor of Jurisprudence William Eskridge traces its history in the second half of the 20th century, during which conventional society, he says, sought to eliminate homosexuality in the United States: “The concept of the predatory homosexual crystallized as an idee fixeS,” wrote Eskridge. (“Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961”, 24 Fla. St. U. L. Rev. 703 .) An intensification of this preoccupation occurred under FBI Director J. Edgar Hoover. Mark McHarry, who has long studied the ongoing world-wide sex panic, says Hoover added a lavender tinge to the now-discredited government driven “red scare” of the 1950s. Writing for Z Magazine, McHarry said, “[T]oday the government is branding others as predators, including young people themselves.”
The government sees its best-selling initiative as protecting children, preying on people’s fears to push for greatly expanded powers to deport persons not accused of child-related violations. “Homeland Security has been able to coordinate fragmented resources to protect children from these horrendous crimes in a way previously unheard of,” says a statement from the Operation Predator homepage. OP Director, Michael J. Garcia, details coordination not only with other government agencies such as U.S. Postal Inspectors, FBI, CIA and Secret Service, but with quasi-private groups like the National Center for Missing and Exploited Children. They often coordinate “multi-level” investigations with state and local police, using the NICC database. The ICE mission statement says, “Children are one of the most important and vulnerable assets of the American homeland. ICE will do everything in its power to protect them.”
Like the flashing electric boards above many interstates, both ICE and OP home pages flash a tips hotline, operating 24 hours a day, and urges citizens to “report suspicious activity.” In this case, it urges reports of any “foreign nationals” suspected of immigration violations or more serious crimes, especially against children. “Keep your eyes peeled,” is the watchword, “You may save a child from death or worse.”
One of the few major national articles about Operation Predator, “Sex Criminals from Abroad Are Arrested in Crackdown,” by Susan Saulny, in the Oct. 30, 2003 New York Times, is entirely dependent for its information on government spokespersons. She quotes them as saying 1,300 people had been arrested as of that date–yet nowhere is it clear how many of these are legal aliens in the U.S., how many have been caught in international cyber-crime investigations, and how many were U.S. citizens indicted for acts abroad. Saulny quotes an OP spokesperson in listing types of cases as including sexual assaults on infants and violent rape, but also “sodomy and public indecency.” It is nowhere clear how many of the 1,300 (or nearly 2,000 by late February 2004) had committed crimes against children–as opposed to other types of sex offenses.
A great many of the foreigners apprehended had been living quiet, law-abiding lives for many years–and in many cases their offenses from long ago were quite minor. The Operation Predator spokesperson told Saulny of the Times, “Most were arrested at their homes.” Many of the ‘sexual predators’ are far from fitting the image conjured up in most people’s minds by ‘predator.’
Jeff Joseph is the Colorado chapter president of the American Immigration Lawyers Association (AILA), who represents a number of recently apprehended aliens, including sex offenders. One of his clients is a Laotian immigrant living in Idaho. Joseph told me recently, “He came with his entire family as refugees in 1980, after his father was killed in Laos. He married here and now has a son serving in Iraq.” According to Joseph, this Laotian pled guilty in 1990 to sex with a woman under 18. “Both of them were in a Laotian rock band–he was 36, she was 16. The Laotian told his wife about the relationship, and when the girl’s mother found out, she went to authorities. He was given a 120-day sentence plus five year’s probation. He complied with all requirements of probation. He registered as a sex offender when Idaho initiated its registry. He reconciled with his wife, and has had a clean record since, gainfully employed and active in a Buddhist temple. Suddenly he was picked up and threatened with return to Laos–which he does not know at all, and where he might be in grave danger.” The Laotian was held without bail until an immigration judge ordered his release pending a hearing. Yet ICE intervened directly, as it claims it can in cases related to homeland security, and blocked the man’s release. Finally, at a bail hearing this January, the immigration judge granted the man one of the rare ‘forgiveness waivers,’ and ICE, perhaps realizing this case represented an over-reach, did not appeal the decision.
Joseph also spoke of a man arrested years ago, while homeless in Chicago, for urinating within 100 yards of a school, who had since turned his life around and had no further arrests, yet who was detained by ICE and held without bail.
Joseph noted, “In these cases, the consequences are often more severe than mere imprisonment. People are being separated from their families, their lives, and sent off to places largely unknown to them, with no hope of ever returning.” President Palma Yanni, of the national AILA said in a press release last fall, “America is a nation of immigrants, but our immigrant communities now feel besieged as a result of the continuing assault on their fundamental liberties.” Joseph continued, “September 11 has now trickled down to our bedrooms. Terrorism has put such a fear into us that our civil liberties seem to mean nothing. There is an ever-expanding area of civil liberties infraction. The proposed Patriot ACT II actually proposes that the U.S. do something we have never even talked about in our history–revoke citizenship in some cases.”
David Shomloo, the attorney in the Oregon cases, is quoted in the Oregonian, “(These arrests) do not take into consideration any evidence of rehabilitation, history of employment or treatment. There is no safeguard in this policy.” Joseph said, “If that’s what we’re fighting for in the war on terror, we’ve already lost it.”
It is difficult to oppose expelling child molesters. Although many cases have been uncovered of gay men who are being expelled for various sex offenses–usually sex between young adults and adolescent males, but also for public sex, and even the now legal act of sodomy–gay rights organizations will not touch these issues. Victoria Nielson, a spokesperson for the Lesbian and Gay Immigrant Rights Task Force told me, “We would not get involved unless there is a specific complaint from a gay man, and unless he was convicted solely of a sodomy offense. Our position would be that detentions for people with past records of sex offenses is not a gay issue.”
In January 2004, the Supreme Court agreed to decide whether authorities can indefinitely imprison hundreds of Cuban immigrants among those detained–and others whose countries refuse to accept them if deported. Homeland Security says there are 2,200 such people currently in U.S. custody. Among these are 920 Cubans who fled during the Mariel exodus when Castro’s ‘undesireables’ (homosexuals, sex workers, and others deemed social misfits) were expelled. Many of these men were subsequently arrested for various offenses. Some Mariel Cubans have been held for up to six years. (Baltimore Sun, Jan. 17, 2004). The Court is considering how to deal with such cases, but is not likely to rule on automatic detention and deportation for other immigrant offenders.
For now it would seem that U.S. justice simply does not apply to several hundred thousand men and women who came to these shores legally, made mistakes, paid for them, and assumed law-abiding lives for years, only to be taken from their homes and jobs, imprisoned without bail, and detained or deported. The old adage, “they’ve paid their debt to society,” does not apply. Common practice in most democracies is to treat such cases much more humanely. As in so many other instances, the U.S. standard is far harsher and less tolerant.
The Patriot Act has provided the government the power it needs to rid this country of a whole host of what it considers ‘undesireables,’ including many who have lived here decades, mostly without a problem. Since so little of this mass deportation has been reported, few of our country’s citizens will have the information they need to decide if this is truly in their interest.
TOM REEVES is a retired Caribbean studies professor from Boston.