FacebookTwitterRedditEmail

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

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.

 

More articles by:

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.

Weekend Edition
July 03, 2020
Friday - Sunday
Peter Linebaugh
Police and the Wealth of Nations: Déjà Vu or Unfinished Business?
Rob Urie
Class, Race and Power
John Davis
A Requiem for George Floyd
Jeffrey St. Clair
Roaming Charges: Mutiny of the Bounties!
Richard D. Wolff
Revolutionary Possibilities: Could U.S. Capitalism Turn Nationalist?
Richard Falk
When Rogue States Sanction the International Criminal Court
Louis Proyect
Smearing Black Lives Matter…From the Left
Ralph Nader
Trump and Pence – Step Aside for Professional Pandemic Scientists and Managers
Ramzy Baroud
Tearing Down the Idols of Colonialism: Why Tunisia, Africa Must Demand French Apology
Philippe Marlière
Challenging the French Republic’s Color-Blindness
Richard C. Gross
Attack, Deny
Lee Camp
Connecting the Dates – US Media Used To Stop The ‘Threat’ of Peace
Steve Martinot
The Desire to Kill
David Yearsley
The War on Kitsch
Amy Eva Alberts Warren – Rev. William Alberts
Why are Certain Christians Democratic and Others Authoritarian?
Lawrence Davidson
Covid Madness
Brian Cloughley
Britain’s Disorder and Decline
Ellen Taylor
The US Military Has Its Knee on the Throat of the World
David Rosen
White Nationalists on the Attack
Jeff Cohen
Politicians of Color Should Not be Immune From Criticism
Joseph Natoli
Drawn Away from Reality in Plain View
Frank Joyce
Give Me Liberty,  Give You Death
Jonah Raskin
My Adventures in the Matriarchy
Paul Street
The Racist Counter-Revolution of 1776
Kollibri terre Sonnenblume
The Corruption of the Democratic Party: Talking to Ted Rall about his new book
Medea Benjamin - Nicolas J. S. Davies
Trump’s Record on Foreign Policy: Lost Wars, New Conflicts and Broken Promises
Paul Edwards
A Bridge Too Far
Jennifer Joan Thompson
How to Do Things With Theses: Chile’s National Police Force Sues the Feminist Artistic Collective, Las Tesis
Shawn Fremstad
Vacations for All!
Thomas Knapp
A Modest Proposal for Compromise on “Confederate” Military Bases
Vijay Prashad, Eduardo Viloria Daboín, Ana Maldonado, and Zoe PC
Venezuela’s Borderlands Have Been Assaulted by COVID-19
Thom Hartmann
COVID Masks: The Latest Faux Conservative Outrage
Jesse Jackson
Mandatory College Football Practices in Time of Pandemic are Nuts
Nicholas Vincenzo Barney
Consensus Politics on the Fringe: The Intellectual Dishonesty of the Intellectual Dark Web
Ted Rall
The Data is Clear: Progressives Should Boycott Biden
Joshua Tartakovsky
Sergei Khrushchev: An Eulogy from His Close Student
Theresa Church
In Reconsidering ‘Normalcy’ Genetically Engineered Trees Do Not Belong
Chelsea Carrick
Let’s Not Lose Momentum
Adam Rissien
Sorry Secretary Perdue, Our National Forests are Not Crops
Paul Gilk
A Few Theoretical Percentages
Thomas S. Harrington
“New Corona Cases”:  A Phrase That’s Tells us Very Little, if Anything,  About the Actual Levels of Danger We  Face
Claire Chadwick
I Got COVID-19 at Work. I Won’t be the Last
George Wuerthner
The Upper Green River Should be a National Park, Not a Feedlot
Julian Vigo
Profiteering in the Era of COVID-19
Ravi Mangla
Policing is Not a Public Good
FacebookTwitterRedditEmail