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.

 

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.

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
June 23, 2017
Friday - Sunday
Jeffrey St. Clair
Democrats in the Dead Zone
Gary Leupp
Trump, Qatar and the Danger of Total Confusion
Andrew Levine
The “Democracies” We Deserve
Jeffrey St. Clair - Joshua Frank
The FBI’s “Operation Backfire” and the Case of Briana Waters
Rob Urie
Cannibal Corpse
Joseph G. Ramsey
Savage Calculations: On the Exoneration of Philando Castile’s Killer
John Wight
Trump’s Attack on Cuba
Dave Lindorff
We Need a Mass Movement to Demand Radical Progressive Change
Brian Cloughley
Moving Closer to Doom
David Rosen
The Sex Offender: the 21st Century Witch
John Feffer
All Signs Point to Trump’s Coming War With Iran
Jennifer L. Lieberman
What’s Really New About the Gig Economy?
Pete Dolack
Analyzing the Failures of Syriza
Vijay Prashad
The Russian Nexus
Mike Whitney
Putin Tries to Avoid a Wider War With the US
Gregory Barrett
“Realpolitik” in Berlin: Merkel Fawns Over Kissinger
Louis Yako
The Road to Understanding Syria Goes Through Iraq
Graham Peebles
Grenfell Tower: A Disaster Waiting to Happen
Ezra Rosser
The Poverty State of Mind and the State’s Obligations to the Poor
Ron Jacobs
Andrew Jackson and the American Psyche
Pepe Escobar
Fear and Loathing on the Afghan Silk Road
Andre Vltchek
Why I Reject Western Courts and Justice
Lawrence Davidson
On Hidden Cultural Corruptors
Christopher Brauchli
The Routinization of Mass Shootings in America
Missy Comley Beattie
The Poor Need Not Apply
Martin Billheimer
White Man’s Country and the Iron Room
Joseph Natoli
What to Wonder Now
Tom Clifford
Hong Kong: the Chinese Meant Business
Thomas Knapp
The Castile Doctrine: Cops Without Consequences
Nyla Ali Khan
Borders Versus Memory
Binoy Kampmark
Death on the Road: Memory in Tim Winton’s Shrine
Tony McKenna
The Oily Politics of Unity: Owen Smith as Northern Ireland Shadow Secretary
Nizar Visram
If North Korea Didn’t Exist US Would Create It
John Carroll Md
At St. Catherine’s Hospital, Cite Soleil, Haiti
Kenneth Surin
Brief Impressions of the Singaporean Conjucture
Paul C. Bermanzohn
Trump: the Birth of the Hero
Jill Richardson
Trump on Cuba: If Obama Did It, It’s Bad
Olivia Alperstein
Our President’s Word Wars
REZA FIYOUZAT
Useless Idiots or Useful Collaborators?
Clark T. Scott
Parallel in Significance
Louis Proyect
Hitler and the Lone Wolf Assassin
Julian Vigo
Theresa May Can’t Win for Losing
Richard Klin
Prog Rock: Pomp and Circumstance
Charles R. Larson
Review: Malin Persson Giolito’s “Quicksand”
David Yearsley
RIP: Pomp and Circumstance
FacebookTwitterGoogle+RedditEmail