Smoke a Joint, Lose Your Country

Rigid deportation rules make a mockery of justice.

Under U.S. law, a legal resident who commits an "aggravated felony" is automatically deported. But a crime need not be aggravated or a felony to qualify: As several groups that defend immigrants' rights note in a recent Supreme Court brief, the category has been interpreted to include minor offenses such as selling a $10 bag of marijuana, selling counterfeit clothing, stealing a $10 video game, shoplifting baby clothes worth $15, forging a $20 check, and pulling another woman's hair in a fight over a boyfriend.

The immigration consequences of criminal convictions are especially disproportionate in drug cases, where suspicion of foreigners converges with fear of the intoxicants historically linked to them. As two recent Supreme Court cases illustrate, this combination can result in prolonged detention and lifelong banishment of people who have lived here for decades, separating them from their jobs, their families, and their communities, all for victimless crimes.

A noncitizen is deportable if he is convicted of any drug law violation except for "a single offense involving possession for one's own use of 30 grams [about an ounce] or less of marijuana." In a case the Supreme Court decided last week, a Kentucky truck driver named Jose Padilla (not to be confused with the American citizen convicted of assisting terrorism) pleaded guilty to transporting marijuana. Padilla, a Vietnam War veteran from Honduras, did not realize the plea meant he would have to leave the country he had called home for more than 40 years. Because his attorney wrongly assured him he would not be deported, the Court ruled that Padilla had been deprived of his Sixth Amendment right to "the effective assistance of competent counsel."

On the same day it announced that decision, the Court heard a case involving a Mexican immigrant, Jose Angel Carachuri-Rosendo, who became a legal U.S. resident in 1993 and more than a decade later served a 20-day sentence in a Texas jail for misdemeanor marijuana possession. The following year, he was caught with one tablet of Xanax, for which he served 10 days in jail.

According to the U.S. Court of Appeals for the 5th Circuit, these two trivial offenses added up to an "aggravated felony," which not only made Carachuri deportable but barred him from asking the attorney general for a "cancellation of removal." The 5th Circuit's reasoning, which has been endorsed by one other federal appeals court and rejected by four, goes like this: Although Carachuri was never convicted of a felony, he theoretically could have been charged as a recidivist under federal law, which would have made him eligible for a sentence of 15 days to two years.

Another victim of such imaginary charges is Jerry Lemaine, a 28-year-old New Yorker who was born in Haiti but has lived in this country since he was 3. Caught with a joint on Long Island in 2007, Lemaine pleaded guilty and paid a $100 fine, only to be shipped off to Texas by immigration authorities. They detained him there for three years after determining that he, like Carachuri, qualified as an "aggravated felon" in the 5th Circuit (though not in the 2nd Circuit, where he was cited for the marijuana).

Lemaine, you see, had also been charged with possessing a small amount of marijuana as a teenager. Although the charge was ultimately dismissed, in the federal government's view it still made him a recidivist, which made him an aggravated felon, which made him deportable without recourse for drug violations that in New York do not even qualify as criminal offenses.

Outrages like this occur largely because Congress in 1996 eliminated judges' discretion to prevent deportation of people who do not deserve it and severely restricted the attorney general's authority to do so. Like mandatory minimum sentences, these changes were aimed at reining in misguided compassion and eliminating inappropriate disparities. And like mandatory minimums, rigid deportation rules have resulted in a different sort of injustice. Tougher is not always better.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  • ||

    Without disagreeing with the article at all, a technical/pedantic error in the title. A person is deportable or removable precisely because, legally speaking, this is not his or her country to lose. Losing one's home or such may be a better way to put it.

  • Jimmy 'Crack' Corn||

    +10

  • Jimmy 'Crack' Corn||

    "Rigid deportation rules make a mockery of justice."

    No mockery here, Sullum. 'Don't do the crime if you can't do the time."

    These people are not citizens of this country. They do not get to decide which laws and rules of their host country they get to follow.

  • Mauricio||

    Permanent residents are going about immigration the right way, they desire to make the US their country and they are following set channels.

    I agree that no one is to decide which laws to follow but we should encourage legal immigration and that means fair and comprehensive paths to citizenship.

  • Suki||

    Good Morning reason!

  • Cookie Kwan||

    I wonder if these cases are anomalies out of the hundreds of thousands of drug busts and crimes involving immigrants (both legal and illegal). God knows that illegal immigrants are getting away with murder, literally, and not be deported.

    It's laughable to even suggest that deportation is a rampant problem in this country.

    I agree that the sentences in the cases listed do not fit the crime and the laws should be scrutinized further, but I just don't see how this could be a wide spread problem.

  • ||

    I am a US permanent resident and have heard numerous stories of people being deported for extremely minor crimes (in one case a woman I worked with was deported for being arrested for disorderly conduct during an immigration rally, because she had a similar arrest back in the UK they classed her as a habitual offender), the laws that legal immigrants have to exist under are designed specifically to allow deportation any time they choose. Forget your biometric card at home so you can't show it to a LEO on demand? Deported. Use a tax payer ID rather than your social security number, or refuse to disclose either, on a government form? Deported. Don't sign up for selective service? Deported. Forgot to include your time in the boy scouts on your visa application? Deported.

    One of the first things immigration attorneys warn you about is never to put yourself in a position to get arrested and always to carry your biometric/permanent resident card round with you at all times. Just to really fuck things up further once you are a citizen you are still not protected, if they can prove you committed a deportable offence prior to gaining citizenship then your citizenship can be revoked and you are deported, the same for visa misrepresentation up to an including failing to disclose association with a particular organisation.

    We are treated like defacto criminals, consider this a preview for what your government would like to treat you like if only the constitution didn't get in the way.

  • ||

    Forget your biometric card at home so you can't show it to a LEO on demand? Deported.


    Are you serious? Are you talking about the USA? I've never been asked to prove my immigration status to LEOs. Once you crossed the border, your driver's license is good enough for everything. But I guess I don't routinely engage in disorderly conduct.

  • In the rules||

    It's true but I lose stuff all the time and really only take it out, when I travel but I am aware of that law.

  • ||

    Liam, if you don't like us, why are you here? Do you notice the comedy in your having rights here? Could I move to where you come from? Could I get a job, build a house of worship, go to demonstrations and denounce the country where I just moved to, call for the overturn of laws that I don't like, even call for the overturn of the government or destruction of the nation, commit crimes and get the same rights as everyone else? I want you to appreciate what you can do here and how almost no distinction is made between immigrants and those born here, which is something very unique in the world. Do you appreciate any of this. Probably you don't.

  • Jordan||

    You might want to reread this sentence to see who he doesn't like (I don't like them either, and I'm a natural-born citizen):

    We are treated like defacto criminals, consider this a preview for what your government would like to treat you like if only the constitution didn't get in the way.
  • ||

    Nanda, we can do the same things as citizens? You do know that once ICE classifies us as "out of status" (which it can do for whatever reason it wants) the constitution no longer applies to us. Let me pose this situation for you: Immigrant is on one of the company specific work visa's and police show up at his place of employ and arrest him resulting in employer firing him on the spot. The police no longer have to prove access to a lawyer, communication or indeed any of the standard rights every other western country provide to people inside their borders irrespective of status. Another? If I got arrested for whatever reason and the cop arresting claimed that I refused to present my card on demand I can be immediately classified out of status and loose any constitutional protection. In both cases I would need to wait for someone to find out what had happened and they would have to get an attorney to file for a habeas writ to even allow me to talk to them. One of the cases SCOTUS is going to hear later this year is partly on this issue, it does happen. The fact an arrest can have such a huge impact on status is in and of itself a reason why we can't practice some rights (particularly freedom of speech and carrying weapons), even though we can exercise both legally an arrest (even one that does not result in a conviction) could get us deported.

    Also one issue that I missed in my original post is that one of the requirements for gaining Citizenship is "Good moral character", any arrest (again, even without conviction) can result in problems gaining citizenship.

    Secondly given I come from the UK you could do all of those things. The British government has tried, and failed, to deport various radical Islamic clerics who regularly called for the murder of the British people and the destruction of the government. A conviction for a non-violent offence before a magistrate (jail term less than 2.5 years) is non-deportable, all other offences the immigration service has to apply to the court for permission to start deportation proceedings during which your status remains intact and if you have lived in the UK for a long time or have family here then it is unlikely to be granted. There is also no identification requirement (other then providing a copy of your visa to an employer) which is the same for British citizens.

    I have also lived in two other European countries and South Africa, in all cases immigrants had the same levels of protection as citizens and were not subject to even remotely the same level of insane restrictions.

  • Jimbo 238||

    Other countries more rights? But this.. Amurrika! Most.. free.. we.. am... Does Not Compute

    Norman Coordinate!

  • ||

    The Constitution provides the protections you seek for anyone in the jurisdiction of the United States. The problem is that enforcement is not matching the law. This is the problem when we have politicians ignore the Constitution and the enforcement bureaucracies enforce the most recent law that was written rather than the Constitution which has supremacy.

    In other words, immigrants are getting fucked and people like Nanda criticize you for doing what you are supposed to be doing, which is standing up for your rights.

    But, I see no problem with deporting people for convictions for theft which Jacob seems to think is harsh merely because of the dollar amount. Stealing from people (a real crime) and possessing, using, or selling drugs (not a legitimate crime) are very different things.

  • ||

    Oh and on the "if you don't like us" question the government is not the same thing as the people. I love the people, I love the culture and I love the variety.

  • Jimmy 'Crack' Corn||

    Well, I just dont automatically 'love' you, Liam.

    Quit demanding things from your guest country that you cant demand from your native company. You are not a citezen here. Until you are, STFU.

  • Jimmy 'Crack' Corn||

    Errrr, make that native country. And make that citizen.

    More coffee needed.

  • GRRRR||

    I love this argument..." If you don't like it here, leave!" By simply voicing an opinion he is showing his love of this country. America is not perfect, but it's the closest any country has come. There are so many ways that we could improve and in order to do that sometimes you have to show dissent.

  • It's a start...||

    in one case a woman I worked with was deported for being arrested for disorderly conduct during an immigration rally, because she had a similar arrest back in the UK they classed her as a habitual offender

    Good.

  • Jimmy 'Crack' Corn||

    +3

  • Horde4Lyfe||

    "[A]ll for victimless crimes."

    It's not that I disagree with this article, but, theft in any form, by definition, is not a "victimless" crime.

  • ||

    I am libertarin, but I still think drug use is wrong, and immoral. It is not victimless, it affects the abusers family, their community and all of society.

  • ||

    You misspelled "authoritarian".

  • ||

    Sorry, I meant "Libertarian".

  • sometimes you need to hit||

    the target and not buzz the ball over its head;-)

  • Joan||

    Agreed.

  • ||

    What's your position on immigration?

    I ask out of curiosity to see if there's such a thing as a libertarian who believes in the freedom to migrate but not in the freedom to use drugs.

  • ||

    What's your position on immigration?

    Should be allowed.

  • ||

    Or perhaps I am misunderstanding you -- that, even though you believe that drug use affects abusers' families, communities, and society, you don't believe it should be illegal.

    If so, I apologize for the "authoritarian" quip.

  • ||

    No drug use. It is wrong so it should be illegal.

  • Stereo Apple||

    It is wrong so it should be illegal.

    I think this statement means you're not a libertarian by definition.

  • Jimmy 'Crack' Corn||

    Yes, there are many absolute beliefs in being a libertarian, and we demand you comply or we will kick you out!

    What, you think you can think for yourself?

  • ||

    I just want to let you know I hate you.

  • ||

    the liberterian position is that many things are immoral and wrong, but it is not the place of the government to police those things. Some libertarians foolishly imagine that being a libertarian means having to say that drugs or prostitution or gambling is good and that is why the government should not interfere. Stossel does that on his show. He actually had a woman arguing that prostitution is not bad, but just a matter of choice, like becoming a teacher or doctor. That is the wrong position. A libertarian makes a distinction between the control that is exercised by convention, religion, and morality and the control of the government. One thing that many libertarians do not recognize, probably because they are really liberals, is that the more the government keeps out of stuff, the more society has to keep order. One can be a libertarian and very conservative.

    Liberals destroyed alot of the moral fabric, now they realize that some things must be controlled, that some discipline is needed, that everything can't be allowed, but they don't want religion or morality, they want the government to be the big daddy.

  • Rhywun||

    He actually had a woman arguing that prostitution is not bad, but just a matter of choice, like becoming a teacher or doctor

    That's just him being a "television journalist". I've heard him say several times that one needn't necessarily "support" the things which government should keep its nose out of.

  • ||

    Why is prostitution bad? People have sex all the time and people pay for things all the time. Neither is bad. Prostitution does not equal human trafficking, kidnapping, or rape. Those are crimes. Sex for money is not a crime, just like sex for dinner and a movie is not a crime.

  • ||

    +1--why is it bad if there is no force or coercion involved? Don't we all have sex because we get something out of it? How is it different from a woman marrying for financial security, or a gold-digger fucking a guy 'cause he takes her to nice restaurants and buys her cool stuff?

  • Horde4Lyfe||

    Yes, this is a shameless plug for my blog, but go there and read my last post.

  • read it||

    any and all types of porn?

  • ||

    Use does not equal abuse.

  • Cabeza de Vaca||

    "God knows that illegal immigrants are getting away with murder, literally"

    Link?

  • Rhywun||

    I thought some huge majority (don't recall the exact figure) of all murderers "get away with it"...?

  • ||

    I think Cookie may be referring to this.

  • ||

    "Smoke a Joint, Lose Your Country" is way too lenient. If we really wanted to get tough and end drug addiction, we would go with the legislation proposed in Mississippi, "Smoke a Joint, Lose a Limb", it is what they do in the Middle East, and it could be an effective tool in the war on drugs.

    Wuzzup is Juanita!

  • Fatty Bolger||

    I don't like many of the drug laws and would like to see marijuana legalized, BUT... it is considered to be a fairly serious crime, and when you are a guest in somebody else's country you should follow the law, even if the law is stupid or you don't like it. Would you go to another country, break their laws, and then expect to not be kicked out? Of course not.

  • Rhywun||

    it is considered to be a fairly serious crime

    The whole point is that smoking a joint is NOT a serious "crime" (I would say not a crime at all, but that's another thread) -- ask the millions of Americans who do it every day, harming no one, and even if caught in many areas are slapped with little more than a fine. Some laws are just too stupid to blindly follow -- I don't care if you're a "guest" or not.

  • Fatty Bolger||

    All I can say is - whoosh.

  • ||

    Thank you. Tie idiotic government activities to immigration and suddenly 50% of libertarians start stammering "but-but-but they broke the law!"

  • VikingMoose||

    It's been like this for years.

    I mean, they deported Roman Maroni to Norway, and he claims he wasn't even from there!

  • ||

    Well, simple solution: don't commit a crime!

  • ||

    Outrages like this occur largely because Congress in 1996 eliminated judges' discretion to prevent deportation of people who do not deserve it and severely restricted the attorney general's authority to do so.

    Outrages like this occur largely because the law has those punishments. I am highly unconvinced that libertarians should favor judicial and prosecutorial discretion as a solution. Surely that discretion will be used to favor the powerful and the connected? A law with lots of "discretion" is like speed limits, and don't tell me that people don't believe that officers' discretion is abused there. DWB, anyone?

    The problem isn't the lack of discretion, the problem is the law.

  • Kolohe||

    Hey for all you wannabes check out Tom above - that is someone who knows how to troll

  • asdfgh||

    I socialize, do business with, am friends with many immigrants, I'm aware of these laws, but from what I've seen they're rarely acted on. One I've known for better than 15 years was busted for several grams of cocaine around 6 years ago and twice since ten for over 30 grams marijuana, my guess if it happens again he'll be gone, but to date he spent 6 months county jail for the last charge and that's it. It's up to the immigration judge if they stay or go and obviously they make that choice at their discretion. They base they decision much on value to community, if the immigrant in question is considered an asset, and is assimulating it makes a big difference. The individual with three strikes is an employer who employs mostly citizens of the US race isn't important. He's an asset to me, we've worked together to mutual advantage numerous times. The last two arrests I've had no problem gathering dozens of letters on his behalf for the judge. It made the difference.Those in the country illegally do usually go, but it's not uncommon for them to come right back in. Threats of stiff sentences for coming back have never been enforced that I have ever seen.

    The real issue in my opinion is the drug war itself. What supposedly was a war on drugs has never been such to my knowledge. It's a war on citizen and not citizen alike, within and outside our borders. Anyone in violation, or suspected of not being in compliance is a fair target.

    The biggest downside to all this is one I've never heard anyone mention. You can't have a war without an enemy, and everyone they wage war on (today it may as well be a battlefield with the use of armored vehicles SWAT etc), many of whom may have been patriotic Americans or foreign nationals friendly to the USA is made into an enemy of the USA. Even without considering that each of these people has family, friends, others many of which could be included, we make tens of millions of new enemies every year to add to the list of all those we already made in prior years in the same way.

    The incentives to continue are great and many for many people, police, judges, lawyers, prisons, treatment centers, and on, and on, there are a great many including the drug traffickers who also profit. But at what price? National suicide?

    Drug users may not be the brightest group around, if they were you'd think they'd all be libertarians. Nonetheless, a great many voted for Obama sure he was going to end it for them, showing this is indeed a sizable hidden problem, it would seem likely the attraction to the left and Obama's party would be a logical choice for those this country who without provocation find themselves treated as enemy combatants. (my enemy's enemy is my friend).

    It would be my guess this - being made the enemy - is why so many of our people honestly do wish to see America destroyed. I can only imagine what it must be like to be one of these targeted people and to suffer one of these assaults for a consensual victimless crime.

    Personally, I drink, it's enough for me. But I do have an open mind and would like to believe I have a level head. I'm not going to judge some one badly just because they use drugs. I use a drug - alcohol,- and I do like it enough I have no doubt if it was illegal I'd do it anyway. Some people don't like my drinking, tough, I'm responsible, it's my business. No doubt users of other drugs feel the same way.

    Of course many of those who don't like my drinking are drug users. Those of us who drink didn't make other drugs illegal, nor did we make alcohol legal. Wake the fuck up.

    Since I'm in my mid 50s and I've seen a great many good people, some even close friends, or employees, who have been arrested or singled out for armed military style assault. In more than a few cases outrages such as throwing their children to the floor, leveling loaded weapons on them, then taking them away for "child endangerment" have occurred. More than a few served prison sentences, some very long, some ridiculous as XXXX. who served 15 years for two pot seeds.

    In the past few decades they have turned the whole process into a mass production industry they are producing enemies to our nation in incredible number at blinding speed.

    I would never expect union organizers to give a damn about this country, they're dirt and would sink it without a care as long as they got what they wanted, but I'd hope the average cop would care more and make the connection. Is it really worth that opening on the force that wouldn't be there if not for the war on Americans and others violating the prohibition if it means helping turn their own countrymen against our own country. A country founded upon the ideals of freedom and liberty. A country the very birth of which was planned in a tavern. The vast majority of this nation's expansion was organized out of bars and taverns. Our founders were hardly teetotalers many actually manufactured and ever peddled. I have a copy of our country's Founding Father's whiskey recipe. Yes, George Washington was both a dope manufacturer and peddler.

    If not for the drug war it's likely the political landscape would be much different than it is, almost certainly for the better. Our representatives have badly over stepped the boundaries in so many ways and this one is one of the very worst. They are not intended nor entitled to be our rulers. Are we really so dumb we can never see what they are doing is one of the oldest ploys around - divide and conquer.

    Americans need to wake up to facts if they ever want real hope and change. Many of our politicians love inventing crisis and love sowing division because above all else they love power in their hands over us, not in ours over our own individual selves.

  • read it||

    a post worth reading but "Some people don't like my drinking, tough," is so classic alcoholic.

  • ||

    I think people who come to the U.S to work legally are sordid exploitationists.

    You know the value of our dollar far exceeds the wealth in Guatamala and Nicaragua, even Mexico.. and you know it is very lucrative to work here then take it back.

    Most immigrants that have worked legally for my company have either been arrested for violent crimes or retired back to their home country with lots of our cash.

    Sorry guys, I just think you must be born here, live here, intend to stay here, pay your dues, assimilate to a certain degree, and respect this country before you should be able to work here and benefit from our economic evolution.

    I've got 30 jobs now between 1st and 2nd shift that are occupied by foreigners that could have gone to some kid graduating highschool that lived down the block his whole life.

    Worst of all, I'm a manager, so I have to learn Spanish so that I can communicate to these people... and they have no burden to cooperate with our code of conduct.

    I just simply disagree with it.

    It's like they say, you can't wake up from the party and expect to have the same life that the people who worked their entire lives have.

  • ||

    I've got 30 jobs now between 1st and 2nd shift that are occupied by foreigners that could have gone to some kid graduating highschool that lived down the block his whole life.

    So why didn't you hire the high school kid?

    It's like they say, you can't wake up from the party and expect to have the same life that the people who worked their entire lives have.

    The high school kid hasn't worked yet. Why should he get some consideration that the immigrant doesn't?

  • You are so full of shit||

    shit

  • I mean||

    Abject Conformity

  • Rhywun||

    Most immigrants that have worked legally for my company have either been arrested for violent crimes or retired back to their home country with lots of our cash.

    It's also true that most American workers are either arrested for murder or are taking home our, er... their cash.

  • ||

    With 300 million people in our country today, and many millions of LAW ABIDING immigrants in our country....

    why keep the bad ones?

  • ||

    If an immigrant doesn't like this country, or if they don't like the way this country treats them, they should

    1) Become a citizen
    2) Go back where they came from
    3) Shut up.

  • ryan||

    Do you believe humans deserve more or less freedoms depending on where they are born?

    If you believe it is wrong for immigrants to a country to speak freely, I believe, for the sake of everyone's individual intellects, you should shut up.

  • ryan||

    I will clarify. I, and I would guess all people at this site, do not like some things about this country. Your statement "If an immigrant doesn't like this country" is utterly irrelevant, as no one has claimed to dislike this country, but specifically dislike some laws or interpretations of laws. I agree with those people that people enforcing laws here are at times incompetent, and I believe they should say so when they notice it, just as you or I would like to do. I can't imagine, knowing all this, why you would criticize them for expressing their displeasure.

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