As politicians on the left and right rethink draconian drug penalties, a new report from Human Rights Watch (HRW) urges them not to overlook the senselessly severe punishment meted out by our immigration system, which is unconstrained by the usual rules of due process and proportionality. The report notes that "U.S. immigration laws…essentially mandate detention, deportation, and exile each year for tens of thousands of immigrants, including lawful permanent residents, convicted of drug offenses—sometimes for offenses so minor as to result in no criminal justice sentence of imprisonment." HRW found that "deportations of non-citizens whose most serious conviction was for a drug offense increased 22 percent from 2007 to 2012, totaling more than 260,000 deportations over the same period." The organization's report highlights several ways in which immigration law treats low-level drug offenders more harshly than criminal law:
Any drug offense, except for possessing 30 grams or less of marijuana (about an ounce), is punishable by deportation. HRW cites cases in which legal permanent residents who had lived in the United States for decades were detained and threatened with deportation for possessing small amounts of cocaine and methamphatamine.
Any "drug trafficking" offense, including penny-ante sales, possession with intent to distribute, and giving away small amounts, triggers nearly automatic deportation, stripping immigrants of almost every defense. As a Pennsylvania immigration lawyer told HRW, "I represent a lot of guys with drug trafficking convictions, but I've never represented a drug trafficker."
Any drug offense, no matter how trivial, results in mandatory detention without bail for weeks, months, or even years while the case is resolved. In 1995 Marsha Austin, a permanent legal resident from Jamaica, pleaded guilty to an attempted cocaine sale after an undercover cop paid her $5 to buy five doses of crack for him. Fifteen years later, after she served 90 days for a probation violation—the most time she had ever spent behind bars—the immigration authorities noticed the 1995 conviction and put her in a detention center for two and a half years while trying to deport her.
Convictions that date back a decade or two can suddenly trigger detention and deportation proceedings if they come to the attention of immigration authorities. In addition to Austin, HRW mentions "Luis A.," a farmworker turned produce merchant whose wife and four children are all U.S. citizens. In 1989 Luis A. received a one-year prison sentence for introducing an undercover cop to possible sources of cocaine. Twenty years later, immigration authorities nabbed him and locked him up for six weeks while seeking (ultimately unsuccessfully) to eject him from the country. Raul Valdez, a permanent resident from Mexico who had lived in the U.S. since he was a toddler, was less lucky: He was "deported in 2014 because of a 2003 conviction for possession of cannabis with intent to deliver, for which he had been sentenced to 60 days in jail."
Deported drug offenders are permanently prohibited from entering the United States. "Those who are deported have no legal way to return," HRW notes, "and no matter how many years have passed without a new arrest, they are forever barred from returning to live in the US with their families."
Any drug offense bars immigrants from becoming permanent legal residents. HRW describes the case of "Alice M.," a Canadian graphic designer who was separated from her American fiancé by a 1992 conviction for cocaine possession. She was caught with cocaine in her last year of high school, served a year of probation, and long ago received a pardon, which was supposed to clear her record—but not as far as U.S. immigration officials are concerned.
Drug convictions that are expunged or pardoned by the jurisdiction where the offense was committed still are grounds for detention and deportation. In addition to Alice M., HRW describes several minor drug offenders who successfully completed diversion programs, which supposedly meant they had no criminal records. They were nevertheless arrested by immigration agents, in one case 13 years later.
Defense attorneys are supposed to inform their clients about the immigration consequences of a guilty plea, but that does not necessarily mean they do. Abdulhakim Haji-Eda, a refugee from Ethiopia by way of Kenya, served six months of a one-year sentence after he was arrested for selling a small amount of cocaine in 2006, when he was 18. He told HRW his lawyer "gave him no warning that pleading guilty could result in the loss of his legal status and permanent deportation." After he was released from jail, Haji-Eda, whose wife and two young children are U.S. citizens, was arrested by immigration agents and ordered deported. He remained in the U.S. thanks to a temporary stay that expired last August, and "his status remains in limbo."
Several of the reforms recommended by HRW flow logically from these unjust practices. The report says Congress should eliminate mandatory detention for drug offenders, eliminate deportations based on simple possession, ensure that immigrants receive individual assessments instead of being automatically deemed ineligible to live in the United States because their offenses fall under the broad heading of "drug trafficking," and "redefine 'conviction' in immigration law to exclude convictions that have been expunged, pardoned, vacated, or are otherwise not recognized by the jurisdiction in which the conviction occurred." For good measure, HRW also suggests that Congress decriminalize the possession of drugs for personal use.