Drug War

How Non-Citizens Are Imprisoned and Exiled for Minor Drug Crimes

The immigration system treats drug offenders with senseless severity.

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Human Rights Watch

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.

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  1. The report says Congress should eliminate mandatory detention for drug offenders, eliminate deportations based on simple possession, ensure that immigrants seekers receive individual assessments …

    Why don’t they just suggest legalizing recreational drug use for everyone, while we’re all apparently living in fantasy land.

    1. End of the story, Fisty old pal:

      For good measure, HRW also suggests that Congress decriminalize the possession of drugs for personal use.

    2. psh you take your commen sense and shove it and stop trying to mess up this utopian state the government has created for us

  2. Notwithstanding all of the welfare furnished to illegals, libertarians should never forget the spectacular misallocation of resources occasioned by having ICE, its predecessors and an immigration commissariat and all that it entails. Sometimes the wood chippers can mistake a tree for the forest.

  3. Remember, the federal constitution does not grant Congress the power to create and fund an immigration commissariat. Giving Congress the power to establish a uniform rule of Naturalization is not the power to establish and fund a humongous bureaucracy replete with its own cops and soldiers and weapons and courts and jails et al.

    All powers granted to Congress were intended to be construed narrowly and the constitution was sold upon such a basis. Therefore, the power to do anything cannot be implied or indulged.

    1. Nobody gives a shit what the Constitution says, least of all the people who swore an oath to uphold and defend it.

    2. No where in the Constitution is a limit put on how a large a particular agency or bureaucracy can be. Unless you want to count the amount of representatives and senators. The Congress (in an adult-like and rational fashion) has established rules that you don’t like. The Constitution likewise always the Congress the authority to see to it that the executive enforces those standards and specifying the the budget and means to do so.

      The correct response would be for you to try to increase from 20 percent the amount of people that want more immigration. To whine and pretend that completely subjective words like huge render an organization unconstitutional is mere word games. The blessed Supreme Court (all power be afforded it) has repeatedly rejected your argument.

      1. Rampant statism represented by Sam Haysom aside, it is worth recognizing that the (plain) fact that the Constitution grants no authority over immigration is an academic question at best.

        If the US government suddenly decided to act constitutionally tomorrow, an amendment to empower the government to do exactly what it does today would be ratified trivially and immediately.

        1. “Sam” is another one of Tulpa’s socks, and is just as tedious and uninspired as the rest.

          1. So tulpa is breaking out in assholes?

            1. Like measles but much smellier.

        2. Rampant statism on Reason meaning gently reminding libertarians that they can’t just make up stuff about what the Constitution does and doesn’t say. Nothing is more destructive of constitutional rights or limited government than for people to claim false rights or for people to claim that perfectly legitimate functions of the state are somehow unconstitutional.

          1. Sam Haysom|6.16.15 @ 8:36PM|#
            “Rampant statism on Reason meaning gently reminding libertarians that they can’t just make up stuff about what the Constitution does and doesn’t say.”

            Double down on stupid, tulpa; you wear it so well.

  4. Only thing we need know is for them to be gay in order to have the perfect Reason trifecta.

  5. How these laws measure up against other nations is what interests me as a point of reference.

    Is the U.S. too hot, cold or just right?

    1. They’re putting people in cages and kicking them out of the country for carrying around recreational chemicals.

    2. I truly don’t care. We need to lead. The same people who go on and on about how we’re “the best country in the world” seem to be the ones that want us to lag behind on things like this.

      1. I agree with this. The U.S. should lead given the rhetoric.

        1. Not all leaders have followers.

    3. I don’t know of any better countries, but it sure does get worse.

  6. Oh my God. Just watched Dolezal in an NBC interview. She positioned herself as the victim; tears and all. The son even said she shouldn’t be known as a ‘deceiver.’

    Please tell me I’m not alone in thinking these people are nuts.

    1. Missed the vid, but one of the news-teases had her claiming she ‘identifies as black’.
      Well, OK then.

  7. Dear Immigrants,

    The government here is batshit crazy about drugs. It ought not to be that way, but that’s how it is. If you get caught messing with illegal substances, said government will do all it can to ruin your life. That’s not how it should be, but that’s the way it is. People are working on bringing our laws into conformance with common sense and human decency and maybe they will succeed, but it will be a long while before that happens.

    Reason will run articles about our evil laws and the hardships they visit on people, and these articles might help build a movement to get the laws rationalized and I hope they will. But these articles won’t restore your lives after our government has wrecked them.

    So in the meantime, do yourselves a big favor and don’t mess with illegal drugs.

    1. Batshit crazy about drugs compared to where? Europe, perhaps, but in parts of the Middle East that sort of thing will get you killed. Same with large parts of Asia.

      1. Compared to what I refer to as “common sense and human decency”.

        1. I have a hard time understanding people who argue that brutality and thuggery aren’t that bad because the other guys are doing it a little bit harder.

          1. I don’t get it either.

  8. Man, we really hate drugs! At least, when someone else is getting high.

  9. Like, dude, haven’t you heard of the ‘REEFER MADNESS”?! Chip bags blown apart, pizza’s torn to pieces….it’s like crazy, man.! We gotta end this now before, well before, well….I don’t know.

  10. Herbert Hoover’s Republican Administration stopped all incoming immigration in 1931. The “moral turpitude” card had been a pretext for deportation until the Circuit Court in NY held on July 17 1930 that bootlegging is not moral turpitude, hence not a deportable offense. New pretexts were of course made up, but the Demon Rum hype no longer worked.

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