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Immigration Madness

A court’s role is to apply the law, not to set policy. But in the Kafkaesque nightmare that America’s immigration system has become, judges are the only ones who can prevent the system from descending into frighteningly random chaos.

Case in point: The U.S. Supreme Court last week heard arguments about whether two misdemeanor drug convictions are legally the same as an aggravated felony conviction, and therefore enough to get a legal permanent U.S. resident deported without any opportunity to appeal — even if that resident never came anywhere close to committing, let alone being charged with, or convicted of, an actual felony.

The fate of Jerry Lemaine, a Haitian-born Long Island resident who has already suffered grotesquely in the immigration gulag, hinges on how the justices rule in the case of Carachuri-Rosendo v. Holder.

On a January night in 2007 a police officer found a single marijuana cigarette in Lemaine’s pocket. (Lemaine reportedly crashed into a parked car when police were called. That does not legally explain why a police officer went fishing in Lemaine’s pocket, but far too many people consent to be searched when police lack either a warrant or a valid reason to get one. This is a topic for another day.)

Lemaine had been charged with possession once before, when he was in high school, but the charge was dismissed. A Legal Aid lawyer told him that he would only face a $100 fine for having the joint, so he decided to just plead guilty and pay up. But what came next was not what he expected.

Immigration officials flew Lemaine to Texas, where he spent the next three years in jail, fighting to avoid deportation to Haiti. As the only black detainee in his dormitory, he was assaulted by other inmates and chose to spend 10 months in solitary confinement for his own protection.

Ordinarily, a person in danger of deportation can appeal to the office of the U.S. attorney general, which considers factors such as family connections and employment history when deciding whether or not a deportation order should stand. Those who have been convicted of an “aggravated felony,” however, are not permitted to make appeals based on individual circumstances. Felony convictions under the Controlled Substances Act, including convictions for “recidivist possession,” count as aggravated felonies.

For immigration purposes, state convictions can be treated as equivalent federal convictions. In Carachuri-Rosendo v. Holder, the Supreme Court must determine whether two state convictions for possession, a misdemeanor, are equivalent to the federal conviction of recidivist possession, which is defined as possession of a controlled substance by a person with a previous possession conviction. The circuit courts have reached differing conclusions on this issue.

Texas, falling under the jurisdiction of the Court of Appeals for the Fifth Circuit, is one of the places where a second possession offense can be treated as an aggravated felony. New York is one of the places where it cannot. By taking Lemaine from New York to Texas, immigration authorities deprived him of the opportunity to have his individual circumstances considered. Given his status as a “recidivist felon,” authorities have no discretion to weigh the facts that he studied nursing, cared for his younger sister who has a brain disorder, and has little connection to the country to which he would be deported.

Lemaine’s case is now on hold as the Fifth Circuit waits for the Supreme Court decision in Carachuri-Rosendo v. Holder. If the deportation order stands, Lemaine will likely return to jail indefinitely, as all deportations to Haiti have been temporarily suspended since the Jan. 11 earthquake.

Meanwhile, numerous other Haitians who have committed no crime at all, and who were invited to come to this country in the earthquake aftermath, are also stuck behind bars in immigration limbo. Shortly after the earthquake, at least 30 people were allowed by U.S. marines to board military planes bound for the U.S. One man was placed on the plane by a doctor after he sustained severe back and leg injuries from the quake. Another man, eager to help with the relief effort, asked a marine what he could do and was told to help a boy whose leg had been amputated onto a plane. While he was inside helping the boy, the plane took off. When the survivors landed in Orlando, Fla., without visas, they were taken into custody by immigration officials and held for deportation. But, with all deportations to Haiti currently on hold, they have found themselves spending months in jail.

Deportation officers told advocates for the detainees that they are waiting for senior officials in Washington to set an official policy for the group. In the meantime, the 30 individuals who survived the earthquake must face the second trauma of extended detention.

This is cruelty verging on madness. The people in these situations did not arrive here or stay here illegally, which is not to say that even illegals deserve to be treated so poorly. In Lemaine’s case, a minor possession charge that was actually dismissed has come back to haunt him as part of a phantom “felony” that has ripped his life apart.

A functioning legislature and executive branch would never have let matters get to this point. But for decades, Americans have been battling our own worst instincts when it comes to immigration. We are too consumed by fear and bickering to address the human costs of our current broken system.

President Obama issued a video message to protesters who recently gathered in Washington, D.C. to urge immigration reform, saying that he will “do everything in my power to forge a bipartisan consensus this year on this important issue.” The White House Web site promises that the president “will fix the dysfunctional immigration bureaucracy and enable legal immigration so that families can stay together.”

So what, exactly, is Obama’s plan to fix immigration? Beats me. Beats him, too, probably. Rather than having a plan for immigration reform, he seems to have a plan to make immigrant communities believe that he has a plan.

The Washington Post recently published internal memos from Immigration and Customs Enforcement that show that the agency is still focused on meeting quotas for deportations, in spite of the administration’s promise to focus on violent criminals rather than ordinary individuals. In a Feb. 22 memo, James M. Chaparro, head of ICE detention and removal operations, wrote that total deportations for the year ending Sept. 30 were “well under the Agency's goal of 400,000.”

While we wait for comprehensive reform and rational policies, the next best thing would be a system that treats individual cases sanely and with common sense. Sadly, we’re still waiting for that as well.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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