No Justice in the Shadows

Chapter One

THE “CRIMINAL ALIENS” AMONG US

“294.”

When the court clerk called out the last three digits of Ely’s “Alien number,” we stood up and made our way to the front of the courtroom. A Black man with graying hair and stooped shoulders, Ely was one of my older clients. We moved our way slowly through the crowded aisle.

We were far more relaxed than many of the people in the room. The presiding immigration judge had already ruled in Ely’s favor once before, a decision that we had defended successfully on appeal. Today’s proceedings were simply a formality, a chance for the judge to rubber-stamp her prior decision that Ely should not be deported.

Such optimism is a rarity in an otherwise foreboding deportation system. In many ways, immigration courts look and feel like many other courtrooms in America: cold and bureaucratic. The fates of the “respondents”—immigrants facing deportation, who are mostly people of color—are decided by immigration judges and government lawyers who are mostly White. Unlike in criminal courts, there is no right to government-appointed counsel for immigrants who cannot afford an attorney. So the majority of them fight their deportation cases alone.

At 26 Federal Plaza in New York City, where Ely and I were that morning, people milled about in the hallways, peering into crowded, windowless courtrooms. Our courtroom, like those beside it, was marked with a seal of the Executive Office for Immigration Review, a division of the US Department of Justice. Our immigration judge, a Justice Department employee, sat at the front of the courtroom, draped in a black robe, presiding over a massive caseload. To the left, a lawyer for ICE, the bureau within the Department of Homeland Security that enforces deportation laws, sat at a table absorbed in a pile of case files. Nervous men, women, and children fidgeted in the back of the courtroom on hard wooden benches, waiting their turn. The ones who were represented by counsel craned their necks to look for their lawyers. Eye contact was seldom made as people’s fates were being decided, sometimes in a matter of minutes.

It was a bleak picture. People were at very real risk of separation from their families and even persecution or death if deported. These were “death penalty cases in a traffic court setting,” as one prominent immigration judge described it.¹

Nonetheless, Ely and I knew that we were lucky to be in this courtroom, especially given the alternative. Federal immigration officials had initially arrested Ely in New York City when they began their deportation case against him. They took him to an immigration jail across the river in New Jersey. The law at the time made him eligible to be released on bail, which allowed him to attend court as a free man. But under today’s law, his criminal record for drug possession would bar his release. He would have remained imprisoned, his case transferred to a “detained court.” He probably would have been forced to appear in court by video conference from the jail. His likelihood of finding a lawyer would have plummeted—only 14 percent of people in immigration jail do—as would his likelihood of winning his case.² Ely’s freedom was a precious thing.

Ely and I also knew that we were fortunate to be in court at all. In some cases immigration officers can deport people with the stroke of a pen—no lawyer, no judge, no oversight. The use of these kinds of one-sided summary proceedings has grown rapidly over the past decade, leading to hundreds of thousands of deportations annually.³

Ely easily could have been one of those shackled in immigration jail or swept away with no judge’s intervention. But he was one of the “lucky” ones. He was released from immigration jail. He received a day in court. He had a lawyer. We knew that we had a good judge who would stand by her initial decision. And she did.

After skimming through the paperwork in the case, the judge spoke. She would reinstate her prior decision to cancel his deportation case. Ely slowly exhaled as she announced the news and handed me her written order.

Then she looked up at Ely. “Welcome to America,” she said.

We took her written order, handed a copy to the government attorney, and got out of the courtroom as quickly as possible. We were relieved and grateful, but I could not get the judge’s final, congratulatory words out of my head. Ely was a sixty-year-old grandfather who had lived in the United States longer than I had been alive. He had worked here, married, and raised his family here. He was as American as they come. The reason for his deportation case—minor drug possession convictions he had received and had been punished for long ago—were part of his American story. Yet US immigration officials had pursued his permanent exile from this country for a decade, and they very nearly got what they wanted.

Ely is not alone in this experience. He is one of millions of immigrants in America who have faced deportation on criminal grounds over the past two decades. Using the tools of the criminal legal system, federal immigration officials and politicians have deemed people like Ely to be “criminal aliens”—public safety threats who deserve nothing but banishment.

Ely’s story is the story of the “criminal alien”—the target of every administration, vilified in public discourse through a lens that leaves little room for empathy, until you look behind the label.

Welcome to America.

THERE IS NO one legal definition of the term “criminal alien.” An “alien” is defined in federal immigration law as someone who is neither a citizen (by birth or naturalization) nor a national (those born in a US territory) of the United States.⁴ But the term “criminal alien” is not defined with the same precision. Over the years, political leaders and federal immigration officials have used the term broadly to refer to those who lack US citizenship and have some kind of criminal arrest or conviction on their record.

The targeting of so-called “criminal aliens” accounts for the vast majority of immigration enforcement today. More than 87 percent of the over 150,000 immigration arrests inside the United States in fiscal year 2018 targeted people who have a criminal record—the majority of which consist of immigration, drug, and traffic offenses.⁵ When President Trump was elected, criminal prosecutions for so-called “immigration crimes” like illegal entry and reentry made up a majority of federal prosecutions, outpacing all other federal crimes combined and transforming the criminal legal system at our borders.⁶

Federal agencies like ICE and Border Patrol celebrate these statistics as proof of a job well done. But what has this targeting accomplished? Behind each statistic is a person—most likely a person of color, and often a person with deep ties to the United States. A person like Ely.

Ely’s experience of becoming both an “alien” and a “criminal,” like so many who live with that label, is an American experience—born of historical decisions that our political leaders have made to criminalize people rather than solve societal problems. Federal immigration officials’ dogged pursuit of Ely’s deportation did not address harm. It perpetuated it.

ELY CAME TO the United States from Jamaica in the wake of the Hart-Celler Act of 1965, which marked the end of decades of overtly racial exclusions in US immigration law. Ely and his family settled in New York City while the country was still reeling from momentous changes in race relations.

It was a time of both progress and backlash for Black people in the United States. Civil rights leaders had fought tirelessly to end legalized racial discrimination in housing, employment, and voting. Elected officials responded by turning to a law-and-order rhetoric to justify a new wave of punitive legislation. A brewing “war on crime” funneled millions of federal dollars into local policing, even as funding for education and employment opportunities in heavily segregated urban centers dried up. The crime war was soon followed by the “war on drugs,” leading to the proliferation of laws, policies, and programs that heavily criminalized drug use and sale, particularly in impoverished Black communities.⁷

Ely was an immigrant with a green card. He was also a Black man living in America. During this period of social upheaval, he experienced firsthand the growing crises of poverty and violence that rocked many communities as new forms of racial segregation took shape and urban communities lost their economic base. Ely did well for himself for a time—he married, had children, and worked a steady blue-collar job at a paper factory. But by the mid-1990s, his fortunes had reversed. His marriage fell apart, and his wife divorced him. His father was hit by a stray bullet and killed near his parents’ doorstep, a victim of the growing violence in their neighborhood. And the job that provided Ely with economic stability eventually filled his lungs with so much paper dust that after fifteen years he was too ill to work.

Around this time, crack cocaine had spread into his neighborhood. Ely succumbed to drug addiction, which had at first been his escape but was ultimately his downfall. He lost what remaining stability he had, becoming homeless. It was an experience so indelible that years later, as his immigration judge would observe at his first hearing, Ely “could recall vividly what it is like to sleep on a bench with a cardboard box as a cover” even as other memories began to fade with age. Rather than receiving care, housing, or treatment during that period of homelessness, Ely got misdemeanor drug possession convictions.

It took a few years, but Ely was able to overcome his demons. He got sober and moved in with his daughter, an adult with children of her own, who wanted to pursue her education. Ely helped take care of his grandchildren while his daughter went to school. As it turned out, living in service to his family proved to be the secret to his continued sobriety, just as surely as the loss of his wife and father all those years ago had been his undoing.

But the stability Ely had struggled to re-create—the solutions he had found for his problems—was jeopardized again, this time by the looming threat of deportation. Federal immigration officials decided to charge him with deportability based on his drug offenses.

Ely’s family hired lawyers who initially secured him a court hearing seeking cancellation of removal—a form of relief from deportation that permitted an immigration judge to weigh the positive aspects of his life and his rehabilitation against his drug possession misdemeanors. Ultimately, in 2004, his immigration judge canceled his removal, concluding that Ely had, in fact, turned his life around, and that deporting him would create a terrible hardship for him and his family.

The many years of living in limbo during these proceedings, facing a second punishment for his convictions, were hard enough. But then Ely learned that his fight against deportation was just beginning. ICE appealed the immigration judge’s decision. The federal officials weren’t arguing that the judge had weighed the facts about his life incorrectly. They were arguing that, because of his criminal record, the judge should have deported Ely without giving him a hearing about hardship at all.

SINCE THE TURN of the twentieth century, federal immigration officials have obsessed over the connection between immigration and crime—despite facts that stubbornly refuse to support their obsession. In 1911, a special congressional committee called the Dillingham Commission produced an immigration report that characterized US crime trends in terms of both race and nationality, comparing the crime rates of immigrants from various countries to those of native-born White and Black people. It ultimately concluded that immigration as a whole had no disproportionate impact on crime rates.⁸

Then came the Wickersham Commission in 1929, charged by President Herbert Hoover with reviewing the effectiveness of law enforcement in the United States. The commission devoted an entire volume of its report to the enforcement of deportation laws. While it too acknowledged that immigration as a whole was not connected to increasing crime, the Wickersham Commission report nonetheless asserted that “the most important function of deportation laws would seem to be to rid our country of the alien criminals.”⁹

President Hoover, eager to name an enemy in the throes of the Great Depression, issued his own rallying cry to target “criminal aliens.” In his 1930 State of the Union address, President Hoover urged “the strengthening of our deportation laws so as to more fully rid ourselves of criminal aliens” and those “who have entered the country in violation of the immigration laws.” He emphasized that the “very method of their entry indicates their objectionable character, and our law-abiding foreign-born residents suffer in consequence.”¹⁰ Hoover was among many politicians who used criminality to divide immigrants into “good” and “bad.”

The precise definition of “criminal alien” didn’t really matter for political purposes. Politicians and law enforcement agencies labeled immigrants as criminals as part of broader campaigns, often racially and economically motivated, to get rid of undesirable groups of immigrants regardless of whether individuals actually had criminal records. Hoover launched a “Mexican repatriation” program that continued through the subsequent administration, thanks to local enthusiasm for deportations. Federal authorities joined with local police and vigilantes to deport as many as two million people of Mexican heritage, an estimated majority of whom were US citizens, to Mexico in the 1930s—scapegoats of America’s economic woes and racist anxiety.¹¹

Criminalization wasn’t limited to immigrants whose only alleged crime was to cross a border, or to resemble someone who did. The definition of “criminal alien” included immigrants who came to the United States lawfully and later committed crimes. As law enforcement officials realized that they had another tool at their disposal, deportation became a second punishment, used to rid the community of undesirable immigrants. The same year as President Hoover’s speech urging “the strengthening of our deportation laws,” the New York Police Department established the Bureau of Criminal Alien Investigation, the first of its kind nationwide. New York City Police Commissioner Edward Pierce Mulrooney announced the formation of the bureau, whose purpose was to “round up and investigate all aliens with criminal records to establish possible grounds for deportation.”¹²

Today, we often distinguish between how we treat immigrants who are “criminalized” for being here without status and those who are deemed “criminals” because of the unlawful acts they commit while building their lives here. It’s the difference, in current parlance, between being labeled an “illegal alien” for being undocumented and a “criminal alien” for committing a crime. People have pushed back on the first label with a powerful response: “No human being is illegal.” Many elected officials, community organizations, and media outlets have “dropped the I-word” in recognition of the dehumanizing frame of illegality.¹³ But the second label lingers on—conveying the same message that people who break the law don’t deserve its protections. With the term “criminal alien,” few push back.

This is by design. Immigrants didn’t suddenly decide to start breaking the law, leading America to adopt deportation policies to deal with the threat. Rather, America chose to criminalize immigrants—and their acts—to justify more deportation. It’s a cycle that repeats itself through history. First comes rhetoric associating immigrants with criminality. Next, political leaders transform that rhetoric into laws that criminalize acts associated with immigrants. And finally, government officials use those laws to punish immigrants who commit these acts with incarceration, deportation, or both. It then becomes easy to point to all those who are punished for breaking the law—law that is too often created with immigrants, and people of color more broadly, in mind—as proof that immigrants were criminals all along. And so the cycle continues.

People may hear terms like “criminal alien” today and believe that deportation is justified. But when they actually look at the individuals behind such labels—individuals like Ely—it becomes clear how misleading the labels really are.

ICE OFFICIALS ARGUED that Ely’s record made him the worst kind of “criminal alien,” one ineligible for any opportunity to plead for mercy from an immigration judge. He had, in their words, been convicted of a “drug trafficking aggravated felony.”

Ely was bewildered by ICE’s argument. He had been convicted of drug possession misdemeanors. There was, in fact, no trafficking, no aggravating factor, no felony.

In 1988, Congress invented the term “aggravated felony” to target what it viewed as the most dangerous “criminal aliens.” Under the law, federal immigration officials would detain and deport people with aggravated felonies when their criminal sentences were completed. They would receive no bail from immigration jail, and—after more legislative amendments—no hearing on hardship to family or rehabilitation, regardless of how compelling their personal circumstances might be. If they attempted to return to the United States after deportation, they would face lengthy prison time.¹⁴

The invention of the aggravated felony breathed new life into the long-standing frenzy over “criminal aliens.” At first, the term applied to people convicted of murder, drug trafficking, or firearms trafficking. By 1996, Congress had dramatically expanded the list several times to include nearly two dozen subcategories of offenses and added additional criminal grounds for deportation. Congress also increased the potential criminal penalty for reentry into the United States after an aggravated felony conviction to twenty years in prison.¹⁵

Federal immigration officials were particularly aggressive in interpreting the new deportation grounds. As the subcategories expanded, so too did the government’s imagination. Aggravated felonies did not need to be aggravated or felonies. And in the drug trafficking context, they did not need to involve trafficking. Using a series of statutory cross-references in the law, federal immigration officials took the position that even a simple drug possession offense could be a drug trafficking aggravated felony. Immigration judges—most of them—went along.

Not Ely’s judge. She couldn’t see how misdemeanor drug possession offenses equated to drug trafficking. She ruled against the government and held a cancellation hearing for Ely. It was the first ruling he received that made sense to him.

But federal immigration officials doubled down and appealed. The Board of Immigration Appeals, an administrative division of the Justice Department charged with reviewing immigration judge decisions, sided with ICE. If no one intervened, Ely would be deported, as if his hearing—and the life he had built after his convictions—never happened.

I FIRST LEARNED of Ely’s case when I was a young attorney at the Immigrant Defense Project. Founded in 1997 by Manny Vargas, the Immigrant Defense Project was one of the first immigrant rights organizations to specialize in the intersection of immigration and criminal law. As an immigration lawyer, Manny had seen the writing on the wall when Congress vastly expanded the criminal grounds for deportation. He founded the Immigrant Defense Project to ensure that criminal defense attorneys could defend immigrant clients from deportation consequences as early in the arrest-to-deportation pipeline as possible. Over the years, the Immigrant Defense Project took its battles to federal court, becoming a national hub for litigating against immigration officials’ increasingly expansive interpretation of the criminal grounds for deportation.

I joined the Immigrant Defense Project in 2006 and became part of a team of lawyers trying to challenge the government’s harsh application of the “drug trafficking aggravated felony” label. Advocates had just won a victory at the Supreme Court that year in Lopez v. Gonzales, which concluded that a single, simple drug possession conviction could not be deemed a drug trafficking aggravated felony.¹⁶ But the government quickly pivoted to pushing its argument that a second drug possession offense could be a drug trafficking aggravated felony because federal law sometimes punished recidivist drug offenses harshly. With no right to counsel in deportation proceedings, immigrants had to fight these nonsensical arguments on their own, and many immigration courts were quick to side with the government. We often found ourselves trying to chase down cases and intervene before it was too late.

By the time we learned of Ely’s case, he was no longer able to afford his private counsel. We helped him navigate his case, and when I transitioned to begin my teaching position at the New York University School of Law’s Immigrant Rights Clinic, I took over Ely’s appeal. With the support of the Immigrant Defense Project and others, I argued his case to a three-judge panel at the US Court of Appeals for the Second Circuit, a federal appeals court in New York.

It was clear at the federal appeals hearing that the judges were disturbed by the government’s position. “How is it that you can urge that, as a matter of law,” one judge pointedly asked the government attorney, “that we are obliged to treat these aliens as having been punished as the equivalent as federal felons?” I internally flinched at the judge’s casual use of the terms “aliens” and “felons,” but the intent of her question was clear. The government’s argument defied common sense.

When the federal appeals hearing concluded, Ely asked me what I thought his chances were. After all he had been through, hope in the legal system felt like a luxury. “Whatever happens,” I replied, “we’ll keep fighting.”

And so we waited, one of many agonizing waits for justice. After a few months, we received the judges’ ruling. The Board of Immigration Appeals decision would be reversed. The immigration judge had correctly found Ely eligible for a hearing to cancel his deportation.

My heart went to my throat as I called Ely with the news. “You won,” I said simply. In his stunned silence, I could hear the sound of his grandchildren in the background. Ely finally spoke, his voice thick with emotion: “This is a blessing.” We were finally able to return to immigration court, vindicated, to receive the immigration judge’s order ending his deportation case once and for all.

The victory was bittersweet. It would take another two years for the Supreme Court to reject the government’s harsh position on multiple drug possession offenses nationwide in a 2010 case, Carachuri-Rosendo v. Holder.¹⁷ By then, countless people had been deported without hearings. Those who, like Ely, had managed to stay and fight for their rights under the law had endured years of painful uncertainty. Ely still gets overwhelmed when he thinks about what he went through. Living each day in fear that he would be forced to restart his life alone as an elderly disabled man in Jamaica—a country he had not seen, as he told the immigration judge, “since Nixon was president.”

It was not the first time federal immigration officials would use the criminal legal system to expand their power to deport those deeply rooted in the United States, nor was it the last. In the decade after the Supreme Court’s first drug deportability decision in 2006, three other cases about drug deportability, including Carachuri-Rosendo, made their way to the Supreme Court. Each time, the justices struck down the government’s overreaching interpretation of the law. Each time, federal immigration officials adapted, developing different arguments to uproot those with criminal records. For every person who staved off deportation, thousands more were banished in the shadows—exactly as the system was designed.

SO MUCH HAS changed in the two decades since Ely was first placed in deportation proceedings—for Ely and for the immigrant rights movement in this country. More people than ever recognize the harms of deportation, the cruelty of our immigration policies. And yet they stop short of acknowledging, let alone embracing, people like Ely.

How did we get to this point? Where we can call drug possession “drug trafficking” with a straight face, just to deprive a person of the right to a hearing before he gets deported? Where a man who did everything he was asked to do following a drug offense—pay his debt to society and get drug treatment—can face a second punishment even harsher than the one he got in the criminal legal system? Where so few question the deportation of millions based on such rationales?

You could explain what happened to Ely as a consequence of our failed war on drugs. As a Black man, Ely experienced a legal system that criminalized his addiction and punished him with jail time. You could tell that story, and it would be true. But it would not be complete. The war on drugs and the racialized underpinnings of the criminal legal system have had a clear impact on Ely’s life. But so too have the war on immigrants and the racialized underpinnings of the immigration system. In fact, it is the intertwining of these two systems that most clearly explains what happened to Ely from a historical standpoint.

The long history of racialized exclusion in US immigration law is often overlooked in the popular American historical narrative. But buried even further in our history is the symbiotic and destructive relationship between racial exclusion and criminalization. Racism against immigrants has fueled and capitalized upon a public safety narrative to criminalize communities of color and justify harsh immigration policies against people with and without criminal records.