Immigration law makes deportations easy - but life hard

Divided families and limited judicial leeway are consequences of mid-1990 s reform act - Last in a three-part series

By Greg Mellen, Staff Writer

LONG BEACH - When Veasana Ath got busted for residential burglary in 2004, he had no idea that his future as a U.S. resident was imperiled.

Ath came to this country with his family as a toddler. Although he never became a citizen, he never thought he was anything but American.

After doing three months in jail, Ath was picked up by the Immigration and Naturalization Service, predecessor to the current Immigration and Customs Enforcement.

By the end of the year, he was in Cambodia penniless, with no job, no family or friends and virtually no chance of ever returning home.

The story of Ath and 188 other Cambodian-Americans sent back to their homes has its roots in the 1996 presidential race, the aftermath of the first terrorist attack on the World Trade Center in 1993 and the roiling world of immigration politics.

When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally.

The law came in the wake of the 1993 terrorist attack on the World Trade Center, when immigration was a hot topic in the run-up to the 1996 presidential election.

While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding "lawful permanent residents," who could be more easily deported.

reason for this was a provision in the law that greatly expanded the list of crimes that qualified as "aggravated felonies" that would make aliens deportable.

When the category of "aggravated felonies" was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms.

Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony.

A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

Whether this was an intended consequence depends on to whom you talk. But the fallout has been substantial.

Separating families
According to a Human Rights Watch report in July 2007, deportation of legal immigrants convicted of crimes "has separated an estimated 1.6 million children and adults, including U.S. citizens and lawful permanent residents from their non-citizen family members."

It has hit hard in the Cambodian-American community in Long Beach since 2002, when Cambodia began accepting deportees.

Nationally, 189 Cambodians have been sent back since repatriation began. Another 1,700 are under deportation orders that can be carried out at any time. And it is believed a similar number may be eligible for deportation but have not been apprehended or charged.

Only Cambodia's slow and deliberate process of accepting returnees keeps many of the local Cambodians from being removed more quickly. Many have been under deportation orders for years awaiting Cambodia's decisions.

Cambodians constitute a tiny portion of the overall number of deported aliens. In fiscal year 2008, 349,041 aliens were returned to their native countries, up from 288,663 in 2007.

Of more than 111,711 criminal removals in 2008, according to ICE records, 30 percent were for "dangerous drugs" and 17 percent for violent crimes.

Immigration officials have a different take on their role in splitting families.

"We don't separate families," said Virginia Kice, a spokeswoman for ICE. "We enforce the law."

Rep. Dana Rohrabacher, R-Huntington Beach, who represents coastal portions of Long Beach, puts the onus on the families.

"The only families being separated are those who don't want to stay with the loved one," Rohrabacher said. "They can go back to that country, there are no restrictions on that.

"Early on I bought into the idea (of the hardship of splitting families.) But after looking at the reality, I found it to be a false premise."

Rep. Laura Richardson, D-Long Beach, did not respond to several interview requests from the Press-Telegram.

Breaking the law
Kice says the immigrants who break laws that make them deportable are the ones responsible for splitting families.

"The vast majority of legal immigrants who come here adhere to the laws,"' Kice says.

She wonders why "it becomes ICE's fault that these people came and made bad decisions."

Rohrabacher says the U.S. does its part by offering residency in the first place, but can't be responsible if the aliens commit felonies.

"When someone comes (to the United States) legally, they sign a contract that they will obey laws," Rohrabacher says.

That explanation doesn't fly with some in the legal profession, who say deportation for minor crimes often outweighs the offense.

John Hall, a professor at Chapman University who teaches international law and has visited Cambodia, says "The issue is legal proportion."

"I see no benefit in splitting a family with U.S. citizen children and those citizen children having to grow up without loving parents, and the human consequences of that," said Yunie Hong, an attorney with Legal Aid who specializes in immigration law.

"I feel people don't understand the human face behind the immigrant question. If people really knew what happened to people as a result, families, the children, the horrors people suffered in their home countries and the horrors faced coming here may think twice."

Rohrabacher says criminals have themselves to blame.

"If someone participates in a crime that has the risk of causing harm to someone else, they should be deported. How much risk should someone be allowed to take with someone else's life? Zero."

Solange Kea, a Cambodian-American attorney who works in immigration law, says it is the broad-brush application of the law that is troubling.

"I believe immigration law is not per se bad,"' Kea says. "It's just sometimes applied in certain situations that makes it look bad."

She says this is particularly true when an entire family is hurt by a deportation.

Sophea Ath, Veasana's older sister, is no fan of the law, but is angry at her brother for his actions.

"I love him, but at the same time I'm pissed off at him for making the family go through this and for being selfish," she says. "Some might say, 'It's my life,' but everything you do affects everyone around you, especially the family."

Before the 1996 legislation, judges had more latitude to decide if an alien should be deported. The downside to supporters of stiffer immigration penalties is the old law gave lawyers the ability to delay removals for years while stringing out cases through the judicial system.

Even when there may be grounds for a deportee to stay, Hong says the law is often capriciously applied by politically appointed judges.

"Whether (potential deportees) get relief depends on the judge, not the actual baseline qualifications for relief," Hong said. "There are many decisions that depend (on) the courtroom you end up in."

And the consequences can be immense.

"It is literally a case of life and death and unfortunately it is being made by people who were appointed for political reasons," Hong said.

Special cases
Then there is the issue of whether there should be special status for Cambodian refugees.

Immigration law makes few destinctions between those who choose to come into this country and engage in crime and those who are brought here and have lived most of their lives in the U.S., built relationships, worked, paid taxes and started families.

Or those who fled brutal, repressive regimes.

"For me the unique thing (about Cambodians) is the trying aspects under which they came here," Hall says.

Cambodians fled genocide. Most were illiterate and suffered the traumas of sickness, starvation and witnessing the slaughter of friends and family.

Furthermore, many were relocated to violent neighborhoods in the U.S. As some say, "trading one war zone for another."

Mary Blatz, a Catholic lay pastor at the Mount Carmel Cambodian Center in central Long Beach, who helps Cambodians with immigration, citizenship and deportation, says, "It's been documented that 68 percent of the community is depressed. They have all the symptoms of (post-traumatic stress disorder.)"

Hall says U.S. policy gives no consideration to special problems Cambodians face.

"It's an ongoing tragedy, a tragedy of almost 30 years," Hall says.

Hong agrees.

"There have been numerous foreign policy decisions (by the U.S.) that create instability in foreign countries," she said. "When those decisions result in migration and force people to flee and seek refuge, the U.S. government has a responsibility to deal with the fallout."

When immigrants are arrested, they first go through the U.S. legal system. Here is where their alien status puts them at risk.

"Most attorneys who practice criminal defense work don't have that knowledge and will take a plea instead of going to trial," Kea says. "That will put a person in the system (and often lead to deportation proceedings)."

Advocates say it is vital for immigrant defendants to consider their status.

Ath, for example, said his public defender never raised the question of citizenship.

Immigrants first serve their U.S. sentence before immigration proceedings and often opt for the shortest time served without understanding the implications of their sentence.

Ath took the plea to reduce jail time without knowing another trial awaited.

Unlike in U.S. criminal court, aliens in deportation court are not guaranteed representation. Finding lawyers is a major hurdle.

"A lot of people have meritorious claims (to stay) but will never have a chance to argue the case because they can't afford a lawyer and the government won't provide one," Hong says.

Ath made the mistake of listening to the advice of fellow inmates rather than hiring a lawyer, in part because he was embarrassed.

"People should use their whole family as a resource and not try to hide," Kea says.

With a lawyer, Ath could have challenged the removal order. He didn't. He wouldn't have been duped into signing his own travel documents, written in Khmer. He did.

The Executive Office of Immigration Review, which oversees immigration courts, estimates 58 percent of those who appear don't have lawyers.

All of which underscores the importance of citizenship, which, once obtained, prevents deportation.

"It's an inoculation against being deported," Blatz says.

But it is not easily obtained. In addition to the test and language difficulties, the price tag of $675 is a major barrier for many families.

"The government should have helped (Cambodian immigrants) become citizens," Blatz said. "Instead they did the opposite. They put up barriers and did everything they could to stop them."

Ironically, there are many Cambodians who land in immigration court precisely because they try to become citizens.

Kea says unscrupulous or uneducated paralegals apply for citizenship for residents who have committed deportable crimes.

"Attorneys ... know there are certain people who shouldn't apply to be citizens," Kea says.

Once paperwork is in, immigrants who were beneath the radar of ICE can find themselves in removal proceedings.

The good news is that as time passes and the Cambodian population ages and settles, the likelihood of older adults encountering legal problems declines.

But with about 3,500 immigrant Cambodians who theoretically could be deported, the threat hangs heavily.

Serey, who asked that his real name not be used, is an immigrant under a deportation order for a serious crime he committed when he was a juvenile.

Serey used his jail time to get an education, has turned around his life, works full time in a good job and has become married and had a daughter. But he says he lives every day in fear.

"Being under deportation is being helpless," Serey says. "It's like being on your deathbed."