When Does Deportation Become Cruel and Unusual Punishment?

Persons who enter and remain in the United States by permission of the government should be subject to deportation if they commit a serious crime while here. But all too often deportation occurs when the crime is minor and the person's ties to this country are substantial, but ignored. A perfect example is Jerry Lemaine. (NYTimes)

He pled guilty to possession of a marijuana cigarette and faced a $100 fine. However, as a further result of his plea, he was arrested by the immigration authorities. Although a resident of New York, he was flown to Texas where he was imprisoned for 3 years (10 months of which was served in solitary confinement). He was deemed a "recidivist felon" for two marijuana convictions, although one of the two convictions had been expunged because he was a minor at the time. He faces deportation to Haiti which he left at age 3 -- 25 years ago. Both the process and the results need change.

Deportation hearings can occur anywhere. Frequently they take place far from home and family and without counsel. Mr. Lemaine describes the most horrendous treatment by staff and other detainees while in custody. His case is being held pending a decision by the U.S. Supreme Court in the matter of Jose Angel Carachuri-Rosendo which raises the same issues. The law permits an immigration judge to allow cancellation of deportation in certain cases except when the noncitizen is convicted of an "aggravated felony". It is the definition and implementation of this term which the Court needs to address.

Many of these persons facing deportation have lived in this country for years, for many -- virtually their entire lives. They have wives and children and parents here. They have substantial ties to the community. Deportation for them often is more severe than any prison term. We must distinguish between the criminal and the minor offender in the same way that we do for our citizens. Leaving one's family, friends and home is too great a punishment to impose so cavalierly. We need some greater sense and sensibility when it comes to deportation

I have been railing against these practices for decades and hope that the Court will avail itself of this opportunity to inject some order and compassion into the process.

Note: The Supreme Court held in the Padilla case that a defendant entering a guilty plea had to be advised of possible deportation---- something that I advocated back in 1996. See post:: Debunking the Myth That Deportation is not Punishment