Last week, after 17 years and four months behind bars, Maria Polanco was discharged from federal prison. Polanco is one of 6,000 federal drug war prisoners whose sentences were reduced after the US Sentencing Commission voted unanimously to reduce sentences for drug offenses last year. (The reductions took effect this fall). The change, popularly known as Drugs Minus Two (or simply Minus Two), is retroactive, meaning that 46,000 people sentenced during the height of the drug war are eligible to apply for reduced sentencing and early release. Under the Minus Two, Polanco’s sentence was reduced from 22 years to 17 years and three months.
But Polanco did not walk out of prison a free woman. She was officially discharged as a prisoner of the Federal Bureau of Prisons on October 30, 2015, but was then immediately taken into custody by Immigrations Custom Enforcement (ICE) and brought to an immigration detention center. There, she will await deportation to the Dominican Republic, a country she has not lived in since 1981. She will be separated from her five children and seven grandchildren who live in the United States.
Approximately 2,000 people will find themselves in similar situations: US officials have stated that about one-third of the 6,000 early releases under Drugs Minus Two are foreign-born citizens and thus subject to deportation.
Deportations have reached record highs under the Obama administration, rising from 291,000 in 2007 to nearly 397,000 in 2011. Of these, nearly half have had past criminal convictions.
Deportation as a common consequence of conviction and incarceration is not new: The practice reaches back nearly 20 years. In 1996, then-President Bill Clinton signed into law the Illegal Immigration Reform and Responsibility Act (IIRRA) and the Anti-Effective Death Penalty Act (AEDPA). The AEDPA expanded the category of “aggravated felony,” which subjected a person to deportation, to include more offenses. The acts also removed an immigration judge’s ability to consider factors in each individual case, such as family relationships, community ties or the severity of the offense. The IIRRA expanded the list of offenses that mandated detention. The acts also allowed ICE (then known as the Immigration and Naturalization Service or INS) to indefinitely detain non-citizens who had been given a final order of deportation.
What this has meant, explained Genia Blaser, staff attorney at the Immigrant Defense Project, is that non-citizens who have served their sentences in the criminal justice system now “face additional punishment in the immigration sphere.” In other words, simply because they were born elsewhere, immigrants are punished twice.
This double punishment dramatically increased the number of immigrants in detention: In 2001, the number of deportations reached nearly 176,000, an increase of 155 percent since 1995. By 2013, that number had more than doubled to 368,644 people. In addition, Congressional appropriations covering the budget for ICE detention state “[t]hat funding made available under this heading shall maintain a level of not less than 34,000 detention beds.” The funding – and pressure to keep – these 34,000 beds filled means that alternatives to detention, such as supervised release, are less likely to be utilized, locking people away from their families and communities as they await their day in (immigration) court.
ICE brands those facing deportation as “public safety threats.” But in the cases of the 2,000 non-citizens being released from federal prison under Minus Two, judges have opted to review and reduce their sentences. Do they actually pose more of a threat to public safety than the other 4,000 people being released, who are citizens? Or are they merely feeling the brunt of the 1996 merger of the criminal legal and immigration systems?
In 1981, Maria Polanco came to the United States with her husband Manuel Grullon. The couple hoped to earn enough money to help their families in the Dominican Republic. But even in what they had thought would be the land of opportunity, they ended up struggling financially. Manuel was working in a bodega in the Bronx when his friends suggested that the couple enter the drug trade to help ease the strain. Polanco’s role was minor – she answered the telephone and passed messages on to her husband. This went on for 11 years. Then, in 1998, they were arrested and charged with conspiracy and intent to distribute drugs. Polanco pleaded guilty and was sentenced to 22 years. Grullon was sentenced to 33 ½ years. Their children, ranging from ages six to 17, were taken in by family members.
Since Polanco and Grullon’s arrest and incarceration, their children have grown up without them and began families of their own. Polanco, who is incarcerated at the Metropolitan Detention Center in Brooklyn, New York, has had frequent visits, but seeing her children – and now her grandchildren – grow up during visits is still difficult. “All of this time, I lost my children and, after that, my grandchildren,” said Polanco in Spanish. She was also unable to say good-bye to her mother before she died, or mourn her mother’s death with her family.
Odis, who prefers not to be fully identified, is fighting to stay out of a similar situation and remain in the United States with her children. For 17 years, her partner had terrorized her and their four children. “My dad made our lives a living hell,” Odis’ youngest daughter, who asked not to be identified by name, told Truthout. Odis’ partner frequently beat her, hit her with whatever objects were closest, and threatened her with the guns he kept in the house. Her daughter recalled that once, while visiting family in the Dominican Republic, he drove the car partway off a cliff. “He was saying he was going to kill my mother and all of us,” she recalled. “Before he killed himself, he’d kill all of us.” She said that the car – with the entire family in it – dangled partway off the cliff until a tow truck hauled them to safety. Another time, he beat Odis so badly that she nearly lost an eye.
Despite the abuse, Odis was the family’s safeguard. Her daughter began to cry as she described how, each morning, her mother had the children’s clothes ready and, each afternoon, she’d have food ready for them when they returned from school. She also tried to protect her children from their father’s violence. “If our dad was hitting us she’d get in the way and get hit instead,” her daughter recalled.
The family called the police numerous times. Sometimes they arrested Odis’s partner, but he was rarely prosecuted. Odis received two orders of protection within five years. In 1998, after completing probation for separate charges of drugs and domestic violence, he was deported. “We finally felt at peace,” her daughter said.
But, while less violent, life did not become easier. Odis found work in a restaurant, but she struggled to pay the bills, raise her children and send money to pay for doctors and other medical expenses for her aging mother in the Dominican Republic. At the restaurant, she met a man who noticed her economic straits and offered a way to ease the strain – by selling heroin. The prospect of being able to meet her family’s needs enticed her and so she agreed.
Nearly four years later, in February 2002, she was arrested. “It was the worst day of my life,” she recounted in Spanish. Her youngest daughter, age 14 at the time, remembers that night clearly. At eight o’clock, worried when their mother hadn’t returned, the children tried calling her repeatedly. When the phone finally rang, it was their mother telling them that she had been arrested.
Odis speaks little English and had to rely on her government-assigned lawyer to translate and explain the proceedings. But, she said, her attorney did not adequately inform her of her circumstances. Odis pleaded guilty. She recalled meeting with her attorney, who gave her many papers to sign as part of her plea. “All were in English,” she recounted. “I did not know what I was signing and my lawyer did not explain anything.” Only later did she learn that she had been facing 14 charges. She was sentenced to 292 months (24 years).
“When the judge gave me the time, I was shocked and wanted to cry,” she remembered. “I committed a mistake, but it wasn’t so big as to deserve 24 years.”
Odis has been in prison for 13 years and eight months. Under Drugs Minus Two, her sentence was reduced to 232 months (19 years), moving her release date from 2021 to 2018. But, like Polanco, she will not be walking out the door as a free woman able to rejoin her family after so many years apart. She, too, is facing deportation to the Dominican Republic, a country she has not lived in since she was nine years old. Deportation means that she will be separated from her children and her siblings, all of whom now live in the United States. It also means that she will, once again, be in the same country as her abuser. “I’m afraid of him,” she said in Spanish.
Her fear is not unfounded. Two years after her ex’s deportation, Odis brought her children to visit their grandmother in the Dominican Republic. There, her ex kidnapped her youngest daughter, a common tactic utilized by abusers. “He told my mom that she would never see me again if she didn’t get back together with him,” her daughter remembered. Odis’ father managed to rescue her, but since her ex had also taken the girl’s passport, the 12-year-old spent six months in the Dominican Republic, missing half a year of school, while her mother jumped through bureaucratic hurdles to obtain a new one and bring her back to the United States.
“Imagine the terror that I have for this bad man,” Odis added.
But Odis is fighting for her freedom – both to leave prison sooner and to stay in the US upon her release. In addition to successfully filing for a sentence reduction under Drugs Minus Two, she has also filed another motion, commonly known as a 2255, to reduce her sentence. Additionally, she has applied for presidential clemency under Clemency Project 2014.
Blaser noted that several options are available to domestic violence survivors facing deportation. Those who fear returning to their country of origin because of past persecution can apply for asylum. Under the Violence Against Women Act, survivors can apply for a U-Visa or, if their batterer was a US citizen or legal permanent resident, for a VAWA cancellation. A survivor can request that the government’s immigration attorney review her circumstances and terminate deportation proceedings because of the violence she suffered and risks suffering again if deported. But, cautions Blaser, “without having an attorney to go into your life history, it can be difficult to know what kinds of relief she’s eligible for.” In addition, Odis’ conviction may bar her from eligibility and, even if she is eligible, all of these applications hinge on credibility. Her testimony, including her answers about her crime and sentence, must be believed by an immigration judge.
If Odis or Polanco are fortunate, they will be taken to one of 30 immigrant prisons where the Legal Orientation Program operates. Established in 2003, the program provides immigrants with basic information about forms of relief from deportation, how to get legal representation and how to represent themselves in court. The program offers group orientation, smaller workshops, one-on-one consultations and referrals to pro-bono attorneys. But if Odis or Polanco are not taken to one of the immigration prisons where the program is in effect, they and their families will be left to navigate these questions on their own. Blaser points out that, unlike criminal justice proceedings, those facing deportation do not have the right to an attorney, because immigration proceedings are civil cases. Thus, they have even less protection from being severed from their families and communities forever.
Odis’ daughter hopes fervently that her mother will be able to stay in the country. Although Odis’ release date is three years away, her daughter has started gathering documentation of her father’s abuse, including copies of the restraining orders, his arrest record and the conviction that led to his deportation. “It’s hard not having your mother around,” she said. “She’s missed so much in our lives. It’s definitely been lonely without her.”
Thanks to Rafael Angel Ocasio, Esneider Arevalo, and Tauno Biltsted for translating.