Despite Reforms, the Domestic Drug War Still Tears Immigrant Families Apart

Antonio was arrested in Wyoming in early 2012 for possession of a small amount of marijuana, and, like many people facing minor charges, he pled guilty without speaking to a lawyer, unaware that his decision would have drastic consequences. After serving 11 days in jail for the possession charges, Antonio was arrested again, this time by immigration authorities. He spent the next year in an immigrant detention facility in Colorado before being deported to Mexico, where he had not lived since he was 12 years old.

Antonio’s story is not unique. Human rights researchers report that thousands of families have been torn apart by a recent uptick in the number of detentions and deportations of both authorized and undocumented immigrants for drug convictions, many of them minor or decades old.

“Even as many US states are legalizing and decriminalizing some drugs, or reducing sentences for drug offenses, federal immigration policy too often imposes exile for the same offenses,” said Grace Meng, a senior researcher at Human Rights Watch, who authored a recent report that included Antonio’s story. (Meng gave Antonio a pseudonym to protect his identity.)

The marijuana conviction did not disqualify Antonio, who is now in his early 20s, from the Obama administration’s 2012 deferred action program for those who immigrated to the US without documents as children. However, applicants must be in school or have a high school degree, and Antonio had dropped out of high school to work. The detention center did not have a GED program, and Antonio’s attorney, Violeta Raquin, pleaded to have him released on bond or with an ankle monitor so he could finish school. She was told that Antonio’s detention was mandatory – no bond was allowed – because he had a drug conviction.

Raquin, who is also a law professor at the University of Colorado, told Human Rights Watch that she could not believe how much effort the government put into this marijuana-related deportation, in a state where marijuana was decriminalized at the time and is now legal. She said Antonio repeatedly asked her, “How could this possibly be happening to me?”

Deporting only people deemed “dangerous criminals” seemed to be President Obama’s intention when he announced an executive action last November that would grant millions of immigrants work permits and protection from deportation. The president said he planned to focus enforcement resources on “actual threats” to public safety.

“Felons, not families. Criminals, not children,” Obama said at the time. “Gang members, not a mom who’s working hard to provide for her kids.”

In the wake of this announcement, many activists challenged the president’s demonization of people with criminal records. The idea that “felons” don’t have families, or that “gang members” aren’t working hard to provide for their kids, served to cement some of the myths that have driven mass incarceration over the past several decades – and have spurred the notion that immigrants with criminal records are disposable.

Right now, though, Obama’s limited executive action is being held up by a legal challenge filed by Texas and 25 other conservative states. Meanwhile, the continued enforcement of harsh policies put in place during the zenith of the war on drugs has landed many immigrants – including permanent residents and those with close family ties in the US – in detention centers or in exile.

Deportations of noncitizens with drug convictions spiked from 2007 to 2012, with deportations for drug trafficking convictions increasing by 23 percent and deportations for mere possession increasing 43 percent, according to federal data released to Human Rights Watch. Noncitizens with drug convictions as their most serious crime made up 25 percent of those pushed out of the country during that time period.

The group’s report attributes the uptick in deportations in part to Secure Communities, a controversial federal program implemented across the US from 2008 to 2013 that linked local police departments to Immigration and Customs Enforcement (ICE), allowing cops to direct undocumented immigrants to the feds for as little as a routine traffic stop.

In 2010, the Obama administration ordered ICE to focus its deportation and detention efforts on “criminals” and people who’d repeatedly violated immigration laws, but activists chronicled instances of racial profiling and harassment across the country as federal immigration officers teamed up with local police departments to make immigration busts.

After coming under heavy pressure from immigration activists, the administration discontinued Secure Communities in November 2013 and instead asked local police departments to only notify ICE when releasing noncitizens convicted of certain “priority” offenses, or thought to be a threat to national security. The government and human rights observers are still analyzing the impacts of the change.

Felon or Family Member?

The line President Obama drew between “felons” and “families” is a false one, as many advocates – including people with criminal records, most of whom have families – have pointed out.

When a great-grandmother who struggled with substance abuse can face deportation for having sold $5 worth of drugs to an undercover cop 20 years ago, does she qualify as a family member? Or simply a felon?

Marsha Austin, 67, moved from Jamaica to the Bronx in 1985 and is a lawful permanent resident. Other than her two sons in Jamaica, three generations of Austin’s family live in the US.

She told Human Rights Watch that she began using crack cocaine after hitting a cigarette laced with the drug at her mother’s funeral. She became dependent and began having run-ins with law enforcement, racking up only minor possession charges until an undercover cop sweeping her drug-infested neighborhood asked her to get $5 worth of crack for him. Like many people interviewed by Human Rights Watch, Austin’s criminal defense attorney did not tell her that the conviction could get her deported, and she pleaded guilty to an aggravated felony charge for attempting to sell crack cocaine.

Austin is in treatment and has been clean for the past five years, but in 2010, when her husband had a seizure, she drank alcohol: a violation of her probation. She spent 90 days in jail and was arrested by immigration authorities afterward, who locked her up in a detention facility for over two years before releasing her in 2013. Austin was an addict, not an international drug kingpin, but she is now desperately fighting to stay with her family as the government pushes to deport her as an aggravated felon.

A record 2.3 million people were deported from 2009 to 2014, as Congress failed to pass immigration reform bills, and the White House came under mounting pressure to stop breaking up families. As the Obama administration shifts its focus from “families” to “criminals,” the proportion of those deported for previous convictions has risen to 56 percent. The vast majority of those deportations are the result of minor and nonviolent crimes such as drug possession, according to Human Rights Watch. In 2013, about half of the deportations were for traffic or immigration violations.

Lawful permanent residents can be deported for any drug offense besides possession of a small amount of marijuana. Any sort of drug trafficking charges, even for small amounts – like the tiny bit of crack Austin attempted to sell a cop – disqualify permanent residents from almost every defense against deportation, such as family ties or participating in rehabilitation.

Mandatory Detention in For-Profit Jails

Laws passed years ago by drug warriors mandate detention for noncitizens with even minor drug convictions, making them ineligible for bail as they await removal proceedings in facilities that are just like jails and prisons, according to the report. Permanent residents with drug convictions can apply for a deportation waiver, but mandatory detention in a remote facility without bond makes reaching legal counsel and making a case for a waiver very difficult, as Human Rights Watch learned from interviews with more than 100 people caught up in the system for drug offenses. For undocumented people like Antonio, detention can make defending against deportation for even minor crimes impossible, despite the Obama administration’s recent reforms.

A report released earlier this month by the Detention Watch Network details how a federal mandate known as the “detention bed quota,” and lucrative contracts with private prison companies, have driven detention rates through the roof. A congressional funding mandate requires that 34,000 beds be available for immigration detainees at any given time, and advocates say ICE is under political pressure to use those resources efficiently.

The immigrant detention system has grown by 75 percent over the past decade, with more than 60 percent of it operated by for-profit corporations, according to the report.

Eyeing the congressional quota, prison companies have entered into contracts requiring ICE to pay for a minimum number of beds in their detention facilities at any given time, whether they are filled or not. Advocates say this puts pressure on ICE to keep the beds filled with detainees to avoid wasting money and coming under the scrutiny of lawmakers.

“ICE has faced enormous political pressure to ensure that no bed goes unfilled,” Rep. Ted Deutch (D-Florida) recently told reporters.

ICE claims that the detention bed quota and its contracts with private prison companies do not impact its enforcement priorities, but advocates have measured a marked increase in the number of noncitizens detained in recent years.

“As a businessman, I know that incentives can drive demand – incentives like this create an artificial demand for immigrant detention,” said Rep. Bill Foster (D-Illinois), who has introduced legislation with Deutch that would forbid ICE from entering into contracts with bed quotas.

Noncitizens with nonviolent drug convictions – even if they are minor or decades old – provide a perfect way to meet this incentive without going against President Obama’s orders to leave law-abiding immigrants alone, so it comes as no surprise that the number of people detained each year increased from about 383,000 to 477,000 from 2009 to 2012 – nearly the same time period that researchers observed a serious spike in the percentage of people deported for drug convictions. (The number of annual deportations dropped to 315,943 in 2014, after the elimination of Secure Communities.)

Some activists are pushing for more executive actions like those the Obama administration has already taken to shift immigration enforcement away from people who don’t have criminal records. Campaigns are also pushing to allow prosecutors to consider a greater range of factors, like family ties and length of time since a conviction, in deportation cases. However, without a fundamental shift in the way ICE and other law enforcement agencies deal with immigration, people will continue to be separated from their homes and loved ones by both mandatory detention and deportation.

“Americans believe the punishment should fit the crime, but that is not what is happening to immigrants convicted of what are often relatively minor drug offenses,” Meng said.

Consider Abdulhakim Haji-Eda, an Ethiopian refugee who came to the US at the age of 13. As a teenager, Haji-Eda became financially desperate and verged on homelessness, and he took his cousin’s advice to try dealing drugs for extra money. Shortly after turning 18, he was caught selling a small amount of cocaine in Seattle and served a six-month prison sentence. He was placed in deportation proceedings shortly afterward.

Haji-Edi is now 26 and has worked steadily since his release from prison. He married a US citizen and is the father of two kids, with another on the way. However, a deportation judge, who was barred from considering any of these factors because his crime is considered an aggravated felony, ordered Haji-Eda to be deported. He was granted a temporary stay of removal, but that has expired, and his case remains in limbo.

Meng and her team asked Haji-Eda’s wife Hamza what she would say to President Obama if she could talk to him about his effort to deport only “serious criminals” like drug traffickers, which her husband is considered to be.

“Are you sure you know what you’re talking about?” Hamza said she would ask the president. “Why don’t you sit down and talk to him? Why don’t you meet him? Why don’t you meet his family?”