How Immigration Reform Got Caught in the Deportation Dragnet

On the night that Shahed Hossain left his family’s house in a Haltom City, Texas, to drive to Laredo, his mother, Habiba Hossain, cooked dinner—chicken and rice and okra picked from the garden. She piled her son’s plate high and watched him eat. Then, she took his Bangladeshi passport from a drawer and handed it to him, leaving his green card safely stored away. The 21-year-old had a penchant for losing things and a green card is not a thing to lose. She hurried him out the door and into the white utility van in the driveway where his boss waited.

“I’ll see him in a week,” she thought. Like every other time he’d set off for work trips all over Texas, she figured, her younger son would return to that house where he grew up with his brother and his parents and the dog.

But that night was the last time Shahed Hossain’s mother would see him free in United States, the last time she’d have a chance to worry he’d lose anything. Six days later, Hossain was locked up in a privately run immigration detention center near the U.S.-Mexico border. He spent more than a year there, a period he’s tried to forget, before he was shackled, loaded onto a plane and flown to Dhaka, Bangladesh.

Hossain is Texas through and through. He walks with a swagger and speaks with a hint of drawl. He and his best friend passed middle school evenings scurrying down to the creek to catch turtles, and on high school weekends, when they weren’t working at the ice-cream drive-in, they’d escape the suburban lull to go Gar fishing on the river. He played freshmen year football and he dated a young woman named Erika Fierst, whose mother is an accountant at a major defense contractor. “Everything that I know and everything that I learned, I learned from Texas,” he says. “I love Texas.”

But Texas is far away now. Hossain finds himself living with his grandmother, passing solitary days raising carrier pigeons, growing an orchid garden and searching for work, mostly in vain. “I wanna be back home. This is my, what they say, motherland,” he says, leaning forward and laughing in a wooden chair near his small garden alcove. “Back to the motherland! But this is not my home. My home is over there. My home is in Goodnight Circle.” He looks down at his feet and pauses. “That was my street name.”

Hossain lived in the United States with his family for more than a decade, and had he carried his green card to Mexico that day, he would now be a citizen, like the rest of his family. Instead, a confused run-in with a border guard landed him with a charge that leads directly to deportation—one of a batch of laws Congress has written in recent years that have built a massive and indiscriminate deportation dragnet. Hossain was among 319,000 people deported in fiscal year 2007; last fiscal year, the Obama administration deported a record 393,000 people. The tracks are laid to expel at least that many this year.

When President Obama entered the White House, he promised to push a “comprehensive immigration reform” bill in his first year. Doing so, he apparently calculated, would require a compromise. To garner bi-partisan support for opening new paths to citizenship for the 11 million unauthorized immigrants in the U.S., the president, congressional Democrats and key Beltway advocates came together around a troubling political strategy: They would endorse a hawkish buildup of deportation and border security in hopes of creating space for broader reforms. In a major speech on immigration this past July, the president outlined his approach, vowing to “improve our enforcement policy without having to wait for a new law.”

Almost two years into the Obama presidency, however, no bi-partisan support for a broader bill has emerged from this hawkishness—in fact, the few Republicans who once backed immigration reform have fled. Worse, the Democrats’ would-be political trading game conceals a larger, more troubling fact: Even if the strategy eventually works, the “comprehensive” schema Obama supports will undermine itself with its massive and indiscriminate deportation dragnet. This week, Sen. Robert Menendez introduced the latest version of a “comprehensive” bill. Nothing in it would have prevented Hossain, or hundreds of thousands like him, from being needlessly deported.

The enforcement programs that Obama supports purport to target immigrants convicted of serious crimes and to stop guns and drugs from crossing the border; the reality is that they are driving a system that’s come unhinged. In the three years since Hossain was expelled from Texas, a million other people were removed from the U.S. An enforcement structure that looks anything like the one both parties have built can do little better than indiscriminately deport any non-citizen caught in its expanding net, no matter their ties to the U.S. or their immigration status.

From Resident to Deportee

It was an early Saturday afternoon in October 2006 and Shahed Hossain had just finished a hard week of remodeling kitchens down in Laredo, near the border. Before heading back up north, Hossain and his boss, Pablo Orozco, and coworker, Daniel Kilos, thought they’d make a quick trip over to the other side. In his 11 years in Texas, Hossain had never been to Mexico. Plus, Orozco had a box of empty Mexican Corona bottles to exchange for a full crate. So Orozco got his beer and they drove back to the border.

At about 2:15 in the afternoon, after waiting in a short line of cars, Orozco rolled down the driver’s side window and pulled his American passport and Hossain’s Bangladeshi passport and Texas driver’s license from the glove compartment. The border guard peered into the van, first at Orozco and Kilos in the passenger seat, and then into the back seat at Hossain. He handed Orozco his passport back and Kilos, a citizen, explained that he’d left his at home in Fort Worth. Then, the officer held up the Bangladeshi passport and asked to whom it belonged. Orozco gestured over his shoulder to Hossain.

Hossain and Kilos were directed into an office next to the crossing and Orozco was told to wait in the car. Inside, the two young men were led into a small room by a border guard whose chest badge read Gambaro Valvidias. After patting them down, Officer Valvidias asked the two young men if they were citizens and they quickly responded together that they were. Valvidias asked Hossain how he’d become a citizen and, according to Valvidias’ account, Hossain said he did not know because his father had done all the paperwork. But in the process Hossain realized he’d misspoken and he corrected himself.

“No, hold up, no, I’m not a citizen, I’m a resident, sir,” Hossain remembers saying.

Hossain had lived in the country for over half his life, with his documented immigration status tied to his father, a mechanical engineer who left Bangladesh for fear of political violence and was granted political asylum in 1993. Three years later Shahed Hossain and his older brother Sheehab Hossain landed in New York City with their mother. The family settled near Fort Worth and that was that. The Hossain brothers say they never really thought about the difference between being a citizen and a resident. Sheehab, who is two years older, puts it this way: “We thought permanent resident was the same as you’re an American, except voting.”

Valvidias checked Kilos’ Social Security number through an immigration database and then the FBI’s crime database and sent him to wait in the van with Orozco. When he ran Hossain through the system it confirmed he was a lawful permanent resident. It also showed that two years earlier, before Hossain was issued a green card, he’d been convicted of a misdemeanor—caught walking out of a department store with a box cutter. He was 19 at the time and the mischief had not barred him from getting his green card. But it was stored in the FBI’s records, and it raised Valvidias’ brow.

The officer asked Hossain why he hadn’t brought his green card and Hossain explained that his parents had not given it to him. After an hour and a half of waiting in the back room, Valvidias’ shift ended and he left. When the door opened again a few minutes later a bald-headed man named Officer Garza sat down across the table.

“You know, you’re very smart,” Hossain remembers Garza saying, his voice filled with biting contempt. “You tried to say something just so you can get past the border.” Looking at Garza, Hossain repeated that he’d made a mistake when he’d said he was a citizen. But the border guard was already filling out a form. In Garza’s account, Hossain had connived to fool his way into the country.

Outside, Kilos and Orozco waited for two hours until another uniformed officer walked up to the car. “She told me that Shahed said something really bad to the United States that was a federal offense,” remembers Orozco. “She said he lied that he was USA citizen and he wasn’t. And that was it.”

Hossain was bussed six miles across the city to the Laredo Processing Center, an immigration detention facility run by the Corrections Corporation of American, the country’s largest for-profit prison company.

Political Ghosts Haunt Reform

In the Hossains’ living room on a shelf near a commemorative plate of President Obama is an unframed photograph of Shahed and his older brother standing on the deck of the Staten Island Ferry. It was taken just days after they arrived in the U.S. The boys are wrapped in winter coats and scarves. Behind them, on the horizon, is the Statue of Liberty.

For the boys’ father, Quazi Hossain, the loss of his son is an incomprehensible injustice, irreconcilable with the vision he’d had for his family when he was granted asylum. In the evenings now, when it’s quiet at Destiny gas station, where he works as an attendant seven days a week for $8 an hour, he slips into tears.

“It’s really tough to make people understand that a kid, when they grow up here—it’s really tough for him to understand what is the difference between citizen and the resident,” says Quazi, who’d been known as a stern dad. He lets out a quiet moan, his eyes turn wet and he drifts off somewhere. Fierst, whose blond curls frame her round girlish face, picks up the thought her boyfriend’s father couldn’t finish. “It didn’t matter,” she insists.

But it did matter.

A decade and a half ago, Congress created a new category of immigration violation that made it a crime for immigrants of any status to claim to be citizens. The law was intended to prevent undocumented immigrations from lying to get a job or enter the country without a visa. It wasn’t supposed to target green card holders like Hossain, but as with all of the beefed-up enforcement initiatives federal officials have launched since then, the law is a blunt tool. So Hossain was charged that day with making a false claim to U.S. citizenship. The charge triggers automatic deportation.

The false-claim provision was just one small part of a seismic shift in immigration enforcement over the past 15 years. That shift was advanced by an ascendant Republican Congress and accepted by a Clinton White House committed to political triangulation. And it generated a lasting, if troubling political consensus about immigration among D.C.’s liberal reformers.

“Republicans went for all of it. We fought back some of it, but they got their massive buildup of enforcement, evisceration of due process, cutting benefits even for legal immigrants,” recalls Frank Sharry, who has been at the center of every major immigration fight in D.C. since 1996 and now runs America’s Voice, a major player in the Beltway debate. “Our message was, ‘This is scapegoating. It’s racially motivated and you’re going too far.’ ” That message, Sharry argues, failed miserably. “We were pure, but we were irrelevant.”

So, with an ironclad immigration enforcement infrastructure in place, Sharry and other Beltway advocates embraced a different Democratic approach: Accept the draconian enforcement measures as water under the bridge, but insist they be tied to, or at least closely followed by, a pathway to citizenship for undocumented immigrants.

Fourteen years later, no path to citizenship has emerged as deportation has continued skyrocketing. The last time undocumented immigrants were able to apply for status in large numbers was in 1986. President Obama has said he would like to change that, but he’s held steadfast to the Democrats’ compromising political strategy. And some of those who once heartily embraced that approach, including Sharry, are now saying they’ve been had—that Democrats let the enforcement thing go way too far, and then got nothing in return.

The Immigration Reform and Individual Responsibility Act, passed amid the 1996 storm, remains the main driver of an increasingly unforgiving immigration system. Perhaps most crucially for Hossain, the bill stripped immigration judges of all discretion in cases that involve a long list of violations.

“Discretion shifted from the hands of immigration judges,” says Rachel Rosenbloom, an immigration law professor at Northeastern University. “If the government wants you deported, there’s little room for relief.” Formerly, the particular circumstances of immigrants’ lives—family, property, the amount of time they’d lived in the U.S.—could have provided judges reason to cancel a deportation. No longer.

Summary Judgement

Knowing little of the rigidity of the system he’d been cast into into, Shahed Hossain’s family did not realize the gravity of his situation. The night Shahed was booked into the detention center he called his brother’s cell phone.

“When he told me I laughed,” remembers Sheehab Hossain. “You’re in jail?’ I said, ‘They think you’re illegal.’ And I then remember his voice, he said, ‘No, I’m serious, I’m going to be deported.’ ”

Since detainees are not guaranteed legal counsel—most of the 383,524 people detained last year have limited or no legal representation at all—the Hossains hired their own lawyer. To pay for the fees, they fell deeply into debt, accepting loans from friends and racking up $10,000 on credit cards.

Hossain’s defense relied on convincing the immigration judge that what had happened at the border did not amount to a false claim to U.S. citizenship; that it was a mistake he’d promptly corrected.

In early January 2007, after 3 months in detention, Hossain’s legal proceedings began. Twice the hearing was postponed; once because the Department of Homeland Security listed Hossain as a Mexican national. The agency had apparently assumed that anyone with legal problems at the southern border must be Mexican.

Six months after Hossain was thrown into a cell, he appeared in a San Antonio courtroom. The hearing began with the government’s first witness, Officer Valvidias, who explained that Hossain had called himself a U.S. citizen and then retracted the statement, consistent with Hossain’s own account.

But then Officer Garza took the stand and repeated the more ominous narrative he’d filed in his report. In this account, Hossain repeatedly claimed to be a citizen and didn’t retract the statement until officers confronted it as a lie.

Toward the end of the short hearing, Hossain took the stand. The young man, who was known as an outgoing guy, who could befriend anyone, spoke in a timid, unsteady whisper. Three times during his testimony, Hossain had to be told by the judge and the government’s lawyer to raise his voice.

When the arguments closed, the judge did not stop to deliberate, or even leave the chambers. “[H]e claimed he was a United States citizen,” the judge ruled. “I don’t think it’s a matter of he thought he was a U.S. citizen but he really wasn’t. He went to Mexico without his green card and he needed a way to get back and that was the way to get back. It doesn’t make any sense otherwise, so I’m going to have to sustain this charge.”

As the proceedings ended Hossain finally raised his voice. “May I say something?”

“What would you like to say?” the judge asked.

“Your honor, when they asked us,” his voice louder than it had been, “I was nervous.”

“They asked us, are you guys citizens,” he said, searching for the right final plea. “Both of us agreed to it together, yes.” But then, he explained, “I was saying no, I’m not. I’m a resident. I’m not a citizen, I’m a resident. Your honor…”

Without making eye contact, the judge interrupted. “I’ve heard the testimony already, made my decision.”

He ordered Hossain deported.

Obama’s Change: Bad to Worse

Immigration courts are overwhelmed to a point of exhaustion. In June there were a record 247,922 cases waiting to be adjudicated. The backlog means that the average wait for detained immigrants facing deportation is 15 months.

Without judicial discretion, already overwhelmed judges become operators of a conveyer. Once the judge was convinced that Hossain had intentionally called himself a U.S. citizen, there remained no space to consider the fact that Hossain’s whole life, all he knew and his entire future, were just a few of hours’ drive north of that courtroom.

Hossain and his family were struck by a sense of betrayal. The government of the country that had welcomed them was now tearing them apart. “I made a mistake on a word, which I corrected myself right away. I think over a year in [detention] paid for that,” says Hossain now. But in immigration proceedings, punishment is not crafted to fit the violation. Either you’re deported or not. As Sheehab Hossain put it, “There was no judgment in his decision, it was all already decided.”

Now, the Obama administration is predetermining the fate of hundreds of thousands more. In March, a leaked ICE memo confirmed that the agency had set quotas for deportation: 400,000 this year. After the leak, ICE Director John Morton denied that the quotas actually exist. Regardless, the agency is on track to meet its alleged target.

Obama’s record-setting level of deportation results from his expansion of many of George W. Bush’s most controversial enforcement policies. In 2002, then Attorney General John Ashcroft issued a memo radically shifting the balance of immigration enforcement by granting states “inherent authority” to enforce federal immigration law. Building on the new immigration laws enacted in 1996, the memo began a devolution of immigration enforcement to localities by deputizing local cops as immigration agents, through what’s called the 287g program. Suddenly a simple traffic stop could land a non-citizen in detention. In Bush’s last year in office, the total number of deportations rose to 359,000.

The Obama administration has continued driving that number upward. It expanded the 287g program to new jurisdictions and has vastly expanded a program called Secure Communities, which checks the immigration status of people booked into local jails. Earlier this year, the president announced his intention to implement Secure Communities in every jail in the country by 2013. It already operates in jurisdictions in at least 32 states. In late September, the entire state of Texas adopted the program.

ICE’s public mission statement on Secure Communities declares that the program “focuses immigration enforcement on the most dangerous criminal aliens first.” But the agency has been closed lipped about who it is really talking about when it refers to “criminal aliens.”

Data obtained through the Freedom of Information Act by the Center for Constitutional Rights, National Day Laborers Organizing Network and the Cordozo School of Law speaks more clearly. Almost 80 percent of the people deported as a result Secure Communities have no criminal conviction at all or were booked for low-level offenses like traffic violations or petty juvenile mischief. These are ICE’s “criminal aliens.”

Secure Communities is, however, just one of a an arsenal of programs in an out-of-control system. A five-year-old border-region program called Operation Streamline is another example. As National Public Radio reported in a recent investigation, the program shuffles groups of several dozen detainees before immigration judges who issue mass criminal sentencings. There exists nothing else like it in all of the American judicial system. There are no individual hearings and no real opportunity for appeal. In unison, groups of detainees take guilty pleas and as a result are pegged with criminal records. It’s another purportedly targeted program that’s actually spraying shrapnel.

“[Democrats] proceeded on the basis that if they are tough on enforcement, they’d get immigration reform,” says Sharry. “The results are in on that strategy. They’ve ramped up enforcement beyond the shameful Bush years, and got nothing for it. … We never expected them to do this. They said they’d go after the worst of the worst.”

In 2006 and 2007, the year Hossain was deported, Sen. Ted Kennedy crafted an immigration reform bill that would have opened a pathway for many undocumented immigrants to gain lawful status. To gain support from then-moderate Republicans like Sens. John McCain and Lynsday Graham, the legalization provisions were coupled with harsh enforcement provisions, in keeping with the “comprehensive” reform framework. The bill was crafted and re-crafted, growing more and more heavy on enforcement as it moved ahead. In the end, it failed spectacularly.

“The groups in Washington were refusing to put enforcement rollback on table because they thought it would ruin the ability to get the Republicans on board,” says Catherine Tactaquin, director of the National Network for Immigrant and Refugee Rights. “They were being very calculating politically in order to get a bi-partisan bill and in the end they shot themselves in the foot.”

Tactaquin believes that the enforcement “compromise” also helped “shift public consensus against immigration” in general—that the rhetoric was so heavily focused on enforcement that it cast immigration as a problem, rather than a constitutive element of the American identity. “Actually getting a better immigration policy is predicated on pushing back on enforcement,” she argues, “not building more.”

The Obama administration is nonetheless staying the course, refusing to take administrative action to slow deportations or to pick a fight over a broader reform bill. But with versions of Arizona’s SB 1070 spreading through state legislatures and Republicans growing ever-more reactionary about immigration, the old D.C. consensus around that approach may be finally coming apart.

“I think the criticism over the past few years is not only understandable, it is probably right,” acknowledges Sharry, referring to the flack many outside-the-Beltway immigration advocates have sent D.C.’s way. “We were so hopeful that legislation was around the corner that enforcement reform didn’t seem like a priority, and talking about it too much undercut legislative results. We have not done enough and should do more on enforcement reform.” But he insists simply opposing enforcement doesn’t work. “I’ve been arguing about this for 20 years and if I say enforcement is wrong, I lose support; 1996 is the perfect example.”

“It Was Like I Died”

Hossain was in detention for another six months before he got an appeal hearing. While he was locked up, other detainees organized a hunger strike in protest of the conditions and of abuse by guards. It was one of a handful of strikes that were spreading from detention center to detention center across the country. Hossain stopped eating for several days but mostly he waited for visits from his family. With diminishing hopes of being released, Hossain’s ability to bear his detention cell was fraying.

On Aug. 31, 2007, Hossain and his lawyer appeared before the Board of Immigration Appeals. It was a short hearing. He left the courtroom and saw his family waiting on benches. “I just looked at my dad, and he seen my face, and my girlfriend was over there and she started crying. It was like I died,” Hossain recalls.

Ten weeks later, 397 days after he was detained on the border, Hossain was pulled from his detention cell and his ankles were shackled. CCA guards led him onto a bus and he was driven nine hours to the Dallas-Fort Worth airport. Twenty minutes away his family went about their day, distracted in the garden and in the kitchen.

The Hossains are still talking to lawyers to see how they might find a way for their son to return home. Feirst thinks that if they get married, he might be able to come back, and there’s some hope that he could apply for a new visa at a U.S. consulate in Bangladesh.

Northwestern’s Rosenbloom, however, says most deportees’ hopes of returning are dashed. “Once someone has been ordered removed and is outside of the country, they have a very tough set of hoops to jump through to get back. The law,” she explains, “is just not set up to let someone come back in even if the removal was based on an error of law, even if a judge has made a mistake.”

In D.C., meanwhile, some signs of the shifting strategic orientation are emerging among Democrats, too. In September, Senate Majority leader Harry Reid made a move in this direction when, under significant and mounting pressure from a coordinated and media savvy movement of students and other undocumented youth, he introduced the DREAM Act. The bill would open a path to citizenship to approximately 825,000 undocumented immigrants who graduate college or serve in the military. Other bills, including agricultural-worker legalization and one that makes it easier for immigrants to bring their families to the U.S. are being discussed as possible routes to citizenship.

Meanwhile, national and local groups across the country are increasingly focused on rolling back and reforming the abuses of the enforcement regime. “If we are going to be continuing to escalate what we call enforcement, or mass deportation,” says Michelle Fei, director of the Immigrant Defense Project in New York City, “many … who are coming forward to register or to get legalized might actually land in deportation. Enforcement will undercut the promise of reform. We don’t want a system that is rounding people up and deporting people without due process.”

Beltway groups like Sharry’s are tentatively saying they agree. “Frankly,” says Sharry, “most of America’s Voice’s work in the future may be to join with advocates to say this enforcement is wrong-headed. We may need to adjust strategy to the state and local level, with Secure Communities. We’ll see how the election plays out but we’re thinking we need to throw down on fighting Arizona copycats around the country.”

The makeup of Congress after November will significantly determine what happens next. But unless Obama uses his administrative authority to halt mass deportations, there will certainly be many more Shahed Hossains.

Quazi Hossain, hunched over in a black leather chair in his living room, remembers the last day he saw his son. “In San Antonio, in the court, that was the last time I saw him face to face. I don’t know when I can see him again, ever. If ever I can see him again.”

In Dhaka, Shahed Hossain, walks into a small room where he keeps a pigeon coup he’s developed to pass time. He pulls open the latch and the birds stream out, their wings flapping furiously. He latches the cage and steps outside, his eyes darting from bird to bird above him as if deciding which one to follow.

“They’ll be back,” he says.

Brian Palmer contributed reporting from Bangladesh, which was supported by the Investigative Fund at The Nation Institute.