Deporting the Lowest-Level Offenders

Until May 2009, Jose Reyes was a small-business owner, a father, and a 19-year legal resident of the United States. But on May 13, 2009, Reyes ran afoul of the police, who arrested him after an argument with a man who had rear-ended his car. Charges against Reyes were dropped three days later, but Reyes wasn't free. "I asked the police, 'If the charges are dropped, why aren't you letting me go?'" he says.

The answer was that the arrest triggered deportation proceedings because Reyes had been convicted of marijuana possession 14 years before, long before the post-September 11 anti-immigration crackdown.

In the years between Reyes' conviction and second arrest, of course, the system changed. Detentions or arrests by local police now automatically trigger immigration holds. Policies like the Criminal Alien Program and Secure Communities gave local and federal officials powers to work together as they never had before. These policies were meant to target undocumented immigrants or potential terrorists who would otherwise slip through the cracks, and immigration officials had a mandate to concentrate on deporting the highest risks to "national security, public safety and border security."

Instead, officials have spent most of their time deporting men like Reyes. Newly released internal data from the the United States Immigration and Customs Enforcement unit, or ICE, shows that 60 percent of "removals" between October 2008 and February 2011 were of individuals who had either no criminal background or were in the lowest priority category for removals -- i.e. individuals like Reyes who had a past violation for an old crime.

And in March, the New York Civil Liberties Union released a study on the implementation of Secure Communities -- the 2008 program that gives federal immigration officials access to any detainee at the point of arrest -- in New York that found that in the first 49 days of the program, 80 percent of the immigrants targeted for deportation had no criminal background. An additional 6 percent were classified in the lowest tier of priorities because they only had misdemeanor offenses. In six out of 11 counties in New York, 100 percent of the immigrants identified through the Secure Communities program had no criminal record.

"ICE has failed to make a serious commitment to following its priorities," says Kate Desormeau, a staff attorney of the American Civil Liberties Union's Immigrants' Rights Project.

A recent opinion piece by Scott Stringer, Manhattan Borough president, in The New York Times urged New York Mayor Michael Bloomberg to stop cooperating with ICE in these programs because it was both costing the city millions of dollars to keep immigrants in detention and because of the "unfair process" by which ICE targeted immigrants for detention.

A draft memorandum filed by the ACLU and other civil-liberties groups contends that ICE has gone so far as to try to deport U.S. citizens.

In addition, lawyers interviewed for this piece say that the determination of what constitutes a deportable crime is a haphazard process. While the criteria for deportation are largely focused on "aggravated assault" and crimes of "moral turpitude," the definitions of these categories can vary by locality and by judge.

It took 10 months and three lawyers to overturn Reyes' deportation order. In the days that followed his arrest, Reyes was brought in front of ICE officers who repeatedly tried to get him to sign his deportation orders. Access to his public defender, assigned to him for the initial arrest, was cut off. His health deteriorated from a kidney disease that requires medication and regular hospital visits.

A chance encounter with a nonprofit lawyer at a prisoners' rights workshop gave Reyes an opportunity to fight his case. His lawyers succeeded in reclassifying Reyes' 1997 conviction as a lower-level offense, which allowed him to be taken off the deportation list.

But Reyes has not fully recovered medically, and his financial and family life suffered in his absence. His ex-wife was unable to care for his two daughters, who were sent to foster care. It took Reyes more than a year to get them back. He lost cars he had purchased for his taxi service. "My life is 180 degrees different than it used to be," Reyes said.

"Before it was like I was offered a new path, I crossed a new border in my life here," he said of coming to the United States. "The consequences for my life have been disastrous. ... Now I just want my health back, I want to care for my small family -- and I want to make sure that other families don't get torn apart."