Thread: Deported ex-convicts fight to return to U.S.

Deported ex-convicts fight to return to U.S.
Legal U.S. residents deported after crime convictions are taking Washington to task for violating human rights.

BY PABLO BACHELET
pbachelet@MiamiHerald.com

http://www.miamiherald.com/news/nation/ ... 64949.html


WASHINGTON -- Hugo Armendariz is a Mexican who grew up in Arizona. Wayne Smith, originally from Trinidad and Tobago, spent most of his life in the Washington area.

Both lived in the United States legally. They became entangled with drugs and landed in jail. They were deported to their birthplaces -- Smith in 1999, and Armendariz in 2005.

Smith and Armendariz have become a cause célèbre of sorts for migrant activists and attorneys who contend U.S. immigration laws have become so harsh that they tear families apart and violate fundamental human rights enshrined in international treaties.

Their case has landed before the Inter-American Commission on Human Rights, or IACHR, a branch of the Organization of American States that made its fame by denouncing the excesses of Latin American military dictatorships in the 1970s and '80s.

Smith and Armendariz ''were given no chance to explain extenuating circumstances, family ties or any other humanitarian considerations,'' said Robert Pauw, a Seattle attorney who represented the duo at an IACHR hearing in July.

State Department lawyer Steven Hill argued at the hearing that they suffered the consequence ''of their life choices'' and that the U.S. government had struck a balance between individuals' entitlement to family life and a state's sovereign right to determine which noncitizen can remain within its borders.

The IACHR's ruling, expected in about a year, will be nonbinding, but Pauw said a favorable judgment could allow his clients to apply to reenter the country -- and provide ammunition to thousands of other legal residents facing deportation for criminal convictions.

Smith and Armendariz are among more than 80,000 migrants -- both legal and illegal -- deported every year for crimes ranging from gambling and homicide, leaving 1.6 million U.S. family members behind, according to New York-based Human Rights Watch.

''Families have been torn apart because of a single, even minor, misstep such as shoplifting or drug possession,'' said Alison Parker, a senior researcher with Human Rights Watch, which this summer issued an 88-page report on the subject.

The problem, immigration advocates say, is the expanding definition of ''aggravated felonies'' -- crimes that put legal migrants on a fast track to detention and deportation.

When the aggravated felony category was created in 1988, Congress initially included crimes like assault and murder. But successive changes added more crimes, and in 1996, lawmakers included lesser offenses such as fraud and minor theft. The law was made retroactive, and judges were barred from issuing family waivers.

ONLY IN AMERICA

In a survey of 61 nations from Albania to Venezuela, Human Rights Watch found that only the United States denies migrants a chance to argue extenuating factors in deportation proceedings.

Rep. Jose Serrano, a New York Democrat, is pushing a bill to restore family waivers in immigration laws. But many U.S. lawmakers are reluctant to support changes perceived as favoring criminals or encouraging foreigners to have U.S.-born babies to avoid deportations.

According to the American Immigration Lawyers Association, or AILA, the problem will get worse under new U.S. programs to run background checks at border checkpoints for people reentering the United States. And the Bush administration's plans to replace 750,000 green cards that now have no expiration dates could trigger more criminal database hits and arrests.

''I don't know what is the right adjective to convey the depth of the problem,'' said AILA President Kathleen Walker, ``but it's tremendous.''

The government does not say how many holders of green cards have been deported after criminal convictions. TRAC Immigration, a Syracuse University group that looks at immigration data, estimates 10,303 individuals faced removal orders in 1992. By 2005, the number jumped to 26,074, bringing the total to 300,000 between 1992 and 2006, affecting citizens from more than 200 nations.

TRAC found that, on average, individuals facing deportations lived in the United States for 15 years.

The attorneys for Armendariz and Smith say U.S. immigration laws violate international treaties, including the 1948 American Declaration of the Rights and Duties of Man, which gives every person the right to a fair trial and ''to a family,'' and children to ``special protection, care and aid.''

''It's not that the courts have closed their doors to them,'' said David Baluarte, an attorney who brought the Smith case before the Organization of American States. ``It's that the judges have been required by Congress to close their ears to them.''

DRAWING THE LINE
The State Department's Hill told the IACHR that the 1996 laws were a ''reasonable exercise of the authority of Congress'' to determine immigration policy. ''Governments engage in line-drawing exercises all the time; they have to,'' he said.

International human rights treaties protect families from abuses by governments like the kidnapping of children, not immigration rules, Hill added. ''I don't think anyone can say that immigration law is designed to break up families,'' he said.

According to Armendariz's brief to the IACHR, he spent 35 years in the United States, including five years in jail for ''possession of cocaine for sale, possession of drug paraphernalia and hindering prosecution.'' He had two previous convictions for drunken driving.

Once out of jail, Armendariz, now 37, ''took steps to prove rehabilitation,'' the brief argued, finding a job and making child-support payments for his U.S.-born daughter, Cassandra. In 2004, he bought a house in Tucson with his fiancée Natalie Porter.

Then, on March 4, 2005, less than one week before he was to wed, Armendariz was arrested and promptly deported to Mexico, with no money and little understanding of Spanish.

Armendariz told The Miami Herald by phone that he has rebuilt his life in Mexico and wants only to visit his relatives in the United States. ''To live, not a chance,'' he said. ``There's nothing for me there.''

Smith's criminal record in Washington reveals more than a dozen mostly drug-related arrests and probations. He served two years in prison in the early 1990s and then married Ann Smith. The two had a U.S.-born daughter.

His attorneys say he started a janitorial company in a Maryland suburb of Washington, attended classes through the University of the District of Columbia and participated in antidrug programs.

''We were making a good life,'' Ann Smith said in a statement read by a relative before the IACHR.

In 1999, Smith was deported to Trinidad and Tobago but returned when he learned his wife's breast cancer was getting worse. He was caught and deported again in 2001. His company folded, and Ann lost her medical coverage. She survived on family handouts as her cancer went into remission.

Now a U.S. citizen, Ann Smith is not giving up.

''Some say that I must move on, but I say my husband is not dead. He is deported,'' she said. ``One day, I pray he will be able to return to the life we were building together.''

The sob stories have no end!