Immigrants with criminal past deported despite good conduct

Critics say INS expels even when crime is minor

April 11, 1999|By NEW YORK TIMES NEWS SERVICE

Fear of crime and resentment against immigrants are perennial themes of U.S. politics, and Congress touched both when it revised U.S. policy toward legal residents in the mid-1990s.

Noncitizens, even permanent residents, were made subject to deportation for a wide range of crimes that had previously been considered too minor. There was, at least according to immigration officials, no flexibility in deciding whom to deport.

The Draconian nature of the change brought immediate cries from civil libertarians and advocates for immigrants, but court challenges have had little effect.

Now a new tactic is being pursued, and last month it reached the floor of the Senate, where Sen. Patrick J. Leahy, a Vermont Democrat, spoke on behalf of five legal residents who face deportation even though they have served in the U.S. military, some of them in combat.

`Successfully snared'

"The zealousness of Congress and the White House to be tough on aliens has successfully snared permanent residents who have spilled their blood for our country," said Leahy.

The five, and other veterans, have come forward as extreme examples of the law's inflexibility. Some earned medals fighting in Vietnam, and at least one is disabled as a result of service there. Through legal challenges and a campaign for public attention, they have targeted what they hope is the law's Achilles' heel: its rigidity.

Can enforcement of the law stand up to public scrutiny in their cases? If it can't, will exceptions be made? And if that happens, they argue, wouldn't it undermine the notion of mandatory deportation without exception?

Take, for example, the case of Rafael Ramirez, a 35-year-old New Yorker.

Nine years after his honorable discharge from the Army as a sergeant, he faces deportation to the Dominican Republic. His offense: In 1990, just months after leaving the Army, he pleaded guilty to possessing marijuana.

Ramirez left the Dominican Republic 28 years ago, and today his life is in the United States. He has a home in upper Manhattan's Washington Heights, four children, a job and a small construction business. His Army record as a truck driver in Germany and the United States -- he enlisted in 1984 and left six years later -- is unblemished.

No one `exempt'

Immigration officials in Washington have been unmoved by such cases, aware that making an exception can demolish the principle behind its enforcement policies.

"There is nothing in the law that says if you are a veteran and a criminal you are exempt from deportation," said Russell Bergeron, an Immigration and Naturalization Service spokesman in Washington. "It is inconceivable to me that someone who is willing to die to defend the Constitution of the United States can then turn around and violate it."

Ramirez, of course, argues just the opposite: He says that when he enlisted, his superiors did not ask where he came from, and that his loyalty to the United States was assumed. His offense, he says, hardly amounts to an assault on the Constitution, and the fact that he was sentenced to five years' probation and never went to prison proves the point.

The lawyers and veterans involved in the campaign don't argue against using criminal behavior as grounds to deport people who endanger American society. But they argue that the INS should only go after hardened criminals. Even these cases, they say, should be open to judicial review.

Immigration officials say they have no choice but to follow the mandate of Congress. In the past two years, 106,442 immigrants have been deported. But advocates for immigrants, their lawyers and some members of Congress insist that the immigration service distorts the law.

"Both Congress and the administration want to wash their hands," said Lucas Guttentag, director of the Immigrants' Rights Project of the American Civil Liberties Union. "Both are responsible and, by neither one accepting responsibility, nothing gets changed."

What Congress did in 1995 and 1996 was to expand the definition of a felony and make all felonies and crimes of moral turpitude punishable by deportation. It stripped immigration judges of the power to reverse deportation orders.

The INS, for its part, chose to apply the law retroactively, although the law is not specific on that point. The INS has also chosen to go after all convicted immigrants.

"The law goes too far," said Laura Kozuba, who heads an anti-deportation group in Dallas. "We want to change it for all, but it seems particularly egregious to try to deport someone who has served this country."

She is married to Danny Kozuba, a 46-year-old kitchen installer who has been ordered deported. He came to the United States from Canada when he was age 5 and was in the Army from 1970 to 1973. He has been convicted of possessing methamphetamines several times, the latest in 1990, and spent three years in a Texas state prison.

Students at the Clinical Law Center at New York University School of Law, under the guidance of Professor Nancy Morawetz, are focusing on several veterans convicted of crimes.

"I don't see anything in the law that says that the INS doesn't have prosecutorial discretion," she said. "Where does it say that you have to deport everybody that you can deport? Why would you want to?"

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