In 2008, Robert Hernandez was convicted of helping to transport marijuana into the United States from Mexico and sentenced to eight years behind bars. The 47-year-old is now getting out of prison, 20 months before his scheduled release. He is one of 6,000 inmates being released early from federal prisons on Friday and Monday since a new law went into effect that allows shorter sentences for low-level drug traffickers.
But Hernandez can't rush home to his wife and family. Immigration officials will pick him up from prison, take him straight to an immigrant detention center, and likely deport him to Mexico — even though he legally immigrated to the US at age 11 with his family, married an American woman, graduated from an American high school, has three US-born children, and has been a legal US resident for 36 years.
"A marijuana case has a sentence of around eight years, but deportation is for life," said attorney Edgar Holguin, a federal public defender in El Paso representing Hernandez — which is not his client's real name. He asked that the identity be shielded because Hernandez is fighting deportation and doesn't want to complicate the proceedings against him. After years in prison, being removed from the country would be disastrous.
"He's going to have to figure out how to return to Mexico and how his family can make adjustments to having a loved one in a foreign country," Holguin said. "Families either cut ties or try to make a relationship work long distance, but it's permanent long distance."
Hernandez's case is not unique; 1,789 of the 6,000 inmates released this weekend are non-citizens who will be handed over to Immigration and Customs Enforcement officials for likely deportation. ICE has already issued final removal orders for 763 of these inmates and will place the rest in immigrant detention facilities as they complete deportation proceedings.
"Those with final orders of removal will be removed quickly in most circumstances, while those in removal proceedings will generally remain in ICE custody for the duration of their proceedings," said Barbara Gonzalez, a spokesperson for the agency. She added that the inmates fall "within ICE's civil enforcement priorities" since they are convicted felons.
According to the 1996 Illegal Immigration Reform and Responsibility Act, non-citizens convicted of drug trafficking are deportable.
"For most of these folks there's not going to be very much they can do to stay in the country even if they have family or are legal residents," Holguin said, explaining that the non-citizen inmates were a mix of documented and undocumented individuals. "The way immigration law works is, if you have a drug trafficking conviction there's almost no chance for a pardon."
Advocates believe that the federal government's harsh approach toward non-citizens undercuts its progress in reforming the criminal justice system with fairer drug sentences. Grace Meng, a Human Rights Watch researcher focused on the US immigration system and its connection to criminal justice, notes that the new law presents a double standard for citizens and non-citizens, since non-citizens face almost automatic deportation after serving their prison time.
"If we think 20 or 30 years is too long of a sentence for someone [convicted of drug trafficking], do we think family separation and permanent exile are all right?" she asked. "That's a very important question for the American people." Her extensive study of drug penalties revealed that people who are convicted of drug trafficking often played small roles in the criminal operations they were involved in.
Mizue Aizeki, deputy director of the Immigrant Defense Project, emphasized that current laws effectively punish immigrants twice for the same crime.
"This release is an opportunity to look at the harshness of immigration laws, in particular as they intersect with drug policy. Partly what we're struggling with is a political climate where non-citizens are framed as public safety threats overall," she said. "There's this perception you don't deserve the same rights if you're a non-citizen."
It may be tough for these inmates to defeat deportation, but it's not impossible. Joanne Lin, legislative counsel for the American Civil Liberties Union, stresses that these immigrants deserve access to legal counsel in order to defend their cases in immigration court and pursue all possible avenues to remain in the US. She worries that immigrant inmates being freed will be placed in expedited processing, a process of removal in which they would be deported without even seeing a judge, and said that ICE should not rush to quickly deport these immigrants.
"Each case deserves to be screened," Lin said.
Individuals might qualify for deportation protection if they are trafficking or torture victims, face persecution in their native country, or have a seriously ill or disabled relative in the US.
Lin sent a letter to ICE on Thursday on behalf of the ACLU and 13 other human rights organizations requesting that ICE connect all of the newly released prisoners with legal counsel and place them only in immigrant detention facilities that offer legal orientation programs so that they can be clearly aware of their rights. She also requested that each inmate should have an opportunity to see an immigration judge and be afforded due process to determine whether they qualify for relief from deportation.
"Each of these individuals had to go through a two-tiered process to get an early release from prison," Lin said. "First they were deemed eligible for a sentence reduction, and second they had to submit their petition to a federal judge to review the circumstances, including their behavior, and the judge had to determine if they were a public safety threat."
But Gonzalez said that these inmates have already received due process. ICE gave all new detainees a "know your rights" orientation that included legal information, she said, and the vast majority of cases were seen before an immigration judge. But she confirmed that ICE has placed a portion of inmates in "administrative removal," an expedited deportation process.
There are rare opportunities for relief from removal, such as an individual being gravely ill, but otherwise ICE "is prioritizing these cases" for deportation, Gonzalez said. The Department of Justice and the US Sentencing Commission, which was responsible for changing the drug sentencing law, told VICE News that they have no say in the fate of these immigrants.
Sentencing Commission spokesperson Matt Osterrieder noted that the US Code requires the commission to make all sentences and policies neutral to nationality, and said that the new guidelines treat all convicts equally. Emily Pierce, the DOJ's Deputy Director of Public Affairs, said that her agency was just following ICE's orders.
"ICE has said they want these people, so we are turning them over," she said.
Immigrants with drug convictions have not always faced certain deportation, Holguin pointed out. Prior to the 1996 law, individuals like Hernandez had a good chance of arguing to remain in the country.
"Before, people who had been convicted of crimes could go to judge and make an equities argument, pointing out the positive things, like their family and work history," Holguin said. "Now there is no hope. The family has no hope. They come to you and ask, 'Can he ever come back?' It's a pretty simple no."
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