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A Separate Reality

March 11, 2010 - Posted by Maurice Belanger

Separate reality 
Images: (c)iStockphoto/Simon McConico; (c)iStockphoto/helenecanada

There was a happy ending recently in the case of a man from China who was to be deported under rules set by an immigration law passed in the mid-1990s. It took a governor's pardon to protect Qing Hong Wu from the parallel universe that has developed for legal immigrants who get into trouble with the law.

In 1996, Members of Congress were still reacting to anti-immigrant sentiment that began in California and swept across the country. They enacted a pair of laws-the Illegal Immigration Control and Immigrant Responsibility Act (IIRAIRA) and the Anti-Terrorist and Effective Death Penalty Act (AEDPA)-that created a reality separate from the normal criminal justice system.

Among other things, the law expanded the definition of "aggravated felony." In the universe of the American citizen, the label "aggravated felony" is reserved for serious crimes-murder, rape, violent crimes, and like offenses. In the parallel universe created by the 1996 laws, an aggravated felony for a legal immigrant might be, say, shoplifting-if it results in a sentence of a year or more. It doesn't matter whether the sentence was served or suspended.

Other features of the separate reality include mandatory jailing and removal from the U.S. Courts were stripped of their jurisdiction to hear appeals in these cases. Congress made these laws retroactive, so an immigrant's future behavior mattered little if his or her past behavior resulted in a criminal conviction. In this parallel universe, rehabilitation counts for nothing, and immigration judges have no authority to consider individual circumstances.

After the passage of these laws, the papers were filled with bizarre stories such as that of Olufolake Olaleye of Georgia who, several years before the laws were passed, was convicted of shoplifting and given a one-year suspended sentence. In 1996, by virtue of Congressional action, she became an "aggravated felon" and was placed in deportation proceedings.

In the case of Mr. Wu, he immigrated to the U.S. from China with his family when he was five. His parents led a very typical life of low-income immigrants coming to this country-they worked hard and long hours. They were not able to monitor the type of crowd their son hung out with. With his friends, he committed a series of muggings. He was 15 when he was sentenced to three to nine years in a juvenile facility. The Judge who sentenced him, Michael Corriero, promised Mr. Wu that if he turned his life around while in the reformatory, "I am here to stand behind you."

Turn around his life is what Mr. Wu did. He earned release after three years, went to work, and eventually became Vice President for IT at a real estate financial management company. He had success. What he didn't have was U.S. citizenship. It was time to apply.

That’s when Mr. Wu entered the parallel universe where Mr. Wu's good behavior doesn't count, nor do his other circumstances—he has a U.S. citizen fiancée, he financially supports his elderly mother. His long-ago criminal record came to the attention of the immigration authorities. He was jailed, and the immigration agency began proceedings to send him back to China.

Brian Hale, a spokesman for Immigration and Customs Enforcement (ICE), told the New York Times,

"This administration is committed to smart and effective immigration policies that place an emphasis on the deportation of criminal aliens. While we are not able to discuss any individual cases, ICE will enforce the law, and if an individual has been convicted of a serious or dangerous crime, we will take the appropriate action, including deportation."

Smart and effective immigration policies? One would hope that a spokesperson for our immigration enforcement agency would be able to distinguish between someone who is a threat to society and one who ceased being a threat a decade and a half ago.

The agency has to enforce some stupid laws, and it would be better for all concerned if their representatives used these sorts of incidents to educate us about that fact. What Mr. Hale should have said was something like, "Look, it is an incredible waste of agency resources and taxpayer dollars to lock up someone like Mr. Wu who learned from his mistakes 15 years ago and who has been a very productive resident of New York ever since. We need Congress to act to make the laws more rational."

Mr. Wu was lucky. Judge Corriero (now retired) kept his word, and joined Mr. Wu's boss, the Police Benevolent Association, Mr. Wu's fiancée, and dozens of others in petitioning Governor Paterson for Mr. Wu's pardon.

The pardon was granted, wiping away the criminal record that served as the basis for Mr. Wu's deportation. In his Press Release, the Governor said,

"Qing Hong Wu's case proves that an individual can, with hard work and dedication, rise above past mistakes and turn his life around."

That's just common sense. It shouldn't have to take a governor's pardon to point that out. Our immigration laws should allow for rehabilitation. Individual circumstances should be taken into account when deciding whether it makes sense to boot someone out of the country.  That would be "smart and effective" enforcement.


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