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22 November 2004

Deported from America

Under US laws passed in the mid-1990s and now being strictly enforced, minor and long-forgotten offe

By Stephen Davis

James (not his real name) is a businessman. He is 62 and he now lives in the English Home Counties. But he ought to be living in America, with his wife, children and grandchildren. For 15 years, he ran a company in the US. He met and married an American woman, and lived in Virginia. The couple have eight children, two of them adopted from Vietnam. They also cared for two grandchildren when their daughter suffered depression.

Now James is an exile, unable to see his family. He is a victim of a US law introduced on a wave of anti-immigrant feeling eight years ago and now ruthlessly enforced in post-9/11 America. This law makes no distinction between a youthful misdemeanour and murder, between white-collar fraud and terrorism. It can have you expelled from the US as a “criminal alien” for a minor offence committed two or three decades ago; it converts a conviction for petty theft, minor assault or shoplifting into a much more serious charge of aggravated felony requiring deportation.

James is one of at least 1,000 British citizens caught in this way in the past year. And, at any one time, there are 22,000 people locked up by US immigration, mostly in local county jails, where they can wait for up to two years to get a hearing. James’s wife, a patriotic American who has the Stars and Stripes flying from her porch, has a phrase for what this law and her government has done to them. “It has been the death of a family.”

The story goes back to 1994. California’s Republican governor, Pete Wilson, running for re-election, trailed badly in the polls. He and his advisers, detecting a wave of anti-immigrant feeling in the Golden State, decided on a new strategy. Wilson began to urge a “get tough” policy on illegal immigrants and on those non-US citizens in California who got into trouble with the law. He won the election. And as Charles Kuck of the American Immigration Lawyers Association puts it, politicians, having seen that attacking immigrants worked, said “let’s take it nationwide”.

The result was what everyone now calls “Ira-Ira”, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, passed by a Republican Congress and signed into law without a word of protest by the newly re-elected Bill Clinton. In the past, immediate deportation was triggered only for offences that could lead to five years or more in jail. Now shoplifting, which would normally lead to a year on probation, is enough to get you deported. And, crucially, the law was made retroactive, with no time limit. Minor offences committed 20 or 30 years ago are now grounds for deportation.

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So never mind those famous words about “give me your tired, your poor, your huddled masses yearning to breathe free”. The new legislation said something quite different. “It said if you break our laws, you have worn out your welcome,” says Kuck. “Don’t ever mess up in America, even accidentally, even if you are a permanent resident, even if you have a wife, a family, a business and a home here. If you have ever had a conviction, you are out.” “Ira-Ira” applies even to those who have married American citizens and who have American-born children.

People are picked up for old crimes and taken to detention centres, even when they have already served their punishment; indeed, many will never have been in prison for the original offence. The numbers detained have grown so much that the three designated immigration detention centres in the US cannot cope, and most detainees end up sharing cells with hardened criminals in county, city and state jails.

You can appeal to an immigration court. But you have to pay for your own lawyer, so many poor people simply go without representation. Moreover, says Kuck, you go before “Department of Justice employees wearing robes”. They are, he says, “hearing officers” rather than “real” judges. In rare cases, a final appeal is allowed to go to a board of immigration appeals. But, again, the case will be heard by government appointees from the Department of Justice. In effect, those who are charged with enforcing the law are also sitting in judgment.

Since 9/11, the law has been enforced more rigorously and those caught are more likely to be kept in jail. New computerised databases compiled by the Department of Homeland Security are supposed to stop more people like the 9/11 hijackers getting into the country undetected. But they pick out many people who are neither terrorists nor serious criminals. “I have had clients picked up for minor offences committed 25 years ago, when they had been coming and going in and out of the US for years without any trouble,” says Kuck. “Whether you have a shoplifting charge or got caught on a $10,000 tax fraud, you are gone, you are history. Just wave goodbye.”

As Laurie Kozuba, the founder of Citizens & Immigrants for Equal Justice, a campaigning organisation against “Ira-Ira”, has put it: “The Statue of Liberty, once our symbol of welcome, hope, freedom and justice, is now a bouncer.”

Twenty years ago, a young Briton living in the US was put on probation because he got involved in a fight. (Like other deportees in this story, he does not want his name used.) Thirteen years ago, he moved back to the UK.

For years afterwards, he travelled freely back and forth to the US to visit his family. But when he arrived in Florida with his sister after 9/11, his name was “flagged” on the computer. He was promptly arrested and taken into custody, while his sister was put on the next flight home, not knowing where her brother was being taken and unsure why he had been arrested.

He was held for four months in a local jail before being deported. He was strip-searched at the airport, handcuffed and put in chains while being transported. He was strip-searched again on the way out and given a US marshals’ escort all the way back to the UK.

The law makes no concessions to age or circumstances. Last month an 83-year-old Frenchman – guilty of a long-forgotten minor offence – was put on a plane back to Paris after living in the US for 52 years. He had been held for seven months and was deported even though he had nowhere in France to go. As a result of the deportation, he lost all his US social security benefits.

In Georgia, Mary Anne Gehris, a mother of two children, one of them suffering from cerebral palsy, faced deportation to Germany. She did not even speak the language. She had been adopted in Germany when she was two weeks old and taken to the US by her American parents. Her “crime” was a conviction for misdemeanour battery – punished with a one-year suspended sentence and 60 hours of community service – after a hair-pulling scuffle with a boyfriend.

It was only when she applied for US citizenship (her parents, though themselves US citizens, had never got round to taking it out for her) that the offence came to the attention of the Immigration and Naturalisation Service (INS). On the form, she gave an honest answer to a question about previous convictions.

Gehris was lucky: after a public outcry, the Georgia Board of Pardons and Paroles pardoned her for the original offence and thus halted deportation. Robert, another victim, was also fortunate; his case was taken up by Citizens & Immigrants for Equal Justice. A serving member of the US air force, he faced deportation because he had a 15-year-old conviction for a drug possession for which he had served probation. He, too, had admitted to his “crime” when he applied for citizenship.

Many others are not so fortunate. James, the 62-year-old businessman now in exile, is one of them. His offence followed a complex and bitter dispute with his two brothers over a US company they had at one time jointly owned. The company ran into difficulties and James took a 50 per cent pay cut. With eight children and two grandchildren to look after, he began using company funds to pay his bills. He later said he planned to repay the money when a pension matured. But he was caught and fired and the police were called in.

He was ordered to pay retribution and sentenced to 90 days in prison. But the court had never seen him as a risk and he had been allowed to travel freely in the US and abroad during the 18 months of legal wrangles that preceded his conviction. Though he had to sleep in the jail at night, he was to be allowed to drive himself to work every day. When his wife dropped him off at the jail on 13 February 2004, neither had any reason to think that they would not soon resume a normal life.

But he never went home again. He was served with a notice of deportation proceedings and the daytime release to allow him to continue working was cancelled. His family got an immigration attorney in Washington, appealed to a friendly congressman for help and visited the British embassy. But in May, James was handed over to US immigration agents. He was allowed one quick call to his wife before he left the country.

“I sat in the front porch for hours,” his wife recalls, “on the slightest chance that they would drive him past the house as they left, for one last glimpse of his home. I had our American flag flying from our porch as always, but I wanted to take it down, stick it in the closet. But then I realised that the flag didn’t represent the INS, it didn’t represent this insane administration, but it represented my family, the original colonists . . . and my father, who was a member of the Big Red One in the Second World War, awarded the Silver Star, the Bronze Star, two Purple Hearts and eight presidential citations. It represented our children, American children who were losing their papa. I finally went inside, and turned out all the lights and grieved as if my husband had died.”

Stephen Davis is a writer and television producer currently working on his first book. He can be contacted at theeditor@xtra.co.nz