"We see a ton of people deported for misdemeanors, probation violations, petty theft, shoplifting," said Alisa Wellek, executive director of the Immigrant Defense Project, a legal services group that advocates for immigrant rights in the criminal justice system.
"The federal government has these really overreaching laws on the books, laws that are very unforgiving for anyone who's had any contact with the criminal justice system — even if you’ve never served a day in jail."
Border Patrol Agents with a Hummer and Astar patrol for illegal entry into the United States, Wikimedia Commons
Noncitizens convicted of an "aggravated felony" face particularly harsh penalties. Congress expanded the definition of the term since 1988 so that they can be deported for a crime that may be neither "aggravated" nor a "felony," according to Joshua Breisblatt, policy analyst for the American Immigration Council, a pro-immigration research group.
Thirty offenses qualify as aggravated felonies, including theft, failing to appear in court, or offenses that most states consider a misdemeanor or do not criminalize at all, such as consensual sex between a 21-year-old and a 17-year-old, the group said.
Any new offense Congress adds to the list is retroactive. So a noncitizen can become deportable even if he or she already served the sentence for the crime years before.
When she was 19, Machado pleaded guilty to three felony counts: forging a friend's name on a check, writing bad checks, and failing to appear in court. Because of her criminal history, Machado is considered a "priority aggravated felon," according to a US Immigration and Customs Enforcement (ICE) official. Machado, who considers herself "totally Americanized," is in a detention facility in Louisiana. She is facing deportation any day now to El Salvador, a country where she said she knows no one and cannot read or write the language.
In 2014, President Barack Obama announced stepped-up deportation for "felons, not families." At the same time, the Department of Homeland Security announced that it would be prioritizing deporting noncitizens who posed a serious threat to public safety or national security.
Research by immigration think tanks indicates that serious crimes committed by noncitizens are rare. The Migration Policy Institute estimates that of the roughly 1.9 million noncitizens who are eligible for deportation based on their criminal history, about 820,000 are undocumented. Of those, 37 percent, or roughly 300,000, were convicted of a felony, which can range from murder to attempting to re-enter the country illegally, said Faye Hipsman, an MPI policy analyst.
Another 47 percent, or about 390,000, were convicted of a significant misdemeanor, such as drunken driving. But what constitutes a misdemeanor can vary greatly from state to state, and can be anything from shoplifting to minor drug possession, Hipsman said, and sometimes people with low-level traffic violations get caught up in the deportation pipeline.
But ICE says about 85 percent of people in detention facilities are there because they were considered "top priority" for removal — either they were a threat to public safety or national security, or they were attempting to cross the border illegally, or they were members of a criminal gang, or they had been convicted of a felony, or they were considered "aggravated felons."
Advocates for limiting immigration, such as Jessica Vaughan of the Center for Immigration Studies, urge the incoming Trump administration to get tougher and scrap the practice of ranking crimes to decide who should be deported.
The policy, she said, "exempted too many criminal aliens from deportation and allowed for exemptions based on family ties."
“All of that resulted in the release of tens of thousands of criminal aliens in the past few years,” Vaughan said. “Many of these individuals went on to commit more crimes, sometimes with tragic results.”
Many local law enforcement officials agree, although many of them ignore ICE requests to detain people without a court order for fear they could be found in violation of immigrants' civil rights.
The sheriff of Rockland County, Texas, Harold Eavenson, said he has seen more than his share of immigrants committing crimes, including a hit-and-run homicide committed by a man who'd been deported and then came back. "There should be no doubt at all that anyone who has a criminal history in this country should be deported," said Eavenson, who is slated to become president of the National Sheriffs' Association in 2017.
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