Undocumented Immigrants With Criminal Records Face Uncertain Future

The debate over comprehensive immigration reform has many sticking points, one of which is how to handle undocumented immigrants with criminal histories. While some immigration advocates think the language put forth in the Senate bill is overly punitive to people who have committed minor crimes, others argue that the legislation provides safe haven to criminals who could be dangerous to our country. Robert Siegel meets several undocumented immigrants who have criminal records that have already led to immigration consequences.

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ROBERT SIEGEL, HOST:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

In all the current talk about helping 11 million undocumented immigrants come out of the shadows, there's typically broad agreement about who shouldn't get a path to legal residence: law breakers. There are lists of offenses that rule people out, whether it's under existing immigration law or under the immigration bill the Senate passed, or under President Obama's program to help the so-called Dreamers - the ones who were brought to the U.S. illegally as children.

Keeping out criminals sounds simple and it sounds fair. But after talking with some undocumented immigrants and their lawyers and advocates, I came away surprised to learn that it's anything but simple and, in some cases, it doesn't seem fair, either.

We'll start at the Baltimore office of Casa de Maryland, a non-profit which provides services and advocacy for immigrants. At this session, Dreamers get help applying for President Obama's Deferred Action for Childhood Arrivals Program, DACA. At one table are two siblings who were brought here by their parents from South America. Since they are at risk of deportation, we're not using their names.

They appear to be a very middle class family. They came to the U.S. as visitors and have overstayed their visas by more than a decade. They brought their old passports and other documents.

UNIDENTIFIED WOMAN #1: Are you in high school right now?

UNIDENTIFIED MAN #1: Yes, I'm in high school right now.

UNIDENTIFIED WOMAN #1: OK.

SIEGEL: The younger of the two was a toddler in his passport photo. He speaks flawless, unaccented English. But he and his sister are counseled in Spanish so that their father can understand.

UNIDENTIFIED WOMAN #2: (Foreign language spoken)

SIEGEL: Their applications look very hopeful. They were brought to the U.S. when they were under 16. They've lived here steadily since 2007. Those are both conditions of DACA. And as for disqualifying marks on their record, the teenager and his older sister are amused by questions about whether they're terrorists or gang members or criminals, whether they're threats to national security.

UNIDENTIFIED MAN #2: (Foreign language spoken)

UNIDENTIFIED WOMAN #3: No.

(LAUGHTER)

UNIDENTIFIED WOMAN #3: (Foreign language spoken)

UNIDENTIFIED WOMAN #4: (Foreign language spoken)

(LAUGHTER)

SIEGEL: No, she laughs, I'm not a threat.

Like the overwhelming majority of Dreamers who have applied for deferred action, these two stand to get approved for special work permits, and a fast track onto whatever path to legal status a new immigration law may provide.

But in another room at Casa de Maryland, an 18-year-old from Mexico, who came to the U.S. four years ago, illustrated something that immigration lawyers say that seems incredible: Some immigrants are unclear about whether they have criminal records.

UNIDENTIFIED MAN #3: (Foreign language spoken)

SIEGEL: This young man says that when he was 16, he was arrested along with some friends and charged as an adult with armed robbery. He told me, his friends robbed some dude and there was a stick. He says a public defender got his charge reduced from armed robbery to robbery, and got him charged as a minor. He was sentenced to probation and then had his record expunged.

He told his story to Casa de Maryland immigration lawyer, Jennifer Jurney.

JENNIFER JURNEY: (Foreign language spoken)

UNIDENTIFIED MAN #3: (Foreign language spoken)

JURNEY: OK. (Foreign language spoken)

SIEGEL: Jennifer Jurney warns the 18-year-old that sometimes immigration can see an expungement and they can only guess what offense was actually committed. She tells him he needs to get his court documents.

UNIDENTIFIED MAN #3: (Foreign language spoken)

SIEGEL: The young man asks if this is going to be little problem or a big one. He told me he's gone straight and gets work painting houses. He wants to proceed with an application for deferred action but a two-year-old robbery is not the kind of offense one can easily overlook.

Later on, I met someone who has taken her lawyer's advice not to apply, not to come out of the shadows and risk deportation.

JENNY: My name is Jenny. I'm 30 years old. I was born in Mexico, in Guadalajara.

SIEGEL: Jenny has a Bachelor's degree from Arizona State and a Masters in accounting from an online university. She says she had a good corporate job in Arizona, where she still owns a house, until Homeland Security checked her employer's records.

JENNY: It's just eventually, when they found out my situation...

(LAUGHTER)

JENNY: You know?

SIEGEL: They let you go.

JENNY: They let me go.

SIEGEL: You came here before you were 16 years old. You were brought here by your parents.

JENNY: Correct.

SIEGEL: You've been living here continuously since then.

JENNY: Correct.

SIEGEL: No long trips out of the country back to Mexico?

JENNY: No. I want to, but no.

SIEGEL: No. So you are the poster child the Deferred Action for Childhood Arrivals Program...

JENNY: Correct.

SIEGEL: ...except for one thing.

JENNY: Exactly.

SIEGEL: The one thing that would likely exclude Jenny happened seven and a half years ago after a night out with friends, near Phoenix, when she says the designated driver didn't show up.

JENNY: I was waiting outside the bar and this guy that I was talking to just kind of followed me outside. I kind of got the creeps that he was going to follow me or something. And I just jumped into my car. And for some reason, it all kind of makes sense. I'm like, I only live five blocks away, I'm just going to drive slow, go straight, I should be OK and I really wasn't. So...

SIEGEL: You got stoppedgot stopped.

JENNY: Exactly.

SIEGEL: Were you driving recklessly that you would draw attention to yourself when you were stopped or...

JENNY: Probably because I was driving extremely slow.

(LAUGHTER)

SIEGEL: Extremely slow.

JENNY: Well, not extremely slow but, like, enough to cause the cop's attention, I guess.

SIEGEL: There was no accident, but Jenny got a 10-day jail sentence for driving under the influence of alcohol. Today, she is married to a non-U.S. citizen who has a work visa and a good job. Their daughter, who is not quite two, was born here, so she's a citizen. Unable to work, Jenny says she's done volunteer service as a hospital interpreter.

But immigration law takes DUIs so seriously, her lawyer figures that Jenny would almost certainly be turned down for DACA. Jenny, who now lives near her husband's work in Washington, D.C., has an arrest record.

Nineteen-year-old Susanna - that's the name she'll go by for this story - does not. She lives in Northern California with her husband, who's a U.S. citizen, and their eight-month-old baby, who is also a citizen. Susanna wants to work legally, so she submitted her application for DACA against the advice of her lawyer, who worries that she'll be rejected because of what happened in high school.

Susanna got into fights and she was ordered by her principal not to wear red, a gang color. She admits she liked wearing red but insists she was never part of a gang.

SUSANNA: (Through Translator) In school, they thought I was with the reds. I had friends who were, like, not in gangs but they wore gang colors and they were arrested and they spent time in jail and everything. I didn't but I hung out with them. And when there were problems, they would lump me in with them.

SIEGEL: Susanna's lawyer, Cecilia Candia, says that that association might make her ineligible for DACA.

CECILIA CANDIA: We are concerned that she may have been placed on a gang database because of the issues with red in school. Also, because she was investigated, even though she wasn't arrested, there is a police report, and because of where she lived, and also because she has friends who were becoming involved in gangs.

SIEGEL: Immigration law is very tough on gang activity. Even if Susanna were here legally, that could get her deported. Her lawyer says there's no way she can find out if Susanna is in the California state database called CALGANG. But she says legal experts tell her that's likely.

Here's another twist to immigration law. The fact that Susanna is married to a citizen would make a path to legal status simpler if, like Jenny, she had overstayed a legal visa. But since Susanna snuck across the border, she entered the U.S. uninspected and would have to leave the country for 10 years before coming back.

One more story now, about a man who is too old for deferred action - the cutoff age is 31 and he's 37 - a story with a surprise ending. Runya is from Zimbabwe. He overstayed a visitor's visa 15 years ago. He lived in North Carolina, where he had two arrests for drunk driving, one of which was dismissed. Then he moved to northern Virginia, where he was busted twice for public drunkenness. The first time, he was headed home from a club.

RUNYA: Well, I got a little too drunk and I wanted to take a shortcut. So I was walking on the Interstate and the police stopped me. And they took me to jail overnight.

SIEGEL: The second time, he was also headed home on foot.

Were you making noise, were you making trouble in any way?

RUNYA: No, I was not making trouble with anybody. I was just walking home. I mean, the officer said a few words and then they arrested me.

SIEGEL: And what happened?

RUNYA: Well, they took me to jail. And when I got there, they told me that I was going to be sent back to Zimbabwe. And then they called the immigration office. And the immigration office said they were going to come pick me up in 48 hours. And then, you know, they stood by their deal, they came in 48 hours.

SIEGEL: Runya was sent to an immigration detention facility in southern Virginia. He spent eight months there.

RUNYA: When I was in immigration jail, I couldn't sleep 'cause I was so scared. So I'll go for days and days without sleep, without sleep - like, what is my future? What is my future?

SIEGEL: Finally, he had a trial by video. He says the immigration judge spoke with him for four hours and heard him describe his past in Zimbabwe.

RUNYA: I was a student, so we used to organize riots. And if I go back right now, it will mean harm to me, a lot of harm.

SIEGEL: By riots, he means protests against the government for which he would presumably face punishment. Since Runya had waited more than a year after his arrival in the U.S., he could not apply for asylum. But the judge granted Runya a status called withholding of removal. Technically, he is awaiting deportation but he has a legal work authorization. He works as a mover.

And while he's obliged to ask other countries for permission to immigrate, he can stay here working until that happens or until Zimbabwe becomes democratic. In short, despite the DUI on his record, which typically blocks legalization, and his misdemeanors for drunkenness, Runya enjoys a de facto legal status that Jenny does not.

He used to work for cash. Now he gets a paycheck with taxes deducted. Angie Junck is a staff attorney at the Immigrant Legal Resource Center in San Francisco.

ANGIE JUNCK: The issue with many of these things is that they're automatic laws that do not consider immigration circumstances and the person's history, how long they've been in the United States and their family here and the circumstance of their offense.

SIEGEL: Julie Myers Wood used to run ICE, Immigration and Customs Enforcement. She also favors greater discretion in reviewing offenses, both to let people stay and to kick them out.

JULIE MYERS WOOD: There are thousands of unique circumstances and we're dealing with people's lives which are messy and people's experiences, which are messy, and people's circumstances, which are not always what they would like or we would like.

SIEGEL: And there are strange inequities. An undocumented immigrant might get found with marijuana in Brooklyn and come away with no black mark on his record. For the same behavior, an immigrant in Iowa might get a disqualifying conviction. Federal law depends on state practice. In Arizona, using fake documents to work could result in a felony charge of identity theft.

In other states, it might result in a misdemeanor with less severe immigration consequences. By the way, just being in the country undocumented is not a crime. It's a civil offense. Julie Myers Wood, who supports comprehensive immigration reform, says whatever law emerges will inevitably be unfair to someone.

WOOD: It's not going to be perfect. There are going to be people who are going to adjust who at the end of the day we wish would not have adjusted. And there are going to be people who will be denied adjustment that may be deserving. It's not going to be as precise or as surgical as we want and that's the nature of having kind of a large mass system.

SIEGEL: But immigration lawyer Angie Junck raises this concern. The applicants for deferred action who've been so successful are a self-selecting group. What about those who are scared off of DACA or conceivably scared off of a new immigration law?

JUNCK: We're very concerned that more people will be ineligible and not be able to get to this path of citizenship, which really will undermine the goals of bringing undocumented people out of the shadows and coming out. The more these bars exist and more complexities exist, there will be more fear in coming out of the shadows for many individuals.

SIEGEL: The immigration bill the Senate passed added restrictive language about gang activity and drunk driving. In the Republican-controlled House, the Judiciary Committee passed a bill that would add the ultimate bar. For the first time, being here undocumented would be a federal crime.

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