Thursday, May 6, 2010

New hope for New York immigrants with criminal convictions...By Anthony Salandy, Ph.D.


This week, the Governor of New York, David Patterson, announced he will convene a five-member Special Immigration Board of Pardons (SIBP). The goal of the SIBP is to accelerate the consideration and granting of pardons to legal immigrants who have criminal convictions. According to federal statutes, legal immigrants with old or new criminal conviction are subject to deportation.

The move is aimed to plug a hole in the Immigration and Nationality Act (INA) that some see as unfair. The 1996 INA expanded the types of deportable crimes. Legal residents who commit these crimes could face deportation even if they have not lived in their native country for many years. Furthermore, the act provides strict orders for judges in deportation cases. Therefore, judges often are constrained in taking into account extenuating circumstances (married, date and nature of the offense, children) in considering a deportation case.

In the past, legal residents pleaded guilty to criminal charges in exchange for probation or no jail time. Many legal immigrants with criminal convictions assumed that the federal government would not track them down and deport them. Often immigrants would plea guilty to an offense without realizing that it would put them at risk for deportation. So, many legal immigrants who had minor offenses went about their daily lives not realizing that they had a deportable alien status.

Recently, the federal government indicated that they have stepped up their identification and removal of deportable aliens. Individuals who have old convictions for minor offenses are now being located and removed. Some of these individuals are married to American citizens, have American born children, and live productive lives in their communities.

Governor Patterson’s approach provides the state power to wipe the criminal records of legal residents clean by granting a pardon thereby lifting the deportable status. Hence, the federal government cannot remove the individual because he/she has no outstanding convictions because they have been pardoned.

Caribbean countries have been calling for the U.S. to curb its practice of sending criminals back to their native land for some time. They have argued that increasing crime in several countries in the region is a direct result of the influx of criminal deportees from the U.S. However, Caribbean policymakers are slow to acknowledge that a significant number of deportees committed minor offenses in the U.S. and some even committed their offense years ago.

Deportation over the past few years in the Caribbean has been constant. For instance, according to data from the Office of Immigration Statistics at the Department of Homeland Security, Jamaica had the highest number of US deportees in 2008 (1641) in which 76% (1246) were removed from the U.S. for criminal convictions. Haiti followed closely behind with 1570.

However, Haiti’s deportee population is starkly different. A little more than 73% of the U.S. deportees returning to Haiti in 2008 were for noncriminal reasons. Trinidad and Tobago had the third highest number of deportees among CARICOM countries (484) with a little more than half being deported for criminal reasons.

Also, the number of criminal deportees returning back to the region has hovered around the same mark for the past decade. Jamaica received an average of approximately 1400 criminal deportees from the U.S. each year over the past ten years. Trinidad and Tobago averaged 273 U.S. criminal deportees each year during the same period.

Even as there is talk about increased efforts by the government to locate deportable aliens, this does not seem to largely effect CARICOM nationals living in the U.S. Surprisingly, the number of deportable aliens from Jamaica located by U.S. immigration officials has decreased by more than 100% from 2005 to 2008 (1557 and 699, respectively).

Similarly, for deportable aliens from Trinidad and Tobago located by U.S. immigration officials the number decreased from 448 in 2005 to 210 in 2008. So it seems at least INS is being vigilant at locating deportable aliens from countries other than CARICOM nations. Moreover, the number of deportees to the Caribbean region has been decreasing not increasing.

So now Governor Patterson must wait and see if legal immigrants with criminal convictions will come forward to be considered for a pardon. Or, will they fear somehow coming to the attention of the federal government by taking advantage of the Governor’s push for fairness. Only time will tell.  

© Anthony Salandy

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