So the DOJ’s shift is a positive step, and long overdue. But it points to a stark double standard at the heart of the US “justice” system: For people with criminal convictions who happen to be immigrants, the government’s attitude remains unchanged, and even more emboldened towards punishment: “once a felon, always a felon.”
{mosads}Under punitive immigration laws dating to the 1990s, detention and deportation have become essentially a mandatory minimum sentence imposed on non-citizens with convictions.
I learned of this extra-level of punishment through first-hand experience. In 2003, when I was 20, I committed a robbery. It was a horrible decision that ultimately landed me in the New York state prison system for six and a half years. During my incarceration, as many people do, I underwent a transformation. After I got out, I became an HIV/AIDS counselor, started a family, and earned a college degree. I was two weeks away from getting a Master’s in Social Work when immigration agents showed up at my house one morning in May 2014 and, with my wife and two young daughters looking on, hauled me off into immigration detention.
To be snatched away from my family; to hear my wife cry and my daughters ask when I was coming home; to see everything we had worked hard for since my release fall apart before our eyes, and me being powerless to do anything about it; to be perpetually punished for one frame in the movie called my life despite all I had done since my release — this was hardest struggle I’ve ever undergone; harder than my six years in state prison.
My mother brought me to the U.S. from Guyana when I was six years old. I was a lawful permanent resident with a green card, but I was shocked to find out that I was subject to mandatory detention and deportation based solely on my criminal conviction.
It wasn’t always like this. Before 1996, an immigrant with a criminal conviction could still be deported, but that person generally had the right to a fair day in immigration court, before a judge with the discretion to weigh all the individual circumstances of a case — how long they’d been in the U.S., whether they had family here, how long ago the offense occurred — and rule against deportation if appropriate. But harsh immigration laws passed that year severely curtailed judicial discretion.
It took the extraordinary efforts of my community, led by the nonprofit Immigrant Defense Project and the Fortune Society, among many others, to convince the immigration prosecutor to make an exception and release me. Prosecutors rarely use their discretion in cases like mine, so I was very fortunate.
On December 31, 2014, I was one of only two people to receive a pardon from New York Gov. Andrew Cuomo. In granting pardons, the governor has recognized and acknowledged that people are more than just their criminal records.
Every year in the United States, tens of thousands of immigrants suffer the fate that was almost mine and are snatched from their families based on a past offense. Many of these offenses stem from 90s-era criminal laws that led to the arrest and incarceration of mostly black and brown men. At the same time, a dramatic increase in federal criminal prosecutions of non-citizens for immigration offenses — traditionally considered a civil matter — has further swelled the number of immigrants with convictions.
Far from scaling back on immigration prosecutions or mandatory deportation, the federal government is moving in the opposite direction. The U.S. Congress is considering a new mandatory minimum sentence for nonviolent immigration offenses. The Obama administration, and many of the presidential candidates, list immigrants with criminal histories as a top priority for deportation.
In justifying these policies, administration officials talk about targeting “felons, not families.” But to frame the issue in these terms is to undermine all of the gains in both perspective and policy that we have made in the criminal justice context, without which my pardon would never have been possible.
We’ve learned the costs of overly rigid and punitive policies that brand people as “criminals” for a life-time. Politicians from both parties have rightly called for an end to the discredited “tough on crime” policies of the 1990s. However, equally deserving of the same level of scrutiny, rejection and regret are the harsh immigration laws passed in this same era.
Khalil A. Cumberbatch is a formerly incarcerated advocate for social justice movements in New York City.