One Strike, You’re Out

Mario Pacheco (left) was ordered deported last year because of his four-year-old conviction for drug possession. Geoff Heeren, a Chicago immigration lawyer, filed in the U.S. (Photo by Audrey Cho)

Mario Pacheco (left) was ordered deported last year because of his four-year-old conviction for drug possession. Geoff Heeren, a Chicago immigration lawyer, filed in the U.S. (Photo by Audrey Cho)

Mario Pacheco’s adolescence had its ups and downs. Pacheco, 23, admits he made the mistake four years ago of picking the wrong set of friends to hang out with. One of them, he said, was carrying marijuana and dropped it in Pacheco’s car. The police discovered its residue during a traffic stop in February 2001, and Pacheco was charged with possession. He pleaded guilty and received one year of “supervision,” a sentence considered lesser than probation.

Pacheco figured that was the end—a youthful transgression that he could put behind him.

But his past caught up with him last year, when he made a trip to Zacatecas, Mexico, where he was born. Upon returning to O’Hare International Airport, he was stopped by a customs official, who had discovered his criminal record. At a later hearing, an immigration judge ordered his deportation.

Pacheco, who has spent all but the first three months of his life in the U.S. and is a legal permanent resident, was stunned. “I didn’t know [the conviction] would hurt me in the long run,” he said. “It just doesn’t seem right.”

But the judge ruled that, for immigration purposes, a conviction for a nonviolent drug crime was an “aggravated felony,” a category of offenses that mandates deportation.

To many, Pacheco’s story illustrates the harsh medicine doled out by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and its strict enforcement since Sept. 11, 2001. The law directs immigration officials to permanently expel any noncitizen convicted of an aggravated felony, no matter how long ago that crime was committed. It also vastly widened the definition of such felonies and allowed immigration judges no leeway to consider possibly mitigating circumstances.

To some, the black-and-white language of the law is too draconian a response to an issue that comes in many shades of gray. “The problem is not that they are deporting criminals; it’s that laws don’t allow for discretion,” said Mark Davidson, a Chicago immigration lawyer. “We’re talking about people who made a mistake and are not criminals or repeat offenders.”

Others say the government’s zeal for uprooting terrorism in recent years has led to an enforcement policy that seems to go far beyond the intent of Congress. “A lot of things that [legislators] thought they were passing have been interpreted in a broader sense,” said Mary Meg McCarthy, director of the Chicago-based Midwest Immigrant and Human Rights Center, which provides legal assistance. “If they would think twice, they would realize this is not what they intended.”

Officials, however, say the bottom line is restoring order to the immigration system. “Since 9/11, our focus is on shutting down vulnerabilities and restoring integrity,” said Deborah Achim, field office director of the detention and removal program at the U.S. Immigra-tion and Customs Enforcement’s Chicago office. “If criminals could exploit the system, then potential terrorists can do the same.”

Mark Davidson, a Chicago immigration lawyer, said the majority of his clients who face deportation have committed nothing more serious than shoplifting. “The laws have lost individual humanity,” he said. (Photo by Mary Hanlon)

Even prior to the 1996 law, the government had been expelling immigrants whose crimes included murder, rape or armed robbery.

But Congress adopted the stricter rules partly out of concern that, because of lax laws and courts, many immigrant criminals, even violent ones, were not being deported. Experts say the law was unprecedented in its reach and severity: It essentially redefined aggravated felonies to include most crimes for which one may be sentenced to a year or more. By doing so, the law vastly expanded the definition of what crimes could trigger deportation, and it made that definition retroactive. Misdemeanors like shoplifting committed years ago can now be grounds for deportation.

“Before 1996, if you committed burglary, you would’ve needed to be sentenced to five years in prison in order to be deported,” said Lisa Palumbo, supervisory attorney of the immigration assistance project at the Legal Assistance Foundation of Metropolitan Chicago. “But the sentence was lowered to one year, and more people fell into it.”

What’s making the matter more tricky is the fact that consequences vary for some crimes, depending on where they were committed. For instance, in the Immigration and Customs Enforcement’s six-state Midwest region, sentencing for a drunken driving offense can range from a fine to mandatory jail time.

Davidson, who has been specializing in immigration since 1983, said the majority of the deportation cases he encounters involve those who’ve committed nothing more serious than shoplifting—usually for items that cost less than $100. One client, he said, palmed a small bottle of whiteout correction fluid and a carton of cigarettes. “In the last 10 years, [the government] has tried to eliminate all the loopholes,” Davidson said. “The laws have lost individual humanity. You can have compelling circumstances and extensive punishments.”

Records of immigrants have been coming to light at U.S. airports and borders. The U.S. Department of Homeland Security has fingerprints and criminal records available in its massive database, compiled from records at the state and local levels, and can immediately identify immigrants with prior offenses when they re-enter the country.

In 2002, this culminated in headlines for Rick Walters, who is also known as rapper Slick Rick. Walters, a legal permanent resident from England, was convicted of attempted murder in 1991 and was released in 1996. After serving his time, Walters started a family and continued his music career in the U.S. But he left the country in 2002 to perform on a cruise ship in the Caribbean and was detained by immigration officials in Miami when he returned.

“What we’ve been seeing is that the tracking technology has gotten better, and the level of tolerance has gotten lower,” said Fred Tsao, policy director at the Illinois Coalition for Immigrant and Refugee Rights. “Some level of screening is necessary, and it’s reasonable to expect that [immigration officials] would be doing their job. But, on the other hand, it’s highlighted how unforgiving the law can be, if something that happened 30 years ago is catching up to them.”

Tsao points out that some immigrants have inadvertently set off their own deportation process when they try to apply for citizenship or other immigrant benefits at the U.S. Citizenship and Immigration Service—an ironic outcome, he says, for those trying to follow the rules. Applicants for immigrant benefits are always subjected to thorough background checks of criminal records and fingerprints, and those who committed any crimes would be investigated.

“We don’t handle arrests or removal, but we always run background checks,” said Marilú Cabrera, spokeswoman for the Citizenship and Immigration Service. “If a person is here illegally and if we detect criminal action, we would notify law enforcement or call” the Immigration and Customs Enforcement’s office.

Officials say the stricter enforcement of immigration laws has been a success in many areas. For instance, the nationwide sweep targeting child-sex offenders, dubbed Operation Predator, has caught more than 200 immigrants in the Chicago area since it began in 2003. Nationwide, immigrant fugitive apprehensions have risen 112 percent in fiscal year 2004, compared to fiscal year 2003.

The success, Achim says, is due to a better coordination among federal agencies. “We get [leads] coming from all types of local and federal agencies with information about people who have final removal orders,” she said. And Achim expects that the tracking of immigrant criminals would be beefed up further with an opening of the Immigration and Customs Enforcement’s new office in downstate Rock Island.

In Congress, some lawmakers are also attempting to tighten up the system. U.S. Rep. Randy Forbes, a Republican from Virginia, authored the Alien Gang Removal Act, which targets immigrants who commit gang-related crimes and bars those with established gang ties from entering the country.

Forbes points to an El Salvadorian gang called MS-13 and Columbia’s Little Psychos that he said have committed horrific violence. “We want to institute the same [legal mechanism] for these gang members that we did for organized crime in the 1970s that was so successful,” he said. Forbes’ bill is pending in the House of Representatives’ Judiciary Committee.

Following his inspection at O’Hare, Pacheco, the Mexican immigrant, was ordered to show up at immigration court, at 55 E. Monroe St. When he went, lawyer in tow, he had to wait five hours until he was allowed before a judge who “glanced at the file and said, ‘Deportation,'” he said. “He didn’t even put any interest in it.”

Geoff Heeren, Pacheco’s lawyer who works at the Legal Assistance Foundation, tried to get the deportation order dropped, using a waiver available to immigrants who have family members who are U.S. citizens and would experience “extraordinary hardship” if deported. But the request was turned down. “I think the judge took a really narrow view of the law in this case,” Heeren said.

Pacheco’s appeal is now pending at the Virginia-based Board of Immigration Appeals. Meanwhile, he is trying to keep a sense of normalcy in his life: working his shipping job at a warehouse, spending time with his children, working out at the gym, even studying to earn a GED.

Still, the order of removal always hangs over Pacheco’s head. If he was deported, Pacheco would have no relatives in Mexico to stay with. His parents brought him to the U.S. in 1981 from the mountain city of Valparaizo, in central Mexico. Pacheco says he knows virtually nothing about it. “Life is hard there,” his mother, Lilia, said. “We have nothing there. All our life is here.”

Pacheco is also concerned about providing for his children if he’s deported. “They get paid like $50 a week” in Mexico, he said. “There’s no way I can help my kids out if I’m over there.”

He has yet to explain his situation to his children—6-year-old Hazel, 5-year-old Mario and 2-year-old Isasais—because he feels they are too young to fully comprehend the complexity of what is happening.

Lilia Pacheco says the ordeal has made her physically sick. “I’m so depressed,” she said. “It’s really very bad. I couldn’t sleep in the night. I never thought I would feel this kind of pain. This affects me too much.” She says she’d understand her son’s ordeal if he had committed a heinous crime. “If you do something very bad, then I’m not saying anything about that,” she said. “But he’s being punished for something he did when he was a teenager. He didn’t even go to jail.”

Stacie Williams is a Chicago-based freelance writer.

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