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Immigrants' double jeopardy

Supreme Court to review deportation laws

Jon Kamman
The Arizona Republic
Apr. 24, 2001

Jose Gutierrez immigrated legally to Arizona 40 years ago to marry a U.S. citizen. He worked hard to buy a home in Phoenix and raise two daughters and a third girl the family welcomed from a neglectful home.

Now he faces permanent deportation to Mexico because of a DUI conviction for which he already is serving three years in prison.

Javier Guevara is a 31-year-old diabetic who lost his right leg to bone disease but still is sole supporter of a wife and two children. He does construction work on the Pascua Yaqui Reservation southwest of Tucson.

Guevara, a legal U.S. resident, gave a friend a ride to a cocaine deal nearly 10 years ago.

He was fined $2,000 and completed four years of probation without prison time.

Now he's about to pay again for the old crime by being deported permanently to Mexico, which he left at age 4.

"We see this, or something like it, every single day," said Andrea Black, immigration expert.

"The federal government is deporting thousands of people, many who have lived here with unblemished records for years, for relatively minor crimes," said Black, policy advocate for the Florence Immigrant and Refugee Rights Project based near federal detention centers in southern Arizona.

Concept of justice

Deportation laws with consequences so severe they strain the concept of American justice will be reviewed today by the U.S. Supreme Court.

Families across the country are pleading for a second chance for their loved ones, some of whom have not set foot in their home countries since infancy and don't even speak the language.

Since 1996, foreigners living legally in the United States have been subject to automatic deportation if convicted of any of a broad array of felonies.

The process allows no opportunity for judicial review, as it did before 1996. A person's links to family, community and work in this country, and the absence of ties to his or her birthplace, are not considered.

"God sent this family to me, and it's a terrible thing to face not having this man in our lives," said a tearful Cecelia Archibeque, 35, who the Gutierrez family took in from a dysfunctional home at age 15. "He was always there for us. He worked hard every single day."

Although his family says he seldom drank, Gutierrez, 60, also was convicted of DUI 10 years before his 1999 arrest.

Neither case involved a crash or an injury.

The most recent drinking episode occurred about 18 months after his wife, Shirley, died unexpectedly.

"We aren't trying to minimize the seriousness of driving under the influence," said daughter Yolanda Gutierrez, 36. "But should it be punished by deportation?"

When Jose Gutierrez agreed to plead guilty to the offense, he had no idea it could jeopardize his standing in this country, said daughter Gail Martinez, 38.

Had her father become a citizen, Gutierrez could not be deported, but "he just didn't think about it" during his 40 years here, Martinez said.

If deported, Gutierrez would be barred permanently from re-entering this country. Sneaking in could bring both a prison term and another deportation.

'Ridiculous extreme'

While not condoning any DUI, Marilyn Pettigrew, manager of the Phoenix office of Mothers Against Drunk Driving, expressed surprise that deportation proceedings would not take character and family ties into account.

The unforgiving law may be in reaction to many other cases in which foreigners flee to avoid prosecution, she suggested.

Even a non-violent felony such as third-offense shoplifting could trigger deportation efforts as readily as murder, rape or robbery, said Jose Bracamonte, Gutierrez's immigration attorney.

"It's immigration law carried to a ridiculous extreme," he said.

In the case being argued today before the high court, the question is whether Congress overstepped its authority in instructing the Immigration and Naturalization Service to apply the law retroactively.

The law specifies deportation even for people who committed an aggravated offense years earlier, paid their debt to society and have since led upstanding lives.

The INS doesn't hunt down such people, but acts if they come to the agency's attention in other ways, such as applying for citizenship or returning from abroad.

The INS vs. St. Cyr case arises from Connecticut, where Haitian immigrant Enrico St. Cyr was convicted of drug trafficking before stringent measures were passed by Congress and signed into law by then-President Clinton.

The laws are the Illegal Immigration Reform and Immigrant Responsibility Act, and the Anti-Terrorism and Effective Death Penalty Act.

They were enacted in the political climate of an election year, a desire to crack down on immigration, and the since-discounted fear that foreign terrorists may have played a part in the bombing of the federal building in Oklahoma City.

A number of members of Congress have joined with immigrant-rights organizations and the American Civil Liberties Union in pressing for revisions.

The INS also would like priorities re-ordered to emphasize current public-safety needs, rather than past crimes, said Russell Ahr, special assistant to the director in the Phoenix INS office.

In the St. Cyr case, the 2nd U.S. Circuit Court of Appeals agreed with a lower court that the INS should not order deportation for crimes committed before the 1996 laws took effect.

Judicial discretion

Earlier immigration laws would not have guaranteed that St. Cyr or others would not be deported, but would have allowed an immigration judge to review circumstances and possibly rule against deportation.

Before 1996, more than half of felons' requests to stay in this country were granted, according to research by the Medill School of Journalism at Northwestern University in Evanston, Ill.

In another recent Phoenix case, former Arizona Cardinals lineman Luis Sharpe was ordered deported to Cuba, where he had not lived since age 6, because of convictions on drug charges.

A subsequent request for political asylum was denied.

The United States has no direct diplomatic relations with Cuba, so deportation cannot be arranged, said Sharpe's attorney, Marc Budoff.

Sharpe is out of custody but in "legal limbo" regarding deportation, Budoff said.

The outcome of St. Cyr is likely to decide the fate of Guevara in Tucson and many others with pre-1996 crimes.

Challenges on other fronts are keeping hopes alive for those who, like Gutierrez, were convicted of DUI or non-violent crimes.

Bracamonte won a split ruling last month from a three-judge Board of Immigration Appeals that Arizona's felony law on "endangerment" is not a deportable offense, because the crime does not involve physical force.

In several cases arising from Texas, the 5th U.S. Circuit Court of Appeals ruled similarly last month that DUI is not a crime of violence.

Unless the 9th Circuit, which includes Arizona, also adopts that view sooner, Gutierrez will be held indefinitely in INS custody during his appeal after he completes his state prison term next year.


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