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The Honolulu Advertiser
Posted on: Thursday, December 21, 2006

Old crimes still count for some non-citizens

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By Kevin Dayton
Advertiser Staff Writer

Growing numbers of non-U.S. citizens who have lived in Hawai'i for years are being deported because of old criminal convictions, with some deportation cases initiated long after the resident aliens served their sentences and tried to put their convictions behind them, according to immigration lawyers.

While national advocates of more restrictive immigration policies praise the removal of convicted criminals, some local lawyers criticize the deportation of people over long-resolved criminal cases.

There were no statistics available on how common the removals are in Hawai'i, but Honolulu immigration lawyer Maile Hirota said she gets calls "all the time" from people who thought they had paid their debt to society, only to have immigration officials initiate deportation 10 years or even 20 years later.

"We have a very, very sad case right now where at the time the person went to trial, it wasn't a deportable offense, and then the law changed in 1996, and she's been fighting her deportation ever since," Hirota said.

The strangest cases are those in which immigrants enter deferred acceptance of guilty or deferred no contest pleas in state courts, which allow them to have their state criminal records wiped clean if they abide by probationlike requirements. Even after completing that process, some are still subject to deportation, Hirota said.

"I've had guys come to me and say, 'As far as the state of Hawai'i is concerned, I don't have a conviction at all, so how come Immigration is trying to deport me?' " Hirota said.

Ernestine Fobbs, public affairs officer for the Washington, D.C., office of Immigration and Customs Enforcement, said immigration law changes in 1996 expanded the authority of the government to remove certain types of law violators.

"Under this new authority that was passed by Congress, we are enforcing the law that says if a person is a convicted felon, we are taking a closer look at this to see if that person is indeed subject to be removed from the United States," Fobbs said. "Basically, we are enforcing the law. That is the law."

AMBIGUOUS CASES

Statistics released by Immigration and Customs Enforcement show the number of people removed nationally because of U.S. criminal convictions has nearly tripled since 1999, to 86,496 in the fiscal year that ended Sept. 30.

Many of the crimes that are considered deportable or "removable" offenses are serious such as murder, child molestation and treason.

But some local immigration lawyers question more ambiguous cases involving less serious convictions for people who have been living legally in the United States for many years.

Immigrants who commit "aggravated felonies" have been deportable for many years, but the law was tightened with the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996.

With that law, Congress redefined "aggravated felony" to make more convictions deportable, including theft, gambling, assault or spousal abuse, even in cases when as little as a year in jail was imposed, and even if the sentence was suspended by the court.

The 1996 changes also applied to past convictions, meaning people who entered guilty pleas many years ago believing their crimes were not deportable could suddenly face deportation after all.

TRACKING SYSTEM

In other cases, immigrants are not told until after they have reached a plea agreement with prosecutors that the conviction could result in deportation, said John Egan, a Honolulu immigration lawyer and adjunct professor at the University of Hawai'i-Manoa Richardson School of Law.

One example cited by Egan was old spouse abuse convictions, which may be considered deportable offenses now under the 1996 law, depending on the sentence imposed.

Egan said U.S. Customs and Border Protection apparently has a much more effective computer system for identifying people with state criminal convictions in the wake of the Sept. 11, 2001 terrorist attacks.

That means resident aliens who have been entering and leaving the country for years can suddenly be stopped and jailed when they return home to Hawai'i, and may face deportation for old criminal convictions, he said.

"Absolutely that is happening, and that is happening pretty regularly right now," Egan said. Egan and Hirota declined to identify any of their clients in that situation because of confidentiality requirements, and because the clients with old criminal convictions generally want to avoid publicity and move on with their lives.

'ENTIRELY LAWFUL'

To some national observers, the effort to remove immigrants with criminal convictions is merely a small step in a badly needed overhaul of national immigration policy.

Michael W. Cutler, a former senior special agent with the Immigration and Naturalization Service and a fellow with the Washington, D.C.-based Center for Immigration Studies, said the enforcement of immigration laws has been so spotty and inconsistent that "anything that gets done by comparison to what has been looks like major change."

Cutler said the government captures a small percentage of aliens with felony records who are living in the United States, and "the removal of people with criminal histories is entirely lawful and appropriate."

"There is no way you can secure our nation against terrorists and criminals if you don't have a secure immigration system, if you don't have a good solid border, if you don't have control over who you give residency and citizenship to, if you don't have the resources to apprehend and deport criminal aliens (who) have imbedded themselves in our communities across the country," Cutler said.

Reach Kevin Dayton at kdayton@honoluluadvertiser.com.