Paying for Crime--in More Ways Than One

Rafael Antonio Flores tried to steal a bike. Daniel Zavala Torres messed with drugs. Hermogenes Canales had sex with a 16-year-old girl.

All served time in jail for their crimes--in one case years ago. Now each has spent months in federal custody without bail at the Mira Loma Detention Facility in Lancaster, waiting to hear if he will be kicked out of the country.

They are three among 14,500 “criminal aliens” from dozens of countries who are being held at 15 makeshift prisons nationwide operated or paid for by the Immigration and Naturalization Service.

Many would be free if not for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which requires that noncitizens who commit--and are convicted of or plead guilty to--any of a newly broadened range of crimes be held without bail until an immigration judge can decide their fate.

“Congress’ goals are to ensure the aliens’ presence in court and to protect the public from criminals while their cases are being heard,” said Arthur Strathern, associate general counsel for the INS.

But civil rights groups and detainees’ families, as well as some lawmakers and judges, contend that the no-bail provision is too rigid. The detainees themselves have staged jail yard rebellions over the issue. And even the INS wants some changes.

“The INS does believe that the current mandatory custody provisions are too broad, and has asked Congress to restore some discretion to the agency to determine which aliens may be released during their proceedings,” Strathern said.

Support for mandatory detention built after a March 1996 report by the Justice Department’s Office of the Inspector General found that nearly 90% of noncitizens facing deportation for committing crimes simply disappeared back into society unless held without bail.

Conversely, among detainees, 94% were ultimately deported, the study found.

“The statistics tell the story in and of themselves,” said Allen Kay, a spokesman for Rep. Lamar Smith (R-Texas), the law’s chief architect. “When you are looking at that kind of contrast, that’s pretty stark.”

Nationally, it takes an average of 2 1/2 months for a detainee to get an initial hearing in immigration court, according to Rick Kinney, a spokesman for the Executive Office of Immigration Review in Falls Church, Va., which runs the immigration courts.

If the detainee opts to hire a lawyer, or present evidence, or does anything other than accept an order of deportation, the period of detention instantly lengthens.

The number of criminal noncitizens in detention has more than quadrupled since 1994 and continues to rise. The number of detainees at Mira Loma, for example, increased from 600 in early 1998 to 850 this June. Overall, the federal government last year detained 153,000 noncitizens of all kinds and deported more than 55,000 who had committed crimes.

The U.N. Commission on Human Rights has condemned the law, including the no-bail provision, and a number of district courts have ruled mandatory detention unconstitutional. The issue is set to go before the U.S. 9th Circuit Court of Appeals this fall.

“We’re looking for a little fairness,” detainee Michael Nunes said from a Mira Loma pay phone Sept. 17, when 150 men chanted slogans and refused to return to their barracks. “We can’t get to our families, and it takes three to six weeks before we can even see a judge. Nobody wants to riot, but we don’t know what to do.”

In March, hundreds of Mira Loma detainees climbed onto fences, threw clothing onto the coiled razor wire and refused to return to their barracks until authorities met with them.

Leonard Kovensky, assistant district director for detention and deportation with the INS, attributed the disturbances to the violent nature of the inmates held at the low-security facility, rather than overcrowding or hearing delays.

“With the changing nature of people we are detaining--more of the criminal populace--we are seeing more incidents,” he said.

A Steep Price for His Mistakes

To get out of Mira Loma, detainees must pass through one of three tiny courtrooms at the prison. On a hot day in late summer, Judge Robert O. Vicars is hearing matters involving 14 men whose offenses ranged from the violent to the relatively petty.

Hermogenes Canales sits at a courtroom table, “LA County Jail” emblazoned in black letters across the back of his inmate outfit. A native of El Salvador, Canales, 41, has lived in the United States for 13 years as a legal, permanent resident. He owns a house near Pomona and, until his detention, worked full time at a hospice. His wife and three children are American citizens, but he never got around to applying for citizenship--a lapse that may have cost him his chance to remain in the United States.

Convicted 12 years ago of statutory rape for having sex with a 16-year-old girl, he served less than a year, plus community service. At the time, the conviction was not grounds for deportation. But it is now and, under the 1996 immigration law, an immigrant can be deported regardless of when the crime was committed.

Canales has been at Mira Loma since his April 1 arrest by INS agents at Los Angeles International Airport. He had flown home to El Salvador for three weeks to care for his elderly father and to try to track down his brother, missing since the time of that country’s civil war.

When Canales arrived back in Los Angeles, authorities diverted the plane to a special landing area, he said, and checked the backgrounds of everyone aboard.

In court, he occasionally turns to shoot a hopeful smile at his family.

Canales’ attorney, Vadim Yuzefpolsky, who traveled 75 miles from Beverly Hills for the afternoon hearing, contends that Canales did not commit an aggravated felony, a special category of crime that exists only in immigration law. “It is very difficult to maintain that sex is physically dangerous to a girl who is 16,” he says.

It is a useless argument. The law demands that Judge Vicars consider neither Canales’ family situation nor the facts of the original case, but simply whether there was a conviction. The immigration reform act made rape or sexual abuse of a minor an aggravated felony, regardless of the penalty imposed.

During a 30-minute break, Canales remains upbeat. He thinks of himself as an American. Somehow, he believes, the system will come through for him.

“I’ve done my time in jail,” he says. “According to our law, a man cannot be tried twice.”

The judge returns.

“It is undisputed that he committed in 1987 an act of unlawful intercourse with a minor,” Vicars says. “It is a crime of moral turpitude. Removability has been established.”

Canales, all smiles until now, closes his eyes and sits still, as if in prayer. His wife dissolves into tears. His two daughters sob.

He could appeal, but that would keep him locked up in Mira Loma for at least another six months, with little hope of winning.

“It’s like, this is the end,” Yuzefpolsky says.

Vicars, stoic as he hands down Canales’ decision, is less so later in chambers.

“I think I did what the law directed,” he says. “Because the immigration laws have gotten tougher, people who may have been eligible for relief before are not now eligible. But that’s hard to explain to his family, who have been here for 15 years. It’s gut-wrenching.”

No Judicial Discretion for Listed Crimes

Congress created the category of aggravated felony in 1988. Noncitizens who commit such crimes--even if they were in the U.S. legally--can be deported. Congress added crimes to the list of aggravated felonies in 1990 and again in 1996.

The expanded list includes rape, sexual abuse of a minor, money laundering, burglary, fraud, tax evasion, illegal immigrant smuggling, passport violations and bribery.

In the past noncitizens convicted of certain misdeeds--such as gambling offenses, thefts, burglaries and “crimes of violence”--had to have served a minimum of five years in custody to trigger deportation hearings. Now it takes only a year of incarceration. And judges and the INS were stripped of almost all discretion in cases involving aggravated felonies.

The 1996 law also contained provisions to deport noncitizens for harder-to-define “crimes of moral turpitude,” which can include offenses as relatively minor as petty theft. In some cases, such offenders can be deported even when they served less than a year for their crimes.

Virginia Kice, Western regional spokeswoman for the INS, said Congress passed the reform act because of a perception that “a lot of people were coming to this country, taking advantage of the system and then taking advantage of it again by appealing their cases ad nauseam.”

Congress in 1996 allowed mandatory detention to be delayed for two years, as the INS scrambled to find space for what promised to be an exploding detainee population. In 1998, despite the INS’ pleas for more time, Congress said the agency could wait no longer.

The INS says it does not have a special operation to apprehend noncitizen criminals. Most of them are found while serving time for their original offenses, when reentering the country or in other encounters with authorities, such as traffic stops.

Ira Mehlman of the Federation for American Immigration Reform, a Los Angeles-based group that advocates strict immigration controls, said there are no problems with the 1996 law--only with how it is implemented.

“The INS has made an effort to go after people with relatively minor offenses committed a long time ago, when they ought to be focusing on more serious offenses, committed more recently,” he said. “Our position is that they ought to devote the resources to get the people through the process faster.”

At the same time, Mehlman said, “we should not go back to the system where they put people back on the street, and they disappeared.”

Still, there are moves afoot to roll back portions of the 1996 law. Rep. Barney Frank (D-Mass.) is sponsoring a bill that would permit some longtime permanent residents to obtain waivers to remain in the U.S., and several immigrant advocacy groups have organized marches in San Diego and Los Angeles to protest the 1996 reforms.

Laurie Kozuba, a Texas homemaker married to a permanent, legal resident from Canada who has been here 41 years and faces deportation because of a drug conviction, founded Citizens and Immigrants for Equal Justice 18 months ago. The group has a roster of 500 families in 26 states with family members who are being detained and face deportation, she said.

“We are trying to educate congressmen about what is really happening with these laws,” Kozuba said. “They think they are just getting rid of heinous criminals. They are destroying my family.”

Detainees Can Wait a Year or More

At Mira Loma, men from as far away as Egypt and Vietnam bunk with dozens of others in low-slung barracks, and diversions are few. Detainees can play soccer or make calls from pay phones, but there are no classes or work programs as typically found in standard prisons.

Conditions have improved since March, INS officials said, because a moratorium on deporting Central Americans in the aftermath of Hurricane Mitch has been lifted, easing overcrowding.

The recent introduction of a system allowing detainees who know they will be deported to proceed administratively, rather than waiting to see a judge, has also helped, officials added. In addition, because holding space is limited and detention costs high, the INS reinterpreted the 1996 law in July to allow the release of some inmates.

Still, some have remained at Mira Loma a year or longer, their cases stalled in appeal.

The 40-year-old complex served as a county jail until 1993, when it was shut down because of budget cutbacks. The INS began leasing it in 1997 and pays the Los Angeles County Sheriff’s Department $80 an inmate per day to guard detainees. The facility costs $18 million a year to operate.

On the morning of Canales’ hearing, the men on Judge Vicars’ calendar are led in at 8:30 in handcuffs and shuffle in oversized plastic sandals to wooden pews.

Many who file through the courtroom will be on a bus to Mexico that same afternoon, or on a plane out of LAX within the week.

Because immigration court is part of the executive rather than judicial branch of the government, a person who cannot afford an attorney does not have the right to have one appointed.

Vicars estimates that only about 20% have lawyers the first time they appear, which leads him to serve not only as judge but also as informal advisor to many who stand before him.

All day long he hears a parade of hard-luck cases, such as that of Daniel Zavala Torres, 26. The Santa Paula citrus picker faces deportation to Mexico because he volunteered to serve jail time in lieu of paying a $2,500 court fine from a drug-possession conviction. He already had a prior drug conviction and was picked up by the INS while in custody.

Zavala’s case illustrates noncitizens’ difficulty in relying even on the advice of professionals, many of whom are not necessarily up to date on immigration law.

“He asked his probation officer, ‘Can I do jail time?’ ” his attorney, Elena Puig, tells Vicars. “He went in voluntarily on June 16. He was due out July 7, and the INS got him.”

Rafael Antonio Flores, a tough-looking 19-year-old with holes in an eyebrow once pierced by safety pins, waits for his name to be called. His attorney, Eudene Eunique, rushes in shortly past 9 a.m. after a 100-mile drive from Orange County. She and her client meet for the first time.

Flores, a native of Nicaragua, has lived in this country 11 years and has been at Mira Loma since May. He speaks English fluently and considers the U.S. his home. His mother, stepfather and siblings all live here, and his girlfriend gave birth to their daughter the previous day.

Flores was convicted twice in 1998 for possession of less than an ounce of marijuana, his attorney said. Later that year, he was convicted of misdemeanor burglary for trying to steal a bicycle.

At his public defender’s suggestion, Flores said, he pleaded guilty to stealing the bike and ended up in county jail in Ontario.

“He didn’t mention [the immigration law] and I didn’t know anything,” Flores said.

By pleading guilty, he learned later, he lost just about any chance of remaining in the United States.

Under the 1996 law, often the only way for a criminal noncitizen to stay in the U.S. is to have the original conviction vacated, said Paul Medved, an attorney at a Sherman Oaks immigration law firm. A guilty plea makes that nearly impossible.

“You pay for your criminal offense,” Medved said. “But payment for the crime under immigration law is much harsher.”