Sun | Sep 24, 2017

Ronald Mason | Scourge of deportation

Published:Sunday | September 25, 2016 | 9:00 AM

Jamaican nationals have a long history of migration. It is widely believed that more Jamaicans live overseas than the 2.8 million living on The Rock. This comes with a major challenge called deportation. Jamaicans get deported from many countries, but primarily from USA, Canada and United Kingdom. We are in the top 10 nationalities regularly deported from the USA. Ronald Mason | Scourge of deportation

In 2013, the USA conducted 438,431 deportations. Jamaicans have been averaging approximately 1,500 per year. In approximately 83 per cent of these deportations, individuals did not have a hearing, never saw an immigration judge, and were deported through cursory administrative processes where the same presiding immigration officer acted as the prosecutor, judge and jailer.

Deportation has incalculable and traumatic consequences for the individuals removed. Current research is indicating that procedures and processes for deportation are eerily similar in the USA, UK and Canada.

The Supreme Court in the USA has repeatedly recognised that deportation (removal, denial of admission, lack of rights attached to your case) often carries grave consequences and, therefore, implicates the rights to life, liberty and prosperity - all that makes life worth living.

 

DRASTIC DEPRIVATION

 

This recognition of deportation as a drastic deprivation is not reflected in the procedures. In immigration court, despite the well-known complexities of immigration law, there is no established right to a lawyer provided by the Government. The majority of immigration detainees are consequently alone and unrepresented in extremely complex immigration proceedings where the Government is represented by competent attorneys.

Imagine being detained for deportation without knowing that you were given a sentence, suspended or probationary, that totals 12 months for a misdemeanor. Had the sentence totaled 11 months and 29 days, you would not have been eligible for deportation from the USA. Imagine going to court in the USA, charged with the misdemeanour of being in possession of drug paraphernalia, paper to wrap a 'spliff', not having any contraband drug on your person and you plead guilty, get fined US$150, and a suspended sentence of 12 months and all your 20 years of life in the USA with a green card is powerless to stop the action and the USCIS officer from deporting you.

This recognition of deportation as a drastic deprivation with severe consequences both for the individual and his or her family is not reflected in the procedures used to deport. In the recent case of Jamaicans being sent home from UK, it is apparent that similar sentiments prevail. Persons in the UK in this recent matter were reporting to the relevant authorities when they were detained and deported or removed. End result: back in Jamaica and very unlikely ever to be able to return.

The probability of a person, once deported, to secure the right to even contest the decision is exceptionally slim, and this has got worse in the USA since the passage of the IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act of 1996). The immigration officer may choose any number of options to remove you or return you to your country of citizenship.

There are several types of summary removals or return processes that bypass the courtroom, although two actions together give rise to the vast majority of these removal orders. The first, expedited removal, accounts for approximately 44 per cent of all deportations from the USA. The process permits the officers to order non-citizens deported with a bar on readmission ranging from five years to life when the officer determines one does not have a valid entry document. The second, reinstatement of removal, issued to individuals previously deported to re-enter without permission, represents the largest single number of deportations - 39 per cent. Reinstatement orders are used throughout the country and can occur especially quickly at the border, offering virtually no chance to raise or overturn errors in a prior deportation order. Other summary procedures, such as stipulated orders, removal and administrative removal also apply nationwide and allows the diversion of people away from immigration courts.

One needs to remember that persons lawfully in the USA and long-time residents also get deported or removed. Very often, the persons falling in this category are taken to immigration detention and coerced, without the benefit of an attorney, into accepting voluntary departure.

The public-service interest group, the American Civil Liberties Union (ACLU), and the American Immigration Lawyers Association (AILA) constantly campaign for review and revision of these Immigration proceedings.

 

CHANGE NOT LIKELY

 

Given the prominence of immigration in the current presidential election campaign, one cannot be hopeful that there is likely to be any change. The ACLU, in seeking to ensure that individuals facing deportation have the opportunity to be heard and defend their rights, has made recommendations, some of which are mentioned here.

- Provide a full removal hearing and a chance to be heard before an immigration judge to individuals with claims to be in the United States, e.g., asylum seekers or individuals with strong equities such as close US citizen family, strong community ties, or long residence in the United States.

- Continuously train and retrain immigration enforcement officers not to use coercion, threats, or misinformation to convince individuals to give up the right to see a judge and to accept deportation.

- Recognise and expand the rights of individuals deported without a hearing to seek review of their deportation order.

- Make sure that all people facing deportation through a summary removal procedure are given the chance to consult with a lawyer before they are ordered removed, and provide lawyers to vulnerable individuals such as children and people with mental disabilities who are facing deportation or repatriation.

- Ensure that all individuals detained by immigration enforcement agencies are treated with respect and dignity, that detention conditions are humane, and that detention is used only as a last resort and for the shortest time possible.

Jamaicans need to be energised to agitate for change.

- Ronald Mason is an immigration attorney and Supreme Court mediator. Email feedback to columns@gleanerjm.com and nationsagenda@gmail.com.