by Sheila Howard, JD Staff Member
Edited by Karyse Philips, JD Editor
Justice:Denied magazine, Issue 26, page 6
The Homeland Security Act of 2002 was passed by the U.S. Congress and signed into law by President Bush as a response to the events of September 11, 2001. The Act created a behemoth federal agency - The Department of Homeland Security (DHS) - that consolidated the operations of a number of existing federal agencies. Among the many agencies swallowed up by the DHS was Customs, the Coast Guard, and the Immigration and Naturalization Service (INS).
In 2003, its first full year of operation, the DHS deported 905,000 people from the United States. Many of those deportees were classified as alien “criminals.” So on the surface it appears the DHS is increasing our safety by ridding us of non-citizens dangerous to our society. However the reality of the situation is far different. The DHS considers the term “criminal” to include immigrants who are “out of status” as well as anyone who exhibits “moral turpitude.” There are good reasons to question the DHS’ broad interpretation of guidelines for classifying a person as a criminal, since most of our non-native born forefathers would not have been allowed to remain in this country under the DHS’ application of immigration law. They would have been hunted down, captured, and deported back to their country of origin.
Thus while Americans assume persons arrested under Homeland Security’s authority are here illegally or are undocumented aliens, many of them are actually, or by accusation what is known as “out of status.” If a case, for example, is “pending renewal,” or if there is an address change and DHS is not notified within 10 days, the visa holder is out of status.
If a visa holder under an order of deportation is released on their own recognizance and found in this country, he or she is then classified as a “criminal.” If a visa holder is pulled over for a traffic violation and cannot furnish a current green card, he or she is at risk of being detained, classified as a “criminal,” and slated for deportation. The visa holder is entitled to an administrative hearing within 48 hours, but if a determination is made that there is a possible immigration violation, the person can then be held for up to 90 days while their case is investigated.
A person held on suspicion of an immigration violation has the right to an attorney, the right of access to legal materials before their hearing, and depending on their personal circumstances, he or she may qualify to be released on bond. If after being taken into custody the detained person continues to have a business or stable income that is “at 125% of poverty level,” and if his or her employer has granted a 90 day leave of absence, then and only then might a person qualify for release and become classified as “pending status.”
The DHS’ highhanded tactic of designating people as “criminals” for deportation purposes who are not criminals, was dealt its first blow on November 9, 2004 by the U.S. Supreme Court. In Leocal v. Ashcroft, No. 03-583, the Court ruled that a person convicted solely of drunken driving can’t be deported as a person convicted of a “crime of violence,” since the immigration statutes requires the intent to cause harm - not mere negligence. Time will tell if future court rulings will bar the DHS’ designation of people for deportation as a “criminal” who have not been convicted of any crime.