BY TERESA WILTZ
TRIBUNE NEWS SERVICE
Last December, Mayra Machado was pulled over for a routine traffic stop in Arkansas. She had an unpaid ticket for failing to yield. And as a teenager, she’d spent four months in boot camp for writing bad checks.
Now 31, the single mother of three, who is an undocumented immigrant, faces deportation to El Salvador, the battle-scarred country she fled when she was 5 years old.
Sylvester Owino, 40, said he survived torture in Kenya as a young activist and came to the U.S. on a student visa, which ran out. A 2003 robbery conviction in San Diego resulted in a nine-year stay in prison.
Now, he is part of a U.S. Supreme Court case that will determine whether immigrant detainees have a right to a bond hearing.
The two situations illustrate the variety of crimes that can get immigrants detained and deported, even after they have served a jail or prison sentence for the crime — and even if they are in the country legally. And while the federal government says it targets noncitizens who are serious or repeat offenders, immigrants with minor offenses often are deported.
Immigrants with criminal records may soon come under increased scrutiny. Republican President-elect Donald Trump has pledged to immediately deport “the people that are criminal and have criminal records.”
There are, he said, “a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country.”
Immigration advocates say those numbers are inflated, and point to figures that indicate most immigrants are being deported for minor crimes or for no crimes at all.
First-generation immigrants commit crimes at much lower rates than do U.S. citizens. But for those who do commit crimes, it’s hard to get a clear picture of whether they are serious or misdemeanors, violent or nonviolent.
Since 2014, the Department of Homeland Security has prioritized deporting noncitizens who pose a serious threat to public safety or national security — and from October 2014 through September 2015, of the 235,413 people who were deported, 59 percent had criminal convictions.
But federal data on criminal deportees does not specify the crimes they’ve committed — or how many of them are undocumented.
Technically, if someone is undocumented and entered the country after January 2014, they are considered a high priority for criminal deportation, even if they have committed no other offense.
A criminal alien
Further complicating matters: what constitutes a “criminal alien” is not defined in U.S. immigration law or regulations, and is used broadly, according to a September report by the Congressional Research Service.
A criminal alien may be someone who is undocumented or an authorized immigrant who may be deportable, depending on the crime they have committed. He or she may be incarcerated or free, or have already served time.
“We see a ton of people deported for misdemeanors, probation violations, petty theft, shoplifting,” said Alisa Wellek, executive director of the Immigrant Defense Project, a legal services group that advocates for immigrant rights in the criminal justice system.
“The federal government has these really overreaching laws on the books, laws that are very unforgiving for anyone who’s had any contact with the criminal justice system — even if you’ve never served a day in jail.”
Noncitizens convicted of an “aggravated felony” face particularly harsh penalties. Congress expanded the definition of the term since 1988 so that they can be deported for a crime that may be neither “aggravated” nor a “felony,” according to Joshua Breisblatt, policy analyst for the American Immigration Council, a pro-immigration research group.
Thirty offenses qualify as aggravated felonies, including theft, failing to appear in court, or offenses that most states consider a misdemeanor or do not criminalize at all, such as consensual sex between a 21-year-old and a 17-year-old, the group said.
Any new offense Congress adds to the list is retroactive. So a noncitizen can become deportable even if he or she already served the sentence for the crime years before.
When she was 19, Machado pleaded guilty to three felony counts: forging a friend’s name on a check, writing bad checks, and failing to appear in court.
Because of her criminal history, Machado is considered a “priority aggravated felon,” according to a U.S. Immigration and Customs Enforcement (ICE) official.
Machado, who considers herself “totally Americanized,” is in a detention facility in Louisiana. She is facing deportation any day now to El Salvador, a country where she said she knows no one and cannot read or write the language.
Advocates for limiting immigration, such as Jessica Vaughan of the Center for Immigration Studies, urge the incoming Trump administration to get tougher and scrap the practice of ranking crimes to decide who should be deported.
The policy, she said, “exempted too many criminal aliens from deportation and allowed for exemptions based on family ties.”
“All of that resulted in the release of tens of thousands of criminal aliens in the past few years,” Vaughan said. “Many of these individuals went on to commit more crimes, sometimes with tragic results.”
Many local law enforcement officials agree, although many of them ignore ICE requests to detain people without a court order for fear they could be found in violation of immigrants’ civil rights.
One way to get a glimpse into the types of crimes immigrants have been convicted of is to look at so-called detainers. Detainers are requests by ICE to local, state and federal law enforcement to hold noncitizens for possible deportation.
Half of the 95,085 immigrants targeted by ICE for possible criminal deportation in fiscal 2015 did not have criminal convictions at all, according to an analysis of ICE data by the Transactional Records Access Clearinghouse at Syracuse University. (TRAC has examined detainer requests issued between 2003 and 2015, which it obtained through the Freedom of Information Act.)
The rest had convictions for drunken driving (6.7 percent), assault (4 percent), drug trafficking (2.1 percent), burglary (1.8 percent), sale of marijuana (1.7 percent) and traffic offense (1.6 percent). Fewer still had convictions for illegal entry, larceny, sale of cocaine and domestic violence.
All the evidence shows that serious crimes committed by noncitizens are “extremely rare,” said TRAC Director Susan Long.
“The issue is, what do you do when you can’t find that many serious criminals?” she said. “We don’t want murderers and rapists in our midst regardless of their citizenship, but you have to find them.”
A detainer is the first step in a long process and does not always include complete details of a detainee’s criminal history, according to ICE officials.
Black immigrants are particularly susceptible to getting caught in the prison-deportation pipeline, said Wellek of the Immigrant Defense Project.
According a 2016 report by the Black Alliance for Just Immigration, a research and advocacy group, more than one in five noncitizens facing deportation for criminal offenses is Black. Black immigrants also are more likely than other immigrants to be deported because of a conviction.