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Returning Legal Permanent Residents with Prior Crimes: Avoiding Traps and Pitfalls

A recent client of ours, a resident of California's Central Valley and 19 year U.S. legal permanent resident (LPR), was returning home via Phoenix International Airport after attending his father's funeral in Mexico. At the Phoenix airport, Customs Border Protection discovered that he had a nine-year old conviction for simple possession of cocaine. CBP took him into custody, away from his wife, child, construction job, and new home, and remanded him to the Florence Immigration Detention Center outside of Phoenix. He was detained without bond, and as an arriving alien beyond the custody authority of the Immigration Judge, he could not be released, even though he clearly qualified for relief from deportation, had an otherwise spotless criminal record, and had a family at home who desperately needed him.

Our office succeeded in blocking his deportation and getting back his green card. However, the months he spent incarcerated had plainly left its scars on my client, his wife, and his young child.

Our client's situation is not uncommon. DHS is subjecting legal permanent residents to an ever-tightening noose, with the goal of identifying, detaining, and removing those non-citizens convicted of, or who are suspected to have committed, crimes in the U.S. or abroad.

In addition to actively investigating certain priority criminal violators, DHS has set up a series of passive "checkpoints" to identify non-citizens with criminal backgrounds. For instance, LPRs are required to submit to biometrics when applying for permanent residency, renewing an expiring I-551 green card, applying for a re-entry permit for extended foreign travel, when applying to remove the condition on permanent residency, or pursuing naturalization. They are also subject to investigation as petitioners for family members under the Adam Walsh Act, which prohibits citizens and permanent residents convicted of certain sex offenses from petitioning family members for an immigrant visa, but in the course of DHS investigation, may also be found-out in connection with other offenses, and thereby subject to possible removal.

As federal and state law enforcement agencies have in the last several years effectively linked up their offender databases, these checkpoints have become extremely effective at identifying LPRs with law enforcement records, and at mistakenly sweeping up immigrants who do not.

The most perilous checkpoint however for LPRs is the Customs and Border Protection window at the U.S. airport or port of entry. Now, under US Visit and the DHS Northern Hemisphere Travel Initiative, returning LPRs must present their passports and I-551 green cards to gain entry into the United States, as well as submit a fingerprint scan. Now linked to the massive (and massively inaccurate) federal-state law enforcement database, LPRs who previously came and went in and out of the U.S. are now finding themselves being referred for deferred inspection and even being referred for removal and deportation proceedings, based on long ago arrests and convictions.

Practically all of our client who have faced this calamitous process had no idea what they were in for when they decided to travel abroad temporarily form the U.S. Many of these clients had long ago criminal issues that they thought were completely resolved when they did their time in jail and completed probation, or when their charges were dismissed. Most of them had also travel abroad many times before without incident, and believed their permanent residency to be in good standing. Once taken aside at the airport, and told they were facing deportation from the U.S., these clients are devastated to learn that they could lose everything they had built up in the United States.

Returning LPRs however are not just vulnerable to trouble for criminal convictions. DHS may also initiate a case for removal for crimes that a CBP officer can get the LPR to confess to, whether actually committed or not. Under INA s. 212(a)(2)(A)(i), any LPR who merely admitsto having committed either a crime involving moral turpitude or an offense relating to a controlled substance is subject to exclusion from the United States and potential loss of permanent residency. In a recently publicized DHS training article for CBP inspectors, DHS officers are instructed on how to intimidate and confuse returning LPRs, under the difficult and fearsome circumstances of a CBP inspections interrogation, into confessing crimes that they might have been arrested for but subsequently cleared. To quote,

For example, an officer encounters an alien with an arrest for cocaine possession but no conviction. He should not ask: "Have you ever knowingly possessed a controlled substance?" Rather, he should assert: "I see you've been involved with cocaine. Are you still dealing drugs?" When confronted with the very serious offense of trafficking in cocaine, many criminal drug users, will immediately deny this offense while equivocating on the lesser offense of cocaine possession. Experience indicates that if this individual actually was involved with cocaine, they will likely admit to it if questioned properly.

Sounds straight forward, doesn't it? Get the LPR to admit to a crime he committed, even if he wasn't convicted for it. And yet, the literature on false confessions is already well established. And so are the punitive conditions faced by arriving non-citizens at deferred inspections that tend to promote baseless admissions. Clients have advised our firm that upon arriving exhausted from lengthy travel, of being forced to wait hours, cooling their heels, awaiting their CBP interrogator. While waiting, there is often little or no food provided, restricted access to medication and restrooms, denial of sleep, and no contact with family or an attorney who might help.

Worse is the deception practiced by CBP officers. Clients have advised us that they believed themselves compelled to agree with whatever the CBP inspector asked, and of being threatened with deportation if they refused to cooperate. And why cooperate? Based on what our clients have told us, because of false promises that by going along with the CBP inspector, they would be allowed to go back to their families, their homes, and their jobs. I suppose that this is what is meant by proper questioning.

In the end, DHS will continue to innovate novel control methods for immigrants in the United States. It's up to lawyers and advocates to defend our clients' rights under these difficult and overreaching conditions, and most importantly, to educate the immigrant community before trouble strikes. For immigrants with criminal issues, the most important step they can take to protect themselves is to consult with an attorney or legal service organization on how best to navigate these checkpoints. Often, immigrants can do quite a lot in preparation for these encounters with DHS, first to mitigate the damage and preserve their permanent residency, but also to keep alive the opportunity to eventually become United States citizens.

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