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April 22, 2001

Court to Take Up Deportation Rules


WASHINGTON, April 21 - Twenty-one years ago, Joe Velasquez was arrested for telling an undercover police officer where to buy cocaine. Mr. Velasquez, a legal immigrant from Panama, served three years' probation, paid a $5,000 fine and has not run afoul of the law since.

But his offense and a twist in American immigration law came back to haunt Mr. Velasquez when he returned from visiting his mother in Panama over Christmas in 1998.

Mr. Velasquez was arrested at Newark International Airport and held for four months without bail at a county jail. The Immigration and Naturalization Service ordered him deported to Panama, where he had not lived since he was a child. Mr. Velasquez's wife, three sons and two grandsons are all American citizens.

"For me to go back to Panama at my age, to start over again, would be a great hardship, more for my family than me," said Mr. Velasquez, 53, who owns a sandwich shop in Philadelphia and is free on bail while appealing his deportation. "That would be devastating."

On Tuesday, the Supreme Court will hear oral arguments in a challenge to the actions Congress took against legal aliens at the height of the national anti-immigrant fervor in 1996. The legislation Congress approved then required the deportation of immigrants convicted of certain crimes, even if, as in Mr. Velasquez's case, the crime was committed long before the statute was enacted.

At issue is whether Congress went too far in 1996 when it stripped the federal courts of their authority to review deportation orders. The justices will also consider whether legal immigrants can be removed automatically for offenses committed before the provision became law.

Before 1996, noncitizens who had committed drug offenses or other serious crimes were deportable. But unless they had served at least five years, they retained the right to apply for a "discretionary waiver of deportation."

This relief was granted in about half the cases - a few thousand a year, immigration experts said - and typically to immigrants whose family members were American citizens, or who could show evidence of rehabilitation or other compelling personal circumstances. If the waiver was denied, an immigrant could appeal to a federal court.

But in 1996, Congress, newly controlled by the Republicans, set out to crack down on immigrants convicted of aggravated felonies. These immigrants, proponents of the strict new law argued, had forfeited their rights to live in the United States, and should not be allowed to clog up the courts with appeals.

Immigrants' rights advocates protested that not even during the wave of public hostility toward Chinese immigrants in the 19th century or the peak of anti-Communist sentiment of the 1950's had the Supreme Court allowed immigrants to be deported without legal recourse.

"Never in our country's history has an immigrant subject to deportation been without the right to go to court to challenge the legality of the deportation," said Lucas Guttentag, director of the American Civil Liberties Union's immigrants' rights project.

The justices agreed to hear two cases, one on appeal from the Clinton administration and the other from the American Civil Liberties Union on behalf of three immigrants.

One case involves Deboris Calcano-Martinez, 32, a native of the Dominican Republic and a mother of four children who has lived here legally since she was 3 years old. She pleaded guilty to selling an illegal drug in 1996.

In this case, the United States Court of Appeals for the Second Circuit, in Manhattan, rejected the Clinton administration's view that Congress had eliminated virtually all avenues of legal review. The court ruled that Congress had not wiped out a district court's ability to issue writs of habeas corpus, the traditional means of federal court review over official action depriving someone of liberty.

In the second case, a Haitian man, Enrico St. Cyr, entered the United States legally in 1986 but was convicted of a drug charge early in 1996. The Second Circuit ruled that a federal district court judge in Bridgeport, Conn., had properly granted a writ of habeas corpus to Mr. St. Cyr. Moreover, the Second Circuit said there was no clear evidence that Congress intended to make retroactive the provision barring discretionary waivers to deportable aliens.

Lawyers for the immigration service argue that allowing judges to hear these claims "could lead to significant delays in the removal of criminal aliens."

Representative Lamar Smith, a Texas Republican who was a leading architect of the 1996 law, said the statute was working as intended. "These individuals who committed serious drug-trafficking crimes are just the kind of individuals who I feel should be deported," Mr. Smith said.

But Doris M. Meissner, President Bill Clinton's commissioner of immigration and naturalization, said the statute must be changed. "The law was too harsh," she said.

That is what immigrants' rights advocates have insisted for five years. They plan to hold candlelight rallies on Monday night in Washington, Los Angeles, San Francisco and Dallas to draw attention to the Supreme Court arguments and to press Congress to change the law, the Illegal Immigration Reform and Immigrant Responsibility Act.

Last year, the House approved a bill allowing legal immigrants convicted of aggravated felonies before 1996 to avoid deportation. The Senate never voted on the legislation. Lawmakers are expected to take up similar bills this year.

Thousands of permanent legal residents are affected. Charlie Jaramillo, 35, a construction contractor in West Chester, Pa., has lived here since he was 8 months old. His wife and two teenage children are United States citizens. But he faces deportation to Colombia for pleading guilty in 1989 to a minor drug charge. He does not read or speak Spanish.

Zafar Iqbal, 45, a gas station supervisor in Carrollton, Tex., has lived here legally since 1982. In 1994, he pleaded guilty to a fraud charge, and was sentenced to 10 years of probation. In 1998, while still on probation, he was arrested and spent 18 months in detention. Now he faces deportation to Pakistan.

Rick Siridavong, 25, of Springfield, Va., has been a permanent legal resident since arriving here as a refugee from Laos in 1981. He pleaded guilty to stealing a car radio with high school friends in 1995. He served probation and did 50 hours of community service, but was arrested after applying for citizenship in 1999. He faces deportation to Laos.

"Deportation is exile," said Laurie L. Kozuba, founder of Citizens and Immigrants for Equal Justice, an advocacy group in Mesquite, Tex., for legal immigrants facing deportation. "These are people who are long past their criminal convictions and have rebuilt their lives. Now this law has come back to bite them."

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