Special Reports-For Those Deported, Rulings Come Too Late

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A SPECIAL SECTION: Haiti since the January 12, 2010 Earthquake

Posted July 21, 2010

New York Region

For Those Deported, Court Rulings Come Too Late

BRITTANY SOMERSET FOR THE NEW YORK TIMES

Damon Spence with photos of his children. Mr. Spence is homeless in Jamaica after his deportation.

By NINA BERSSTEIN

Vincenzo Donnoli was 9 when his family immigrated legally to Brooklyn. He attended Erasmus Hall High School, married and divorced in Flatbush, ran a landscaping business and had five children. But at 51 he is back - alone and jobless - in Pomarico, the hill town in southern Italy where his father was a shepherd, as a deportee banned for life from returning to the United States.

His offense: two misdemeanor convictions for possessing small amounts of cocaine, in 1988 and 2006, both guilty pleas resolved without jail time. Retroactively, immigration authorities added them up to equal an "aggravated felony" that required Mr. Donnoli's automatic deportation last year.

That kind of arithmetic, an aggressive government interpretation of 1996 immigration laws that has been increasingly invoked in recent years, was rejected by the Supreme Court in a unanimous decision in June. But the ruling came too late for Mr. Donnoli and thousands of deportees like him, all former lawful residents who have no way to turn that legal vindication into a chance to come home.

"The Supreme Court has said in a series of cases that the government's theories of deportation have been wrong for years," said Daniel Kanstroom, a professor at Boston College Law School, citing earlier decisions that rejected the government's classification of other minor crimes as deportable offenses. "And yet the legal system has not developed a mechanism to right that wrong for the thousands of people who have been wrongly deported."

Under the ruling last month, which echoed decisions by four federal circuit courts, including the one covering New York, legal residents with minor drug convictions are eligible to have an immigration judge weigh their offenses against other factors in their lives and decide whether to let them stay.

But deportees who were denied such a hearing have no means to get one now. The Board of Immigration Appeals says it has no jurisdiction over any case after deportation. Government regulations prohibit any motion to reopen the case of someone who has left the country; judicial circuits are divided over that interpretation of immigration law, and a request that the Supreme Court consider the matter is pending.

The Obama administration, which is on track to deport a record 400,000 people this fiscal year, according to government statistics, has shown no eagerness to open the door. Now two dozen legal rights groups are calling for a process that would let immigrants reopen their cases under the ruling last month.

"American principles of justice - fairness, due process and discretion - require that these immigrants now receive their day in court," the groups wrote in a June 18 letter to Attorney General Eric H. Holder Jr. and Janet Napolitano, the secretary of homeland security.

The Justice Department referred questions about the letter to the Department of Homeland Security, where a spokesman, Matthew Chandler, declined to comment on the issues it raised.

But Jan Ting, a Temple University Law School professor and a former assistant immigration commissioner, called the idea of letting deportees return for hearings "far-fetched," adding, "The federal government has already incurred significant costs in executing the removals of these individuals in a procedure that was certainly legal at the time."

No one knows just how many cases could be affected, but analyses by state and federal public defenders' associations suggest they could number several thousand. More than 34,000 noncitizens were deported for drug-related offenses in 2008; in New York alone, from 1995 to 2004 more than 258,000 citizens and noncitizens served little or no jail time for misdemeanor possession convictions.

Among the most compelling cases for redress, the advocates say, are those of New Yorkers who were transferred by immigration officials to detention centers in Louisiana and Texas. There, the detainees came under the jurisdiction of the United States Court of Appeals for the Fifth Circuit, which approved the automatic deportations long after the Second Circuit, which includes New York, had rejected them.

Simply identifying such deportees is a challenge. In a sample of a dozen deportations involving New York misdemeanor drug convictions, culled by The New York Times from a database of Board of Immigration Appeals decisions since 2007, a reporter was able to reach only Mr. Donnoli and two others.

One, Seweryn P. Smieciuch, a 27-year-old bricklayer, is back in rural Poland, which his family left for Greenpoint, Brooklyn, when he was 10. The other, Damon Franklin Spence, 35, is homeless in Jamaica, which he left at 11.

"I have four kids in America," said Mr. Spence, who ran a sneaker store in Hempstead, N.Y., before two convictions for possession of marijuana led to his deportation last summer.

From a Texas detention center, Mr. Spence had petitioned the Supreme Court himself before his deportation. He argued that if he was expelled while his appeal was pending, he would be denied legal redress. Not true, replied the government in a brief by Elena Kagan, the solicitor general who is a nominee for the Supreme Court, which asserted that if he prevailed in his appeal, he could return.

But he missed the 90-day window to keep his appeal alive, even as the Supreme Court took up the same issue, because he did not receive notice when the Fifth Circuit denied his appeal on Nov. 17. "They don't give you a chance," he said. "They move you around to try to lose you."

Mr. Donnoli echoed the sentiment. "I think I got railroaded," he said by telephone from Pomarico, about 150 miles southeast of Naples.

To some, deportation to Italy at government expense might sound appealing. But Mr. Donnoli, who had not returned since his 1968 emigration, spent 27 months as a detainee fighting deportation, transferred from a New Jersey jail through a series of detention centers in New Mexico and Texas. He missed his father's funeral and the birth of his grandchild.

Deported last September, he was stranded, penniless, at the Milan airport until an older brother in New Jersey found some cousins who sent him on to Pomarico.

The town had changed during his absence. "They used to have mules; now they have cars," he said. "The mentality is the same. Over here there's no work, there's no assistance."

Mr. Donnoli is no paragon, but his oldest daughter, 21, filed papers for his re-immigration under a waiver - even though waivers are banned for drug offenders. His last lawyer has suggested he turn instead to the Immigrant Defense Project in New York.

In her row house in Sheepshead Bay, Brooklyn, his mother, Michelina Donnoli, 83, said she prayed daily for his return.

"I want to see him before God takes me," she said, weeping. She recalled how unnecessary it had seemed to seek citizenship for herself and her five children, all sponsored by her own mother, a seamstress who immigrated in the 1950s.

Such deportees have been caught in a time warp of American drug policy. In the 1970s, New York's tough narcotics laws spurred a nationwide trend toward mandatory minimum sentences. Now drug treatment and judicial discretion are the preferred approach to low-level offenders.

For legal immigrants, however, zero-tolerance policies have been magnified retroactively: an old conviction punishable by a year or more in jail is grounds for deportation, even if no such sentence was imposed.

The Polish bricklayer, Mr. Smieciuch, is an example. He and his brother, Artur, said they had a difficult adjustment when his parents won the green card lottery and moved them to Brooklyn in 1993, especially after their grandfather died and their mother, a hotel worker, returned to Poland for a year. Mr. Smieciuch (pronounced SHMAY-chewkh) began using drugs as a teenager, "to suppress the feelings, not to feel so sad," his brother said.

The arrest that led to Mr. Smieciuch's deportation occurred in 2006, when he was 23. The police stopped and frisked him, he said, and found a crack pipe with drug residue. A court-appointed lawyer advised him to plead guilty, since he would serve only two days in jail. But he was handed over to immigration agents who labeled him an "aggravated felon," based on two similar convictions on his rap sheet, then transferred him to detention in Texas. In 2008, in deference to the Fifth Circuit, the Board of Immigration Appeals upheld his deportation.

Now he is living an immigrant's life in Poland. Clean of drugs since his arrest, he said, he married a co-worker in a meat-packing plant, has a newborn and is building a house. Still, he hopes the Supreme Court ruling will open a path back to the United States.

"I was more American than Polish," he said by telephone from Leszczanka, a farming village 130 miles east of Warsaw. "It wasn't fair."

Copyright 2010 The New York Times Company. Reprinted from The New York Times, New York Region, of Wednesday, July 21, 2010.

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