Nearly 2,000 immigrants won an early release from prison last October when the US Justice Department agreed to retroactively reduce their federal drug sentences. Some were deported; others were transferred to detention centers. So far, advocates say none have been allowed to stay freely in the United States. Junior Francisco hopes he will be the first.
Francisco arrived in New Jersey from the Dominican Republic in 2003 after marrying his high school sweetheart. When his wife became a US citizen in 2008, he became a lawful legal permanent resident. The couple had two daughters and a happy life together until she suffered a miscarriage in 2010, and fell into a deep depression around the same time he was laid off. Desperate to make money, Francisco says he introduced a drug supplier he met at his barber shop to a dealer at a local liquor store. The two men sold cocaine to a police informant.
“A few minutes later, about 10 police cars pulled into the liquor store parking lot,” Francisco remembers. “An officer asked me if I knew them, and I said yes.” He was arrested when officers saw he had used his cellphone to call them.
It was Francisco’s first encounter with the criminal justice system. His lawyer advised him to plead guilty to cocaine conspiracy, and in 2012 he began serving a 51-month sentence. Just before he entered prison, his wife, Mirtha Pellerano, gave birth to a son. She soon became a working single mother, relying partly on food stamps, and moved in with her mother. “It’s not like when you have your husband with you, when you do everything together, like pay the bills, take care of the children,” said Pellerano. To stay involved, Francisco calls home almost every day for a brief chat. “He asks me about my day,” Pellerano said. “He asks the kids, ‘Did you do your homework? Did you help your mother?’”
For years, she regularly packed their three young children into her car and drove nine hours to visit Francisco at the Northeast Ohio Correctional Center, a federal facility run by the private prison company Corrections Corporation of America, and later a slightly shorter trek to a prison in North Carolina. “We were able to hug and kiss at the beginning and end of the visit,” Pellerano recalled, and the children could sit in Francisco’s lap.
In 2014, the US Sentencing Commission reduced the sentencing guidelines for many federal drug offenses, and made the reduction retroactive. Francisco submitted a request to have his sentence reviewed. The US attorney’s office for the district of New Jersey said Francisco was eligible to have his sentence reduced by 10 months and would not be a threat to public safety. “It does not appear from the circumstances of the offense or from the defendant’s conduct while in custody that a reduction in his term of imprisonment would present a danger to any person or to the community,” wrote Ronnell Wilson, chief of the Narcotics Unit in the prosecutors’ office. But while Francisco was released from prison, he was not released from custody. He was instead transferred to an immigrant detention facility. “It is just an absurd outcome,” said Paromita Shah, associate director of the National Immigration Project, “when a man who has a motion from a US attorney who says he is not a threat to society is being viewed as a target for deportation by another agency under the same executive branch of government.”
US Immigration and Customs Enforcement confirmed in a statement that it took into custody 1,789 non-US citizens on 30 October and 2 November 2015 when nearly 6,000 prisoners were released after similar reviews. While about 1,000 citizens headed home, and another 3,350 citizens moved to halfway houses or home confinement, ICE says 763 immigrants had “final orders of removal” and were “removed quickly in most circumstances” from the United States. Others remain in mandatory ICE custody during deportation proceedings.
Even though Francisco was a legal permanent resident at the time of his arrest, his status was revoked after his drug conviction, which also makes him ineligible to ever be allowed to legally return to the United States, should he be required to leave. But lawyers with the Capital Area Immigrant Rights (Cair) Coalition, who met with more than 70 other released prisoners with reduced sentences, say he has one of the strongest cases for “prosecutorial discretion” as outlined in a 2014 memo by the head of the Department of Homeland Security.
The directive urges ICE to de-prioritize the removal of those convicted of drug offenses, if “there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security border security, or public safety and should not therefore be an enforcement priority." Instead of pressing for his removal, Cair has asked immigration officials to grant him “deferred action”, which suspends his deportation and allows him to live in the US with work authorization under agreed upon guidelines. It is Francisco’s only option for relief, as he has exhausted all of his appeals under immigration law.
“We see his case as a clear example of someone who should benefit from this,” Cair attorney Heidi Altman said. “Our concern is if ICE does not take action, an immigration judge may order his removal” at a hearing set for 26 April, when Francisco will appear via video conference from detention.
Legal permanent residents like Francisco often get one immigration hearing. He has had three since December, before judge Rodger C Harris, who was receptive to his attorney’s requests for time to present ICE with alternatives and for the agency to respond. But his scheduled appearance on 26 April will probably be his last. Altman says ICE’s decision could come any day. An agency representative says each case is reviewed on a “case-by-case basis”.
Given the current climate of bipartisan support for drug policy reform, advocates say it would be a shame if immigrants like Francisco were not granted a second chance. "The US has, thankfully, been addressing disparities in drug sentences in order to change the outcomes for defendants who are black or brown,” Shah said. “It is wrong that as matter of policy ICE has blinders to all of these reforms.”
By Renee Feltz - The Guardian/March 28, 2016
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New US Drug Laws May Benefit Immigrant, With Past Drug Charges, Facing Deportation