U.S. government moving to deport longtime legal residents with criminal convictions


SAN JOSE, Calif.Roger Simmie is no angel.

Twenty years ago, the Mountain View, Calif.,
carpenter was convicted of resisting arrest and drug possession.
Fifteen years after that, he was found guilty of battering his
girlfriend. Three times, he’s been convicted of drunken driving.

But it’s what he didn’t do that got him locked up recently in the Santa Clara County Jail. Simmie, a Scot by birth who fought in Vietnam as a U.S. Marine, never applied for U.S. citizenship.

Now he finds himself facing deportation as one of
nearly 400,000 immigrants incarcerated in 2009 by the U.S. government.
A growing number of noncitizens who have been living in this country as
legal permanent residents are learning that run-ins with the law, even
minor ones, are translating into life-altering, one-way tickets to
homelands they no longer know.

A report from Human Rights Watch released
in the spring found that 1 out of 5 “criminal aliens” deported from
1997 to 2007 had been in the country legally. Many, like Simmie, have
known America as home for decades. “I’m living in limbo,” said Simmie,
61, whose friends raised thousands of dollars to hire a lawyer to fight
his deportation.

Simmie apologizes for the drunken driving, but he denies he was guilty in the other cases.

After leaving Great Britain with his family as a child and settling in Sunnyvale, Calif., Simmie joined the Marines as a teen and did two tours in Vietnam. But he never became a U.S. citizen, in part because his Scottish father felt his son should remain true to his heritage.

It was a costly decision. After Simmie didn’t
respond to a 2003 notice to appear in immigration court (he says he
didn’t get the notice), he became a fugitive and was arrested by U.S. Immigration and Customs Enforcement agents in October and locked up in the county jail, which has a contract with ICE to house its prisoners.

Like Simmie, longtime San Jose residents Hassan Abpikar and Victor Garabay were thrown into similar predicaments: Abpikar, 49, is an Iranian
immigrant who was jailed because of a three-decade-old charge that he
contends was false. Garabay, 45, is a Mexican immigrant who says he
stole food to survive when he suddenly became homeless.

They, too, have become enmeshed in a detention system that has mushroomed since Congress
passed its last major immigration bill in 1996. Since then, the number
of detainees has grown fourfold as new biometric technology, huge
databases and more boots on the ground have made it easier for ICE to
track down immigrants with criminal records.

While the 1996 immigration reform law was widely
hailed as a get-tough measure on illegal immigration, one of its more
controversial provisions allowed for relatively minor offenses to be
grounds for deportation of noncitizens. The Human Rights Watch report found that 77 percent of legal residents had been deported for nonviolent crimes.

If immigrants have been in the U.S. fewer than five
years, they can be deported for a single crime of “moral turpitude,” a
broad term that includes shoplifting and pot possession. If they’re
here longer than five years, they can be deported for either one
aggravated felony or two crimes of moral turpitude.

“We’re not talking about Jeffrey Dahmer or Charles Manson here,” said Sin Yen Ling, an attorney with the Asian Law Caucus in San Francisco.
She argues that the punishment of immigrants with criminal records —
deportation and separation from families — is often disproportionate to
the offenses.

But ICE officials argue that getting a green card is
a “conditional agreement” and that immigrants have to take
responsibility for their actions.

“The vast majority of immigrants who come here comply with laws, lead productive lives and contribute to society,” said Virginia Kice,
a spokeswoman for ICE. “But, if you come here as a guest of this
country and you break our laws, you risk forfeiting the right to remain

Abpikar’s case is bizarre.

He came to the U.S. on a student visa in June 1979, while Iranian students were still holding American hostages in the U.S. Embassy. In December of that year, while taking English classes in Oklahoma City, he put down a $200
deposit to buy a car. When he later changed his mind and asked for his
money back, Abpikar says, the disappointed salesman called the cops and
accused him of calling in a bomb threat.

Ultimately, he says, he never spent time in jail, and an attorney told him through a translator that the matter had “gone away.”

He went on to get a bachelor’s and a master’s in chemistry from San Jose State University,
worked in high-tech and in real estate, and applied for citizenship in
2004. When the application form asked whether he had ever been
convicted of a crime, he didn’t mention the Oklahoma
incident. Two years later, the federal government accused him of lying
on his citizenship application — a felony — and put him into
deportation proceedings. He spent 16 months as a detainee, mostly in Santa Clara County Jail.

While in custody, Abpikar, who also has a 1999 conviction for shoplifting, located his old Oklahoma
records and found that he pleaded guilty in the case and was given a
two-year suspended sentence. But under U.S. immigration law, according
to immigration attorneys contacted by the San Jose Mercury News, the fact that Abpikar wasn’t put on probation and didn’t serve jail time in the Oklahoma case could mean it shouldn’t count as a “conviction.”

After being severely beaten in June in his cell by a
fellow inmate, Abpikar was freed in early November. The reason: An
immigration judge ruled that, because he had served in the armed forces
under the shah of Iran,
he might be tortured by the current Iranian government if returned to
his homeland. But he’s still facing a federal charge of lying on his
citizenship application, so he was placed in home detention.

Garabay’s story is simpler.

He came from Mexico
with his mother three decades ago at age 15. Two years ago, the
green-card holder became unemployed and ended up living under a freeway

He was twice caught stealing fried chicken and a
Heineken from a supermarket — and spent two weeks in jail. “I know what
I did was wrong,” he said. “But I was hungry and desperate.”

The shoplifting convictions were enough to get him
deported, and he was convicted of possession of a marijuana pipe and
being under the influence of a controlled substance. Garabay landed in
the county jail for six months.

Immigration judges are given more discretion if
immigrants in deportation proceedings have not been convicted of an
aggravated felony. So last month, Garabay’s attorney, Cassandra Lopez of Centro Legal de la Raza in Oakland, persuaded a judge to give Garabay another chance at freedom.

Garabay, who is still homeless, plans to crash on
friends’ couches and stay in motel rooms while he looks for work and
attends a drug-treatment program.

“I don’t want to go back into that jail,” he said.

(c) 2010, San Jose Mercury News (San Jose, Calif.).

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