In conversations about immigration law reform, migrants with criminal records are something of a bogeyman. Like President Obama before him, President Trump claims that his administration’s immigration law-enforcement priorities target so-called criminal aliens. Even advocates frequently turn their backs on migrants who have run up against the criminal justice system. In New York City and Los Angeles, for example, elected officials have insisted that people convicted of certain crimes not benefit from public money intended to help migrants avoid immigration detention and deportation. In Denver, the city attorney conveyed the mayor’s goal of trying to protect from ICE some people convicted of municipal offenses while leaving others to unpredictable shifts in prosecutorial priorities.
In regularly push back against any willingness to write off people simply because they are arrested or convicted of a crime. I find it morally troubling to place life-altering significance on a process riveted with racial and class biases. But it’s also just difficult to discern who fits into any category of undesirable migrant. A recent decision from the U.S. Court of Appeals for the Second Circuit, Watson v. United States, Nos. 16-655, 16-1357 (2nd Cir. July 31, 2017), illustrates the latter dilemma. For 1,273—approximately 3.5 years—Davino Watson sat inside an immigration detention center while he valiantly fought the government’s deportation efforts against him, mostly without the assistance of an attorney. This is a long time for anyone to sit inside an ICE prison. For Watson, the length of his imprisonment is made more troubling because he is a United States citizen.
Without the benefit of counsel, Watson did what he could. He repeatedly told officials that he is a citizen and provided contact information for his parents, including his citizen father. He even sought, unsuccessfully, a certificate of citizenship from the U.S. Citizenship and Immigration Service. The various legal claims he brought against federal officials all failed. He remains a citizen, but has no person or entity was found liable.
Watson’s story is clearly lamentable. It should also be instructive. He came to ICE’s attention only after a conviction for selling cocaine. Except for his legitimate claim to citizenship, he is the picture of the undesirable criminal alien. His ordeal exemplifies one fatal flaw of writing off criminal aliens: it’s hard to know who fits into that category. Immigration law denies migrants the right to appointed counsel so many—including most people who are detained by ICE—never get the help of a lawyer. Both the trial court and Chief Judge Katzmann who wrote a separate concurrence in part and dissent in part to the Second Circuit’s decision concluded that a lawyer would have made all the difference to Watson. “If plaintiff had counsel upon his initial detention, it is likely that he would promptly have been found to be a United States citizen and released,” the trial court wrote and Judge Katzmann quoted approvingly. Perhaps. Watson’s citizenship was derived from his father. These are not always straightforward analyses, especially when, as in his situation, the applicable law appeared to be in flux.
Immigration courts often don’t operate with the benefit of lawyers and, even when they do, immigration law is complicated. It is, as the Ninth Circuit put it years ago, a legal “labyrinth.” Because of this, it’s risky to assume that a person who shows up in ICE’s prisons or on the wrong side of an immigration courtroom fits into the categories of undesirable migrants that Congress has deemed worthy of detention and deportation. Instead, this should be nothing more than a starting point examined by a trained legal advocate with a healthy dose of skepticism.