PAYING FOR CRIME--IN MORE WAYS THAN ONE

Noncitizens who served time, even years ago, can be held for months without
bail and deported. 'They are destroying my family,' one wife says. But the
tough rules have their defenders.

Rafael Antonio Flores tried to steal a bike. Daniel Zavala Torres messed
with drugs.

Hermogenes Canales had sex with a 16-year-old girl. All served time in jail
for their crimes--in one case years ago. Now each has spent months in
federal custody without bail at the Mira Loma Detention Facility in
Lancaster, waiting to hear if he will be kicked out of the country. They are
three among 14,500 "criminal aliens" from dozens of countries who are being
held at 15 makeshift prisons nationwide operated or paid for by the
Immigration and Naturalization Service. Many would be free if not for the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which
requires that noncitizens who commit--and are convicted of or plead guilty
to--any of a newly broadened range of crimes be held without bail until an
immigration judge can decide their fate. "Congress' goals are to ensure the
aliens' presence in court and to protect the public from criminals while
their cases are being heard," said Arthur Strathern, associate general
counsel for the INS. But civil rights groups and detainees' families, as
well as some lawmakers and judges, contend that the no-bail provision is too
rigid.

The detainees themselves have staged jail yard rebellions over the issue.

And even the INS wants some changes. "The INS does believe that the current
mandatory custody provisions are too broad, and has asked Congress to
restore some discretion to the agency to determine which aliens may be
released during their proceedings," Strathern said. Support for mandatory
detention built after a March 1996 report by the Justice Department's Office
of the Inspector General found that nearly 90% of noncitizens facing
deportation for committing crimes simply disappeared back into society
unless held without bail. Conversely, among detainees, 94% were ultimately
deported, the study found. "The statistics tell the story in and of
themselves," said Allen Kay, a spokesman for Rep. Lamar Smith (R-Texas), the
law's chief architect. "When you are looking at that kind of contrast,
that's pretty stark." Nationally, it takes an average of 2 1/2 months for a
detainee to get an initial hearing in immigration court, according to Rick
Kinney, a for the Executive Office of Immigration Review in Falls Church,
Va., runs the immigration courts. If the detainee opts to hire a lawyer, or
present evidence, or does anything other than accept an order of
deportation, the period of detention instantly lengthens. The number of
criminal noncitizens in detention has more than quadrupled since 1994 and
continues to rise. The number of detainees at Mira Loma, for example,
increased from 600 in early 1998 to 850 this Overall, the federal government
last year detained 153,000 noncitizens of kinds and deported more than
55,000 who had committed crimes. The U.N. Commission on Human Rights has
condemned the law, including the no-bail provision, and a number of district
courts have ruled mandatory detention unconstitutional. The issue is set to
go before the U.S. 9th Circuit Court of Appeals this fall. "We're looking
for a little fairness," detainee Michael Nunes said from a Mira Loma pay
phone Sept. 17, when 150 men chanted slogans and to return to their
barracks. "We can't get to our families, and it takes three to six weeks
before we can even see a judge.

Nobody wants to riot, but we don't know what to do." In March, hundreds of
Mira Loma detainees climbed onto fences, threw clothing onto the coiled
razor wire and refused to return to their barracks until authorities met
with them. Leonard Kovensky, assistant district director for detention and
deportation with the INS, attributed the disturbances to the violent nature
of the inmates held at the low-security facility, rather than overcrowding
or hearing delays. "With the changing nature of people we are
detaining--more of the criminal populace--we are seeing more incidents," he
said. A Steep Price for His Mistakes To get out of Mira Loma, detainees must
pass through one of three tiny courtrooms at the prison.

On a hot day in late summer, Judge Robert O. Vicars is hearing matters
involving 14 men whose offenses ranged from the violent to the relatively
petty. Hermogenes Canales sits at a courtroom table, "LA County Jail"
emblazoned in black letters across the back of his inmate outfit.

A native of El Salvador, Canales, 41, has lived in the United States for 13
years as a legal, permanent resident.

He owns a house near Pomona and, until his detention, worked full time at a
hospice.

His wife and three children are American citizens, but he never got around
to applying for citizenship--a lapse that may have cost him his chance to
remain in the United States. Convicted 12 years ago of statutory rape for
having sex with a 16-year-old girl, he served less than a year, plus
community service.

At the time, the conviction was not grounds for deportation. But it is now
and, under the 1996 immigration law, an immigrant can be deported regardless
when the crime was committed. Canales has been at Mira Loma since his April
1 arrest by INS agents at Los Angeles International Airport. He had flown
home to El Salvador for three weeks to care for his elderly father and to
try to track down his brother, missing since the time of that country's
civil war. When Canales arrived back in Los Angeles, authorities diverted
the plane to a special landing area, he said, and checked the backgrounds of
everyone aboard. In court, he occasionally turns to shoot a hopeful smile at
his family. Canales' attorney, Vadim Yuzefpolsky, who traveled 75 miles from
Beverly Hills for the afternoon hearing, contends that Canales did not
commit an aggravated felony, a special category of crime that exists only in
immigration law. "It is very difficult to maintain that sex is physically
dangerous to a girl who is 16," he says. It is a useless argument.

The law demands that Judge Vicars consider neither Canales' family situation
nor the facts of the original case, but simply whether there was a
conviction. The immigration reform act made rape or sexual abuse of a minor
an aggravated felony, regardless of the penalty imposed. During a 30-minute
break, Canales remains upbeat.

He thinks of as an American. Somehow, he believes, the system will come
through for him. "I've done my time in jail," he says. "According to our
law, a man be tried twice." The judge returns. "It is undisputed that he
committed in 1987 an act of unlawful intercourse with a minor," Vicars says.
"It is a crime of moral turpitude. Removability has been established."
Canales, all smiles until now, closes his eyes and sits still, as if in His
wife dissolves into tears.

His two daughters sob. He could appeal, but that would keep him locked up in
Mira Loma for least another six months, with little hope of winning. "It's
like, this is the end," Yuzefpolsky says. Vicars, stoic as he hands down
Canales' decision, is less so later in chambers. "I think I did what the law
directed," he says. "Because the immigration laws have gotten tougher,
people who may have been eligible for relief before are not now eligible.

But that's hard to explain to his family, who have been here for 15 years.

It's gut-wrenching." No Judicial Discretion for Listed Crimes Congress
created the category of aggravated felony in 1988. who commit such
crimes--even if they were in the U.S. legally--can be deported. Congress
added crimes to the list of aggravated felonies in 1990 and again in 1996.
The expanded list includes rape, sexual abuse of a minor, money laundering,
burglary, fraud, tax evasion, illegal immigrant smuggling, passport
violations and bribery. In the past noncitizens convicted of certain
misdeeds--such as gambling offenses, thefts, burglaries and "crimes of
violence"--had to have served a minimum of five years in custody to trigger
deportation hearings.

Now it takes only a year of incarceration. And judges and the INS were
stripped of almost all discretion in cases involving aggravated felonies.
The 1996 law also contained provisions to deport noncitizens for
harder-to-define "crimes of moral turpitude," which can include offenses as
relatively minor as petty theft.

In some cases, such offenders can be deported even when they served less
than a year for their crimes. Virginia Kice, Western regional spokeswoman
for the INS, said Congress passed the reform act because of a perception
that "a lot of people were coming to this country, taking advantage of the
system and then taking advantage of it again by appealing their cases ad
nauseam." Congress in 1996 allowed mandatory detention to be delayed for two
years, as the INS scrambled to find space for what promised to be an
exploding detainee population. In 1998, despite the INS' pleas for more
Congress said the agency could wait no longer. The INS says it does not have
a special operation to apprehend noncitizen criminals.

Most of them are found while serving time for their original offenses, when
reentering the country or in other encounters with authorities, such as
traffic stops. Ira Mehlman of the Federation for American Immigration
Reform, a Angeles-based group that advocates strict immigration controls,
said there are no problems with the 1996 law--only with how it is
implemented. "The INS has made an effort to go after people with relatively
minor offenses committed a long time ago, when they ought to be focusing on
more serious offenses, committed more recently," he said. "Our position is
that they ought to devote the resources to get the people through the
process faster." At the same time, Mehlman said, "we should not go back to
the system where they put people back on the street, and they disappeared."
Still, there are moves afoot to roll back portions of the 1996 law. Rep.
Barney Frank (D-Mass.) is sponsoring a bill that would permit some longtime
permanent residents to obtain waivers to remain in the U.S., and several
immigrant advocacy groups have organized marches in San Diego and Los
Angeles to protest the 1996 reforms. Laurie Kozuba, a Texas homemaker
married to a permanent, legal resident from Canada who has been here 41
years and faces deportation because of a drug conviction, founded Citizens
and Immigrants for Equal Justice 18 months ago. The group has a roster of
500 families in 26 states with family members who are being detained and
face deportation, she "We are trying to educate congressmen about what is
really happening with these laws," Kozuba said. "They think they are just
getting rid of heinous criminals.

They are destroying my family." Detainees Can Wait a Year or More At Mira
Loma, men from as far away as Egypt and Vietnam bunk with dozens of others
in low-slung barracks, and diversions are few. Detainees can play soccer or
make calls from pay phones, but there are no classes or work programs as
typically found in standard prisons. Conditions have improved since March,
INS officials said, because a moratorium on deporting Central Americans in
the aftermath of Hurricane Mitch has been lifted, easing overcrowding. The
recent introduction of a system allowing detainees who know they will be
deported to proceed administratively, rather than waiting to see a judge,
has also helped, officials added.

In addition, because holding space is limited and detention costs high, the
INS reinterpreted the 1996 law in July to allow the release of some inmates.
Still, some have remained at Mira Loma a year or longer, their cases stalled
in appeal. The 40-year-old complex served as a county jail until 1993, when
it shut down because of budget cutbacks.

The INS began leasing it in 1997 and pays the Los Angeles County Sheriff's
Department $80 an inmate per day to guard detainees.

The facility costs $18 million a year to operate. On the morning of Canales'
hearing, the men on Judge Vicars' calendar are led in at 8:30 in handcuffs
and shuffle in oversized plastic sandals to wooden pews. Many who file
through the courtroom will be on a bus to Mexico that same afternoon, or on
a plane out of LAX within the week. Because immigration court is part of the
executive rather than judicial branch of the government, a person who cannot
afford an attorney does not have the right to have one appointed. Vicars
estimates that only about 20% have lawyers the first time they appear, which
leads him to serve not only as judge but also as informal advisor to many
who stand before him. All day long he hears a parade of hard-luck cases,
such as that of Daniel Zavala Torres, 26. The Santa Paula citrus picker
faces deportation to Mexico because he volunteered to serve jail time in
lieu of paying a $2,500 court fine from a drug-possession conviction. He
already had a prior drug conviction and was picked up by the INS while in
custody. Zavala's case illustrates noncitizens' difficulty in relying even
on the advice of professionals, many of whom are not necessarily up to date
on immigration law. "He asked his probation officer, 'Can I do jail time?' "
his attorney, Elena Puig, tells Vicars. "He went in voluntarily on June 16.
He was due out July 7, and the INS got him." Rafael Antonio Flores, a
tough-looking 19-year-old with holes in an eyebrow once pierced by safety
pins, waits for his name to be called.

His attorney, Eudene Eunique, rushes in shortly past 9 a.m. after a 100-mile
drive from Orange County. She and her client meet for the first time.

Flores, a native of Nicaragua, has lived in this country 11 years and has
been at Mira Loma since May. He speaks English fluently and considers the
U.S. his home. His mother, stepfather and siblings all live here, and his
girlfriend gave birth to their daughter the previous day. Flores was
convicted twice in 1998 for possession of less than an ounce of marijuana,
his attorney said. Later that year, he was convicted of misdemeanor burglary
for trying to steal a bicycle. At his public defender's suggestion, Flores
said, he pleaded guilty to stealing the bike and ended up in county jail in
Ontario. "He didn't mention [the immigration law] and I didn't know
anything," Flores said. By pleading guilty, he learned later, he lost just
about any chance of remaining in the United States. Under the 1996 law,
often the only way for a criminal noncitizen to stay in the U.S. is to have
the original conviction vacated, said Paul Medved, an attorney at a Sherman
Oaks immigration law firm. A guilty plea makes that nearly impossible. "You
pay for your criminal offense," Medved said. "But payment for the crime
under immigration law is much harsher."