FIGHTING MANDATORY DEPORTATION: VETERANS LEAD A NEW CHARGE

Fear of crime and resentment against immigrants are perennial themes of
U.S. politics, and Congress touched both when it revised American policy
toward legal residents in the mid-1990s. Non-citizens, even permanent
residents, were made subject to deportation for a wide range of crimes that
had previously been considered too minor. There was, at least according to
immigration officials, no flexibility in deciding whom to deport.

The Draconian nature of the change brought immediate cries from civil
libertarians and advocates for immigrants, but so far court challenges have
had little effect.

Now a new tactic is being pursued, and last month it reached the floor of
the Senate, where Sen. Patrick Leahy, D-Vt., spoke on behalf of five legal
residents who face deportation even though they have served in the U.S.
military, some of them in combat.

"The zealousness of Congress and the White House to be tough on aliens has
successfully snared permanent residents who have spilled their blood for
our country," said Leahy.

The five, and other veterans, have come forward as extreme examples of the
law's inflexibility. Some earned medals fighting in Vietnam, and at least
one is disabled as a result of service there. Through legal challenges and
a campaign for public attention, they have targeted what they hope is the
law's Achilles heel: its rigidity.

Can enforcement of the law stand up to public scrutiny in their cases? If
it can't, will exceptions be made? And if that happens, they argue,
wouldn't it undermine the notion of mandatory deportation without exception?

Take, for example, the case of Rafael Ramirez, a 35-year-old New Yorker.
Nine years after his honorable discharge from the Army as a sergeant, he
faces deportation to the Dominican Republic. His offense: In 1990, just
months after leaving the Army, he pleaded guilty to possessing marijuana.

Ramirez left the Dominican Republic 28 years ago, and today his life is in
the United States. He has a home in upper Manhattan's Washington Heights,
four children, a job and a small construction business. His Army record as
a truck driver in Germany and the United States -- he enlisted in 1984 and
left six years later -- is unblemished.

Immigration officials in Washington have been unmoved by such cases, aware
that making an exception can demolish the principle behind its enforcement
policies.

"There is nothing in the law that says if you are a veteran and a criminal
you are exempt from deportation," said Russell Bergeron, an Immigration and
Naturalization Service spokesman in Washington. "It is inconceivable to me
that someone who is willing to die to defend the Constitution of the United
States can then turn around and violate it."

Ramirez, of course, argues just the opposite: He says that when he
enlisted, his superiors did not ask where he came from, and that his
loyalty to the United States was assumed. His offense, he says, hardly
amounts to an assault on the Constitution, and the fact that he was
sentenced to five years probation and never went to prison proves the point.

The lawyers and veterans involved in the campaign don't argue against using
criminal behavior as grounds to deport people who endanger American
society. But they argue that the INS should only go after hardened
criminals. Even these cases, they say, should be open to judicial review.

Immigration officials say they have no choice but to follow the mandate of
Congress. In the past two years, 106,442 immigrants have been deported. But
advocates for immigrants, their lawyers and some members of Congress insist
that the immigration service distorts the law.

"Both Congress and the administration want to wash their hands," said Lucas
Guttentag, director of the Immigrants' Rights Project of the American Civil
Liberties Union. "Both are responsible and, by neither one accepting
responsibility, nothing gets changed."

What Congress did in 1995 and 1996 was to expand the definition of a felony
and make all felonies and crimes of moral turpitude punishable by
deportation. It stripped immigration judges of the power to reverse
deportation orders. The INS, for its part, chose to apply the law
retroactively, although the law is not specific on that point. The INS has
also chosen to go after all convicted immigrants.

"The law goes too far," said Laura Kozuba, who heads an anti-deportation
group in Dallas. "We want to change it for all, but it seems particularly
egregious to try to deport someone who has served this country." She is
married to Danny Kozuba, a 46-year-old kitchen installer, who has been
ordered deported. He came to the United States from Canada when he was 5
and was in the Army from 1970 to 1973. He has been convicted of possessing
methamphetamines several times, the last in 1990, and spent three years in
a Texas state prison.

Students at the Clinical Law Center at New York University School of Law,
under the guidance of Professor Nancy Morawetz, are focusing on several
other veterans. One is Perry Gumbs, 35, of Newburgh, N.Y., who was born in
St. Kitts and served in a field artillery unit during the gulf war. In
1995, he was convicted of conspiracy to distribute cocaine and served a
year in jail. Another is Ralph Hesselbach, who came to the United States
from Germany when he was 11 and was disabled while serving in Vietnam. At
49, he is HIV. positive and has been convicted several times of possessing
heroin.

Professor Morawetz said the INS could have chosen to leave Hesselbach and
Gumbs alone. They are not in jail now, are not involved in crime and are
not abusing drugs, she said.

"I don't see anything in the law that says that the INS doesn't have
prosecutorial discretion," she said. "Where does it say that you have to
deport everybody that you can deport? Why would you want to?"