Banned in the U.S.A.

Banned in the U.S.A.
All Javier had known since the age of 5 was an American life. What he didn’t know was that pleading guilty to a felony would lead to his deportation to Mexico — and separation from his American wife
By Celeste Fremon
Celeste Fremon is the author of “G-Dog and the Homeboys” and a criminal justice fellow and border justice fellow at the USC Annenberg Institute for Justice and Journalism.

September 18, 2005

Early in the summer of 2002, Javier—then 27—still believed that he could somehow keep his family from shattering. It had taken him four months of living in Monterrey, Mexico, to scrape together the money to rent a house—if you could call the 12-foot square cinderblock box a house. In reality, it was a smallish concrete room split into two by a hastily constructed divider—one half designated as the bathroom/kitchen, the other half crammed with two double beds, a television and a tiny window air conditioner.

Javier still couldn’t afford a refrigerator or stove, but he’d scrambled to buy the TV and air conditioner, which he figured were necessities now that the season had turned the little block house into a sauna and, on weekdays, while he worked nearby as a telemarketer for Sprint, his kids and their mother would have no place else to go. “I had to do something,” he says. But at least, he thought, they would all share a roof again.

Javier is a tall, gentle, humorous man who, four years earlier, had fallen in love with Jennifer, a part Cherokee woman with a pretty face the shape of a Valentine candy. He met her after moving from Southern California to her hometown, a mid-size city 1,000 or so miles east. (Family members’ last names and their current location have been withheld to protect Javier’s identity because he now resides illegally in the United States.) They had two children together, Javier Jr.—Javi for short—and Sophie, and Javier all but legally adopted Jennifer’s two kids from a previous marriage. The couple had begun planning a wedding of their own. But then his past caught up with them.

The deal was, Javier was not living in Mexico by choice. He had been deported from the United States under a 1996 federal statute that mandates the return of noncitizens who run afoul of the law to their country of origin—never mind that Javier, then a legal resident, had lived in the U.S. most of his life.

Born in the tiny Mexican farming town of Chalchihuites, at age 5 Javier and his baby brother were brought north by his mother. They joined their dad, who already was in L.A. working as a cook for Clifton’s Cafeteria. The family attained permanent legal residency in 1986, yet the parents never pursued citizenship. “I think they were afraid they wouldn’t pass that test you have to take,” Javier says. His parents didn’t push their sons toward citizenship either. “I honestly don’t know why,” he says. “I guess it never came up.”

When, at age 19, Javier pleaded guilty to a gang-related felony, he had no inkling that the offense would one day force his wife-to-be and his kids, all U.S. citizens, to make an awful choice: They must either permanently trade their American lives for Javier’s new cinderblock-box existence—or resolve to live without him forever.

In old photographs, Javier is a thin, watchful child with a face that looks fearful in repose. At school, he liked science and baseball, he says, and dreamed of playing centerfield for the Dodgers. Yet at home his perpetually money-stressed father often seemed angry with him without reason. “If I could change one thing about my life,” Javier told a friend back then, “I’d want a dad I could get along with.” He escaped his father’s fury in predictable ways, first at friends’ houses, then by taking to the streets. At 15, like many boys who came of age during the early 1990s in L.A.’s inner city, Javier joined a gang.

The incident that would alter his future started with a gang-related shouting match at the corner of Clarence and 3rd streets in East Los Angeles. The argument escalated, a knife and some guns were pulled. Somebody fired a warning shot over someone else’s head, and that was the end of it. Luckily no one was hurt or hit. But a witness named Javier as the shooter.

He claimed that somebody else fired the gun and wanted to take the case to trial. His public defender pressed him to take a deal, Javier says, contending that a jury trial was too risky. In the spring of 1994, Javier took the advice and pleaded guilty to assault with a deadly weapon. Neither the attorney nor the judge told him that the plea carried any kind of immigration consequences.

Javier served three years in prison without incident. When he was released, he looked for a job and vowed to stay away from gang activity. He did not, however, steer clear of socializing with homeboys. Within three weeks he was arrested for “gang association,” a parole breach that resulted in an extra year at Folsom Prison. There he got his GED, worked in the prison’s bakery, took classes in auto-body work and read as many books as he could. “I guess maybe I needed that last year to really grow up,” he says. “It made me realize that if I wanted a good life, I had to make some big changes.”

When he got out, Javier planned to move to a city in the Southwest where his parents had recently relocated. They offered to help him start clean. Hopeful of repairing his relationship with his father, Javier gratefully accepted. “It’s like I could go to this quiet place where nobody knew me,” he says. “And I could just start over and be, like . . . normal.”

As his release date approached in June 1998, however, a prison official informed him of an immigration hold. “But I’m legal,” Javier recalls saying, “there must be some mistake.” No mistake, he was told. The law had changed while he was locked up. On the day his term ended, officers from the Immigration and Naturalization Service would deposit him across the border in Mexico.

Blindsided by the news, Javier pored over law books to craft a letter pleading his case. “The judge told me that he was impressed with my letter but that his hands were tied,” Javier says. Javier next fought the order with an attorney but lost again. The attorney wanted to appeal, which would have required Javier to stay in prison for the duration of the legal process—likely three to five years—with iffy odds of success. Defeated, he submitted to the deportation order. “What else could I really do?” he says.

On the day of his release, he and nine other deportees boarded an INS van for an eight-hour ride to Naco, Ariz. They were told to walk through the unassuming gate at the Naco port of entry to Mexico. Although California typically doles out $200 in “gate money” to parolees, Javier and the others would leave the country empty-handed—no money, no extra clothes, no identification—except for any funds remaining in their prison accounts. Javier had $30 in cash and nowhere to go.

It used to be that if a green-card-carrying U.S. resident committed all but the most serious crimes—murder, rape, large-scale trafficking in drugs or firearms—he or she paid their debt to society and went on with life.

In 1994, Congress added to the list a few more crimes that triggered deportation. Still, in many cases immigrants could apply for a 212(c) waiver, which allowed a judge to decide their fate. People who hadn’t done something hideous and showed evidence of having turned their lives around usually got to stay.

Then in 1996, conservative lawmakers grafted a last-minute rider onto a must-pass bundle of legislation called the Omnibus Appropriations Act that would fund the entire federal government for 1997. The rider was known as the Illegal Immigration Reform and Immigrant Responsibility Act. “When it was being proposed, I and others said it was terrible,” recalls Democratic Congressman Barney Frank. “But often members of Congress don’t listen in advance.” Moreover, voting against an appropriations bill would mean temporarily shutting down the government, thus the legislation sailed through both houses of Congress and was signed into law by President Bill Clinton.

The new law subjected every noncitizen to mandatory deportation for committing an “aggravated felony”—convictions ranging from murder to minor onetime drug possession. What’s more, the law removed access to most 212 (c) waivers, and with them nearly all judicial discretion.

“To let you know how bad it is,” says immigrant rights attorney Nancy Morawetz, “the Justice Department has successfully argued that a conviction for theft of a $10 video game, with a one-year suspended sentence, meets this definition.” Even old convictions that had been legally expunged were treated as active convictions under the new law.

The law also was to be applied retroactively, which meant that someone who had pleaded guilty under one set of rules faced, as in Javier’s case, an entirely different set of rules. “If these were [non-immigration] criminal cases, this kind of retroactivity would have been declared unconstitutional,” says Frank. “But since the people affected are immigrants, we don’t care.”

Criminal deportation numbers shot up after the law passed—a total of 591,301 between 1996 and 2004, with 85,583 in 2004 alone (up from 32,526 in 1995)—the overwhelming majority for nonviolent offenses.

It was a few years before dramatic stories of the law’s impact began to surface in the media. Gabriel Delgadillo, a Vietnam veteran awarded three medals, was deported for an 11-year-old burglary conviction, leaving behind a wife and seven children, all U.S. citizens. Joao Herbert was legally adopted from a Brazilian orphanage by an Ohio couple at age 8. During his late teens, he sold 7.5 ounces of marijuana to an undercover officer and was deported to Brazil. In Nashville, Jin Kim was deported to Korea at age 23 because of a minor cocaine possession conviction five years earlier. He didn’t speak the language and hadn’t lived in the country since he was a toddler.

And there were the tragic stories, such as the 44-year-old Miami mother of two who fled Haiti in the late 1970s, then was deported in 2000 after a conviction stemming from a domestic dispute with her husband. Upon arrival in Port-au-Prince, she was jailed along with other deportees, fell ill from unsanitary water and died soon after.

Yet most criminal deportees simply had sad, ordinary tales of families being yanked apart—stories like Javier’s. As more and more accounts came to light, often producing sympathetic articles in local papers, a growing number of lawmakers began to wonder if they had made a mistake in 1996. “When we began to get some of these deportations for comparatively minor offenses people had committed when they were very young,” says Frank, “some of the Republican members agreed that we needed to change the law.”

In 2000, Frank sponsored a bill called the Family Reunification Act. It was designed to reinstitute judicial discretion and to redress what he regarded as other egregious elements of the 1996 law. Some politicians attacked the bill as providing a haven for criminals, yet others spoke passionately in its behalf: “It is wrong to retroactively deport a hard-working immigrant for stealing $14.99 worth of baby clothes and to equate shoplifting with murder, rape and armed robbery,” said then-Congressman Bill McCollum on the floor of Congress. “The 1996 act, although well-intentioned, has created a deportation system that no longer passes the common-sense test,” agreed another Republican congressman, Miami’s Lincoln Diaz-Balart, the bill’s co-sponsor.

Frank’s bill made it through the House of Representatives but was killed in the Senate. Undeterred, Frank reintroduced an amended version in 2001 and garnered enough support that he believed it would pass. But before the bill came to a vote, two jetliners crashed into the World Trade Center and a third into the Pentagon.

“When 3,000 Americans were murdered by illegal immigrant terrorists on September 11,” says Frank, “that was the end of rational immigration policy in the United States.”

The afternoon Javier was disgorged from the ins van in Naco, he found a pay phone and, after hours of trying, managed to reach his mother, who agreed to wire him a few hundred dollars. Without an ID, however, he couldn’t pick up the money. A sympathetic woman working at the nearest Western Union branch told him to have the funds wired in her name and she would hand them over. The next day, Javier boarded a bus to Ensenada, where he spent three weeks applying for jobs. No one hired him. With his money nearly gone, he crossed back into the United States at Tijuana using his old, never confiscated green card, which a relative brought to him across the border. Then he bought a bus ticket to his parents’ home 1,000 miles east.

The next four years were the best Javier had ever known. “It was so different from L.A.,” he says of life in his adopted city. “It was really quiet and people were real nice. It was exactly what I needed.” Javier’s father helped him find work first as a bartender, then as a carpenter. Carpentry proved a good fit, and his wages moved quickly from $7 an hour to $14. Made confident by steady work, he began dating Jennifer, a single mother of two. When she got pregnant, the couple moved in together. Javi was born in March of 2000, Sophie, a year later. By the end of 2001, Javier had a better job framing houses in an upscale tract, and the couple set a date to baptize both babies—and began planning a wedding.

Then one overcast Saturday afternoon, police raided his father’s house during a narcotics sweep. The cops found no drugs, but they did find Javier. His illegal status was soon discovered. At his deportation four years earlier, authorities had told him he would face up to 20 years in prison if caught back in the United States. When he was arrested, they chose to expel him rather than prosecute.

A few months after Javier was escorted a second time across the border, Barney Frank tried to get the Family Reunification Act moving again. Called a “bleeding-heart criminal alien reimportation scheme” by conservative columnists such as Michelle Malkin, the bill appeared hopelessly stalled in the House Judiciary Committee. Last spring, however, potential help arrived from an unexpected quarter: Darrell Issa, a Republican Congressman from Vista (and the man who bankrolled the recall of Gov. Gray Davis), spoke with Frank and offered to possibly co-sponsor one more version of the bill.

“I’m a conservative by most people’s standards,” Issa says, “but I’m also somebody who thinks that when people commit crimes and pay the price, society should be willing to let them put those crimes behind themselves if they have no further offenses. Let’s say you’ve got five kids,” he continues, “three of them were born in the U.S. and two were born somewhere else. If those five kids all commit the same crimes in their teens, we deal with them very differently. And that didn’t seem fair.”

Frank says he hopes Issa will make good on his promise to sign on. “For the family values crowd, very few public policies have been more destructive of families,” he says.

After Javier was expelled, he and Jennifer decided that she and the kids would stay behind until he found work and saved enough money to send for the rest of them. In the abstract, the plan seemed achievable. Javier had maternal grandparents still living in Chalchihuites, and although he hadn’t seen them in years, this seemed like the best place to start. When he showed up on their doorstep, his grandmother made up a bed for him and his grandfather got Javier a job picking beans in the local fields.

“It was long hours,” he says, “but there’s no science to picking beans.” His salary was only 600 pesos a month, roughly $60, but his expenses were almost nonexistent. When the picking season was over, Javier moved on to the closest large city, Monterrey. By then, he had somewhat acclimated to Mexican life, and quickly found a job wiring houses for electricity. A few months later, he got a better job doing telemarketing for Sprint.

The day Jennifer and the four children arrived, Javier was filled with hope. “When I picked them up at the bus station,” he says, “Javi ran to me and jumped in my arms, which made me feel so good, because he was so little, I was worried he wouldn’t remember me. And Jennifer looked at me with this glow on her face. We were really happy all that day. Then I guess reality set in.”

Moving an American family of six to Mexico without any financial resources proved difficult on so many levels. For instance, the two eldest children spoke a few words of Spanish, but Jennifer spoke none. Plus there was the matter of school. Michael and Melissa eventually would have to enroll and, save for expensive private academies, the schools taught only in Spanish. And then there was the withering heat. Back home, air conditioning and public parks with swimming pools helped make summers tolerable. In Monterrey, all the nearby parks were dirt fields where the local boys played soccer. And while Javier worked, Jennifer and the little ones were stuck in the house where the heat threatened to suck the breath right out of your body unless you were smack in front of the box air conditioner. Even going to an air-conditioned movie theater was impossible due to the family’s chronic lack of cash.

Javier’s Sprint job was a pretty decent one. He cleared 10,000 pesos, or about $1,000, a month. It wasn’t much by American standards, but before the others arrived, he could cover his bills and save a little. Now with the kids, the money ran out like water. “I mean, a box of cereal like Raisin Bran costs 40 pesos,” says Javier. “A gallon of milk is another 30 pesos.”

As the summer wore on, worries about his family weighed heavily on Javier. “I knew they were in Mexico because of me, so I felt I had the responsibility to solve all our problems.” By mid-July, Javier’s stress level rose to the point that he developed a bad case of shingles. “I would go to work and feel like I was running a fever,” he says. Eventually the shingles were so painful that Javier quit his job, figuring it was better than getting fired. He soon found another driving a cab, but the money was inconsistent. By the end of July, the family decided that Jennifer would take Sophie, the baby, to the U.S., leaving the other three with Javier. That way she could work two jobs, save some money and then return in September.

But the convenience store job Jennifer found paid only the minimum, and a second one seemed impossible with the baby. Although Javier sometimes talked neighbors into watching the kids while he worked, most times he drove the taxi nights after the kids were asleep. “I locked them in the house,” he says. “It was bad, but I didn’t have no choice.” By September, it was obvious that the kids had to return to their mom.

Jennifer and Javier met for the child hand-off at the border between Laredo, Texas, and Nuevo Laredo, Mexico. Jennifer walked across the bridge to the Mexican side, where she and Javier talked forlornly for maybe an hour. Then mother and kids turned away and walked back to the United States, leaving Javier to watch them go.

The couple told each other that it was not forever, that they would both save money, then everyone would come back. But they were dreaming. Once back home, Jennifer had her hands full supporting four kids alone. And although Javier made progress in the beginning, it was not enough. “People come to the U.S. to send money back to Mexico,” he says. “They don’t go to Mexico to get ahead.” Then Javier got sick again, this time with a painful hernia that drastically affected his work. “Some days I barely made enough to cover rental on the cab,” he says, “which was 350 pesos.” Without money for treatment, in March 2004, the hernia became potentially life-threatening. Panicked, Javier called a Los Angeles priest he had known and borrowed the 6,000 pesos for an operation. After he healed, an unhappy Jennifer admitted that, although she would come down to visit, the idea of the family relocating to Mexico was off the table.

Javier was overtaken by grief. “My loneliness really began beating me down,” he says. “I’d see kids with their parents in the park, I’d see a couple riding the bus kissing—and all of it hurt me so much.”

Javier stuck it out in Mexico alone for 2 1/2 years before deciding he was finished. He would cross the border again, risk be damned. “There’s nothing here for me,” he says in one miserable phone call from Monterrey. “I look in the mirror and I see a blank face. Without my family, I feel like I’m only living in memories now. Memories and dreams.”

In early October 2004, Javier took a bus from Monterrey to Altar, a popular staging area for migrants 60 miles south of the Arizona border, where he paid a pollero $1,200 to take him across. Along with 35 others, he began his trek through the Sonoran desert. “The polleros told us it would be a six-hour walk,” says Javier. “We didn’t know any better so we started leaving behind our food and water, because it was really heavy.”

The polleros had lied. The “six-hour” walk lasted three days. Conditions turned perilous when the trucks didn’t arrive at the pickup point on the Arizona side, and the group ran out of food. “I guess they got caught,” says Javier. “So we had to wait another four days before they got other trucks. It was very scary. One guy went into convulsions. We all thought we were going to die.”

When the trucks finally arrived, somewhere between 120 and 150 immigrants crowded into two truck beds, all of them lashed together like upright bundles of firewood. Once the trucks reached Phoenix, Javier called Jennifer. “I thought you were dead,” she sobbed. Then she drove all night to get Javier—and brought him home.

Javier has been living in the United States for nearly a year now and has, in many ways, carved out his own small, shining corner of the American dream. He and his family live in a pretty three-bedroom brick home on a quiet suburban street where kids can play safely and neighbors wave to each other as they barbecue on warm weekend nights. Javier is back framing houses and makes a good salary. Soon he plans to start a subcontracting business with his father and brother. “There’s a lot of opportunity here,” he says.

Javier’s homecoming was not untroubled. At first, Melissa and Michael, now 12 and 13, acted out, alternately resenting his presence and fearful that he would vanish again. Meanwhile, 5-year-old Javi grew hyper and jittery whenever his father left the room. But in time the family drew close. Now when Jennifer is asked what is easier for her now that the kids’ dad is at home, she seems momentarily surprised at the question. “Everything,” she says.

Yet Javier knows that every incremental achievement, every family joy, rests on a foundation as flimsy as cellophane. It could all go bad in a moment. For this reason, he won’t drive a car for fear of being pulled over by police. And even when Jennifer drives, as she did on July 4 for a family outing, he worries they’ll run into a holiday roadblock where police randomly check for drunken drivers. His tenuous situation forces an array of other prohibitions. “Like when I was asked to coach Javi’s softball team,” Javier says, “I would have loved it, but I had to turn it down because they’d need an ID.” He pauses. “Truthfully, I’m scared all the time. It’s not a good way to live.”

Even so, he enjoys the everyday moments—like on a Saturday evening, as the sun shimmers on the horizon, standing in his backyard and watching Javi and Sophie chase each other on the grass. “Look,” he says when he pulls his eyes away, “I was out on the street when I was young, but I paid for those mistakes. I went to prison. Now I’m 31 years old. I’ve been doing good for a long time. All I want to do is work hard, pay taxes, be with Jennifer and raise my kids. What’s so wrong with that? Really. I wish someone would tell me so I could understand.”

There is a possibility, albeit a small one, that things could change for Javier. On Aug. 10, a 9th Circuit Court of Appeals decision in Cordes vs. Gonzales challenged the constitutionality of some of the 1996 law’s retroactive elements. And on May 5 of this year, Frank introduced H.R. 2055, his newest version of the Family Reunification Act. It has since been referred to the House Judiciary Committee. If the bill passes, its provisions could potentially allow Javier, Jennifer and the kids to live together happily—and legally—ever after.

Frank admits he’s not optimistic. “There’s still so much of an anti-immigration mood in this country,” he says. “On the other hand, if Darrell Issa stays positive on it, and if he can get a couple other Republicans, then we have a fighting chance.”

Yet, despite his earlier passion on the issue, Issa has back-pedaled on co-sponsorship. “I support giving the Secretary of Homeland Security and the attorney general the authority to grant administrative relief to individuals under certain circumstances” is all the congressman will now say.

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