Controversy over foreign-born offenders who aren't deported

A shackled detainee at a federal immigration detention facility in Adelanto, Calif. Some immigrants with criminal records are released from detention when they cannot be deported, because their home country will not accept them. The policy, which stems from of a 2001 U.S. Supreme Court Decision, has come under growing scrutiny.
A shackled detainee at a federal immigration detention facility in Adelanto, Calif. Some immigrants with criminal records are released from detention when they cannot be deported, because their home country will not accept them. The policy, which stems from of a 2001 U.S. Supreme Court Decision, has come under growing scrutiny.
John Moore/Getty Images

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The police shooting of a homeless man from Cameroon on Skid Row last month raised questions about police conduct – and some questions about U.S. deportation practices.

Charly Keunang, who was killed in an altercation with police March 1, had served prison time for a violent bank robbery in 2000. This would typically get him deported after his release from prison.  But he wasn't. After being released from a halfway house, he wound up on the street.

Following his death, U.S. officials cited a controversial immigration policy for Keunang's release. Immigrants with minor convictions are routinely let go by immigration officials. Roughly 30,000 people with criminal offenses in 2014 were released and not deported, according to recent congressional testimony. About 36,000 people were released the year prior. This policy has been the subject of debate in Congress in recent years.

The vast majority of these immigrants committed low-level offenses, so they aren't a priority for deportation, according to federal officials. But among them, there are more serious offenders who are released under a 2001 Supreme Court Decision called Zadvydas v. Davis.

The decision stipulates that if someone has a final deportation order, but their home country won't take them back - they can't be detained indefinitely. Immigration officials must release them within 180 days, or 6 months. According to federal officials, about one-tenth - roughly 3,600 - of the 2013 criminal releases were due to Zadvydas.

U.S. Immigration and Customs Enforcement officials say the U.S. government can't simply fly these  offenders to their home country without that government's approval. If a government fails to provide travel documents for a deportee, that person can't be sent back.
 
"Even for countries such as Mexico and or Canada, when we remove anybody to those countries, it is not like we can just take them to the border and push them across," said David Marin, a deputy field officer with ICE in Los Angeles. "We have to get permission from that country.”

One reason, he said, is that governments want to make sure they are getting one of their own, Marin said. Then there are countries, such as Cuba, that simply won’t take deportees.

Some countries don't have a functioning government, Marin said, and this presents problems. Some governments are choosy about who they accept. Some just don’t respond.

In Keunang's case, U.S. officials said the Cameroonian government didn't cooperate. Cameroonian embassy officials failed to respond to several queries from KPCC.
 
In a recent Congressional committee hearing, ICE director Sarah Saldaña defended the agency's compliance with the rules, saying "We have many challenges at ICE. One of them is the opinions we get from the highest court in the land, the Supreme Court."

These rules have faced growing scrutiny, especially in the aftermath of a controversy over the ICE release of immigrants from detention in 2013, some of whom turned out to have criminal records.

"The only people that ICE is required to keep in custody, when their country won't take them back, for more than six months are people who are a threat to national security, who have a serious mental illness, or who have some kind of communicable disease and are some risk to public health," said Jessica Vaughan, policy director with the Center for Immigration Studies, a Washington, D.C. think tank that advocates tighter immigration policies.

GOP lawmakers have floated a few recent bills that would allow ICE to hold violent offenders longer, even if they can't be removed from the country; a proposal from Sen. Charles Grassley (R-Iowa) is pending in the Senate.
 
Vaughan and other critics point to high-profile crimes where the foreign-born perpetrator was released under the Zadvydas decision, such as the murder of five people in the Bay Area in 2012, in which the suspect was a Vietnamese national with previous offenses who could not be removed from the U.S.

Hoang Tu, an attorney in Fountain Valley, has represented Vietnamese immigrants who can't be removed. He said that while they are allowed to remain in the United States, they don't get a free ride. They essentially become people without a country, he said. 

“Being stateless, it’s pretty hard, it’s a very difficult thing to get ahead," Tu said. "Most of them are just kind of living day by day, the ones that I see.”

They may apply for work permits, but they don’t always get them. (Keunang, for example, applied for a work permit but it was denied, federal officials confirmed).

Tu said those who have lost their legal resident status can’t get it back, meaning they have no path to citizenship. And because of their criminal records, he said, it is difficult to find work.

"They don’t have anything, pretty much," Tu said. "They are not allowed to have assistance, any government assistance, health programs or whatever, like regular permanent residents or U.S. citizens. They just exist. They're basically allowed to work and live, but that is it." 

Deportation order do not expire. So if diplomatic relations change – something that could eventually affect Cuban nationals, for example – or their home countries later agree to take them back, these individuals could be sent home in the future.