Early Parole for Deportation and the Right to a Lawyer

By Stanley Mailman

New York Law Journal

October 23, 1996

Whether they like it or not, prison inmates can be released for deportation before they serve their minimum sentence, if they meet the terms of a New York statute enacted on June 10, 1995.¹ The new law was inaugurated on August 28, when 86 Colombians were flown out of Kennedy International Airport undr escort of the U.S. Immigration and Naturalization Service (the Service or INS).² Is the new law a boon for all concerned, or, as some critics complain, does it seriously prejudice the rights of foreign inmates, a convenient target in an anti-alien environment.³

At a joint news conference held before the Avianca flight, Doris M. Meissner, Commissioner of the Immigration and Naturalization Service, hailed the law as "landmark event"; Governor Pataki said that it will "take [these aliens] out of our state and off the backs of [our] taxpayers."⁴ Over a period of five years, the early-parole law could yield savings to New York's prison system of at least $ 7 million, according to state officials who believe that there are some eight thousand non-citizen prisoners among the 68,000 inmates, only some of whom are subject to deportation.⁵ For the federal government the dollar saving is significantly smaller, but the program encourages speedier deportation. Whether it yields that result - a goal that INS has historically found hard to achieve - may be another matter.

Inmates who face certain deportation may well embrace an early deportation order if it means abbreviating a prison sentence. But to admit deportability and forgo appeals, they should know whether expulsion is inevitable or can be avoided. They badly need trained lawyers to give them informed advice, and to provide effective representation at their deportation hearings. Such representation, however, is unavailable to many inmates, a serious flaw in the process that existed even when inmates could only be deported after they served their minimum sentence.

To understand the issues it is helpful to know how the state law works, how it meshes with the immigration laws, and what it means to noncitizen inmates. As a way of facilitating their transfer to federal custody, New York enacted a law in 1985 to permit "Conditional Parole for Deportation Only" of those inmates who completed their minimum sentences.⁶ The 1995 statute dispenses with the need to serve even the minimum term.⁷ Now, the parole board may consider deportation as a factor warranting early parole as soon as the inmate begins to do time. Consideration will ordinarily await a final order of deportation that INS assures it will carry out, and the board must specifically condition the parole on prompt deportation.

If the inmate has already served the minimum period of the sentence, the parole board can technically grant parole without a final deportation order, provided INS commits to starting deportation proceedings promptly on the inmate's release from state custody. But the board, at least in the near run, is unlikely to use this alternative. Deportation proceedings can drag out. As the point of this program is to tie the parole to immediate deportation, INS and parole authorities are concentrating on inmates whose cases have gone to a final administrative order while they are still in state custody. For the same reason, the processing of a parole/deportation is unlikely while judicial review is pending or still available.

Other conditions of this parole are a warrant for retaking custody of the parolee who is not deported, and an assurance that INS will cooperate in the transfer. Time spent in INS custody is credited against the term of the sentence. So too is the period of parole in the event of deportation. What if the parolee is later imprisoned by New York for a felony committed after release under this parole program? Eligibility for parole under the new sentence would then be extended by any period the inmate needed to serve to complete the minimum sentence under the earlier conviction. What if the parolee illegally returns to the United States, but commits no New York felony? Return within a given period without permission of the Attorney General is itself a federal crime,⁸ but would seem to have no consequences under state law.

Can any inmate qualify under the new program? No; those convicted of a violent felony are ineligible for early release.⁹ Nor does this provision relate to U.S. citizens, as they are not subject to deportation.

Whether or not an inmate is a citizen is not always obvious. Persons born in this country are clearly U.S. citizens, unless they were born here to certain accredited foreign diplomats, or gave up their citizenship. Those born abroad are U.S. citizens at birth if one of their parents was then a citizen, a matter of fact or law or both that not even a wise child may know. And of course natives of other countries may have become naturalized in the United States.

Hence, screening for foreign birth, the practice at state intake facilities, may not yield precise information on the alien population behind state bars. Although correction officials can't be sure whether someone is an alien, the rough selection gives INS an opportunity to investigate and to start deportation proceedings if appropriate. Understandably, lawyers who represent immigrants worry about New York's early-release program because it would seem to precipitate or hasten deportation.

As to the timing, the immigration laws bar the actual expulsion of persons sentenced to imprisonment until they are released from confinement.¹⁰ But nothing restrains the Service from starting deportation proceedings at any time it has reason to believe that an individual in the United States is deportable. Indeed, in "the case of an alien who is convicted of an offense which makes the alien subject to deportation," the immigration law has long required the Service to begin proceedings "as expeditiously as possible after the date of conviction."¹¹ In the past the Service may not have pursued that initiative with the vigor that some critics would want, including the State of New York, which unsuccessfully sued the attorney general in 1992 to hasten enforcement.¹²

In 1990, Congress required the Attorney General to report to Congress on INS efforts to identify, apprehend, detain and remove aliens convicted of crimes in the United States.¹³ The Attorney General must arrange for deportation proceedings against aliens convicted of aggravated felonies, to be completed if possible before they are released from criminal detention.¹⁴ So, making inmates available for deportation not only saves the state money, but supports an important congressional policy.

In cooperation with INS, the New York Department of Correctional Services (DOCS) started the Institutional Hearing Program (IHP) in 1986, well before the early-parole provisions. The purpose of the program is "to complete deportation hearings before an inmate is released from DOCS custody."¹⁵ To do this, DOCS provided physical facilities on site for the regular assignment of Justice Department personnel. But, even then, the pace of proceedings dragged.

In 1994, after suing unsuccessfully to make the federal government bring deportation proceedings while inmates are still in state custody,¹⁶ representatives of New York and the Justice Department arranged to streamline the process by centralizing the deportation operation within three facilities. Now, INS investigators are regularly stationed at Ulster and Downstate, the intake facilities for male inmates, and at Bedford Hills, the corresponding facility for females. There, they interview foreign-born inmates to check for their deportability; INS trial attorneys prepare and prosecute the resulting deportation cases; and immigration judges, assigned by the Executive Office for Immigration Review, hear and decide those cases. The program has permitted the Service to pursue deportation hearings well before inmates complete their sentences. Indeed, IHP has every mark of a successfully-run law-enforcement program, except for an essential ingredient of fairness - availability of legal representation.

As discussed below, the arrangements made between the federal and New York authorities have made it virtually impossible to secure lawyers for the inmates placed in deportation proceedings. Given the stakes involved, the lack is critical, particularly in New York. In California, many of the aliens behind bars crossed the border illegally, or overstayed their visitor's permits, rendering them deportable apart from the conviction of any crime. More often in New York, alien prisoners are not "illegal immigrants"; they are typically lawful permanent residents of the United States ("green card" holders). Depending on the basis of conviction, those residents may not be deportable at all.

But even if they are deportable, depending on the nature of the crime, noncitizens may be eligible to remain in the United States in the discretion of the immigration judge.¹⁷ Eligibility can depend on whether they have resident status and how long they have been lawfully domiciled in the United States, or if have been physically present here for a continuous period of at least seven years. In some cases, they may be able to adjust to permanent residence or readjust if they already have lawful resident status. Those inmates may have a U.S. spouse and children, and other strong equities in their favor. Their rehabilitation and contributions to the community, their long residence and close family ties, and the medical, financial or other personal hardship that deportation would cause to them or their U.S. dependents, are factors that can figure strongly in favor of allowing them to stay.¹⁸

The trial of deportation cases on behalf of the alien is difficult. It requires a careful, persuasive presentation of the facts. The legal issues are complex and dynamic. Appeals may be taken to the Board of Immigration Appeals with review by a Circuit Court of Appeals. It is a rare issue of the Federal Reporter that fails to carry such a case.

At the same time, it is extraordinarily difficult for an inmate at Ulster or Downstate to secure representation at a deportation hearing. Excepting Buffalo, the immigration bar is located almost exclusively in the New York City area. Even apart from the inconveniences of interview and preparation, appearance at a hearing held at Ulster means a trip to Napanoch in Ulster County, a two and a half hour ride by bus and cab. Appearing at Downstate involves a trip to Fishkill, in Dutchess County. In either case, a single appearance is an all-day affair.

Few inmates can afford to hire a lawyer. Apparently, the Legal Aid Society will not service these hearings because they are held outside of New York City. Prisoners' Legal Services, a not-for-profit organization that services those already behind bars, has been handicapped by a lack of expertise and by the uncertainty and limitations of funding. The Deputy Commissioner of DOCS, a lawyer, has supported grant applications and appeared at meetings of the American Immigration Lawyers Association to encourage pro bono assistance.¹⁹ Still, the amount of funding remains at a trickle, the number of volunteers, small. Lawyers I know in the Hudson Valley are reluctant to appear for lack of legal knowledge and experience. Lawyers in New York City have volunteered but find the travel a hardship.

The immigration statute assures to every person in deportation or exclusion hearings "the privilege of being represented (at no expense to the Government) by such counsel ... as he shall choose."²⁰ In practice, at least for inmates in New York State correctional facilities, the privilege has been a meaningless formula. Immigration judges will sometimes grant more than one adjournment to allow the inmate an opportunity to secure counsel. But then the hearing goes on, counsel or no counsel. The judges assist an unrepresented inmate by pointing out the possibilities of equitable relief, and by providing the forms for application. But a judge is no substitute for trial counsel. And without counsel, inmates don't know their chances of avoiding deportation. Nor do they know whether appeals are only likely to protract their prison sentence. Although opportunities for retaining counsel were no better when hearings were conducted at other correctional facilities, mainly located upstate, lawyers are undoubtedly more available for hearings at INS in New York.

Bar associations should do better in encouraging lawyers to volunteer their services, and in holding training sessions to widen expertise in the defense of a deportation case, as they and the Lawyers Committee for Human Rights have done in asylum cases. Meanwhile, there remains the question of whether deportation in these circumstances without an effective right to counsel raises a Sixth Amendment issue.

The courts have reminded us on several occasions that deportation hearings are civil and do not entitle the individual to the same due process rights assured in criminal proceedings.²¹ The Board of Immigration Appeals has ruled that there is no absolute Sixth Amendment right to counsel in deportation hearings.²² Even so, courts have held that effective deprivation of counsel necessarily deprives an alien of due process without the need to show prejudice.²³ Do the arrangements at Ulster and Downstate amount to such a deprivation?

One purpose of the Institutional Hearing Program is "to assist the federal agencies responsible for administering and enforcing the Immigration and Nationality Act (INA) in deporting an ever increasing number of criminal aliens from the United States."²⁴ That purpose may be perfectly valid when viewed by itself. But the federal government must see to it that the arrangements do not sacrifice the right to representation, a critical component of any fair adjudication system, particularly when as here the decision can separate the individual from home and family and deprive him or her "of all that makes life worth living."²⁵ A system for processing deportation proceedings that effectively deprives the alien of representation strains the limits of the immigration statute under implicit constitutional norms.²⁶

NOTES

* I am grateful for the patient assistance of several persons in providing me with information on deportation hearings for inmates in New York's correctional facilities, and the background to the New York statute discussed in this article. Among those who were so helpful are Anthony J. Annucci, Deputy Commissioner and Counsel of the New York Department of Correctional Services; Ruth Cassell and Robert Selkov, Prisoners' Legal Services; Linda Kenepaske, Esq., current chair, American Immigration Lawyers Association (AILA), N.Y. Chapter, Pro-Bono Committee; and Judy Rabinovitz, Staff Counsel, ACLU Immigrants' Rights Project. While I hope I got the facts right, I expect none of these people to agree with all of the conclusions reached or suggested here.

1 . Sentencing Reform Act of 1995, 1995 N. Y. Laws, Ch. 3 (S. 5281, A. 7991), [[section]] 40 (McKinney September 1995), amending inter alia N.Y. Exec. L. [[section]] 259-I. Section 30 of the act requires the sentencing court, with the acceptance of any plea of guilty to a felony, to advise the defendant on the record that the plea may have certain prejudicial effects under the immigration laws. One member of the first group of deportees under this provision, see text accompanying infra note 2, who protested as he was being deported that his deportation case was still under appeal, is being returned after a showing by his lawyer of administrative error by the Immigration and Naturalization Service.

2 . Ian Fisher, Pataki Announces Aliens' Expulsion, N.Y. Times, Aug. 29, 1995, at 1, col. 3.

3 . See, e.g., opposing positions by Gov. George E. Pataki and Judy Rabinovitz, staff counsel, ACLU Immigrants' Rights Project, Deporting criminals - is it fair?, (N.Y.) Daily News, September 10, 1995, op-ed page.

4 . Supra note 2.

5 . According to information furnished by the N.Y. State Department of Correctional Services, of the 68,688 inmates, 59,661 are U.S. born, 8,794 foreign born, 233 of unknown birthplace; of the foreign born, 1009 are awaiting determination by INS, 2,694 are illegal aliens, 4,328 are legal permanent residents, 449 naturalized citizens, and 404 are Mariel Cubans. Cf. Cuomo v. Barr, 7 F.3d 17, 18 (2d Cir. 1993) ("As of March 1992, New York held approximately 60,000 prisoners in state correctional facilities, 8% of whom were known to be aliens and an additional 4% of whom were suspected to be aliens.")

6 . N.Y. Exec. L. [[section]] 259-I(2)(d) (McKinney 1993; see historical and statutory notes).

7 . Sentencing Reform Act of 1995, 1995 N. Y. Laws, Ch. 3 (S. 5281, A. 7991), [[section]] 40 (McKinney September 1995), amending N.Y. Exec. L. [[section]] 259-I(2)(d).

8 . INA [[section]] 276(a), 8 U.S.C. [[section]] 1326(a). See also 3 Charles Gordon, Stanley Mailman and Stephen Yale-Loehr, Immigration Law and Procedure, [[section]] 85.07[2][d] (as revised, 1995).

9 . Also ineligible are those convicted of a class A-I felony (other than one defined in article 220 of the N.Y. Penal Law, which covers controlled substances offenses). Felony is defined in N.Y. Penal L. [[section]] 10.00 (McKinney 1987) as an offense for which a sentence may be imposed of more than one year imprisonment. N.Y. Penal L. [[section]] 55.05 (McKinney 1987) classifies felonies (A through E, with subclasses A-I and A-II) and misdemeanors (A through B and unclassified) for sentencing purposes.

10 . INA [[section]] 242(h), 8 U.S.C. [[section]] 1252(h).

11 . INA [[section]] 242(I), 8 U.S.C. [[section]] 1252(I), added by Act of Nov. 6, 1986, Pub. L. No. 99-603, [[section]] 701, 100 Stat. 3359, 3445.

12 . See Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993) (dismissal of New York's appeal) and Cuomo v. Barr, 812 F. Supp. 324 (N.D.N.Y. 1993) (denial of New York's motion).

13 . Immigration Act of 1990, Pub. L. No. 101-649, [[section]] 510, 104 Stat. 4978.

14 . INA [[section]] 242A(1), 8 U.S.C. [[section]] 1252a(1), as amended and renumbered by Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, [[section]] 130004(c), 108 Stat. 1796.

15 . DOCS Today, Autumn 1995, at 18.

16 . See Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993) (sustaining order dismissing application for permanent injunction to require INS to take custody of criminal aliens in state prison release programs).

17 . See, e.g., INA [[section]] 212(c), 8 U.S.C. [[section]] 1182(c) (relief from exclusion and deportation for long-time permanent residents), INA [[section]] 244, 8 U.S.C. [[section]] 1254 (suspension of deportation), INA [[section]] 245, 8 U.S.C. [[section]] 1255 (adjustment of status to permanent resident with waiver of ground of exclusion or deportation). See generally 3 Gordon, Mailman and Yale-Loehr, supra note 8, at Ch. 74.

18 . See generally 3 Gordon, Mailman and Yale-Loehr, supra note 8, at Ch. 74.

19 . I was so advised of this by Ruth Cassell, Esq., of Prisoners' Legal Services, and by Linda Kenepaske, Esq., current chair, AILA, N.Y. Chapter, Pro-Bono Committee.

20 . INA [[section]] 292, 8 U.S.C. [[section]] 1362.

21 . See, e.g., Bugajewitz v. Adams 228 U.S. 585 (1913); Harisiades v. Shaughnessy, 342 U.S. 580 (1952). See generally 3 Gordon, Mailman and Yale-Loehr, supra note 8, at [[section]][[section]] 71.01[6][a], 71.02[3].

22 . See 1 Gordon, Mailman and Yale-Loehr, supra note 8, at [[section]] 4.01[1] (citing Matter of Santos, 19 I. & N. Dec. 105, 1 Immig. Rptr. B1-99 (BIA 1984)). [This footnote has been revised since original publication.]

23 . See Montilla v. INS, 926 F.2d 162, 168 (2d Cir. 1991); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975). See also 1 Gordon, Mailman and Yale-Loehr, supra note 8, at [[section]] 4.01[1].

24 . Application by Department of Correctional Services for Innovations Awards 1995, Council of State Governments, at 1.

25 . Brandeis, J., in Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

26 . See generally Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (December 1990).