The Immigration Detainer Dilemma

There are over 10,000 inmates in TDCJ who were not legally in the U.S. at the time they were sent off to a Texas prison.  The vast majority of these Texas offenders are originally from Mexico.  I have represented several of these men in my law practice.  Virtually all of them have immigration detainers that subject them to a deportation proceeding upon release from TDCJ.  Recent press out of Washington D.C. suggests that the President wants to make sure that illegals who are convicted of a felony be placed at the front of the line for deportation by immigration authorities.  Thus, if the policy is followed, it is almost certain that all such offenders will be deported upon release from TDCJ.

The President’s desire to put convicted felons at the head of the deportation line is not particularly surprising.  However, there are a few details of this plan that ought to be considered more carefully.

First, some of those classified as “illegal”, grew up here in the U.S. and went all through our public school system.  Some of them do not even speak the language of the country from which their parents (illegally) emigrated.  Moreover, some of these same people had families of their own, and excellent work records prior to being incarcerated.

Second, if a guy is released and (presumably) sent to another country prior to the end of his sentence, there is virtually no ability to supervise him on parole.  Unfortunately, I suspect this fact leads most parole officials to leave illegals in prison longer than those who were born here in the U.S.

I personally believe that it’s also important to identify whether there are family support systems in place in the country to which we intend to deport these people.  If there are no opportunities and no support system in the receiving country, but there is a good support system here in Texas, the person in question might simply be willing to risk coming right back into the U.S. rather than be alone in a “foreign” country, with their very survival in question.

“Felony” is a broad category of criminal behavior.

Some felonies are, well, serious matters.  Others, not really.  No kidding.  A DWI is a felony (if there are two prior DWI’s at any time in a person’s life).  I’m not ignorant to the perils of drunk driving, but I also see the difference between beating, shooting, or stabbing  a man for his wallet and having that double scotch on the rocks at the company’s annual holiday social function.  In fact, we’ve got over 2,500 felonies on the books, and more enacted every time the legislature gets together.  Some felonies are pretty much the result of politicians trying to look like they are tough on crime, when the behavior at issue could very well have been classified as a misdemeanor at a different time in our history, or in a different jurisdiction.

Another way that a person can end up with the label “felon” is through the legal doctrine known as the law of parties.  Here’s how the Texas Penal Code defines it:

Section 7.02 of the Texas Penal Code outlines the following:

A person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense” or “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Ok, if that confuses you, no worries.  It basically means that you can get in big trouble if you’re hanging out with the wrong people.  One of my favorite law school professors, Gerald Reamey, said something to my first year criminal law class that really stuck with me.  ”If you don’t learn anything else in this class, you will learn that it’s extremely important to choose your friends carefully”.

So, what do we do about the immigration detainer dilemma?  I suspect that the Board of Pardons and Paroles simply leaves most of these people in TDCJ for most, if not all, of their sentences, irrespective of most other factors.  Then, at the end of this expensive taxpayer funded enterprise, the guy gets the boot, and we may or may not ever hear from him again here in the U.S.

We really have no perfect solution for the immigration detainer dilemma.  However, the issue is worthy of further study.  Perhaps we can find some solutions as the state grapples with cost, and the Feds get tougher and tougher on illegal immigration.