The Story of Junior Francisco, A Lawful Permanent Resident Of The United States With Deep Family Roots In This Country, Underscores The Vicious Stupidity Of U.S. Immigration Policy Towards Non-Violent Drug Offenders
Junior Francisco, a native and citizen of the Dominican Republic is the spouse of a United States Citizen and father of three minor children (all of whom were born in the U.S.). In 2008, Francisco (who initially arrived in the U.S. in 2003) obtained lawful permanent status through an immigrant visa petition filed by his wife. In 2012, (based on the advice of his attorney), Francisco pled guilty to an offense involving conspiracy to sell cocaine. (Apparently Francisco, depressed and desperate after having lost his job, arranged for an acquaintance of his to sell cocaine to an undercover police officer). As a consequence of his plea, Francisco soon began serving a 51-month sentence in Federal prison. However, in 2014, the U.S. Sentencing Commission reduced the sentencing penalties for many drug offenses and made this policy retroactive. In November of 2015, the U.S. Attorney’s Office in New Jersey agreed that Francisco was eligible to have his sentence reduced by 10 months because he was not a threat to public safety. Although Francisco was subsequently released from prison, he has yet to experience the freedom that he thought would result from his sentence reduction. To the contrary, Francisco was one of the many non-violent drug offenders promptly transferred to an immigration detention facility after serving their criminal sentences. He now faces imminent deportation as result of his drug offense – his only criminal conviction in the approximately twelve years he has resided in the United States. According to a recent article in The Guardian, Francisco’s lawyers prepared a voluminous and highly documented request that immigration authorities exercise “prosecutorial discretion” based on the “compelling circumstances” in his case and allow Francisco to remain with his family in the United States.[i] But alas, last week, Francisco’s lawyer received a one-sentence response (literally) via email from Mary Elizabeth Cedillo-Pereira, a senior advisor to Immigration Customs and Enforcement explaining that Francisco’s case had been reviewed and that “prosecutorial discretion would not be exercised.”[ii] And so Francisco, who remains in immigration detention, will in all likelihood be ordered removed from the United States at his next immigration hearing.
Now one might wonder whether an Immigration Judge has any authority to grant Francisco relief from deportation. After all, in determining whether to issue an order of removal, can’t the Judge consider Francisco’s ties to this country and the hardship that would result from his removal from the United States? To answer that question requires a brief examination of the specific immigration consequences stemming from Francisco’s conspiracy to sell cocaine conviction. First, such conviction is most likely a “drug trafficking” aggravated felony under Immigration Law, a classification that carries the harshest consequences for non-citizens and forecloses virtually all forms of discretionary immigration relief.[iii] An aggravated felony disqualifies a lawful permanent resident such as Francisco from applying for “cancellation of removal,” an application that if granted allows an Immigration Judge discretion to waive certain grounds of deportation and in essence forgive non-citizens for their mistakes, allowing them to keep their green cards under certain circumstances.[iv] An aggravated felony also disqualifies a non-citizen from seeking asylum and in most cases a related form of relief known as withholding of removal. [v] So that basically leaves aggravated felons the option of applying for deferral of removal under the Convention Against Torture – a form of relief that requires applicants to demonstrate that if deported, they would face a clear probability of torture at the hands of or with the acquiescence of a public official.[vi] Needless to say, this is a very difficult form of relief to obtain. And so given these extremely harsh legal consequences, Francisco was left with no recourse but to essentially beg a government official to exercise compassion and to please not rip his life apart (not to mention the lives of his wife and children) based on the one unfortunate mistake he made and presumably in light of the U.S. Attorney’s concession that he posed no danger to the community. And last week, that government official, in a manner that can only be described as Kafkaesque, responded (in a one sentence email) that she would not grant such request. While underscoring the tragedy of our immigration policy towards non-violent drug offenders, this story also highlights how crucial it is for non-citizens to avoid at all costs any conviction constituting an aggravated felony, and if possible any drug conviction, as the consequences of such offenses (as this story illustrates) are extraordinarily severe.
[i] See Rene Feltz “Why US drug reform still couldn’t stop deportation of two immigrants,” The Guardian, April 1, 2016, http://www.theguardian.com/us-news/2016/apr/01/us-immigration-deportation-drug-reform-junior-francisco
[ii] Id.
[iii] See INA §§ 237(a)(2) (A)(iii); 101(a)(43)(B).
[iv] See INA §240A(a).
[v] See INA §208(b)(2)(B)(i).
[vi] See Matter of J-F-F-, 23 I&N Dec. 912, 917 (AG 2006) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). See also 8 C.F.R. § 208.16(c)(2).
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