When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.
But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.
Under federal rulings that prevailed in Texas, Mr. Lemaine had lost the legal opportunity that rulings in New York would have allowed: to have an immigration judge weigh his offenses, including earlier misdemeanors resolved without jail time, against other aspects of his life, like his nursing studies at Hunter Business School; his care for his little sister, a United States citizen with a brain disorder; and the help he gave his divorced mother, who had worked double shifts to move the family out of a dangerous Brooklyn neighborhood.
Now Mr. Lemaine, 28, is among thousands of noncitizens whose fate may hinge on a case to be argued on Wednesday before the United States Supreme Court, in a challenge to the way the government interprets immigration laws about drug-related convictions. The government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an “aggravated felony” that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.
That interpretation of laws passed in 1996 has been rejected by four judicial circuits, including New York’s. But two circuits have upheld it, most notably the United States Court of Appeals for the Fifth Circuit, which covers Louisiana and Texas — states where the government routinely transfers tens of thousands of immigration detainees each year, mainly from the Northeast.
The case before the Supreme Court, Carachuri-Rosendo v. Holder, involves a longtime legal resident of Texas who was deported to Mexico based on convictions for possession of marijuana and a tablet of Xanax, an anti-anxiety drug. His fiancée and four children, all United States citizens, were left behind.
But Mr. Lemaine’s case, cited in amicus briefs by several defense lawyers’ associations, illustrates the chaotic effect of the split among the circuits, coupled with the increased use of transfers in the nation’s network of detention centers.
Unlike the criminal justice system, which must deal with defendants in the jurisdiction where their offenses occurred, immigration authorities can send detainees anywhere in the country, without notice or legal counsel, and start deportation proceedings wherever they choose. And the Obama administration has stepped up detention and deportation of so-called criminal aliens, including many legal immigrants with low-level drug convictions.
Mr. Lemaine, whose father is a United States citizen, faced an immigration judge in Harlingen, Tex., almost 2,000 miles from this blue-collar community just east of the Queens border. The judge decided that under Fifth Circuit rulings, two marijuana violations made Mr. Lemaine a “recidivist felon” ineligible for bond or for any relief from deportation, even though his first marijuana offense had been dismissed.
The government’s own Board of Immigration Appeals rejects that interpretation of the law, but says it is bound by it when deciding cases from circuits where it prevails, including the Seventh, covering Illinois, Indiana and Wisconsin. Proponents argue that their view reflects Congressional intent to be tougher on all drug offenses, and to sharply narrow judicial discretion.
In a sense, Mr. Lemaine was lucky. Unlike 86 percent of immigration detainees who face deportation in Texas, he had a lawyer. And though his mother, a nurse’s aide, could not pay an additional $10,000 for a federal appeal, someone referred the case to Gibson Dunn & Crutcher in New York, one of the few corporate law firms willing to fight a criminal deportation without a fee. Lawyers there filed a federal appeal.
Aaron D. Simowitz, 31, who shouldered part of the legal work, said the case often seemed surreal. For example, the New York criminal court refused to vacate, or erase, Mr. Lemaine’s first marijuana conviction, reasoning that there was nothing to vacate because the conviction did not exist; the case had been dismissed, as planned, after a six-month adjournment. But in Texas, the federal government still counted that as a conviction.
Such twists are part of a system that requires immigration authorities to match the elements of a variety of state criminal statutes with federal criminal laws, and proceed as though the noncitizen had been convicted of the federal crime.
Three times Mr. Simowitz sought Mr. Lemaine’s release on an order of supervision while the appeal was pending. Three times, Immigration and Customs Enforcement officials refused, moving Mr. Lemaine from the government-run Port Isabel Detention Center near Los Fresnos, to private prisons run by the GEO Group in Pearsall and Karnes City, Tex.
Then, early on Jan. 11 — hours before an earthquake devastated Haiti — a new deportation officer suddenly decided that Mr. Lemaine was a good candidate for supervised release, and let him make his way back to New York on a Greyhound bus.
After a three-day journey, he said, he emerged in Times Square, found Mr. Simowitz in an office on the 48th floor of the MetLife building, hugged him, then stood gazing down at New York, marveling, “This is my home.”
At his mother’s dining room table on a recent afternoon, he tried to convey the shock of his Texas experience, starting with his first night in a holding tank in Harlingen: “Fifty people, nowhere to sleep, huddled up with a few blankets.”
At the Port Isabel detention center, where he shrank to 145 pounds from 190 while waiting for his deportation case to be decided, he said, “they barely feed you.” But after a year, he found that leaving was worse.
As he recalled being awakened by guards and ordered to pack, Mr. Lemaine, a sunny, open-faced man, choked up, grabbed a paper napkin and pressed his eyes to stop his tears. “You try not to think about it anymore,” he said apologetically. “Two, three in the morning, pack your things, you’ve got to go — it basically means you’re being deported.”
He left a goodbye on his mother’s answering machine, only to learn at the last minute that he was not being dispatched to Haiti, but transferred to the South Texas Detention Center in Pearsall. When his mother, Marie Admettre, 57, finally reached him there, he urged her not even to try to pay for another appeal.
“She worked hard to get us to Long Island to provide a better life, and I screwed it up,” he explained, referring to youthful scrapes that did not make him deportable, like a bar fight, as well as the winter night he crashed into a parked car on his way home from a party with a joint in his pocket. “But my mom told me, ‘Don’t give up.’ ”
His lowest point, he said, came in the private Karnes County Correctional Center, which houses a mix of immigration detainees and federal prisoners. As he tells it, guards there let inmate gangs impose their own pecking order, and as the only black detainee in his dormitory, he seemed especially vulnerable. In the first days, the guards refused him utensils at mealtime, he said, leaving him alone eating stew and cereal with his hands. Later, half a dozen inmates beat him up in a racially motivated attack, he and his lawyers said.
Early on, after he wrote the medical staff that he was depressed, he was placed on a 10-day suicide watch in a filthy segregation unit where he did not see a psychiatrist for a week, he said.
“They just break you down so much,” Mr. Lemaine said. “They just forget about you. Basically, you fend for yourself.”
He was returned to isolation for his own protection after being beaten up, and chose to stay there, he said, locked in a tiny cell 23 hours a day, rather than go back to the same dorm.
What helped him survive, Mr. Lemaine said, was a gift from Mr. Simowitz: “Gideon’s Trumpet,” the 1964 account of how a penciled petition to the Supreme Court by a poor prisoner led to a landmark decision: that criminal defendants, even when they cannot pay, have the right to counsel.
“I love that book,” he said. “I love Aaron. How do you not give people lawyers in immigration court?”
In his case, the Fifth Circuit recently said it would wait for the Supreme Court decision in Carachuri before ruling. Even if those decisions go in his favor, however, he is likely to return to the same immigration judge, who could still order him deported.
With deportations to Haiti suspended since the earthquake, that is likely to mean more detention in Texas.
– Article from The New York Times.