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The Illogical Immigration Consequences of Drug Convictions

A conviction for a drug offense can have outsized legal consequences when it comes to obtaining employment, licensing, access to benefits and finding housing. Outside of the law it can have serious consequences In some cases minor marijuana offenses could result in eviction or the loss of employment or parental rights. These consequences can effect people for years, long after they have tried to put the conviction behind them.

It is almost a right of passage for teenagers to experiment with drugs. A nationwide survey done in 2019 found that 13% of people 12+ used an illicit drug in the past month, and by age 16 that number goes up to 16.5% i.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA). IRCA required the U.S. Attorney General to deport immigrants with criminal convictions as quickly as possible. The ADAA of 1986 also authorized the use of “detainers,” under a subsection titled the “Narcotics Traffickers Deportation Act,” by which immigration authorities could request that local law enforcement agencies hold people arrested for controlled substance offenses until they could be taken into immigration custody. This sort of paved the way for political rhetoric that continues to criminalize migration and push for punitive policies towards the treatment of immigrants who cross the southern border without a visa

In the 80’s and 90’s drug laws grew in their size and scope and so did their punishments, in part thanks to now President Biden. These laws often discriminated against African American and immigrant populations in the way they were written and enforced.

The Anti-Drug Abuse Act of 1986, which set mandatory minimums for drug law violations, including exceptionally harsh penalties for crack cocaine. With this law Congress expanded the drug convictions that are grounds for deportability and exclusion of immigrants from the country. Ultimately Congress amended the laws relating to exclusion and deportability grounds to include a single conviction for violating any law involving a controlled substance as defined by the federal drug schedule. Congress also eliminated all inadmissibility waivers for drug convictions with the exception of only a conviction for possession of less than 30 grams of marijuana, however, marijuana use remains a ground of “health-related inadmissibility” that can apply to any person who admits to having used marijuana and DHS can accuse a non-citizen of “drug trafficking” if they have reason to believe that the person was ever involved in the transporting or transfer of any amount of any drugii.

Two years after that the Anti-Drug Abuse Act of 1988 sought to further address “an expansive drug syndicate established and managed by illegal aliens,” in the words of Florida senator Lawton Chiles. Anti-Drug Abuse Act introduced aggravated felonies to the immigration law. Two years after that, the Immigration Act of 1990 signed into law by President H.W. Bush increased the types of offenses considered aggravated felonies. Then in 1994, the Immigration and Nationality Technical Corrections Act of 1994 again increased that number.. Then only two years later, the Anti-terrorism and Effective Death Penalty Act of 1996 increased it yet againiii.

The terrorist attacks on September 11, 2001 gave the government the basis to completely revamp the country’s immigration laws not only on paper but by creating the Department of Homeland Security, the largest government agency that ever existed to enforce the immigration laws and to actively investigate and search for noncitizens in the US in order to apprehend, detain, and deport them .

These changes to the law coupled with the creation of a second military police force dedicated to the enforcement of those laws, birthed the deportation machine of the twenty first century that is responsible for millions of arrests. Controlled substance charges continue to be the leading grounds for the deportation of non-citizens today with over 34,000 immigrants between fiscal years 2007 – 2012 being removed from the US due a drug conviction. In 2019 alone, ICE arrested more than 67,000 people for drug offenses.

An arrest for a drug offense not only renders a non-citizen all but automatically deportable, but it subjects them to mandatory detention. Under U.S. law individuals convicted of certain crimes or that the government has “reason to believe” are involved in drug trafficking are not eligible to get released from immigration custody on bond and they are required to challenge their deportation from jail.

Mandatory detention puts an incredible burden on the non-citizen and their family because the court proceedings move much faster on the detained docket, lawyers charge much more money, and it extremely difficult to coordinate the preparation of documents and testimony from immigration detention, especially because the government will detain noncitizens hundreds of miles away from their homes. ICE will only hold noncitizens in New York City temporarily on days they have hearings in court then busses them to New Jersey or Pennsylvanian to be jailed between hearings.

ICE even has detention bed quotas—as in, a minimum number of non-citizens that must be detained at any given time. In 2018 ICE increased its detention bed quotas from 34,000 to 40,520. Between May and July 2019 55,185 non-citizens were in ICE custody and the average stay length was 46 days, which resulted in ICE exceeding the budget for immigration detention set by Congress.

The government has contracts with private prisons that guarantee a certain capacity (some as high as 100%). When the taxpayers are paying the corporation regardless of whether or not they are actually holding anyone people should start questioning how these deals are being negotiated.

The harsh penalties for drugs are not only a concern for immigrants that are in the country without any legal status. Immigrants that are here on a visitor visa, student or employment visa, or even permanent residents with green cards will be put in court and face deportation if convicted of a controlled substance offense, even possession of marijuana (which they would have to prove fits into the exception of being mere possession of less than 30 grams). The vast majority of green card holders that get deported from the United States for a criminal conviction have been convicted have been convicted of only drug related charges.

The immigration consequences of drug laws raise serious concerns about racial inequality. According the Human Rights Watch, ninety-one percent of these criminal aliens were citizens of one of six countries, including Mexico, Honduras, El Salvador, Dominican Republic, Colombia, and Guatemala. The graph below is based on publicly available data made by HRW and it is one of several from their report available here.

graph from Human Rights Watch
This graph is from Human Rights Watch

US deportation policy toward immigrants with criminal convictions was shaped initially by concerns about curtailing international drug trafficking. But as the US government’s own numbers show, many of the hundreds of thousands of non-citizens who have been deported for drug offenses over the years have not been engaged in drug trafficking but rather drug use or low level drug activity.

According to data Human Rights Watch received from ICE in response to a request under the Freedom of Information Act, between 2007 and 2012 one out of every four non-citizens, 266,000, that were deported in connection for crimes had a drug charge as their most serious conviction. 266,000 deported non-citizens had a drug conviction as their most serious conviction.

Of the non-citizens deported for a controlled substance offense, 40% were convicted of mere possession of a controlled substance. Only 30% were involved in any sort of drug sales or smuggling, of which there is no way to determine the percentage of those that were selling a small amount of drugs to a friend or convicted of other low level offenses.

Data shows that in 2012 19,554 non-citizens were deported for being possession of a controlled substance. That same year only 15,259 non-citizens were deported for the sale, manufacture, or smuggling of controlled substances. Between 2007 to 2012 the percentage of non-citizens deported for drug possession increased by an astounding 43% while the number deported for the sale, manufacture or smuggling of drugs went up by only 23%. The government claims that it is focusing on the dealers and the smugglers yet the numbers show that they primarily target drug users.

The statistics show that these laws are not being used to crack down on international drug cartels, gangs, or other large organized crime syndicates that sell billions of dollars of drugs in the US. That is simply the narrative given by the politicians by the lobbyists for the private prisons and police unions and the Republican think tanks (who are mostly funded by the private prisons and police unions).

Immigrants are sometimes perceived by legislators and the US public as having a greater propensity toward crime than native-born persons. It is a narrative that is pushed by many throughout the years but it gained popularity after the success Trump had with that platform.

The problem is that many studies have shown that foreign-born persons are less likely to commit crimes and less likely to be imprisoned than native-born persons. A 2007 study of California’s adult population in correctional institutions, focusing on males between 18 and 40, found native-born institutionalization rates to be 10 times that of foreign-born immigrants. The same study found that on average, between 2000 and 2005, California cities with a higher share of recent immigrants saw their crime rates fall further than cities with a lower share, particularly with regard to violent crimes. That study concluded, “[s]pending additional dollars to reduce immigration or to increase enforcement against the foreign-born will not have a high return in terms of public safety.”

The truth is that US immigration law creates irrationally drastic consequences for the most minor of drug offenses. These insane laws don’t only tear apart families and increase racial inequality but they affect US citizens and society at large. People have less respect for law when the laws don’t make sense. Further, apprehending, prosecuting and deporting hundreds of thousands of people for minor drug offenses costs the taxpayers a lot of money.

Those who don’t care about how these laws impact the people convicted, should spend a few minutes reflecting on what that says about them as a person and perhaps try to gain some perspective, and they should still care about how these laws waste finite government resources and taxpayer money. It costs anywhere from $111-$140 per day for ICE to detain a non-citizen, depending on where they are being held. As of December 9, 2019, individuals were held in ICE custody for an average of 55 days. Non-citizens who are detained during the duration of their removal proceedings, such as those subject to mandatory detention, are held much longer after that. In 2013 a class action lawsuit was filed in California over ICE detaining non-citizens in removal proceedings for an average of 421 days without even having a bond hearing. That would come to more than $50,000 per person.

How many citizens think that it is worth an American’s annual salary to detain a Tunisian man for 400+ days because he has four Adderall tablets in his sock or sold $10 worth of marijuana to his roommate. That doesn’t even consider the costs associated with charging a non-citizen from maintaining all these immigration courts, paying court staff, judges, government attorneys, and so on. How much taxpayer money is being spent to appeal a case all the way to the Ninth Circuit Court of Appeals arguing that a non-citizen in possession of an empty bag that had cocaine residue is a drug trafficker? The Obama administration took that Adderall case all the way to the Supreme Court, what did that cost? Going back further, the Nixon Administration spent a pretty sum of taxpayer money deporting John Lennon over his marijuana use because Nixon was concerned about Lennon’s criticisms of the Vietnam War. Leon Wildes, the attorney who represented Lennon in that case wrote a book that is worth a read if you’re interested in learning more about that.

According to available data from 2023 immigration removal proceedings cost the taxpayers $4,118,902,000 a year. The taxpayers pay another $1,670,374,000 to incarcerate non-citizens in removal proceedings. I won’t breakdown these costs further because frankly, I don’t think these numbers can be trusted. Unfortunately, the government is not very transparent about these costs so no one knows exactly how much these laws cost the taxpayers.

We do know that since DHS was created in 2003 through 2021 ICE tripled its annual spending from $3.3 billion to $8.3 billion, as did CBP going from $5.9 billion in 2003 to $17.7 billion in 2021 according to a report from the American Immigration Council.

Much of that is spent on payments to private prison companies. The government has contracts with private prisons that guarantee a certain capacity (some as high as 100%). When the taxpayers are paying the corporation regardless of whether or not they are actually holding anyone people should start questioning how these deals are being negotiated. The government is regularly publishing reports where they admit that their own studies indicate that private prisons are run worse, have more complaints of human rights violations, and immigrants detained in private facilities get less visits from family. Imagine the shit that is being hidden from the public when ICE has a website dedicated to informing the public when they accidentally kill a non-citizens in their custody.

According to a recent report from the Government Accountability Office, ICE may have deported upwards of 70 US citizens between 2015 and 2020. The same report states that ICE arrested 674 US citizens and detained another 121 US citizens during that same time period.

So if you don’t care about anything at all, you should probably oppose strict immigration law and aggressive enforcement out of self preservation. How do you feel about detaining people without a hearing for extended periods of time without providing them an attorney if that person being detained is you?

Those with a law and order mindset who want to be tough on crime and get criminals off the street should be concerned about how the illogically strict drug laws and overly punitive consequences of drug convictions hurt the public’s respect for law enforcement and the rule of law generally. Further, it erodes people’s trust of law enforcement and willingness to cooperate.

People should take a few minutes to consider whether the long-held policies positions of the political ideology you identity with or that you may have held yourself truly make sense. Why should victimless drug crimes have harsher consequences than than crimes that have victims or even violent crimes?

i Interesting fact: If one excludes respondents that identified their race as being “Asian only” then the number skyrockets to anywhere between 11-20%. https://www.samhsa.gov/data/release/2019-national-survey-drug-use-and-health-nsduh-releases).

ii Trafficking can be a misleading label because it is used in cases were a non-citizen hands a small amount of drugs to a friend, even if there was no remuneration. Learn more about that issue in our drug trafficking post . Further, in reality a person who uses a small amount of marijuana will still have to participate to some degree in the sale, transportation, and sale of the drug albeit on a very small scale.

iii In 1996 Congress also passed and President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA in large part created the immigration law that exists today and it introduced many obstacles to block immigrants in the United States from legalizing their immigration status such as the public charge and unlawful presence bars that banned immigrants from obtaining visas after they spent more than six months in the United States without lawful immigration status and permanently barred anyone who illegally crossed the border after accruing more than six months of unlawful presence.



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