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Non-citizen Drug Offender in US Hopes to Avoid Deportation

Junior Andres Francisco poses with wife Mirtha, holding their son, and two daughters in this undated photograph. They fear he may be deported from the United States to his native Dominican Republic because of a drug conviction.

Junior Andres Francisco poses with wife Mirtha, holding their son, and two daughters in this undated photograph. They fear he may be deported from the United States to his native Dominican Republic because of a drug conviction.

Editor's note: An immigration judge on Thursday granted more time for Junior Andres Francisco and his attorneys to prepare his case fighting deportation. A hearing is scheduled for April 26.

Junior Andres Francisco admits he made a "terrible mistake," one so costly that it landed him in federal prison for several years and left his wife and three young children to struggle in his absence. But he's terrified of one more possible consequence: being deported, perhaps as soon as this week, to his native Dominican Republic. He fears it would mean permanent separation from and irreparable harm to his family.

"I'm praying to God because I’m not ready for deportation. I came to this country for them," Franscisco said in Spanish through an interpreter, speaking from a federal Immigration and Customs Enforcement, or ICE, detention facility in Farmville, Virginia.

Francisco, 37, moved to the United States in 2003 to join his wife Mirtha – his high school sweetheart, also from the Caribbean country – and their baby daughter in northern New Jersey. He became a legal resident and, with his green card, found work as a truck driver delivering meats. Mirtha obtained her U.S. citizenship, and the couple had another daughter and a son.

However, Francisco fell into a depression, lost his job and made a bad choice, he says. In 2011, he was convicted of cocaine trafficking and sentenced to 51 months in prison.

Mass prison release

Last fall brought Francisco some good news – at least it initially seemed that way. He was approved to be part of the mass release of 6,000 low-level, nonviolent drug traffickers, whose federal prison terms were shortened through new, retroactive sentencing guidelines. Each individual’s case was reviewed – for considerations including personal behavior and public safety – and each approved by a federal judge. Most soon entered supervised release or other transitional programs.

But almost a third were non-citizens, like Francisco, who immediately were put into deportation proceedings, regardless of whether they were in the United States legally. Of those, 763 initially received final deportation orders and were quickly removed; ICE could not provide VOA with outcomes for the rest.

A policy divide

Treating felons differently just because of citizenship status "points to a schism" in federal policies, the American Civil Liberties Union and 13 other rights groups said in a letter last fall urging ICE toward individualized due process and against hasty removal.

The U.S. Department of Justice, with bipartisan support from Congress, encouraged the drug sentencing reforms as part of a broader plan to reduce incarceration and rehabilitate offenders. Advocates said those reforms seem at odds with enforcement actions by ICE, a law enforcement agency of the U.S. Department of Homeland Security. Deportation cases are decided by judges in DOJ’s Executive Office for Immigration Review – "not Homeland Security, an important distinction," an ICE official said, speaking on condition of anonymity.

FILE – Prisoners line up for lunch at Elmore Correctional Facility in Alabama, June 18, 2015. U.S. sentencing guidelines have been eased for low-level, nonviolent drug offenses, shortening their terms and helping reduce U.S. incarceration rates.

FILE – Prisoners line up for lunch at Elmore Correctional Facility in Alabama, June 18, 2015. U.S. sentencing guidelines have been eased for low-level, nonviolent drug offenses, shortening their terms and helping reduce U.S. incarceration rates.

These are "inherently conflicting messages from the criminal justice system … and our very unforgiving immigration system," said Avideh Moussavian, an attorney for the California-based National Immigration Law Center. She reminded that every early-release prisoner was deemed not to pose a security risk. "Thoughtful deliberation in each of those decisions … is at risk of being entirely disregarded by ICE."

Also, non-citizen felons are "being punished twice for one wrong act," Moussavian said. "And for many people, it’s a surprise punishment because they didn’t understand that they were going to be deported [when they applied to have their sentences reconsidered]. These are very different consequences than having, for example, a longer sentence. It’s permanent exile, for many people, from their family."

‘Behavior should be above reproach’

Conservative backers of more stringent immigration policies support the deportations.

Mark Krikorian, executive director of the Center for Immigration Studies in Washington, said he could "see an argument for very minor crimes not being deportable," but "the bar should be pretty low" for removal. "As a general rule, a green card holder is a guest of the United States, and as a guest his behavior should be above reproach."

Rarely are non-citizen offenders granted deportation relief. An immigration court judge may take into account considerations such as a grave illness, and decide to let an individual remain in the United States. "Each case is individually reviewed," an ICE official told VOA.

While even illegal U.S. residents have a right to appeal deportation, that right vanishes for non-citizens with a criminal conviction. And they have no right to legal counsel.

But the Washington-based Capital Area Immigrants’ Rights Coalition has taken up Francisco’s case pro bono, asking that ICE drop its prosecution and return him to his family "in the interest of justice," said Heidi Altman, the organization’s legal director. It has done the same for Rodolfo Padilla, a Mexican national living in the United States for more than 30 years, citing robust personal rehabilitation and family hardship in each man’s case.

Immigration court hearing

Meanwhile, Francisco is scheduled for a hearing Thursday morning in Arlington Immigration Court in northern Virginia. He’ll participate from a video conferencing nook at ICE’s Farmville Detention Center, his home since his late-October transfer from a federal prison in North Carolina. The low-security facility – ringed with chain-link fences and south-central Virginia’s gentle hills – can hold at least 500 detainees.

"During my prison time, I follow the right path, sustained good conduct and participate in several programs," Francisco wrote in a November 9 letter appealing for mercy from Judge Rodger C. Harris. He’d earned a high school equivalency diploma, studied English and taken courses in managing finances and stress. "My family, my children, need the guide and care of a father. ..."

Francisco, sent to prison March 5, 2012, last saw his family almost a year ago at the North Carolina prison.

Financial toll

His wife, who works in quality control for a New Jersey metal-parts business, said he has discouraged his financially strapped family from visiting him since then because it takes too much time and money.

"I don’t have vacation. I work hard. He says, ‘You wait until I go out of here,’" Mirtha said, explaining it takes at least seven hours to drive from her home in northern New Jersey to the facility in south-central Virginia. The facility permits visiting for one hour a day. "It’s not worth it."

But Francisco speaks to his wife and children almost every day by phone. Mirtha said she puts $200 to $300 on his debit card monthly, mostly for their short calls.

Mirtha and the children share a two-bedroom apartment with her mother, who recently was injured in a car accident and had to stop working. The family receives government subsidies for food and medical care – and Francisco’s return would reduce or eliminate that dependence, the CAIR Coalition argues in its appeal.

A trucking job awaits him in New Jersey, Mirtha said.

As a young man in San Cristobal, Dominican Republic, Francisco maintained automatic teller machines for banks. If he were deported and returned there, his criminal record would transfer with him, putting that job – and many others – out of his reach, he said.

Challenges in Dominican Republic

Francisco’s close friend since childhood also expressed hope he wouldn’t be sent back to their homeland.

"Economically, it’s bad. Also, the criminality has gotten worse. I don’t know how he’s going to help his family if he has to go back," said Carlos Maldonado, who periodically visits the island. A truck driver too, Maldonado helps Francisco’s family through social outings and repairs, "but I’ve got my own family," he said, noting he’s married, with two children in college and one recent college graduate.

The U.S. State Department last year rated the Dominican Republic’s crime level as "critical."

Francisco, though uneasy about continued separation from his family, said he wouldn’t ask his wife and children to move if he were deported.

"That would be selfish. The problem is not just taking them there, but the system is in chaos. That would expose them" to dangers, Francisco said.

Mirtha echoed her husband’s concerns. Her children are Americans, with better education options in the United States than in her homeland, she said. "He understands that the kids need a better life, better opportunities. They are U.S. citizens. They belong to this country. … They know their father loves them. They know their father made a mistake. He’s paying for it."

The CAIR Coalition maintains Francisco has paid sufficiently. Its final point in the appeal is that "continued detention and removal of Mr. Francisco undermines the authority of federal officials and goes against public policy."

Francisco, his family and his lawyers are waiting for the government’s response.

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