Immigration attorney Marc Van Der Hout came to San Quentin to talk about immigration policy. For once he wasn’t venturing into prison on behalf of a client.
“Since 1996 there are groups trying to ‘fix ’96,’ the immigration reform that (President Bill) Clinton would not veto,” Van Der Hout told inmates at San Quentin in May. “Before 1996, you could usually get discretionary relief.”
Defense attorney Dan Barton accompanied Van Der Hout. “The assistance of an immigration attorney is essential to a criminal defense attorney when the client is an immigrant facing the possibility of deportation,” said Barton. “An attorney must first realize their client is an immigrant.”
“I feel good to fight for a person’s right to stay in the United States,” said Van Der Hout.
He said the Dream Act would have helped many young immigrants by deferring deportation, adding that when Congress failed to pass immigration reform, President Obama started the deferred action childhood arrivals (DACA) program. In response, Republicans in 26 states filed suit seeking injunctive relief to block the program.
The suit, according to Van Der Hout, was strategically filed in a U.S. District Court in Texas, where the ruling would be predictable, including the outcome on appeal in the U.S. Court of Appeals, 8th Circuit. An injunction remains in effect until the U.S. Supreme Court rules on whether a state can stop a federal program.
Other issues that immigrants encounter in the United States were discussed, including prosecution for terrorism.
“Terrorism under immigration law could be as minimal as threatening to throw a rock at a building,” said Van Der Hout.
The “Los Angeles Eight” were Palestinian members of the PFLP (Popular Front for the Liberation of Palestine) accused of materially supporting terrorism by “distributing newspapers that advocated communist ideology,” said Van Der Hout. He represented them in a “selective prosecution” case.
Van Der Hout said immigrants cannot raise a “selective prosecution” defense, but he challenged it because the U.S. was not prosecuting Cubans and Afghanis fighting communism. The case went to the U.S. Supreme Court and was decided in favor of the defendants, after 22 years.
The Refugee Act requires all refugees to be treated equally, he said. Because the U.S. did not support the war in El Salvador and Guatemala in the 1980s, Van Der Hout said over 90 percent of refugees seeking political asylum from those countries were denied.
U.S. support for the war in Nicaragua at the time, according to Van Der Hout, gave preferential treatment – asylum – to most refugees from that country, which he said was discriminatory.
Van Der Hout filed a class-action lawsuit against the U.S. government. He said the case was settled after five years and the government had to re-adjudicate Guatemalan and El Salvadoran immigrants’ cases.
A short discourse ensued on the three agencies that replaced the INS (Immigration and Naturalization Service). After Sept. 11, 2001, he explained, the Citizenship and Immigration Services (CIS), Customs and Border Patrol (CBP), and Immigration and Customs Enforcement (ICE); all fall under the Department of Homeland Security.
“‘Aggravated felony’ has become a joke,” said Van Der Hout, explaining how it used to be a term delineating crimes such as murder and rape but now encompasses theft offenses – even those that carry no jail time. He said now all crimes defined as an aggravated felony can lead to deportation, even for a legal resident.
“How would you best describe the nexus between our immigration policies and mass incarceration?” asked inmate Tommy Gardner.
“It’s a good question and correct to ask,” said Van Der Hout. “The number of people detained for immigration is tenfold.” He said incarceration of immigrants is up dramatically, adding that there are many with legitimate political asylum claims.
“A lot of local jails have refused to honor ICE holds,” said Van Der Hout. “California cooperates with ICE.” He also said a one-year sentence in jail can lead to an immigrant’s deportation, but a sentence of 364 days or less allows them to stay in the country.
One inmate asked, “How long after a sentence is completed does immigration have to pick you up?” According to Van Der Hout, “They have 48 hours.”
–James King, Salvador Solorio, Chung Kao, and James Abernathy contributed to this story.
