[ OUR OPINION ]
Immigration agency
should have flexibilityALIENS convicted of serious felonies are destined for deportation to their native countries under a 1996 law, and that includes aliens convicted before the law took effect. In those cases, federal immigration authorities should be allowed to use discretion in deciding whether a person ought to be deported. The case of Christopher M. Ulep is a good example of why flexibility is appropriate.
THE ISSUE
A citizen of the Philippines faces deportation to that country because of his felony conviction seven years ago.
Rep. Lamar Smith of Texas and former Sen. Spencer Abraham of Michigan, authors of the 1996 law, have said it allows prosecutorial discretion. The immigration agency's position that is has no such flexibility should prompt Congress to change the law to clarify its intent.
Ulep, now 28, and a brother were arrested in 1995 and convicted on illegal drug charges. The brother was sent back to the Philippines but -- for reasons that remain unclear -- Ulep was allowed to stay in the United States following his two-month prison term. He performed 200 hours of community service and completed a three-year drug rehabilitation program. He held two jobs on Maui and was supporting his mother and sister when immigration officials arrested him in March and began deportation proceedings based on the December 1996 conviction.
Under the old law, Ulep would have been allowed to seek a waiver by the attorney general if he could demonstrate that he merited a "second chance." Immigration authorities have said the 1996 law stripped them of the authority to exercise such discretion in whether to seek deportation of an alien convicted of a crime.
An immigration judge has ordered Ulep's deportation and an immigration appeals board has upheld the order. In such cases, the judge can consider only the fact of the conviction of an aggravated felony, not the person's rehabilitation or other factors. Without a waiver, the judge's order to deport an alien convicted of an aggravated felony is virtually automatic.
The law "completely bars anyone who has been convicted of an aggravated felony from even applying for this type of relief," according to the American Immigration Lawyers Association. "This provision essentially denies any opportunity for rehabilitation for long-term permanent residents who have family here and ties to the community."
It is uncertain whether Ulep even has an opportunity to contest his deportation in federal court. The U.S. Supreme Court ruled two years ago that aliens who entered into plea agreements prior to the 1996 law taking effect can seek waivers of deportation in federal court under rules of the old law, but Ulep did not have a plea bargain.
Ulep now is held in a federal detention facility, awaiting his appeal of the deportation order. Virginia Kice, a spokeswoman for U.S. Immigration and Custom Enforcement, told the Star-Bulletin's Rob Perez that the law requires his detention.
