The legal issue the case resolves, whether amendments to the immigration laws retroactively ended the authority of immigration judges to refuse to deport an immigrant convicted of an "aggravated felony," is one that only lawyers could love.
Two other aspects of the case, however, are interesting.
The Generation 1.5 Problem
People born in the U.S. are automatically U.S. citizens, which, when those people live their entire lives in the United States, as is usually the case, is a fair approach in the sense that people born in the United States almost always end up well assimiliated into U.S. culture and norms, and usually have fairly weak ties to the country in which their parents were born.
The trouble is that people who come into the United States as children and grow up here, known in immigration circles as generation 1.5 (adult immigrants are first generation, their children born in the United States are second generation), are often culturally very similar to their younger siblings born in the United States, but have an inferior legal status under immigration laws.
The individual facing deportation in this case, Mr. Hem, had been in the United States as a permanent residence since 1981 had failed to secure citizenship in 1999 when he faced criminal charges, eighteen years later. Generally, there is a five year residency requirement for citizenship. One has to pass an English language test and a civics test to qualify, but one imagines that someone who has lived in the United States since age 7, and was currently living in South Dakota when this case arose, probably wouldn't have had any difficulty on that count.
You can fault him for failing to have the bureacratic savy to be granted citizenship status. But, permanent residency status normally carries so few down sides compared to U.S. citizenship, that one can also understand how someone would let it slide, particularly if, like many Cambodian refuguees, his family was not affluent, making hiring an immigration attorney or taking preparation classes for citizenship exams a burden.
The reality is that almost all long time residents of the United States who came to the United States as children are so deeply assimilated into U.S. culture, and so little assimilated into the culture of the country that is their homeland, that deporting them is almost always harsh. Effectively it amounts to exiling him in shame to a country he can't remember, where he may not be able to speak the language fluently, and has only weak cultural ties. For many people in this situation this collateral consequence of a conviction is little different from throwing a dart at a map and sending them there.
While this is the law, it would make sense to automatically grant citizenship, for example, to anyone who is a permanent resident, entered the country at age twelve (or thirteen or sixteen or eighteen) or younger, and has resided in the United States without facing immigration proceedings for ten years or more. This would both reduce an administrative burden in a case where almost all applicants for citizenship would qualify, and would eliminate a great many injustices.
Alternately, one might create a status of "non-deportable lawful permanent resident" for people in this situation.
The other odd fact of this case is the conduct that caused the individual convicted to be convicted of an aggravated felony of aggravated assault punishable by up to fifteen years in prison in theory, and in this case, actually punished by a three year prison term.
[H]e was convicted of assaulting a police officer when he refused to let go of a traffic sign and grabbed the officer's shirt, tearing it as he fell from his wheelchair to the ground. . . . [At age twenty, when he was in a wheelchair and parapalegic] Hem was approached by a police officer as he was "horsing around" with a traffic sign. After being told he would be ticketed if he did not let go of the traffic sign, Hem wheeled away from the officer, but the officer chased Hem and pulled him from his wheel chair. While Hem was being pulled from his chair, he grabbed the officer's shirt, ripping his uniform in the process. He was thereafter indicated on two counts of aggravated assault in South Dakota. . . . He was convicted of one count of aggravated assault . . . He received a suspended sentence of three years, but violated the terms of his suspension, and served almost three years in prison. . . . Hem did not appeal his conviction.
The statute in question provides that knowingly causing any bodily injury to a police officer on duty, no matter who slight, a class 3 felony punishable by up to fifteen years in prison, even though a similar assault on a non-police officer would have been a misdemeanor, a not uncommon statutory provision that, as this case illustrates, can be grossly unfair by inflicting a draconian punishment on a minor infraction. Colorado has a similar statute punishable by up to sixteen years in prison, although it has a stiffer intent requirement in Colorado. Colorado Revised Statutes 18-3-203(1)(c).
Realistically this event would normally have been charged as disorderly conduct or resisting arrest, rather than even a mere bodily injury, that was grossly overcharged, quite possibily as a result of racial prejudice on the part of the South Dakota prosecutor, and produced a conviction, quite possibly, as a result of racial prejudice on the part of the jury. A torn shirt is not bodily injury, and steadying yourself as you fall is not knowingly attempting to cause bodily injury. In all likelihood, believing that he wouldn't be deported (and an immigration judge asked that deportation be waived in his case), and beliving that he wouldn't serve any time under a suspended sentence, he decided not to appeal.
But, the extremely long sentences permitted for even trivial injuries to police officers in the course of their duties offends the notions of equality under the law and justice, even though these statutes have been upheld against constitutional challenge. They are bad policy, and this case illustrates why they are bad policy.
Mr. Ham won his appeal on the retroactivity issue. There is a good chance, as a result, that he will not be deported. The result is a good one in a tough case, but the real problems are with the underlying laws, both immigration law and substantive criminal law. It also illustrates the value of having escape valves in the law for unusual situations.
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