Double Punishment

Families of color are punished twice by immigration and criminal justice systems that don't provide equal justice.

By Seth Freed Wessler Oct 20, 2009

This story is part of "Torn Apart by Deportation," a series investigating the impacts of deportation on families of color.

October 22, 2009

It was shortly after five on the morning of June 2, 2004, when Calvin James woke up, put on his bathrobe and headed outside to put the trash bins out on the street for the pickup. As the super of his building in Jersey City, New Jersey, James liked taking the trash out early in the morning before the humidity settled in. Besides, the 45-year-old had to be at the first of his two bike messenger jobs in New York City by 7 a.m.He left his girlfriend, Kathy McArdle, asleep in their bed. In the next room was their 6-year-old son, Josh.

As he walked outside, James spotted a black SUV across the road. He thought nothing of it and continued his work. But as he pulled the last trash bin to the curb, four people jumped out of the vehicle, dressed in black clothing marked with the letters "ICE." They bolted toward James, demanded he confirm his name, handcuffed him and pulled him into the back of the SUV in which several other officers were sitting in silence.

Inside, McArdle was startled awake to the sound of banging, followed by yelling. Officers with Immigration and Customs Enforcement were pounding on her front door and screaming, "Federal agents, federal agents! We have Calvin James! We want pants, shirts, socks and shoes, right now!"

McArdle pulled on some clothes and rushed out of her room to the front of the apartment. As she opened the door, four officers charged into the hallway. Immediately, her eyes fell to the guns on their holsters.

The officers took the clothes and shoes and left as quickly as they had arrived. After four months in immigration detention, first in New Jersey and then in Louisiana, James was put on a plane and deported to Jamaica, a place he had not set foot in since he was 12 years old.

Calvin James’s crime? Being vulnerable to a dramatic change in U.S. immigration law.

The shift has altered the balance among some of our country’s most tightly embraced values and principles: we believe that nations have a sovereign right to determine who can enter and stay within their borders; our Constitution demands that due process be given to all; and people across the political spectrum claim to value families as central to our way of life. In the past decade, the scale has tipped in favor of an iron-clad attachment to that sovereign right, and hundreds of thousands of immigrants of color have been deported as a result.


For years in the United States, prisons have been filling up. When inmates are released back to their communities, they face a range of challenges from racial profiling by police to discrimination against people with criminal records. Despite the U.S. Constitution’s prohibition on double jeopardy–being tried and convicted twice for the same crime–incarceration is just the beginning of a barrage of punishments that follow.

For immigrants who enter the criminal justice system, double punishment is a formal part of their legal landscape. While it has been true to some extent since the early part of the 20th century that immigrants convicted of some crimes could face the possibility of deportation after completing their sentences, the passage of the Illegal Immigration Reform and Individual Responsibility Act in 1996 changed this possibility into an airtight conclusion.

Before 1996, immigrants convicted of crimes served their time in prison and then could petition a judge to let them stay in the U.S. In most cases, judges held the power to weigh the many factors in a person’s case, including how long a person had been in the country, if they had partners and children, if they were committed to turning their lives around. The system led to the deportation of tens of thousands of people each year, but for many, relief was available.

In 1996, immigration courts were suddenly stripped of the power to consider a person’s full situation. It no longer mattered that they had children or had been in the U.S. almost all their lives as legal permanent residents. For immigrants found guilty of crime, deportation became the mandatory result of their conviction.

Now, anyone who is not a citizen can be deported even if convicted of a relatively minor misdemeanor and even if it happened many years before. By broadening the number of crimes that trigger mandatory deportation–called "aggravated felonies" in immigration nomenclature–the 1996 laws has pushed hundreds of thousands of immigrants who have already served time in prison into detention and deportation.

After their criminal cases have ended, immigrants are subject to the civil procedures of immigration courts, which are administrative bodies. Dana Leigh Marks, a federal immigration judge and president of the National Association of Immigration Judges, describes the civil nature of the courts this way: "We are basically doing death penalty cases in a traffic court setting."

In 2008, almost 360,000 people were deported from the United States, about 100,000 as a result of some non-immigration-related criminal conviction. This is about three times the number deported as a result of criminal conviction before 1996. Eighty percent of criminal deportations were for non-violent crimes.

Separated from their families, these deportees are barred from ever returning to the U.S. and in effect are cast into permanent exile.


Calvin James immigrated to Queens, New York, when he was 12 to follow his mother, Ena Edmond. Edmond left Jamaica six years earlier, moving first to Chicago and then to New York, where she found work cleaning hotels–a job she held for 30 years, working overtime to raise her four children.

Edmond says her son was a shy boy who kept to himself. But after several of years living in Queens, James started getting beat up by a classmate. "I was this strange kid from another country, and he just felt like he wanted to make me his target," said James. "I thought, ‘Why am I going to go to class to get tortured?’"

At 17, James dropped out of high school.

To make some money, James and his older brother tried fixing electronics. In Jamaica, to hustle for some pocket change, they had taught themselves to fix TVs and radios, but fixing neighbors’ broken stuff did not bring in enough cash. The brothers began selling marijuana in city parks.

In 1992, after years of mostly avoiding the attention of police, James was arrested and spent 18 months in jail for possession and dealing of large quantities of marijuana.

"I always told them not to get into drugs…I wanted them to go to school," says Ena Edmond. "I don’t know what happened. When you’re poor, you try your best, but you don’t have the money to help…I wish I had made Calvin a citizen, but I didn’t know I had to."

James was released from prison in 1994 and brought to an immigration center in Manhattan, where he was told that as an immigrant who had committed a crime, he was at risk of deportation. His mother bailed him out, and James began a process of petitioning for relief from deportation–still a possibility before 1996. His case was adjourned several times because he was unable to find documents proving his place of birth.

But in late 1996, James stopped showing up to his hearings, knowing that if he did, he would be detained and deported. The new immigration law had left him with no grounds for relief. Several months after the passage of the immigration bill, an order of deportation was issued for James without his being present and without legal counsel.


More than three quarters of all people deported from the U.S. to Jamaica in 2008 were deported
on criminal grounds. Caricom (Caribbean Community), the international organization of Caribbean countries, reports that 71 percent of criminal deportations to Jamaica are a result of drug convictions.

According to research by Tanya Golash-Boza, professor of sociology at the University of Kansas, Black and Latino immigrants are generally far more likely to be deported because of convictions as compared to other immigrants.

"This disparity," says Golash-Boza, "cannot be explained simply by higher rates of crime among Jamaican populations. Blacks and Latinos are seen as criminals by the larger culture. Other immigrants are not."

Neighborhoods of color are often saturated with law enforcement, and people of color are profiled, arrested, sentenced and incarcerated at rates much higher than whites.

Like Calvin James, Orville Fisher lived in Brooklyn as a legal permanent resident for over 30 years. He was deported to Kingston, Jamaica, earlier this year after the police arrested him in front of his apartment.

Fisher, who speaks with a New York City accent, reported the police were always around in his Central Brooklyn neighborhood and would roam his block "just messing with people."

One evening after work, Fisher says he and his girlfriend got into an argument on the street and were yelling loudly. Fisher says his girlfriend pushed him and he grabbed her hands. A few seconds later, a pair of police officers, who Fisher says had given him trouble before, appeared from around a corner. They accused him of assaulting his girlfriend, and arrested him.

Fisher went to jail and should have been released on bail shortly after. Instead, he says immigration agents came to his cell. According to his mother Patricia Taylor, who lives in Brooklyn, a criminal conviction from years ago sparked her son’s deportation proceedings. Fisher was placed in an immigration detention center and soon deported.


For a time after his deportation order was issued in 1996, Calvin James says, "I lived with my head down."
He got a job as a bike messenger in the city and hoped he could put his conviction and his deportation order behind him. Several months after the court ordered James to be deported, he met Kathy McArdle.

They dated, and their relationship quickly became serious. Almost two years later, their son, Josh, was born.

They both worked, but James wanted to move his family into "a nicer place in New York," and he went back to dealing drugs, hoping to get enough money to do that.

James was caught and did another stint in jail, this time in New Jersey. The New Jersey jail had no agreement with immigration authorities to enforce immigration laws or to hand over non-citizen inmates to immigration agents. James was released and returned home to McArdle and Josh, thinking himself lucky to avoid deportation.

James was hired again as a bike messenger for two different companies and worked from 7 a.m. until 3 p.m., allowing him to pick up then-6-year-old Josh from school. James also joined a cycling club in Central Park and started riding competitively.

"He took [Josh] to all his grocery shopping, all his errands," remembers McArdle. "Wherever he went, Josh was with him." James bought his son a bike, and they’d go to the park together and ride around. In the evenings, James would cook dinner.

Five years later, Josh, now 11, with a round face and a head of sandy, shoulder-length hair, remembers those days: "I miss his cooking. I really liked his rice that he used to make. It had coconut milk in it."

James said he stopped selling drugs before he was deported. "I did not want my son to grow up like that, with a father in and out of the house. And for the first time I was doing really, really well."

According to Neil Tannenbaum, James’s boss at Bellair Expediting where James worked in the mornings, "There was nobody who rode like him. He got more done in less time than anyone else."

Tannenbaum says that the company was planning to make James the manager of their whole team of messengers when he suddenly stopped coming to work. Bellair found out weeks later that James had been deported when McArdle came to collect his last checks. "If he were here today, Calvin would definitely have a job here."

James would probably have been able to continue living under the radar had it not been for the Bush administration’s policy changes after Sept. 11.

In 2003, the Department of Homeland Security initiated a program to conduct home raids to round up, detain and deport immigrants like James who had outstanding deportation orders. In 2004, they came for him.

James was taken to New Jersey, where he was locked up for three weeks in an immigration detention center. McArdle and Josh went to visit him there once, but then one day found that he’d been moved to a federal prison in Louisiana, where he spent three months waiting. He was put on a chartered plane and deported. He arrived in Kingston on a hot June night with nowhere to go.


Dan Kanstroom, professor of law at Boston College, says that the U.S. is in many ways unique in its treatment of deportation as a totally civil sanction as opposed to a criminal punishment. "In many situations in Europe," says Kanstroom, "deportation after a person has served their sentence would be considered double jeopardy." And, he says, "E.U. law holds that the state must consider the crime and the effect of deportation on families and children."

Yet the U.S. continues to deport parents with criminal convictions without considering the impact on their families. Stories from people around the country expose a harsh reality for families who continue to be separated. Stripped of a major source of income and burdened with the financial strains of legal fees or of remitting money to their deported relatives, families are falling into poverty, even losing homes to foreclosure.

Yvonne Johnson, a Jamaican-American woman in her 60s, has been thrust into economic turmoil by the deportation of her son. Christopher Johnson, who is 40, was deported after spending over half his life in prison or juvenile detention; suffering from bipolar disorder and schizophrenia, he has almost no memory of a Jamaican childhood. He now sleeps in a temporary shelter for deportees in Kingston.

In an attempt to keep her son from becoming homeless and losing access to mental health services in Kingston, Yvonne Johnson has gone into debt wiring him money. She is now struggling to keep her house from sliding into foreclosure.

In the U.S., many families of deported people find themselves corralled into other government institutions like foster care, welfare and public housing.

Kathy McArdle was evicted from her Jersey City apartment three years after James was deported, after losing her job. She and her son spent time on friends’ couches and eventually ended up in a shelter in New Jersey.

The pair now lives in a different shelter in Harlem–a converted apartment building where they have their own unit. But if McArdle can’t find a job and move out of the shelter soon, the city will move her to a less-private shelter where she and Josh will have to share a room with other families.

Recently, McArdle said that her welfare case manager raised the possibility of involving New York City Administration of Children’s Services in their case. She is afraid that the worker was suggesting Josh could be removed from her custody if she had to move into another shelter.

Having already lost her long-time partner, McArdle is adamant about not losing her son to the state as well. "I’m not going to put ourselves at risk of being separated again," she says.

From Montego Bay, Jamaica, James worries about McArdle and Josh, who started middle school this year. "She’s been doing an excellent job bringing up Josh. But it’s hard," says James.

James works two full-time jobs in Jamaica to make enough money to pay rent for his tight, one-bedroom apartment on the top of a mountain outside the city, buy food and maintain his bike. Biking, he says, is the one thing that makes his life here familiar, though it’s taken him time to get used to the steep inclines and anarchic traffic of Jamaican roads, so unlike the rolling hills of Central Park.

Sitting beneath a giant palm outside his door and brushing a large red ant from his leg, James says, "It’s all kind of heartbreaking, you know." He turns over a framed picture of McArdle and Josh he had taken off the wall in his apartment and looks at it. "I sit here sometimes, and, man, I wish I could put them on the plane and get them down here," he laments. "When I feel that way, I get on the phone."

In a Manhattan park where McArdle is watching Josh ride his skateboard, her cell phone rings. It’s James. "Hi baby, you home from work?" she says. Her voice trails off as she walks away to sit down on a bench.

Torn apart, they’ll talk again tomorrow.

This story is part of "Torn Apart by Deportation," a series investigating the impacts of deportation on families of color.

Seth Wessler is a researcher with the Applied Research Center.