In the way that water in a bucket will surely discover any cracks or holes, people have an uncanny knack for finding cracks in the law. As much as we’d like our system to be watertight, in practice the law seems to work more like a generally sturdy roof with a few ill-fitting shingles here and there that constantly need tinkering whenever the rain comes. Sometimes Congress slaps on more shingles, and other times judges hammer old shingles into new areas (sometimes creating new holes in the process), but people keep discovering the cracks and dripping through.
Daniel Benitez is one of those people. Instead of coursing through our legal system smoothly toward a definite end, Benitez is something of a legal orphan for whom the law currently doesn’t seem to offer a resolution. He’s an illegal immigrant with a criminal record, stuck in a limbo between America, which doesn’t want him, and his home country of Cuba, which doesn’t want him back.
His saga isn’t a pleasant one. Born in Cuba, he was one of about 125,000 refugees that Fidel Castro allowed to flee to the United States in 1980 in response to internal pressure and dissent. To stick it to the U.S. (where all of these refugees would obviously go), many of the people he allowed to leave the island were criminals or mental patients that Castro wanted to unload. Cuba has since used such refugee exoduses as threats against U.S. policies, such as passage of the Helms-Burton Act in 1995. Benitez was paroled into the U.S., allowing him to reside here due to the urgent humanitarian nature of his situation, but without legal status.
It appears now that Benitez may well have been one of the criminals. In 1983 he was convicted in Florida of second-degree theft and sentenced to probation. Because his crime indicated a measure of “moral turpitude,” he was subsequently denied permanent resident status. Then, in 1993, Benitez pled guilty to a whole raft of felonies: armed burglary of a structure, armed burglary of a conveyance, armed robbery, unlawful possession of a firearm while engaged in a criminal offense, carrying a concealed firearm, aggravated battery, and unlawful possession, sale or delivery of a firearm with an altered or removed serial number. He was given a twenty-year sentence, and after his release from prison the Immigration and Naturalization Service decided that he had to go.
But go where? Cuba won’t take him back, which is natural enough since Castro was happy to get rid of him. And Benitez has no connections to other countries, even though they’d probably not want this recidivist either. So, meanwhile, he sits in a jail under U.S. custody, waiting for some kind of ending. Realizing that no ending means indefinite imprisonment, Benitez has taken to the courts to protest, and thus a leak was born.
The Eleventh Circuit Court of Appeals, in hearing Benitez’s habeas petition, ruled that there was no legal barrier to him being held indefinitely. Although the Constitution grants “any person” within the U.S. due process rights, an illegal immigrant that gets onto American soil isn’t legally considered “in the U.S.,” but rather is treated as if they had been stopped at the border. Since Benitez was only paroled in, and then violated the terms of that parole, the Eleventh Circuit decided that he was an “inadmissible alien” in that he had never been formally admitted to the U.S. Hence, it was as if he had never entered the U.S. at all, even though he spent over 23 years in Miami. And now the Supreme Court has taken the case to decide Benitez’s fate.
The problem seems to be twofold. First, it doesn’t seem smart to have a policy that allows a country to export its criminals and mental patients to America and then simply refuse to take them back, thereby making their problems our problem. Maybe we ought to drop Charles Manson on Cuba’s shores and set him loose to make a point. But second, it appears that a lot of our immigration laws mirror a distrust and animosity of immigrants that isn’t deserved. Fine, Benitez is a crook and a bum, but why treat him differently from all the native-born crooks and bums? Just because he’s foreign-born?
Recent polls indicate that Americans have a pretty dim view of immigrants in general. A CNN/USA Today/Gallup poll last week revealed that, by a 2 to 1 margin, Americans thought immigrants did more harm than good for the U.S. economy. But that’s not true. During the economic boom of the 1980′s and ’90s, America admitted more immigrants than ever before. And immigrants as a general profile tend to be the type of people who want to work hard and be productive. Yet Americans tend to want fewer immigrants, and our laws reflect that.
I can’t blame people for not being especially excited about keeping a guy like Benitez around, even though he has served his sentence and paid for his crimes. However, if we’ve decided to deport him but have nowhere to deport him to, he just sits in jail on our dime. Because he happened to slip through the cracks, he’s getting the equivalent of life imprisonment. That doesn’t seem right either.
James N. Markels is a law student at George Mason University.
Source: AFF Doublethink Online | Joseph Hammond
Source: AFF Doublethink Online | Emma Elliott Freire