In September 2011, Melissa Lawrence was seven-and-a-half months pregnant and working as a waitress when she got the call. Immigration and Customs Enforcement had detained her partner, Garfield Kenault Lawrence. That he had arrived at age 11 and was a lawful permanent resident didn’t matter because Kenault had been convicted of small-time marijuana offenses. In January 2013, he was deported to Jamaica after more than a year in detention.
“Everybody thought I was just American,” says Kenault, now 31, speaking from Jamaica. “I came to America in fifth grade.”
By Kenault’s account, he was an everyday American pot smoker. But Lawrence was railroaded by immigration officials who misinterpreted federal law, says his lawyer, caught up in President Obama’s expansive campaign to deport drug offenders en masse. Lawrence’s deportation marked the first time he had set foot in Jamaica since age 15.
"It was definitely the worst most traumatizing day ever....to go to work and then come home to never seeing him again basically,” says Melissa Lawrence, 30. “I didn't get to say goodbye. I didn't get to prepare for this. I'm just now left to make all the payments on all the bills...and now I have to have a baby by myself."
Today, Kenault sees his wife and 4-year old boy Devario no more than once each year. Melissa tries to shield him from the truth, telling him that his father is away to take care of his aged grandmother. Because he must take a flight to see his father, Devario tells his friends that he lives in the sky. Telling a little kid that he may never live with his father again is too terrible.
Three times, Lawrence was busted for pot in Front Royal, Virginia, the small Shenandoah Valley town where he grew up as an immigrant kid winning friends and excelling at wrestling, football and track. Now, because two of those convictions were classified, seemingly erroneously, as aggravated felonies, he lives high up in the mountains of Saint James Parish, Jamaica in poverty, far from his wife and son. In Virginia, he worked as a mover and forklift operator. Now, he earns roughly $100 a week swinging a machete to cut grass in a pineapple field. His wife struggles too.
"It's just hard to get by," says Melissa. Without Kenault’s income, she has been forced to rely on government aid to pay for food, daycare and Devario’s healthcare. Soon, she may need surgery on both feet to treat her plantar fasciitis. What happens then, she doesn’t know. "It's just scary because I'm a server and I'm on my feet all day, every day, and I can't work if I don't have my feet."
Melissa doesn’t have a college degree and can’t afford one in terms of either time or money.
Heartbreaking tales of family separation are hardly unusual, especially at the nexus of the drug war and immigration law, where immigrants, even those with legal status, can be deported for the smallest of crimes.
“Kenault served three months in jail for marijuana-related convictions seven years ago,” says Heidi Altman, legal director at the Capital Area Immigrants’ Rights Coalition, in an email. “Now ICE insists the penalty for these offenses should continue for the rest of Kenault's life, permanently separating him from his wife Melissa and the child they want nothing more than to raise together. Kenault never should have been deported in the first place. All he is asking is for the day in court that was wrongfully denied him. ICE could make it happen tomorrow. Their refusal to do so is cruel and unjust, and it is devastating an American family.”
With Altman’s assistance, Lawrence is currently fighting to find a way back to his family, arguing that ICE and an immigration judge’s error robbed him of the opportunity to contest his deportation. Any non-citizen convicted of most any drug crime is deportable. But those permanent residents convicted of an “aggravated felony” are denied the right to petition for relief, citing mitigating circumstances like family ties.
Lawrence’s hope lies in the 2013 Supreme Court's Moncrieffe v. Holder decision, which found that those convicted of certain small-time offenses involving social sharing of marijuana don’t quality as aggravated felons. That appears to include Lawrence, who was convicted under a Virginia statute covering as little as more than a half-ounce for what he says was personal consumption. The ruling came down just after Kenault was deported, and he never got a chance to make his case. His bid to return to the United States now lies with the federal judiciary, and with the Obama Administration.
On June 29, 2015 the Board of Immigration Appeals denied Lawrence’s motion to reopen his case, and he has appealed to the Fourth Circuit Court. In their legal filings, the government refused to even directly address the substance of Lawrence’s case, insisting that his petition should be thrown out because he didn’t seek to reopen his case in time. They did argue, in a footnote, that Moncrieffe may not apply retroactively—though given that the decision clarified existing law, rather than making new law, it’s unclear why that would be the case.
The question before the Fourth Circuit is whether the Board erred in finding that Lawrence did not act fast enough. Lawrence says that he did his very best, and such an effort to act quickly is something that courts do take into account.
“I have not stopped trying to fight my case,” says Kenault. “I told my deportation officer that when I was leaving. I’m like, ‘It doesn’t matter where I go or where I’m at, I’m not stopping trying to get back to my son. I’m not gonna’ stop.’”
It certainly wasn’t easy for Kenault to research U.S. immigration law and keep up his fight to return home. In Jamaica, Lawrence lives 45 minutes from the closest internet café, and he doesn’t own a car. In September 2013, an internet search turned up the Post-Deportation Human Rights Project at Boston College. That’s when he found out about the Supreme Court’s decision in Moncrieffe, and when he was referred to the Capital Area Immigrants’ Rights Coalition, which took him on as a client in February 2015.
Kenault says that he was never a dealer. Just a pot smoker, like millions of other Americans. He says that a friend, caught with cocaine, helped the cops set him up. He believes that Front Royal cops, who he says he likely targeted him because of his race, contacted ICE. Officials at the Front Royal Police Department could not be reached for comment.
“I’m gonna’ say it was about three ounces,” says Lawrence, referring to the pot he bought for himself and the friend who he says helped bust him. “It was nothing big, it was just something small. We would buy two ounces apiece. I would give him two ounce and take two ounce for myself.”
Kenault is caught up in a machinery of punishment that doesn’t seem to care about the particulars of his life or his crime. Now, he lives in fear. Fear of never returning home and, in Jamaica, fear of rampant violent crime.
“The other day, right around the road, four houses away from me, someone just came and shot up the house,” he says. “No one knows. The cops do not investigate like America. Here I live in fear. I feel like I’m gonna’ die...One day, a gunman is gonna’ come to my house, I don’t know what he’s gonna’ come for, and I’m just gonna’ die.”
**
The histories of the modern war on drugs, deportation and mass incarceration are closely intertwined, according to Human Rights Watch.
President George H.W. Bush, calling the border “the front lines of the war on drugs,” signed the Immigration Act of 1990, which limited drug offenders' ability to fight deportation and barred them from entering the U.S. The law built upon the The Anti-Drug Abuse Act of 1986, which both created harsh federal mandatory minimum drug sentences and allowed immigration authorities to request that local police detain immigrant drug offenders. The 1988 Anti Drug Abuse Act created the category of "aggravated felonies,” then classified as including murder, gun trafficking, and drug trafficking.
A few years later, President Bill Clinton signed the 1996 Anti-Terrorism and Effective Death Penalty Act and Illegal Immigration Reform and Immigrant Responsibility Act, requiring mandatory detention for many offenders and barring those convicted of an aggravated felony from seeking to cancel their deportation .
In November 2014, after presiding over record deportations, Obama announced new protections available to millions of undocumented immigrants. But in doing so, he pledged to continue a crackdown on criminal aliens, “focusing enforcement resources on actual threats to our security. Felons, not families.”
That black-and-white distinction leaves people like Lawrence with little hope.
“Felons often have families, and not every felon can be tarred with the same brush,” says Grace Meng, a senior researcher at Human Rights Watch, which has taken up Lawrence’s case.
While Donald Trump and others on the xenophobic right decry immigrants as a raping and murdering criminal threat, it is Obama who has presided over the unprecedented criminalization of immigration policy, packing federal prisons with immigrants convicted of illegal reentry and implicitly caricaturing minor drug offenders as a public menace. By presiding over the rise of Secure Communities, a program that directly connects ICE to local law enforcement fingerprint databases, Obama has made police a tool of federal immigration agents.
The Obama Administration, despite its stated commitment to immigrant rights and criticism of the drug war, is also doing everything it can to ensure that Lawrence never returns to the United States.
In a statement, ICE defended their effort to keep Lawrence from getting a new hearing, saying that his removal “was in accordance with our nation’s immigration laws.” But if ICE dropped its procedural argument, and agreed to a new hearing, Lawrence would get one. He would then still need to convince an immigration judge to cancel his removal. But as long as ICE is standing in his way, he may not get that chance. Melissa Lawrence, Altman and Human Rights Watch recently held meetings with staffers for Virginia’s two U.S. senators, Tim Kaine and Mark Warner, requesting that they intercede on the family’s behalf. It’s not yet clear whether they will do so.
As the Lawrences discovered, there are few places more unforgiving than the intersection of the drug war and immigration enforcement. 46,735 non-citizens, undocumented immigrants and lawful residents alike, whose most serious conviction was a drug offense were deported in 2012, according to a June 2015 Human Rights Watch report.
Between 2007 and 2012, deportations after drug possession convictions increased by 43-percent, according to Human Rights Watch’s analysis of government data (the figure may include some possession with intent to distribute offenses). The most serious offense committed by more than 34,000 of these deported non-citizens was marijuana possession. Even expunged convictions can trigger a deportation, and deported drug offenders are barred from ever returning. Asylum-seekers can be deported for small-time drug offenses as well, in violation of international law.
Lawrence's case, then, is not atypical. Human Rights Watch found that “there are likely thousands of permanent residents, if not more, who have been deported as aggravated felons for offenses that are no longer considered ‘aggravated felonies,’ or who have otherwise been deported under incorrect interpretations of US law." Even those who can make a case to have their deportation cancelled can be detained for months or years—all without the right to legal counsel. And those who are able win a cancellation of their deportation still face mandatory detention beforehand.
Meng, who sent a letter to ICE urging them to drop their opposition to reopening Lawrence's case, says that Lawrence “was deported under laws that are extremely harsh and draconian…he is just one example of tens of thousands of people who have been deported after convictions for drug offenses.”
Melissa grew up without a mother around, and Kenault’s dad was absent. The two met just after Kenault arrived in fifth grade. She thought him a bit of a curiosity, speaking a Jamaican patois unlike anything she had ever heard, and they started dating her senior year of high school. The couple, black and white, stood out in Front Royal. But the Lawrences were determined to build a family, and say that they planned carefully to have a child.
“I wanted to make sure that it was the right time and the right person and all that,” says Melissa. “And then he doesn't leave me. Even worse, he gets taken from me."
“My dad wasn’t around me, so my thing was to make sure that I’m around my child,” says Kenault. “Even ‘til this day, every day I call him, every morning, every night I call him to make sure that he’s OK.”
It’s hard for a working-class American couple to plan for every eventuality, though the Lawrences did try. They did not see this coming.
“Right now all I can do is just pray,” says Kenault. “There’s nothing in my control, so all I can do is just leave it to the higher power and pray that one day that these judges or these government or these ICE people, whoever is in charge of this case, will just look into the case and see...what they’re labeling it. If I was just being deported for what I’ve done, it probably wouldn’t bother me as much. But they’re labeling me as a drug trafficker.”
From all available evidence, he is not. He is an American, banished from his country, for possessing marijuana.
Shares