One Toke Over the Line

KEO ZILAY WAS 6 years old when he fled Laos in 1979. His family dodged bullets as they escaped across the Mekong River on a makeshift raft. Twelve years after the family settled in Minnesota, Zilay--not his real name--was arrested on a minor drug offense. He served his time, straightened out, and put the past behind him. Or so he thought. Because of recent changes to immigration laws, Zilay now faces deportation. The Department of Immigration and Naturalization Services (INS) wants to ship him back to Laos, where his parents are considered enemies of the state, which has few qualms about executing drug users.


The legal noose began to tighten around immigrants' necks in 1988. At the height of the war on drugs, Congress passed the Anti-Drug Abuse Act, allowing the deportation of some criminals. The addition was gratuitous--offenses like murder and drug trafficking were already punishable by deportation--but it paved the way for future tinkering. Two years later, Congress did away with deportation relief hearings for many felons who had served at least five years in prison.

In 1994, the Immigration and Nationality Technical Correction Act added a number of crimes to the list of offenses for which immigrants could be expelled. For the first time, nonviolent crimes such as burglary and money laundering were grounds for deportation. Other guidelines changed dramatically as well; deportation was no longer based on the actual prison time served, but rather on the sentence imposed. Refugees could be expelled even if their sentences were suspended.

From there, it was a short leap to the Anti-Terrorist Act of 1996, which removed the judicial review process for immigrants. In effect, says attorney Michael Davis, who represents Zilay, the INS's attitude changed from "you're deportable, let's see if you deserve to stay" to "you're deportable, you're gone," denying immigrants the same due process accorded to citizens. "Congress has a right to be concerned about protecting society, but these laws have gone beyond protection. The government has decided to apply them retroactively," he says. "Things are looking very grim."

Zilay stayed out of trouble following his '91 conviction. Davis believes the INS fixed its gaze on him a couple of years ago after his brother, who's also facing deportation, was charged with burglary. Davis filed for a relief hearing, but another couple of years went by before the case landed before a judge. By then, the laws had changed. "The drug charge was not considered an aggravated felony six years ago. My client did his time, justice was served, and now they want to deport him? This is absurd."

And Zilay's isn't an isolated case. Laura Danielson, a Minneapolis immigration attorney, notes that the law is so narrow that attorneys will be hard pressed to keep their clients in the country. "Let's say that someone admits to being involved in a drug deal but is never formally charged. They in turn become informants. But the way the law currently stands, this person can still be given the boot even though they were never charged and cooperated fully with the authorities." Danielson adds that the only thing authorities now overlook is one charge of possession for less than 30 grams of marijuana.

"We are seeing cases from five or more years ago that the attorney advised an immigrant to plea bargain, regardless of guilt or innocence, because they could easily apply for deportation relief," says Davis. "But since that's no longer the case, and since the government is applying new laws to old cases, some of these people are in extreme danger."

Danielson says that the children of Southeast Asians who came to America during the Vietnam War may be particularly vulnerable. "I think we'll see more refugee kids, especially those whose parents are boat people, susceptible to deportation simply because their parents didn't understand American law and failed to register for citizenship," she says.

Drug users aren't the only small-time offenders being victimized by the law, according to Davis. He points to a case currently before the INS involving an 86-year-old Greek woman who suffers from dementia and who mistakenly received a couple months of Medical Assistance. Notified of the error, says Davis, her family offered to repay the government. But the INS is unmoved. "Despite their good-faith effort, and the fact that her son provides round-the-clock care, the INS is unconvinced that she won't someday require public assistance. They've denied her residency and have issued a 30-day notice of deportation."

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