CELESTE HEADLEE, HOST:
Now we want to take a step back and talk about current deportation policy and where Howard Bailey's story fits into that discussion. Joining us from our New York studios is Muzaffar Chishti. He's a lawyer and the director of Migration Policy Institute's office at New York University's School of Law. Thanks for being with me.
MUZAFFAR CHISHTI: Thank you for having me.
HEADLEE: The Obama administration has - called the deportation administration. Exactly what's our total now? How many people have been deported?
CHISHTI: Well, in the last few years, about an average of 400,000 people are being removed from the United States.
HEADLEE: There is perhaps a short window that might offer Howard Bailey help as they review the deportation policy. What exactly are they reviewing, and what might change?
CHISHTI: Well, you know, this - Howard's case is obviously - symbolizes the paradox of the contradictions of our immigration enforcement system. Here, we are removing about 400,000 people a year on average.
And still many members of Congress are saying that we're not removing enough people. And here are stories like Howard's, which are very compelling stories, and we still think - some people think we should increase enforcement. If we're going to have robust enforcement, which seems to be the cry from people in Congress, then you have tragedies like Howard's.
And we fundamentally changed our laws in 1996 - even before that slightly - which has made it very hard for people like Howard -even with high equities like Howard - to get any relief in our enforcement system if they are convicted of a crime like this, which is called an aggravated felony in our law. So he has a lot of equities, even under the Obama administration's prosecutable discretion guidelines.
But he's also faced with the huge inequity on the other side, which is his conviction for drug offense, which is made a high priority. So hat's the contradiction is to how do you reconcile these two impulses in our immigration system today. And that's what leads to tragedies like this.
HEADLEE: His defense attorney all those years ago advised him to plead guilty not, I guess, understanding that that would scuttle his attempts to become a U.S. citizen. How common is that that a criminal defense attorney doesn't entirely understand the status of an immigrant?
CHISHTI: That's exactly the other contradiction of our system is that when you have so many people in removal, you could - many of them could have brushed with our criminal justice system, like Howard did. And a lot of the people who represent them are just either pro bono, sometimes are very good lawyers and sometimes not very good lawyers, who don't understand immigration consequences.
And they plead guilty without knowing what the effect of this is going to be in the future. The Supreme Court actually, in a very seminal decision, recognized that in 2010, and basically said that if someone like Howard has not been informed about the consequences of their plea, that could lead to ineffective assistance of counsel and violation of our Sixth Amendment. That's a huge seminal decision by the Supreme Court because immigration proceedings are typically considered civil proceedings.
And our Supreme Court recognized that it's no longer possible for us to say that these are purely civil proceedings when they have huge consequences like this. So that would apply to him. Unfortunately, that decision did not apply retroactively by another Supreme Court's decision in 2013. So he's not really - he has difficulty making the case that he's entitled to the relief under that Supreme Court decision. But a lot of people have ineffective counsel, especially in circumstances like this.
HEADLEE: How many players are there in making these decisions? I mean, you mentioned the Supreme Court. Is it Congress that ends up having to make reform? Is it the Obama administration that has some autonomy?
CHISHTI: Well, that's why it's a huge systemic issue. I mean, I think you framed it very well in your opening - is this a failure of the system, is it really how it was supposed to work? And the answer to that question depends on whom you ask. If people believed we should have scotched that policy for every aggravated felony, then it's working well.
If we believe we're in a country where equities of people should be considered, especially their ties to the family, to the community, to the military service that he rendered to us, those are important equities, and there has to be a place for accommodating those. Under our present system, there is very limited ability to do that.
I mean, Congress in 1996 basically said people like Howard who are considered guilty of conviction are not entitled to any relief from removal. That's the Congressional decision. Hands are tied. Then, there are some prosecutable discretion, which I think could be improved in a case like Howard's, but that is also an uphill task. And that's where I think some of the disputes that the administration is beginning to look at may pave some good road for the future.
HEADLEE: Muzaffar Chishti is a lawyer and the director of Migration Policy Institute's office at New York University's School of Law. Muzaffar, thank you so much.
CHISHTI: Thanks for having me. Transcript provided by NPR, Copyright NPR.