What if he was a foreigner?

Sunday, October 9th, 2011
By: Jonathan MontagJ.D.

Mark Wahlberg

Recently I stumbled upon a news item on a Boston Fox News website about a Cambodian teenager that immigration officials released because he could not be deported to his homeland. He had been convicted and punished for his crime, stabbing and beating to death of a teenage girl eleven years ago. After serving his time for the crime, Immigration and Customs Enforcement (ICE) was going to deport him, but when it could not, he was released from detention under an “order of supervision,” monitored by ICE until a country will accept him. The story, in the impeccably fair and balanced fashion of the mother network, was outraged that he was allowed back on the street. The article noted that around the country this has happened 1,748 times and 80 times in the Boston area in the last three years and discussed how something needed to be done about this outrage and to get these “worst of the worst” off of the streets.

To me, the alternative, indefinite detention (which means locking a person up for his entire life after having served a criminal sentence) is not a good alternative. As for the numbers, with there being 4.5 million people in the Boston area and 310 million Americans, this does not seem like a particularly serious safety issue. I wondered about prominent Bostonians with criminal behavior in their past – who of course are not subject to immigration detention or deportation – as material for the “What if he was a foreigner?” series. A name that came to mind was Mark Walhberg of Marky Mark and the Funky Bunch and later of Boogie Nights, Three Kings, The Perfect Storm, Planet of the Apes, The Italian Job, I Heart Huckabees, Four Brothers, The Departed, Invincible, Shooter, and The Fighter. Not deportable for The Perfect Storm, other conduct would render him deportable.

Wahlberg claims to have been in trouble 20–25 times with the Boston Police Department as a youth. By the age of 13, Wahlberg had developed an addiction to cocaine and other substances. At 15, he harassed a group of black school children on a field trip by throwing rocks and shouting racial epithets. When he was 16, Wahlberg approached a middle-aged Vietnamese man on the street and, using a large wooden stick, knocked him unconscious. He also attacked another Vietnamese man, leaving him permanently blind in one eye, and attacked a security guard. For these crimes, Wahlberg was charged with attempted murder, pleaded guilty to assault, and was sentenced to two years in jail at Boston’s Deer Island House of Correction, of which he served 45 days. In another incident, the 21-year-old Wahlberg fractured the jaw of a neighbor in an unprovoked attack.

Crimes of violence with a sentence of a year or more render an alien deportable, INA § 237(a)(2)(A)(iii), as an aggravated felon, INA § 101(a)(43)(F), and ineligible for the standard relief for permanent residents, Cancellation of Removal, INA § 240A(a)(3). Aliens who have never been permanent residents can sometimes adjust status as a way of being allowed to stay, but admissions to drug use would bar adjustment of status. Also, for morally turpitudinous crimes, which an assault with a deadly weapon would be, a waiver would be necessary, which is unavailable for violent or dangerous crimes. Thus, Mr. Walhberg would be deportable. Aliens deported as aggravated felons can never come back to the United States. Wicked harsh. Published October 9, 2011.


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