Democrat John Courage has a problem. He’s locked in a battle with a phantom, and time is running out. The school teacher with the remarkable last name has set himself the difficult task of unseating Rep. Lamar Smith, a Republican who has presided over Texas’ 21st Congressional District since 1986. At first glance, recent redistricting offered a sliver of hope for Courage in his David-vs.-Goliath struggle. Even though the Texas Legislative Council gives the district a 72.5 percent rating on its Republican index for statewide elections, 32 percent of the district is fresh to both candidates. Much of it previously belonged to liberal Congressman Lloyd Doggett.
Nonetheless, the Central Texas district remains a tough nut for Courage to crack. Its heart is the Hill Country. The old German settlement area is staunchly conservative and voted Republican even when Democrats controlled the state. The district then moves west, but in a rare lucky break for Courage, it stops short of the conservative West Texas population centers of Midland and San Angelo. On the south, it dips down into Bexar County in an odd looking jigsaw-piece shape that scoops up a few very wealthy, predominantly Anglo neighborhoods in San Antonio. And the new addition, the Travis County section, is largely suburban upper-income voters, not known to be hardcore Doggett supporters.
The 51-year-old Courage insists he has people working hard in all 14 of the district’s counties. With a limited amount of money to spend on the campaign–a total of about $139,000 as of September 30–the relatively unknown Courage must rely on grassroots support and the free media that comes from sparring with your opponent. The only problem is Lamar Smith is nowhere to be found.
Smith, a boyish-looking 55, has assiduously refused to appear in the same location as Courage. He won’t debate and his political signs are few. Smith’s first commercials didn’t hit the airwaves until mid-October. Still, the Courage campaign is braced for a television onslaught. As of September 30, Smith reported spending almost $600,000 in this election cycle, with a war chest of another $500,000 available. His contribution lists read like a who’s who of special interests from Wal-Mart to the NRA to Big Tobacco.
Smith’s handlers insist he has been occupied with the business of Congress. (The Congressman refused an interview for this story.) Courage argues that Smith’s absence is symptomatic of a larger pattern. The Courage campaign charges that Smith spends more time at his homes on Cape Cod and in Virginia than he does in Texas. It’s not the first time such an accusation has been raised. As far back as 1998, a columnist in the San Antonio Express-News wrote: “After a dozen years in Washington, Smith’s record has the scent of a Beltway insider who is out of touch with Texas.”
In fact, Smith has distinguished himself most in Congress on the issue of immigration, although his district contains few immigrants. As chairman of the House Judiciary Subcommittee on Immigration and Claims from 1994 to 2000, Smith hijacked the nation’s immigration policy, creating havoc and heartbreak for thousands of families across the United States. Now, even as the Supreme Court reverses some of the more egregious excesses of Smith’s reign, and the Republican Party, trying to court Latinos, implicitly rejects his anti-immigrant bent, the Congressman’s record on immigration is barely even a campaign issue. It should be.
Lamar Smith’s crowning achievement was undoubtedly the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). It came after Smith had failed in other aspects of his anti-immigrant crusade. These included an effort to give states the right to prevent undocumented children from receiving an education, and a proposal to create a national identification system for immigrants. Frustrated in his attempts to curtail the number of legal immigrants coming into the country, Smith went after undocumented immigrants, and particularly lawbreakers. The comprehensive 1996 legislation he authored also targeted legal permanent residents, many who had been in the country for decades and had U.S. citizen children and spouses. “It’s the equivalent of totally rewriting the tax code of the United States,” asserts immigration attorney Ira Kurzban.
The Miami-based lawyer is the author of an immigration sourcebook that is a standard text for law students. Despite his encyclopedic knowledge of immigration law, it took Kurzban three months of study to fully understand the implications of the 1996 law. “They changed the law in a very intelligent and deceptive way,” he says. “They left the forms of relief available to immigrants in a lot of situations, but totally gutted it so that it became meaningless.”
Embedded in the law were draconian consequences for minor infractions. Deportation waivers that were once commonplace became rare. Immigrants who couldn’t be returned to their native countries were detained indefinitely. For other immigrants, the possibility of parole or bond was severely restricted or eliminated. Federal judges no longer had the authority to review most deportation cases. The law’s provisions were retroactive so that crimes committed years earlier, even if they were youthful indiscretions, suddenly became deportable offenses. The law also made it more difficult to sue the INS. “If you are the President of the United States, you can be sued while you are sitting in office for sex discrimination, but if you are an immigration officer who says to somebody, `you know, I’m going to lock you up because you are a woman,’ you can’t sue them,” notes Kurzban.
The 1996 legislation dramatically expanded the list of deportable offenses defined as a “crime of violence” or “aggravated felony.” Once deported for an aggravated felony there is no return to the United States unless the attorney general bestows a special right to reapply to enter. Originally an aggravated felony included three offenses: murder, drug trafficking, and weapons trafficking. Under the new law, minor crimes as varied as stealing a purse out of the front seat of a parked car, passing bad checks, and tax evasion became aggravated felonies. Deportations skyrocketed. “Basically you are saying that someone who writes a hot check is equivalent to somebody who commits murder,” says Hussein Sadruddin, an attorney with the Lawyer’s Committee for Civil Rights Under Law of Texas.
Smith marshaled the expertise for his radical changes by largely turning his Congressional subcommittee over to a stridently anti-immigrant group called the Federation for American Immigration Reform (FAIR), says Kurzban. FAIR is a leader among a shadowy and often racist anti-immigrant movement that tries to limit the number of people allowed into the country as well as push English Only legislation. Smith hired former FAIR legal director Cordia Strom as a staffer to help him on the committee.
Many of the harsh revisions in the law occurred behind closed doors during conference committee meetings to reconcile the House and Senate versions of the legislation. Immigration advocates say that Democrats in Congress didn’t get a chance to see the sweeping changes until four days before they were supposed to vote on it. It was also an election year, and members were anxious to get back to their districts. “We would start to lobby on it and when we went to offices, some of them would say, `we didn’t even know this provision was in there’,” recalls Judy Golub, senior director of the American Immigration Lawyers Association.
The new immigration landscape Smith created was as cruel as it was capricious. Take the case of Isaac Ramirez-Molina, a war refugee from El Salvador, who received an amnesty in 1991 to stay in the country as a lawful permanent resident alien, and settled in Austin. In 1996 Ramirez-Molina was arrested for drinking and driving. It happened again in 1997 and a third time in 1999. In 1998 the Board of Immigration Appeals had decided that a felony conviction for driving while intoxicated constituted an aggravated felony. The ruling was upheld by the 5th Circuit Court of Appeals in 1999. Suddenly, any non-citizen in Texas who had three DWIs on their record was deportable without any avenue to seek a waiver of their deportation. It didn’t matter if the offenses had occurred over a 40-year period; if the deportee had U.S. citizen children; if he had never committed any other crime; or if he had achieved long-term sobriety. After serving a six month sentence for the third offense, Ramirez-Molina was deported back to El Salvador on February 4, 2000, and forbidden to return. He left behind two young U.S. citizen children.
Work that could support his family was unavailable in El Salvador. The only relative he had there was a sister. On February 20, 2000, he crossed the border at Laredo after showing his old green card to an INS agent. Ramirez-Molina returned to his family and began work at a local Austin hotel. “I wanted to give [my children] a better life,” he says. “I didn’t want them to grow up without a father.”
On March 1, 2001, the 5th Circuit Court of Appeals reversed itself and ruled that three DWIs no longer constituted an aggravated felony. By that time, hundreds had been deported for DWIs, and many had unlawfully returned as Ramirez-Molina did.
Nonetheless, in December 2001, INS agents detained Ramirez-Molina, and soon indicted him for returning to the United States. Approximately five months later, a district judge ordered him released. While the INS complied, they continued in their efforts to deport Ramirez-Molina, even though his original offense no longer warranted deportation. The agency argued that at the time of his deportation, the order kicking him out “was valid.” When an immigration judge ordered the INS to halt the deportation proceedings while his lawyers appealed, the agency claimed the judge didn’t have jurisdiction under the 1996 legislation.
“I know I committed a great error,” Ramirez-Molina says. “It was also an opportunity to change. Many don’t, but some do. We don’t all commit the same mistakes, but [the INS] treats us all the same.”
He was not alone. In September 1998, around the Labor Day weekend holiday, the INS launched a statewide raid called Operation Last Call to go after immigrants with felony DWIs. They picked up over 500 people, 104 in El Paso alone. The Mexican consulate in El Paso interviewed 91 of the Operation Last Call detainees. It found that the average time spent living in the United States was 21.6 years. Ninety percent of them had children and 81.7 percent of those were U.S. citizens. Ninety-one percent had jobs.
A Pete Wilson-like backlash occurred almost immediately after the 1996 legislation. The media ran horror stories of INS excesses under the law. Despite Smith’s protests, Congress passed special relief for Central Americans and appropriated more money for naturalizations. After a few years, court cases against the legislation found their way onto the Supreme Court docket. In June of 2001, the justices decided that indefinite detention was unconstitutional. They also ruled against applying the law retroactively in some cases and restored the ability of criminal aliens to appeal to the courts for claims that a deportation violated the law or the Constitution. Additionally, three separate circuit courts of appeal have determined that it is unconstitutional to require mandatory detention for all non-citizens detained for aggravated felonies without any sort of hearing or opportunity to post bond for release. In February 2003, the Supreme Court will look at the issue.
Although immigration advocates welcome the scrutiny, the changes don’t help the people who have already suffered. “[Smith’s] legacy will be hundreds of thousands of broken homes and broken families and children growing up without a father or a provider,” says Dallas-based immigration lawyer Sadruddin.
But Smith is insulated from his reactionary policies because the voting-age population in the district is 79.5 percent Anglo. The demographics are not lost on the Congressman. In 1998 Smith fought to block legislation that would bestow permanent resident status on 40,000 Haitian refugees fleeing persecution in their home country. When asked about his stance, he evinced surprise at the question, and told the San Antonio Express-News that “I didn’t think there were many Haitians in San Antonio.”
Smith has proven adept at demonizing immigrants. “The AFL-CIO has cravenly sold out American workers,” Smith entitled a cover-letter he sent to colleagues attached to a newspaper story questioning the union’s recent efforts to find members among new immigrants. The strategy is to incite workers against immigrants by claiming that they are taking jobs away and dragging the economy down, despite studies to the contrary.
A number of factors steer Smith away from the issue these days. He is no longer chairman of the immigration subcommittee. The President, a member of his own party, is on the record in favor of some sort of amnesty for Mexicans living in the United States. And the new part of Smith’s district holds high-tech companies that during boom times need business visas for educated workers. But when, in this Congressional session, a bipartisan bill was introduced to allow long-term legal permanent residents who had committed minor crimes years in the past to present their cases to immigration judges, he was the first to speak out against it.
Optimism that justice will prevail is also tempered by the backlash from September 11. In the wake of the attacks, Smith has received kudos as a visionary for his close-the-border approach. “Study Lamar Smith from a pre-Sept. 11 point of view, and he looks like a border blocking immigrant-bashing Texas rancher,” began one story last July in the Austin American Statesman. “Change the focus to the post-Sept. 11 world, and the picture is not so clear.”
Civil rights advocates worry about the precedents that Smith has set. What begins with the denial of civil liberties for immigrants and terrorists can quickly spread to others in American society. “[Lamar Smith] did more to undermine the basic principles of due process and equal protection in our society than probably any Congressman in the last century,” asserts Kurzban.
Kurzban gave $1000 to John Courage and encouraged his colleagues to do so when the candidate approached them at an immigration lawyer’s conference. Yet Courage knows that he won’t beat Smith by harping on his opponent’s terrible legacy. “To many people he is a poster child for bad immigration laws, particularly ones that hurt children, but that’s not the biggest issue,” admits Courage. “The biggest issue is that he is out of touch and unresponsive to the needs and concerns of his district.”