On March 25th, 1810 Thomas Tustin entered the world in Worcester, England. His birth certificate is a single line in the local leger which reads “[March] 25th, Thomas Tustin illegitimate Son of Mary Tustin.” Of his five siblings, he was the only to carry his mother’s name, as he was the only born out of wedlock. His parents married just nine months after his birth, on December 9, 1810. Though he carried his mother’s name, he reverted to his father’s name, “Haynes” from time to time.
Thomas was described as having a “fresh freckled complexion, dark hair, an oval face, gray eyes, small mouth and large chin." He had two tattoos, one on his right arm and another on the left.
At age 23, Thomas married Sarah Robinson at the Saint Bartholomew Church in Worcester, England. The couple gave birth to their only son, Thomas Henry Robinson, on February 23, 1834.
The young family was just beginning in the midst of the United Kingdom. Thomas was 24, going on 25. He had little formal education and job prospects were bleak.
In a pinch, Thomas stole bacon from a local man, Mr. Timms.
Thomas was convicted of theft. His punishment was imprisonment in Australia. He boarded a ship in Sheerness, England on May 14th, 1835, leaving behind his wife and their one-year-old son. Thomas would never see either of them again.
Thomas survived the 102-day journey as a prisoner, arriving in Tasmania on August 28, 1835. He died in 1859 and was buried on Wattle Hill, Tasmania, Australia.
Thomas’ son, also named Thomas, grew up, joined the Church of Jesus Christ of Latter-day Saints, served as a "health missionary," later becoming the president of the Birmingham, England branch from 1872 until he moved to Utah in 1878. When he moved from Birmingham, England, there were 424 members of his congregation.
Thomas Henry Robinson (Thomas Jr.) married Mary Ann Clark, also born in England, and the couple had thirteen children together. Thomas Jr. died on May 19, 1926, at the age of 92. He is my great-great-great grandfather.
Thomas Jr. led a good life, though it began as an only child with no father, left so because of laws that we, today, look at as being archaic and unworthy of civilized society. In fact, it was just in 1834, the year of Thomas Jr.’s birth, that hanging dead bodies for display upon a gibbet after execution was abolished in England. We have moved away from such inhumane practices, right?
After all, our United States Constitution, the supreme law of the land, declares that there shall be no “cruel or unusual punishment inflicted.”
Notwithstanding, the laws of our land continue to act in ways very similar to those that resulted in my great-great-great grandfather growing up fatherless.
Take, for example, Immigration and Nationality Act, (INA) Section 237(a)(2)(A)(ii) which states that a person who is here legally, but not a citizen, can be deported if “…at any time after admission [they are] convicted of two or more crimes involving moral turpitude....”
A crime involving moral turpitude is “conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between persons or society in general.” See Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994).
It may surprise the reader to know that courts currently hold shoplifting as a crime involving moral turpitude. Thomas Tustin stealing bacon from Mr. Timms would, therefore, be considered today a crime involving moral turpitude.
To illustrate how this works under our modern law, meet Ivan, a fictional immigrant from Romania. Ivan moved to the United States in 2002 when he was eighteen years old. Ivan came to the United States as a Lawful Permanent Resident, or with a “Green Card.” Ivan married and has four children. He never applied for citizenship, but worked and lived legally in the United States with his family.
One day, Ivan was shopping with his four-year old son who took a toy car off the shelf and stuck it in Ivan’s coat pocket. Upon leaving the store, the clerk saw the toy car sticking out of Ivan’s pocket and called the police. Ivan was charged and convicted of shoplifting.
Several months later, Ivan was at a restaurant and became wrapped up in a conversation with his wife. Being lost in thought, he got up, put on his coat, and walked with his wife back to the car. Ivan forgot he hadn’t paid his bill. The restaurant owner called the police and Ivan was charged and convicted of theft of services.
7:30 AM the Saturday after Ivan’s second conviction, six Immigration and Customs Enforcement (ICE) Agents wearing black uniforms and holding guns knocked loudly on Ivan’s front door. Ivan’s wife answered the door, still in her pajamas. The agents asked if Ivan was home. The wife responded that he was and, therefore, having “probable cause,” the ICE agents stormed into the house. They found Ivan in the shower, ordered him to get dressed, and took him directly to jail.
Ivan was charged with removability under INA Section 237(a)(2)(A)(ii). Then, under INA Section 263(c)(1)(B), he is imprisoned without the possibility of bail because he has two crimes involving moral turpitude. The only way his wife and children can see him while he is in jail is over a video phone.
Ivan may apply for cancellation of removal for certain permanent residents, (Form EOIR-42A) where he must prove that he meets all of the statutory requirements under section 240A(a) of the INA In other words, he must prove that:
A. He has been a permanent resident for at least five (5) years;
B. Before he was arrested or before he committed his second crime, he had at least seven years of continuous residence in the United States
C. He was not convicted of an aggravated felony. (This one is tricky- an aggravated felony can be something simple, like Ivan’s convictions, but that carries with it even a suspended sentence of 365 days or more. You can have an aggravated felony, and thus be completely out of luck, even if you never spent a day in jail for the offense!
Lastly, he must prove he deserves it, as a matter of discretion. He has to show is a good enough person that the Immigration Judge believes he merits a second chance. If he is unsuccessful, or the judge doesn’t think he met his burden of proof, then he will be taken, in handcuffs, back to Romania.
Cancellation of removal for certain permanent residents is only available once in an immigrant's lifetime. If they win once, they can never win again.
The example I have just described, while realistic, is a simplification of a very complex problem. It serves to demonstrate that our legal system is not far removed from the legal system that tore my ancestor, Thomas Tustin, away from his wife and child, shipping him across the globe to Australia.
In my legal practice, I’ve seen ICE arrest people for something as trivial as a second-hand belt worth $2.00 or selling food without a business license. When laws are applied blindly, injustice often goes unseen.
These are not the stories that make the news, but they are stories that are heart-wrenching for real families all over our country.
The laws of our country are often very severe toward those who wish to count themselves as Americans.
If you are fighting a battle similar to what was described above, please don’t do it alone. Contact me and I will go over your case with you, free of charge.