BACKGROUND: The Senate immigration bill puts forth a complicated and expansive list of crime-related obstacles to pursuing the path to citizenship. These bars will automatically disqualify and prevent thousands, if not millions, of deserving individuals from either pursuing or maintaining legal status, and will apply at all stages of the multi-year legalization process. Efforts to expand these already harsh exclusion grounds would undermine the goal of bringing immigrants out of the shadows and significantly curtail due process. Countless individuals will be denied basic due process safeguards such as an individualized hearing before a judge to present the circumstances of their case.
In certain limited circumstances an immigration judge can grant a waiver, which is like a “pardon.” As a rule, waivers are not automatic and not granted easily. Our current immigration laws contain a handful of waivers that apply in very limited cases. Many criminal convictions disqualify someone from even asking for a waiver. Even if someone is eligible, waivers are tough to get. For example, even though deportation levels are currently at an all time high – nearly 400,000 per year – statistics show that 9 out of 10 people don’t get relief from deportation through our immigration courts. This means that immigrants who have been accused or convicted of a crime, including people who have been granted asylum, Temporary Protected Status, or TPS, or a green card, often have no opportunity to stay in the country with their families.
THE PROBLEM: The ever-expanding list of criminal bars risks funneling more people into deportation instead of the path to citizenship.
The Senate immigration bill applies the same extreme model that exists under current immigration law to its legalization program, creating dozens of bars to eligibility that have the potential to keep millions of immigrants off the pathway to citizenship. The bill and many proposed amendments unnecessarily add several new harsh grounds of deportation.
A person applying for legalization will face disqualification bars for one state or federal felony conviction (except certain narrowly-defined status-based offenses); an “aggravated felony” conviction, which includes hundreds of offenses that are neither aggravated nor felonies; three or more misdemeanor convictions (except minor traffic offenses and certain narrowly-defined status-based crimes); certain foreign convictions; and gang related conduct or convictions.
With only a few minor exceptions, a person may be barred from accessing the path to citizenship with either one felony or three misdemeanors. There is an additional disqualifying bar in the bill that disqualifies people convicted of offenses that are so-called “crimes of moral turpitude” under current immigration law. This category would disqualify people who were convicted of the vast majority of misdemeanor offenses. The three misdemeanor bar would therefore mainly additionally cover regulatory offenses and other very minor offenses, many of which people receive through tickets.
- Littering is a misdemeanor in most states;
- Not picking up after you dog in a public park is a misdemeanor in New York;
- Failing to separate recyclables is a misdemeanor in some localities;
- Causing your tires to screech is a misdemeanor in Kansas; and
- Driving with a valid out-of-state license is a misdemeanor in California if you’ve been in the state for more than 10 days.
Some amendments propose letting a single or second misdemeanor, such as the ones listed above, disqualify someone from the path to citizenship and consequently render them deportable.
THE SOLUTION: Limits must be made to disqualification categories and judicial discretion must be strengthened and expanded in order to secure fair and inclusive immigration reform.
Everyone must have the opportunity to have their individual circumstances considered before a judge, including the nature of the offense, how long ago it was committed, rehabilitation, family ties and U.S. military service.
Reform legislation must amend these harsh criminal bars and ensure that so-called aggravated felonies no longer trigger mandatory detention and deportation. There should be no additional aggravated felony offenses in the reform bill. It is inappropriate and unjust for immigration penalties to far surpass the criminal sanctions for these offenses. -Robert Johnson, Anoka County, Minn., attorney from 1983 through 2010; former president of the National District Attorneys Association and the Minnesota County Attorneys Association.
Mandatory deportation does not allow judges or prosecutors an opportunity to consider whether or not a second chance is warranted. We must have the ability to judge which crimes merit which consequences.– Steven Jansen, Vice-President of the Association of Prosecuting Attorneys.
I have been a supporter of immigration reform and a pathway to citizenship after having previously been on the other side of the issue, and having asked for additional powers under 287(g) many, many years ago. Ultimately, for me, recognizing the fact that we have a broken immigration system is critical, that these are human beings, that there is dignity in human beings. -Mark Curran, Sheriff, Lake County, IL.
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