The Poison Pills Included in Immigration Reform Legislation


THE POISON PILLS INCLUDED IN IMMIGRATION REFORM LEGISLATION

Immigrant Legal Resource Center

  1. Erect permanent barriers to lawful status for family members of United States citizens or legal permanent residents.
  2. Criminalize people for helping immigrant family members, friends, and co-workers.
  3. Expand detention.
  4. Speed up deportation process without sufficient safeguards.
  5. Deport suspected gang members who have not committed or been convicted of any crimes.
  6. Block paths to citizenship for many immigrants, even legal permanent residents.
  7. Expand the definition of aggravated felony.
  8. Lessen judicial review of certain immigration matters.
  9. Eliminate the number of people who qualify for voluntary departure and impose unduly harsh penalties for both accepting and failing to comply with an order.
  10. Mandate/encourage state and local enforcement of immigration laws.
  11. Impose mandatory detention without bond, for failing to file a change of address card.
  12. Impose immigration penalties on US citizens and cause enormous delays in family backlog reduction.
  13. Retroactively change existing law.
  14. Criminalize unlawful presence with penalties commensurate to those for illegal re-entry.
  15. Reverse burden of proof in removal proceedings.
  16. Eliminate key safeguards concerning evidence used to prove that an immigrant is deportable for an aggravated felony.
  17. Ignore state court decisions regarding the existence of a conviction.

The U.S. immigration system is broken and should be fixed. We need a just, effective and smart system that not only reflects our history as a nation of immigrants and the positive contributions immigrants make, but also enhances our security and our nation’s economic well-being. Such reform would match willing workers with willing employers; offer people already here the opportunity to earn their way to legal status by working, paying taxes, and being committed to learning English and being part of the U.S.; create a future legal way for people to enter this country to work; reunite close family members, some of whom have been separated for twenty years; facilitate the cross-border flow of people and goods that are essential to our economy; facilitate cooperation with our neighbors and develop economic opportunities there; and enhance our security and enforcement efforts by helping us know who is here and keep out those who mean to do us harm.

Both the House and Senate-passed reform proposals (H.R. 4437 and S. 2611) don’t get it right. The House-passed bill, championed by Representative Sensenbrenner, is an enforcement-only measure that will lead to more dysfunction, not more enforcement, and would negatively impact millions of people be they legally here or not. The Senate–passed bill, while including some positive provisions, has been fatally compromised by the negative measures included there, many of which resemble the harmful provisions in the House-passed bill. These harmful measures have been described as dealing with enforcement and/or security issues. However, nothing could be further from the truth. They violate due process and civil liberty protections and endanger this nation’s identity as a country that respects the rule of law.

People need to know about these negative provisions so that they can organize to defeat them wherever they appear. They certainly do not “solve” problems in our immigration system, but instead will hurt immigrants by taking away due process rights, sabotage earned legalization, and take away important rights of the “other 12 million” -- the 12 million legal permanent residents who reside in the U.S. -- by making it easier to deport them and harder for many to become citizens. They also would turn police into immigration agents, increase deportation and detention, and allow thousands of people to be deported without ever seeing a judge.

Neither the House nor the Senate provides the real reform that we need and both merit your opposition. Other measures already proposed (such as the Pence/Hutchison plan) or to be proposed in the future that include the troubling measures detailed here, also merit your opposition. Why? Because they would:

  1. Erect permanent barriers to lawful status for family members of United States citizens or legal permanent residents. Millions of undocumented workers who had no Social Security number have used borrowed or invented numbers to complete I-9 forms in order to get a job, support families here and abroad and provide labor needed by U.S. businesses. The use of these false social security numbers has actually resulted in a benefit to the U.S. treasury: in 2002 alone, the Social Security Administration’s suspense fund grew by $56 million with about $7 billion in Social Security tax and $1.5 billion in Medicare tax paid and attributed to undocumented immigrants . Under H.R. 4437, these millions of workers would be barred from getting any lawful immigration status available now or in the future. Under S. 2611, workers also would be barred from legalizing for I-9 violations. While S. 2611 includes a waiver for eligible immigrants who use a false number before DHS starts accepting legalization applications, this provision would not solve the problem because it does not take into account that millions of workers cannot all file on the first day of the program and that DHS will take months to review applications and issue employment authorization, during which time workers will have to file I-9’s. Under both bills, many immigrants who do not qualify or apply for current legalization would be severely affected even though they may be able to immigrate in the future through a U.S. citizen family member. Because they will have to continue working with false social security numbers, they will be absolutely prevented from obtaining a green card – with no possible forgiveness.

    Example: Esteban used his brother-in-law’s Social Security card so that he could work for the last five years. He hopes he will be eligible to legalize under a new law. However, under H.R. 4437 his past use of a false Social Security number would bar him. Even under the Senate proposals, if Esteban has to change jobs and use his false Social Security number before the government grants him work authorization, he will be barred from the program with no possible waiver or pardon.

    Example: Julia, the wife of a disabled U.S. citizen, needs a job to help support her family, and uses her sister’s Social Security number to get a job. If she later applies to get a green card through her husband she will be barred, just because she had previously used a number. (And she is ineligible for the legalization program in the Senate “compromise” proposal because she has resided in the U.S. for less than two years.)

  2. Criminalize people for helping immigrant family members, friends, and co-workers. H.R. 4437 would greatly expand the definition of “alien smuggling or harboring” to include assisting a person to remain or attempt to remain in the United States when the “offender” knows the person is unlawfully in the U.S. – thereby treating family members, charitable workers, social services organizations, refugee agencies, churches, legal services and others the same as smuggling organizations and imposing criminal penalties for providing such assistance. The provisions in S. 2611, while less broad, still would criminalize acts of assistance to undocumented immigrants such as a teacher who encourages his undocumented student to attend college and apply to legalize or a person helping her undocumented neighbor with childcare. These acts expose U.S. citizens to sentences of up to 20 years in federal prison and property forfeiture and longtime green card holders in the U.S. to not only federal time, but also mandatory deportation. The only exception provided in S. 2611 is for humanitarian groups who provide the undocumented with food or medical care, thereby permitting prosecution of other types of assistance.

    Example : Raquel occasionally gives an elderly friend of hers, who is undocumented, a ride to the grocery store. Joseph, a guidance counselor at an urban high school, encourages the valedictorian of his high school, an undocumented immigrant, to attend college in the United States. Phyllis meets with children who attend her church, some of whom are undocumented, to tutor them in reading. These persons can be prosecuted as criminals under the proposed alien harboring/transporting provisions and given up to a five-year prison term. If in addition they happen to be noncitizens, including long-time permanent residents, they face automatic deportation as aggravated felons. Their family members and co-workers who are U.S. citizens would not be allowed to speak on their behalf. Once deported, they will never be able to return to the U.S.

    Example : Jose, the supervisor at a construction company, drives his crew, some of whom are undocumented, to their jobs. If the government finds that he was “reckless” about finding out their immigration status, he could be convicted of a federal offense with a potential 20-year sentence

  3. Expand detention. H.R. 4437 and S. 2611 both include massive new detention provisions that would increase the number of detention beds (H.R. 4437 adds 10,000 while S.2611 adds 20,000), allow detainees to be housed in closed military bases, and give the immigration authorities nearly unfettered authority to indefinitely detain immigrants, thereby posing serious constitutional concerns. (Under this unfettered authority, some of the persons who could be detained indefinitely include: persons who are intercepted at sea such as Cubans, some of which are asylum seekers who have not committed any crimes, but cannot be returned to their home country, those who have a contagious diseases or a mental illnesses, and those who have completed serving their sentences for relatively minor offenses). Also under both bills, all individuals who illegally enter at any type of border would be mandatorily detained until they are removed from the U.S., unless they are Cuban or Mexican nationals. S. 2611 would increase pre-hearing detention and would detain people who have entered without inspection and have not filed a change of address card with the government (which in practice would be all who entered without inspection), with a presumption that they are flight risks.

    Example: A Cuban woman who has been in the U.S. since the early 1980s was ordered removed several years ago. The U.S. was unable to deport her to Cuba, and detained her for several years. Last year, she was released under an order of supervision and returned to her minor children. Under this law, she could be redetained and once again held indefinitely.

    This expansion of detention would not only increase both the risk of mistaken or improper deportation and the numbers of U.S. citizens erroneously deported, but waste money when other cost effective alternatives exist. The U.S. already is one of the world’s leaders in incarcerating a disproportionate number of people, at great cost to the government: Depending on the detention facility location, the cost of detaining a person can range anywhere from approximately $24,000 to $82,000 a year. These expenditures would increase the budget deficit, drain away scarce resources from other needs, and provide perverse incentives to localities that use revenue generated by housing noncitizen detainees to reduce local taxes. Such detention policies would also provide ammunition to those who already criticize the U.S.’s human rights record, undercutting U.S. credibility internationally when America criticizes other nations’ detention policies.

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  4. Speed up deportation process without sufficient safeguards. H.R. 4437 would apply a removal procedure called expedited removal to those in the interior, including those who have not been convicted of any crimes. It also would allow a DHS officer instead of a trained immigration judge to make complicated legal decisions about whether a person is a citizen and thus subject to removal and reduce the time to challenge this decision from a very narrow window of 14 days to an even narrower window of 7 days. Provisions in S. 2611 also would expand expedited removal by allowing the government to remove some noncitizens in the interior of the country without a court hearing if the government alleges that the person has an aggravated felony or firearm or other convictions. It codifies an existing policy that allows the government to deport an individual without any hearing or access to a lawyer if the person cannot prove that they have been here for more than 14 days and are found within 100 miles of either the Mexican or Canadian border. If these provisions are enacted, these immigrants would have little ability to challenge the charges against them and no right to apply for any available relief. And increased numbers of immigrants, including U.S. citizens and lawful permanent residents, would be improperly or mistakenly deported.

    Example : Jaime has lived in San Diego for more than a year but does not have proof that he has been here that long because he works for cash and lives with others who pay the landlord. The immigration authorities arrest Jaime and deport him without a hearing because he was caught within 100 miles of the border and doesn’t have proof that he has been here for more than 14 days.

  5. Deport suspected gang members who have not committed or been convicted of any crimes. Under S. 2611, an immigrant who never committed any crime whatsoever can be deported and denied immigration benefits if the Attorney General merely asserts that he has a “reason to believe” that the person is or was either a "member of" a gang, or participated in "activities" that promote a gang. In addition, there is no challenge allowed to the Attorney General’s finding. H.R. 4437 goes even further by allowing the Attorney General to use a secret process that provides no notice or opportunity to be heard to the alleged street gang members, to designate any formal or informal group of three or more persons who have committed two or more enumerated gang crimes a “criminal street gang.” Thus, many immigrants and even immigrant youth who never committed or supported a single criminal act may be punished severely for exercising their right to association, and could be deported to a country where they face interrogation, torture, detention and even death. This provision would also make criminal gangs more powerful, providing them with a powerful tool to coerce new members to join their ranks and lessen the likelihood that law enforcement would be able to obtain intelligence on gang activities.

    Example: Saul lives in a neighborhood where members of a street-gang also live. He works with some of them to arrange a memorial service for his neighbor’s son, who was a gang member. Although he has never joined a gang or committed any crime, Saul can be deported for his association with gang members.

  6. Block paths to citizenship for many immigrants, even legal permanent residents. Both the House and Senate bills create significant obstacles to becoming a citizen for, not only the undocumented, but also many immigrants who are legally in this country, such as legal permanent residents and those who will obtain legal status in the future. Under both bills, the expanded definition of aggravated felony would make even more long time legal permanent residents ineligible for citizenship and in turn, ineligible to vote. H.R. 4437 would eliminate court review over a denial of citizenship based on an often subjective decision that the person is not of good moral character and “well disposed” to the United States. Under this provision, for the first time in our country’s history, the Executive branch would have the unilateral power to deny citizenship. S. 2611 represents some improvement over H.R. 4437 because it would retain some review of the citizenship denial, but it still would give the Executive branch substantial power to deny citizenship. However, S. 2611 goes further than H.R. 4437 in other respects: it would make the citizenship test unreasonably much harder by, for example, including questions that not even the average U.S. citizen could answer correctly -- such as identifying certain American artists and inventors. It also includes a provision that would preclude undocumented immigrants from being included in population counts for election purposes, thereby violating the U.S. Constitution (Article I, Section 2, Clause 3) and the 14 th Amendment that specify that the number of representatives be apportioned according to the number of persons.

    Example : Mathew, a lawful permanent resident from Canada, applies for citizenship. He is unable to correctly answer some questions on U.S. history, such as identifying certain American inventors and artists. Furthermore, H.R. 4437 would take away his right to appeal the denial of his citizenship application.

  7. Expand the definition of aggravated felony. The current overly broad “aggravated felony” definition already includes non-violent and minor misdemeanor convictions where no jail time was imposed. A single misdemeanor conviction can carry grave and inescapable consequences – including indefinite detention and automatic and permanent banishment from the United States — to immigrants who may pose no threat to anyone’s safety. These penalties apply to long-time lawful permanent residents, including immigrants who have served in the United States Armed Forces.

    Example: Roberto is a long-time permanent resident who resides in rural Washington with his family and who currently is serving in the military. Five years ago he was convicted of misdemeanor shoplifting when he stole $10 worth of beer. Every misdemeanant in Washington State receives a one-year suspended sentence, even if, like Roberto, the person serves no time in jail. Under current law, Roberto’s misdemeanor conviction with a suspended sentence is an “aggravated felony.” He will be deported with no possibility of a pardon.

    Rather than narrowing the poorly drafted definition of an aggravated felony, both H.R. 4437 and S. 2611 would expand the definition to include additional minor offenses such as helping an undocumented family member or friend pay rent, document-related offenses, and minor accessory roles in the crimes of others.

    Example: Pablo, a green card holder, has his undocumented wife, son, parent or other family member living in his house or riding with him in his car. Under the proposed law, it appears that the immigration authorities can deport Pablo for this. Pablo also could be charged as an alien smuggler and given up to a 5-year prison term.

    Example: Jose, the supervisor at a construction company, has a green card. He drives his crew, some of whom are undocumented, to their jobs. Under the proposed law, if the government finds that he was “reckless” about finding out their immigration status, he could be convicted of a federal offense with a potential 20-year sentence – and then face mandatory deportation as an aggravated felon, and his family members and coworkers who are U.S. citizens would not be allowed to speak on his behalf. Once deported, he will never be able to return to the U.S.

    Example: In Arizona, courts are convicting persons who were brought in by alien smugglers as having “solicited” their own smuggling. The proposed law would make “soliciting” an aggravated felony. Thus these persons would be held aggravated felons as alien smugglers. In some states, an 18-year-old can be convicted of solicitation if he unsuccessfully asks his 17-year-old girlfriend to have sex with him. This would be held an aggravated felony, because he “solicited” sexual abuse of a minor.

    The Senate bill would further expand the definition to include misdemeanor “driving under the influence” convictions. The House bill would include negligent, unintentional, and accidental acts or omissions, treating them the same as acts committed with a criminal intent to injure. Neither bill provides any safety valve provision that would waive deportation in compelling cases where it is not in the interest of the U.S. to deport the person, such as cases where individuals can show rehabilitation, have lived in the U.S. since they were children, support U.S. citizen family dependents, employ U.S. citizen workers, or serve or have served in the U.S. military.

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  8. Lessen judicial review of certain immigration matters. Provisions in both H.R. 4437 and S. 2611 would deny many immigrants their day in court to review, for example, incorrect decisions and/or if they have any remaining equities. S. 2611, for example, would block any legal actions against the immigration agency to force them to decide a case which has been delayed for many years simply because federal agencies are not conducting routine background checks in any sort of timely way. Courts would be unable to protect immigrants from deportation while they wait for the government to complete the check. S. 2611 would also require that in order to be granted Deferred Mandatory Departure status (a program that requires those persons who have been in the U.S. unlawfully for two to five years to leave but allows them to immediately return to become legal permanent residents in eight years), the person must waive his right to judicial review to contest deportation, unless the person qualifies for asylum, withholding of removal, Convention Against Torture, or cancellation of removal. Although this provision is limited to waiver of judicial review and not administrative review, this is practically meaningless in an era where immigration cases at the administrative level are being reversed at an alarming rate by the federal courts: in some circuits, 40% of cases tried are reversed on appeal.

    Example: Juan Sanchez has been waiting for three years for the immigration authorities to complete a background check of his name so that he can finally get his green card through his U.S. citizen wife. He has no criminal convictions or problems in his past, and he works full-time to support his wife and their children; his only problem is that he has a very common name. The new law would stop courts from protecting people like Juan Sanchez, so that the courts could no longer order the government either to complete the name check in a reasonable time, or at least not to deport people like Juan Sanchez while the name check was proceeding.

  9. Eliminate the number of people who qualify for voluntary departure and impose unduly harsh penalties for both accepting and failing to comply with an order. Voluntary departure (VD) is a procedure through which qualifying immigrants can apply to leave the U.S. voluntarily at their own expense instead of having the government deport them. VD is a crucial alternative to receiving a removal order because it preserves future immigration options in some cases, for example if the person has U.S. citizen family. Often a person will apply for some option – for example, asylum – and request permission to leave voluntarily rather than be deported if the case is finally denied. VD also saves the government the cost of processing a deportation and paying for a ticket. H.R. 4437 and S. 2611 would penalize noncitizens for accepting VD by requiring them to waive all rights to challenge any order relating to removal or protection from removal. For example, if the person felt that the judge should have granted asylum based on religious persecution, she would have to choose between appealing what she felt was a wrong decision, and having permission to leave voluntarily instead of being deported to the country in which she faced persecution.

    Example: An IJ denied Mali’s application for asylum based on religious persecution and ordered her to return to her home country. She believes this was a bad decision and wants to appeal it. If she does, however, she must agree that if she loses her appeal, she will accept deportation back to her home country rather than being able to voluntarily depart. This provision is mandatory even if a person is likely to be killed if she goes back to her home country and would prefer to be able to go to another country if she loses her appeal. There are no exceptions.

    S. 2611 would bar VD for anyone who has ever engaged in any activity to oppose the U.S., which could potentially include immigrants who engage in dissent, such as trespassing in front of a federal building. S. 2611 also reduces the time that a person has to voluntarily depart from 120 days to 60 or 45 days in certain cases. Such deadlines impose an unreasonable and unnecessary hardship for individuals, including permanent residents, who must wind up their affairs and prepare to leave. Finally, S. 2611 includes increased penalties for failure to comply with VD: ineligibility for any relief for all of the time the alien remains in the U.S., plus 10 years after departure from the U.S.; makes failure to pay bond a failure to comply with the order regardless of exigent circumstances; and imposes a 2 year sentence enhancement if a noncitizen re-enters the U.S. after previously being granted VD. These harsh provisions will lead to more individuals ordered removed instead of being granted VD and decrease the limited flexibility of an already overly rigid system. The negative consequences for people are apparent, but there are negative consequences as well for the federal government: It will have to bear the costs of removal, even though individuals would rather voluntarily leave and pay their own way. This nonsensical result is the opposite of what the statute seeks to achieve – timely departures from the U.S.

     

  10. Mandate/encourage state and local enforcement of immigration laws. H.R. 4437 mandates and S. 2611 encourages local and state police to assist the federal government in enforcing civil violations of federal immigration laws. Many state and local law enforcement authorities oppose this measure because it would destroy community policing, divert time and attention from local safety priorities, force them to work in an area of law most do not understand, and discourage immigrants from coming forward with information. Another provision in both bills would lessen the utility of an important federal database, the National Crime Immigration Center (NCIC) database. By expanding the types and numbers of people who would be entered into the NCIC to include those with civil violations of immigration law, this provision will make it more difficult for the police to use NCIC as a tool to enforce criminal laws. Finally, both bills would allow state and local governments to hold immigrants after they finish their state prison sentence until they are taken into custody by DHS and detain any undocumented immigrants for 14 days after completion of a prison sentence. These provisions would entrust complicated determinations to untrained officials and allow them to detain immigrants for long periods of time even if no charges are pending against them.

    Example : Your state police sign a contract with the DHS to enforce immigration laws. This destroys hard-earned trust built up over the years between the police and immigrant community. Maria fears contacting the police and cooperating as a witness to a crime because she no longer trusts the local police. Her fears make more difficult the ability of the police to make the entire community safer. Because of the negative impact on their communities, many state and local police oppose this provision.

    11. Some of the troubling provisions found only in S. 2611 include measures that would:

  11. Impose mandatory detention without bond, for failing to file a change of address card. S. 2611 reaffirms a misguided law that had not been previously enforced that would make green-card holders and any other immigrant deportable for failing to file a “change of address card” within ten days of moving, even though the immigration agency does not have a functioning system to input change of addresses. When the government originally announced that it would enforce this law in 2002, it received 30,000 change of address forms a day and consequently, had on their hands a backlog of 700,000 unprocessed forms. Even with such an inadequate and unreliable system, S. 2611 would expand the reach of this law by considering any person who entered without papers and failed to file the card or those legally present who failed to file the card twice a “flight risk” – meaning, they would be subject to mandatory detention and a presumption that they could not be released on bond. This provision would impose unnecessary costs on the federal government to detain persons for minor technical violations. Moreover, if these provisions are enforced while the system is ill-equipped to handle filings, many people will have notices of a hearing for deportation sent to wrong addresses and then, through no fault of their own, have courts enter in absentia deportation orders against them.

    Example : Maria is undocumented, living here with her husband and U.S. citizen children. Like virtually all undocumented persons, she has never filed a “change of address” card with immigration authorities. Carlos has had a green card for 25 years. He moved twice without filing a “change of address.” The government can detain and deport both of them and not permit them to be released on bond.

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  12. Impose immigration penalties on US citizens and cause enormous delays in family backlog reduction. Much of this ill-conceived provision became law in the recently enacted Adam Walsh Act. This provision would limit the rights of U.S. citizens to petition for their immediate relatives, including spouses or minor children, if they are convicted of certain aggravated felonies. Congress characterizes these aggravated felonies as “serious sexual offenses,” but in reality this provision includes misdemeanors with no jail sentence, including consensual sex between common law spouses or teenage girlfriends and boyfriends. The latter is included in the Adam Walsh provision. Although this provision was supposed to protect women and children, major national groups working against domestic violence against immigrants oppose it because it will, in many cases, hurt rather than harm families.

    Example : Mark, a U.S. citizen, was 18 when he was convicted of misdemeanor statutory rape for having consensual sex with his 17-year-old girlfriend, Therese, who is undocumented. He was sentenced to probation but no jail. Mark and Therese later married and decided to have a child. Now Mark has applied for a green card for Therese, based on her status as the wife of a U.S. citizen. However, Mark’s misdemeanor conviction will bar him from being able to petition for Therese. If immigration authorities find Therese, she can be deported away from her husband and child.

    Furthermore, enforcing the provision in S. 2611, like the Adam Walsh Act, will require a criminal background check on all U.S. citizens who seek to bring their close family members to the United States. These checks already take years for the FBI to complete for immigration authorities; the requirement to check all U.S. citizen petitioners as well as immigrant relatives will vastly increase the demand on scarce law enforcement resources, delay family visa processing, and break up families without the prospect for reunification.

    Some of the troubling provisions found only in H.R. 4437 include measures that would:

  13. Retroactively change existing law.  H.R. 4437 designates new crimes as aggravated felonies. Such a designation would apply even if the act was committed 20 years ago and the person was completely rehabilitated. In turn, the characterization of an offense as an aggravated felony would trigger mandatory detention, deportation, disqualification for almost all immigration benefits, and permanent banishment from the U.S. without hope of return. Fundamentally unfair because it changes the rules in the middle of the game, retroactivity would impact many, including the thousands who agreed to plead guilty to soliciting a drug offense or driving under the influence offense, with the understanding that the U.S. Supreme Court and the Ninth Circuit has held that they are not aggravated felonies. By applying these provisions retroactively, the House bill unfairly applies new laws to past conduct and to the choice to give up one’s constitutional right to a trial.

    14. H.R. 4437 would make the following offenses an aggravated felony, even if the action occurred twenty years ago, and even if at the time the action did not have any immigration consequences at all. For example, by adding “soliciting” to the definition, the following acts become aggravated felonies: an 18-year-old unsuccessfully asking his 17-year-old girlfriend to engage in sexual conduct (soliciting sexual abuse of a minor); an undocumented person who asked a “coyote” to bring her across the border, even if the coyote left her for dead (“soliciting” her own alien trafficking, currently being prosecuted in Arizona). The Senate bill also would make these offenses an aggravated felony – but at least would not apply the new rule to decades-old convictions.

    Example : Maria needs to return to the U.S. after a visit to her dying mother in Mexico. She asks a “coyote” (professional smuggler) to bring her across the border. Maria can be prosecuted for “soliciting” her own alien trafficking. The bills would define this offense as an aggravated felony.

  14. Criminalize unlawful presence with penalties commensurate to those for illegal re-entry. There currently are about 11 million undocumented immigrants in the United States who, under H.R. 4437, would be subject to criminal prosecution as federal felons for being unlawfully present. Moreover, millions here on valid continuing visas or with green cards would be guilty of this new federal crime if they commit even minor and unintentional violations of their legal status. If any of these persons have any prior offenses, including unrelated misdemeanor convictions, or have failed to comply with a voluntary departure order, they could receive sentences of up to 10 and 20 years. Prosecution of all of them, or even selective prosecution of some, for the “status” crime of remaining unlawfully in the U.S. would paralyze the federal criminal justice system and impose prohibitive costs for prosecution and incarceration. Turning millions of immigrants into criminals overnight also would drive the undocumented even more into the shadows, and likely encourage their U.S. citizen and lawful family members to hide them from the government.

    15. Example: Juan has been working and living in the U.S. in undocumented status for ten years. Under H.R. 4437, Juan can be charged and convicted of being present in the U.S. unlawfully. This offense would be a felony. As in Juan’s case, this proposal would turn 11 million undocumented immigrants into criminals.
  15. Reverse burden of proof in removal proceedings. The burden always has been on the government to prove deportation, because the hardship of deportation is so great and the power of the government is much larger than the individual’s. Analogous to the criminal “innocent until proven guilty” standard, this longstanding rule has provided that the government may not simply arrest a long-time permanent resident, allege that she is deportable, and force her to prove that she is not. H.R. 4437 reverses this burden of proof for those charged with aggravated felonies, which includes offenses that are non-violent and misdemeanors with no jail sentence. This is a very poorly conceived reversal of precedent that contradicts basic and longstanding notions of fairness and in practice would create chaos. The result is that once the government decides to charge a noncitizen with an aggravated felony (and in many cases they are wrong in charging a crime as an aggravated felony), the immigrant would be required to somehow obtain the public records and produce the extremely complex legal arguments required to disprove the government’s assertion. This is made nearly impossible by the fact that the majority of immigrants charged in removal proceedings are low-income, and for that reason unrepresented, and those charged as aggravated felons would be detained, usually at immigration detention centers far from family and counsel. If people cannot meet this burden, they then would face mandatory detention, deportation, and permanent exclusion and separation from family and friends in the United States. Further, this rule would bring removal hearings to a virtual standstill, as people would be arrested, detained, and brought before a judge – and only then told to look for documents to win their cases.

    Example: Luisa is 35 years old and has been a permanent resident since the age of 5. Several years ago she was convicted of a nonviolent misdemeanor offense of failing to safely maintain a building she owned with her ex-husband. This offense is not an aggravated felony, but it is included in a large multipart statute labeled “Assault,” which also covers violent crimes that are aggravated felonies. She and her ex-husband received a one-year suspended sentence with no jail time, and were ordered to make the repairs. Years later, Luisa goes to her naturalization interview where she is arrested, charged as an aggravated felon, and sent to a remote detention center until her removal hearing. Divorced, indigent, and with limited access to the outside world from detention, Luisa cannot obtain counsel or public records, or make the legal arguments that she needs. In fact, the criminal court probably destroyed the records, since the conviction is so old. Luisa is not an aggravated felon, but she will be deported as one.

  16. Eliminate key safeguards concerning evidence used to prove that an immigrant is deportable for an aggravated felony. To protect basic fairness concerns and evidentiary principles, the United States Supreme Court has long established guidelines, called the “modified categorical analysis,” for what evidence a court can consult to characterize a prior conviction. These rules ensure that immigration judges consider only the official, reliable information and documents from a prior conviction – and not new testimony or facts not established at the original criminal trial – to identify the offense for which the person was actually convicted. While this may sound technical, the categorical analysis is a vital safeguard that protects immigrants from wrongful deportation. H.R. 4437 seeks to eliminate these guidelines for those accused of being aggravated felons in immigration proceedings. This means that immigrants could be wrongfully deported for a conviction of an offense that is not actually an aggravated felony.

    Example: Samuel, a long-time permanent resident, was convicted for failing to properly register his hunting rifle. The conviction was under a large, multi-part statute that also punishes sale of firearms. The registration offense is not an “aggravated felony”; the sale offense is. Under the new law, if Samuel applied for naturalization, the government would be required to arrest him and detain him in immigration jail until Samuel could prove, by obtaining his old court records, that he was not convicted of selling guns.

  17. Ignorestate court decisions regarding the existence of a conviction. H.R. 4437 would allow immigration authorities to ignore certain reversals and vacations of criminal convictions by state courts, such as the failure to advise the immigrant of the immigration consequences of the guilty plea that are in violation of State law and in some cases State Constitutions. This provision would seriously undermine the concept of “full faith and credit” due to state courts. It would have profound effects in states like California, where the state Supreme Court and other lower courts have ruled that the failure to advise and defend of the immigration consequences and giving affirmative misadvice as to the immigration consequences constitute ineffective of counsel meriting vacation of the conviction.

    Example: Maria is a long-time permanent resident in Los Angeles who was a victim of abuse. As often happens, when she filed charges against her abusive boyfriend he “cross-charged” and brought a complaint against her for assault. Her public defender advised her to just plead guilty so that she could get out of jail right away, and assured her that this would have no effect on her green card or application for citizenship. In reality, the conviction made her deportable. A California court overturned the conviction based on the attorney’s false advice. Under the new law, however, federal authorities would completely ignore the state court’s ruling, and would use the conviction to deport Maria.

     

August, 2006

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The ILRC is a national resource center that provides trainings, materials and advocacy to advance immigrant rights. As a legal services organization, we train lawyers and paralegals on ever-changing and complex immigration law. We develop leadership by encouraging immigrants to play leading roles in confronting and reshaping the laws and policies that perpetuate racial, economic and social injustice. And we educate and empower those in the immigrant community so that they may organize and advocate for the rights and privileges that best define our democratic traditions.

Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco , California 94103
415-255-9499

www.ilrc.org


   

Last Modified: December 12 2006 01:19:58