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The immigration reform bill made public today by the Senate’s Gang of Eight will tighten ties between the criminal justice system and the immigration system. It will require all applicants to the path to citizenship, what will be called the Registered Provisional Immigrant status, to pass a stringent criminal background check. And immigrants who have been deemed to have affiliation with a gang can be barred from the provisional visa even if they’re not convicted with an actual crime.
Immigrants with convictions for felonies, three misdemeanors, or what’s called an “aggrevated felony” in immigration law, will be barred from the RPI status. The bill does create an exception if one of the three misdemeanors directly related to the fact of being undocumented. The provision is aimed at state laws, like those in Arizona, that attempt to criminalize immigrants for lacking papers. Broadly though, immigrants with many minor run-ins with police will be ineligible for Registered Provisional Immigrant status.
Aggravated Felonies and Judge’s Discretion
The bill does little to roll back what for years immigrant rights advocates have labeled a draconian fast track from conviction to deportation. In particular, the bill maintains a set of 1996 immigration laws that revoked judges’ discretion to stop a deportation in cases involving so-called “aggravated felonies.”
Through the phrase evokes serious crime, aggravated felonies include minor drug, theft and fraud charges, as well as failure to appear in court, and many offenses by people who were previously deported and then comes back. In these cases, judges have no power to stop a deportation even if an immigrant has lived in the U.S. nearly all of their life and has family here. Thousands of non-citizens, including green-card holders, are deported for crimes they were convicted of decades ago.
In some cases that don’t involve aggravated felonies, the bill would expand judge’s discretion to weigh the impact of deportation on family or communities members.
New Criminal Categories
The bill adds several additional categories of criminal system involvement that will bar immigrants from provisional visas and make them deportable. These include a gang related crime or association with a gang and drunken driving.
According to several people familiar with the bill drafring process, who spoke to Colorlines.com on background, these provisions were added at the last minute because several Republicans members of the Gang of Eight perceived the legislation to be tilted in favor of Democrat’s demands.
The bill changes existing law so that any immigirant “who has been convicted of an offense for which an element was active participation in a criminal street gang” will be ineligible for legalization and can be deported.
The bill goes further, though, and bars from the path to citizenship any immigrant with established gang affiliations even if there’s no criminal charge against them. The bill reads:
“An alien who is 18 years of age or older is ineligible for registered provisional immigrant status if the [Homeland Security] Secretary determines… by clear and convincing evidence, based upon law enforcement information deemed credible by the Secretary, has, since the age of 18, knowingly and willingly participated in a such gang with knowledge that such participation promoted or furthered the illegal activity of such gang.”
As I reported in February, these gang affiliation provisions often feed on questionable police practices that peg young people of color as gang members without cause:
Belinda Escobosa Helzer, an attorney with the ACLU of Southern California, says that laws like these cast an overbroad net that encourages racial profiling. “What we’ve seen in practice in California is that a lot of youth of color are being documented as gang members because of where they live, who they went to school with, who they were walking with,” she said, not because they’ve committed a crime.
The bill also expands the consequences of drunken driving. Currently, immigrants can be deported for drunken driving convictions. But the bill would automatically remove any immigrant with three or more DUI convictions. Further, immigrants who are convicted of a single DUI after the legislation becomes law would be ineligble for immigration status.
The bill also expands punishment for non-citizens who were deported and reenter the U.S. I will get to these provisions in another post.
This post has been updated since publication.