Immigration reform and “criminal alien” injustice

Halfway through Congress’ August recess, virtually the whole labor-community alliance supporting progressive immigration reform is mobilized to make sure that the House of Representatives produces a bill in September that provides legalization with a path to citizenship for the vast majority of the approximately 11 million undocumented immigrants in this country. Early reports indicate that there is a real possibility that the thirty or so Republican votes needed to achieve this can be reached.

The Republican leadership in the House has been threatening to use parliamentary tricks to stop such a bill even if it has majority support. So there is serious talk about using a maneuver called a “discharge petition” to bring a bill directly to the floor of the House for an up-down vote.

The bipartisan “Gang of Seven” has been working on a “comprehensive” reform bill in the House and says it will introduce it in September. Speaker Boehner and other Republican House leaders have said they will not bring up for a vote the bill already passed by the Senate (S 744, originally) in the House, and prefer to deal with a series of smaller bills rather than a comprehensive legislative package. To this end, the House Judiciary Committee has already passed five very reactionary bills, none of which allow the legalization of the undocumented.

So the emphasis for now has to be pressuring enough Republicans in the House to soften their typically anti-immigrant positions to the point that they vote for a comprehensive bill that includes a broad legalization program and a path to citizenship.

By “broad” is meant “including as many people as possible”. This is threatened by a number of things, one of which is the possibility that people applying for it get classified as “criminal” aliens and end up being deported.

There is a lot of controversy about what is a criminal offense of such seriousness as to lead to a denial of legalization and a probability of deportation. Unless this is clarified, even if Congress passes and the president signs a bill, there will be people who are afraid to apply for legal status lest the act of applying lead to their arrest and deportation.

In 2011, President Obama announced the “prosecutorial discretion” program, which supposedly allows the Immigration and Customs Enforcement personnel to give a break, in the form of being placed low on the list of priorities for deportation, to undocumented immigrants who do not represent a danger to the public by being gang members, criminals, drug smugglers, or terrorists. There are serious questions about how this program is being carried out, which suggest that ICE personnel are either ignoring it or classifying people as criminals meriting deportation who actually are not. So this has to be incorporated in legislation also, and not left up to presidential executive orders which can be easily undermined, or revoked by the next president or by Congress.

Things that should not lead to either denial of legalization or deportation include:

* Returning to the U.S. without papers after having been booted out. One of the major reasons immigrants do this is because when they are deported, they behind, destitute, spouses, and minor children who are U.S. citizens or noncitizen legal residents. The deportee returns for the honorable motive of dealing with the disastrous situations the deportation creates: Foreclosed mortgages and evictions from apartments, bankruptcies due to medical bills, and emotional crises.

* Use of false papers to get a job: Due to the government’s own crackdown on employers, this is often the only way to get work to support one’s family. The other option is to work for cash under the table, which means that payroll and state and federal income taxes are not withheld, and entails more harm to society.

Some are deported for relatively minor infractions, not involving any real danger to the public. Also there is no time limit to being deported after one is convicted of an offense; some legal permanent residents have been re-arrested and deported decades after the original offense had long since been expiated by a court-imposed punishment.

There are many cases of people accused of a crime which they say they did not commit who get advised by attorneys (perhaps swamped and exhausted public defenders) to plead guilty in exchange for supervision and no jail time. Then the issue of their conviction based on admission of guilt comes up again in an immigration context, and they find themselves put into deportation proceedings.

Finally, we must admit that not only is the immigration legal framework “broken”; our whole criminal justice system is broken also, with large numbers of people in jail who should not be, including people framed for capital crimes. This has a strong racist edge, which affects non-white immigrants. Legislation passed by Congress and signed by President Clinton in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act, tied the hands of immigration judges, depriving them of the leeway to identify special circumstances and show flexibility on the issue of deportation. We have to also “fix 96” in our legislative efforts.

Photo: Sasha Kimel/Flickr (CC)


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.