Friday, February 22, 2013

Offensive Provision

Roll Call recently described the principles announced by the Gang of Eight (Senators) for immigration reform as a

call for undocumented immigrants to jump through a number of hoops before being granted even “probationary legal status.” For example, the group would require current undocumented immigrants to pass a background check, pay fines and pay back taxes before earning a provisional status that allows them to live and work in the United States. They would mandate that those immigrants also “go to the back of the line” as they apply for a green card and would require them to pass another background check, learn English, take civics education and prove they have worked in the U.S. before a green card could be granted.

USA Today reported that a competing plan, that of President Obama, leaked shortly after the Gang of Eight released its framework, stipulates that immigrants

would need to pass a criminal background check, submit biometric information and pay fees to qualify for the new visa. If approved, they would be allowed to legally reside in the U.S. for four years, work and leave the country for short periods of time. After the four years, they could then reapply for an extension.

The plans have received their share of criticism, whether from the left, which believes fewer obstacles should be placed in the way of legalization of "undocumented" immigrants or workers, or from Republicans such as Marco Rubio who want to be assured that any reform provide a steady stream of cheap labor.

But one tenet of both proposals, and one criticized by no one, is the need for a "background check" because everyone agrees that individuals present in the country illegally must obey the law.

Maybe not.   Under current law, Wonkblog's Suzy Khimm notes, "non-citizen immigrants convicted of what’s known as an “aggravated felony” face automatic penalties that make it far harder for them to be spared from deportation."  She explains

Obama’s draft bill would it possible for more immigrants convicted of minor criminal offenses to remain in the United States by giving judges far greater discretion to decide whether they should be deported. The proposal would redefine an aggravated felony to encompass crimes that carry at least a five-year penalty. It also would require fraud offenses to result in at least $100,000 in losses for victims rather than the current $10,000 to be classified as aggravated felonies.

That doesn’t mean that all immigrants convicted of more minor crimes would be granted a reprieve from deportation: Rather, it would give immigration judges greater leeway to decide whether they should be deported or get a second chance. (Under Obama’s draft bill, undocumented immigrants would be disqualified from receiving legal status if they serve more than a year in prison for a crime they’ve committed.)

Although beyond the scope of Khimm's analysis, there may be more fine print in the background check requirement.  Section 123 of Obama's draft substitutes the words "entered by a court" with "entered by a court (provided that... direct appeals available as of right have been exhausted or waived."   An individual's immigration status thus might remain in limbo for many tears, an ironic outcome of a reform intended to remove uncertainty in the law.

This section also modifies Section 1101 of Chapter 8 of the U.S. Code, which defines numerous terms as applied to immigration.  Section 123 proposes "An adjudication or judgment of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated, an order of probation without entry of judgment, or any similar disposition shall not be considered a conviction for purposes of this Act.”.

Were this provision to be included in legislation, an applicant merely would have to convince a judge to expunge his/her record or vacate the conviction.   A judge, finding that the penalty for an offense (fine, probation, incarceration, etc.) has been served, might decide that the individual has paid a price for the offense, and simply vacate the conviction or expunge record of the offense.  And so, voila! The illegal immigrant no longer is held to the requirement of obeying the law.

When executives of major banks are not held accountable for their offenses, it is tempting to conclude that neither should illegal immigrants.  Tempting, but wrong.  Dispensation would not be granted all illegal immigrants, but rather those with superior access to the courts. Individuals favored would be ones with sufficient resources to hire the right attorney, or who have been lucky enough to go in front of the right judge in the right state.  All others need not apply.  The courts would work for some lucky duckies and not for others while enormous power is vested in judges.

Background checks are meaningless unless, well, they mean something.  If definitions of "aggravated felony" and "conviction" are distorted to conform to a predetermined outcome, the notion that illegal immigrants must obey the law is neutered and a mockery is made of the concept of a nation of laws and not of men (or women).

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