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The intersection of criminal law and immigration law

Dispelling myths about crime-based grounds of removability

Those of us who closely follow the evolution of crimmigration law and the policy debates about so-called “criminal aliens” know that much of what is said is flat out wrong or gross exaggeration. Over the weekend I had the opportunity to listen to an ICE representative pass on some common myths about crime-based grounds of removability and reveal the misinformation inherent in his statements.

On Saturday I participated in “The Changing Face of America: Immigration and Social Policy,” a conference at San José State University. My panel included Michele Waslin of the American Immigration Council’s Immigration Policy Center, Angela García of the University of California-San Diego, and Alex Mack from the ICE office in San José.

Though evidently well meaning, Mr. Mack’s presentation repeated several misunderstandings of removal proceedings with regard to individuals convicted of crimes. For one, he explained that there is no benefit to having a person tagged as an “aggravated felon” appear before an Immigration Judge because the person must be removed. As I pointed out in response, this is not true for at least two reasons.

First, trying to determine whether a particular crime constitutes an aggravated felony is no easy task. Reams upon reams of paper have been devoted to trying to do this. Immigration attorneys constantly disagree with one another (even attorneys who work on the same “side”), Immigration Judges disagree, the BIA at times overturns itself, and federal courts constantly disagree with the BIA and each other.  Just last spring the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), overturned longstanding precedent in several circuits.  To think that a DHS officer can somehow figure out what so many others can’t is ludicrous.

Second, even after someone is determined to have committed an aggravated felony, avenues for relief still exist. Although an aggravated felon is not eligible for Cancellation of Removal he remains eligible for Withholding of Removal, protection under the Convention Against Torture, and Readjustment of Status, among other options. Discounting these avenues of relief evidences either a disregard for the multitude of congressionally recognized options for staying in the country or a glaring lack of knowledge about immigration law. Either way, forgetting that these possibilities exist is plain wrong.

Mr. Mack also explained that ICE is not interested in removing longtime LPRs. If that’s true under Mr. Mack’s watch in San José—and for now I’m willing to take him at his word that it is—it is certainly not true nationwide. Longtime LPRs are put into removal proceedings every day. In fact, had Mr. Mack listened to the presentation I had given just before him, he might have heard me rattle off the average length of time that LPRs have been here prior to being put into removal proceedings.

According to the Transactional Records Access Clearinghouse at Syracuse University (the best source of immigration statistics), on average, permanent residents charged with having committed an aggravated felony as a ground of deportation have been in the United States 15 years prior to being charged.  For 25%, deportation proceedings are initiated after being here for more than 20 years and for 10% it is more than 27 years.

I don’t want to accuse Mr. Mack of not paying attention to my presentation. He looked very attentive while I spoke. Perhaps these numbers just didn’t sink in.

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