The Obama Administration’s draft immigration proposal would expand features of immigration law that have been at the core of its enforcement policies for years while severely limiting some excesses of contemporary immigration law. This is a quick review of some of the draft’s major crImmigration-related provisions, touching on immigration detainers, the definition of “aggravated felony” and “conviction,” cancellation of removal, proceedings against mentally incompetent individuals, appointment of counsel, and immigration court operations.
It comes as no surprise that the president’s draft legislation, leaked by the Miami Herald this week, would give DHS more authority to detain noncitizens who have encountered the criminal justice system. One section would authorize DHS to continue to operate the Institutional Removal Program, a method of speeding up removal of people incarcerated after having been convicted of a crime, and also allow the department to develop other programs that do much the same thing. Title I—Enforcement § 135.
Reflecting one of the Administration’s preferred enforcement tactics, the proposal would expand DHS’s statutory authority to issue detainers. Currently, the INA allows DHS to issue an immigration detainer only when police have reason to believe that the arrested person is not authorized to be present in the USA and the noncitizen was “arrested…for a violation of any law relating to controlled substances….” INA § 287(d). Importantly, the INA requires that the arresting police agency request the detainer. DHS is not statutorily allowed to issue a detainer on its own initiative. As Chris Lasch (University of Denver) has written (here, here, and here), the detainer regulations used by the former INS and now DHS readily exceed the statute’s “narrow scope.” Christopher N. Lasch, Federal Immigration Detainers After Arizona v. United States, 46 Loyola L.A. Law Review 1, 82 (forthcoming 2013).
The president’s proposal would bring the INA up to par with immigration officials’ practice. First, it would allow DHS to issue a detainer without waiting for a request from the local police. Second, it would allow a detainer to be lodged against a person whom immigration officials “ha[ve] reasonable suspicion…is subject to removal” for any reason. Title I—Enforcement § 136. In an obvious attempt to clear up some of the ambiguity about detainers that currently exists, the proposal also explains that a detainer is merely a “request” that the local police agency hold on to the named individual.
None of this should be news to anyone who has watched the Obama Administration enforce immigration laws. It has made unprecedented use of its detention power and repeatedly announced that it is focused on removing individuals who have come into contact with criminal justice authorities. Though Administration officials tend to imply that these are truly dangerous individuals, the reality is much different. These amendments reflect the reality more than they do the rhetoric.
I was much more surprised by the proposal’s attempts to narrow the definition of several types of aggravated felonies. According to the leaked text, a “crime of violence,” theft, burglary, obstruction of justice, perjury, and passport fraud, among other offenses, would be considered aggravated felonies only if they resulted in a term of imprisonment of more than 5 years as opposed to the one-year term currently required. Title I—Enforcement § 122. Anyone convicted of an offense that involves fraud or deceit involving a loss to the victim in excess of $100,000 instead of the current $10,000 threshold would be considered an aggravated felon. Title I—Enforcement § 122.
In addition, anyone convicted of failure to appear for a court hearing would need to be sentenced to more than 5 years imprisonment to be considered an aggravated felon rather than the current two-year requirement. Title I—Enforcement § 122. This section would also require that smuggling people into the country be “committed for purpose of commercial advantage” in order to constitute an aggravated felony; there is currently no such requirement. Title I—Enforcement § 122.
On a similar note, LPRs would be ineligible for cancellation of removal only if they were convicted of an aggravated felony “for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years.” Title I—Enforcement § 122. A separate section would change the hardship requirement necessary to obtain non-LPR cancellation of removal to “extreme” hardship from “exceptional and extremely unusual” hardship. Title I—Enforcement § 124.
President Obama’s draft proposal would also alter the definition of “conviction” used for immigration law purposes. First, it would clarify that a conviction becomes final only once all direct appeals end, whether through waiver or because the process has run its course. Title I—Enforcement § 123. Second, the proposed amendment would prohibit DHS from using a “dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated” judgment as the basis for removal. Title I—Enforcement § 123. Such judgments would no longer be deemed convictions for immigration law purposes, bringing the immigration law definition in line with most state criminal law definitions. In addition, the proposal would not allow the portion of a sentence that is suspended to be considered as part of the term of imprisonment or sentence used for any immigration law purpose—for example, to determine whether someone has been sentenced to 5 years imprisonment.
More indirectly related but no less important, the president’s draft legislation would also improve how immigration courts and the BIA operate. One hundred forty new IJs would be hired by fiscal year 2016 and 90 new staff attorneys at the BIA, according to the proposal. Title I—Enforcement § 155.
Meanwhile, the IJs would receive unreviewable discretionary authority to appoint counsel for people in removal proceedings, and would be required to appoint counsel for unaccompanied minors and mentally incompetent individuals. Title I—Enforcement § 158. DHS would be required to pay for mental competency assessments by an IJ-appointed psychiatrist or psychologist, and IJs would be required to terminate proceedings against any mentally incompetent individual “if the alien’s proceedings cannot be made fundamentally fair.” Title I—Enforcement § 162.