CrImmigration provisions of immigration bill

The bipartisan immigration bill released on Wednesday, titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013,” contains a number of crImmigration provisions, with a heavy emphasis on border policing strategies. Most of these are nothing new; rather, they’re expansions of existing attempts to regulate clandestine immigration. Significant changes, however, do come in the resources that the bill would provide to noncitizens facing removal and the immigration courts that adjudicate their cases.

Based on a preliminary reading of the proposed law, I’ve summarized key points to supplement Mark Noferi’s wonderful summary yesterday.

Border Policing and Prosecution

Without question, policing takes a more central role in this proposed legislation insofar as other components of the bill wouldn’t kick in until specified border “security” measures are in place. In its “statement of congressional findings,” the proposal explains, “All parts of this Act are premised on the right and need of the United States…to protect its borders and maintain its sovereignty.” Sec. 2(4).

The BSEOIMA focuses a great deal of attention on the Mexican border. Before anyone can receive “Registered Provisional Immigrant Status,” the lawful status that the bill would create, DHS would have to provide Congress with a “Comprehensive Southern Border Security Strategy” that explains how DHS will achieve and maintain effective control of high-risk areas along the southern border. Sec. 3(c). “High-risk” areas are those in which 30,000 or more individuals are apprehended attempting to enter clandestinely, § 3(a)(5), and “effective control” means that DHS has to have the ability to apprehend 90% of attempted unauthorized entrants and maintain “persistent surveillance.” Sec. 3(a)(3). The bill does not mention the Canadian border so presumably these requirements don’t apply to that area. Based on Border Patrol statistics for apprehensions in fiscal year 2012, there appear to be three sectors that meet this definition: Tucson, Laredo, and the Río Grande Valley. The bill would appropriate $3 billion to this strategy to pay for, among other things, increased DHS surveillance capabilities, more Border Patrol and CBP officers, and more unmanned aerial vehicles (drones) and crew. Sec. 6(a)(3)(A)(i).

The bill would also devote about $1.5 billion to the “Southern Border Fencing Strategy” which requires DHS to identify where more fencing should be built along the border with México. Sec. 6(a)(3)(A)(iii). Again, no mention of the Canadian border. Also no mention of the failed Secure Border Initiative in which Boeing received $1.1 billion and was unable to actually build a wall.

A “Southern Border Security Commission” would be created if, after five years, the 90% apprehension rate in high-risk sectors along the Mexican border was not reached. Sec. 4(a). The commission would be tasked with issuing a report of recommendations for how to achieve 90% apprehension, § 4(c)-(d), and Congress would appropriate up to $2 billion for DHS to implement these recommendations. Sec. 6(a)(3)(A)(ii).

On the prosecution front, the BSEOIMA would increase funding for Operation Streamline in Tucson. Sec. 1104(a)(1). Fifty million dollars in funding would be allocated to criminal prosecutions of immigration-related crimes (mostly illegal entry and illegal reentry). Sec. 6(a)(3)(B)(i). The goal would be to increase the average number of prosecutions per day to 210 from about 70. The bill would also reauthorize the State Criminal Alien Assistance Program (SCAAP), which reimburses state and local governments for incarcerating unauthorized individuals, through 2015. Sec. 1110. (I’ve written about the SCAAP previously, and noted that it only reimburses localities for part of the relevant cost.) The Arizona federal district courts would be authorized to hire two additional magistrate judges to, among other duties, preside over immigration prosecutions. Sec. 1104(a)(2).

More money would also be directed at Operation Stonegarden, a little-known initiative that FEMA runs through which it pays for state, local, and tribal law enforcement efforts to engage in border security operations. Sec. 1104(b)(1). In the past, Operation Stonegarden funds have been used for all manner of activities, including cover the cost of police issuing motor vehicle traffic citations and crowd control at soccer games. The BSEOIMA requires that at least 90% of the newly appropriated $50 million go toward “personnel, overtime, travel, and other costs related to illegal immigration and drug smuggling in the Southwest Border region.” Sec. 6(a)(3)(B)(ii), 1104(b)(1).

New Prosecutorial Tools

The BSEOIMA (“Bessie” as Kit Johnson has termed the mammoth bill) equips the federal government with a host of additional methods of penalizing noncitizens in the civil immigration system as well as through the criminal justice process. To begin with the civil immigration laws, the bill would add a ground of inadmissibility and another of deportability for conviction of an offense “for which an element was active participation in a criminal street gang.” Sec. 3701(a), (b). It goes on to define “active participation” as knowledge about the gang’s activities. For RPIS purposes, a waiver would be available if the individual has renounced affiliation with the gang and is otherwise admissible.

It would add similar inadmissibility and deportability provisions for three or more convictions for drunk driving offenses so long as one or more happens after enactment of the BSEOIMA. Sec. 3702.

The aggravated felony definition of sexual abuse of a minor would also be amended to clarify that an offense constitutes sexual abuse of a minor “whether or not the minority of the victim is established by evidence contained in the record of conviction or by credible evidence extrinsic to the record of conviction.” Sec. 3703.

On the criminal side, it increases the maximum possible term of imprisonment for illegal entry, the federal misdemeanor, from the current 6 months to 12 months. Sec. 3704(a). If the illegal entry occurs following a voluntary departure order, the maximum term of imprisonment rises to 3 years. Sec. 3704(a). Individuals with longer criminal history could see up to 10 years imprisonment. Sec. 3704(a).

The illegal reentry provision doesn’t change the maximum penalties, but it does alter the triggering device. Instead of asking whether the unauthorized entry occurred after conviction for an aggravated felony, as INA § 276(b)(2) currently does, the new statute would query whether the person was convicted of one or more felonies (not aggravated felonies) and specified terms of imprisonment were served. Sec. 3705. The bill would add an affirmative defense for offenses committed before turning 18 years old.

The bill’s section regarding illegal reentry (though not the illegal entry provision) explains that a felony is “any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government,” and a misdemeanor is any such offense punishable by up to 1 year imprisonment. Sec. 3705.

Cause for concern is a provision that requires that any information disclosed to the government in an application for RPIS “shall” be turned over to law enforcement agencies, courts, or grand juries in connection with “a criminal investigation or prosecution of any matter not related to the applicant’s immigration status.” Sec. 2104(a). This would potentially expose unauthorized individuals investigated or prosecuted for most crimes, including minor offenses, to prolonged jail time in locales that deny bail to people who lack permission to be in the United States or allow judges to increase bail amounts based on that fact.

Altering the Detention Emphasis

Importantly, the bill decreases one feature of immigration policing that’s been at the center of DHS’s strategy during the Obama Administration and latter years of the Bush Administration: detention. The BSEOIMA seems to shift the presumption away from detention. First, it specifies that, except for individuals who an IJ determines are subject to mandatory detention under INA § 236(c), an IJ “may detain the alien only if the Secretary demonstrates that no conditions, including the use of alternatives to detention that maintain custody over the alien, will reasonably assure the appearance of the alien as required and the safety of any other person and the community.” Sec. 3717(a). IJs “may review” custody decisions pertaining to individuals subject to mandatory detention “if the Secretary agrees the alien is not a danger to the community and alternatives to detention exist that assure the appearance of the alien” and any public safety risk is mitigated. Sec. 3717(a). All custody determinations shall be reviewed de novo every 90 days while the person remains in custody.

It would also authorize DHS to expand its alternatives to detention programs, including by contracting with community-based non-governmental organizations “to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs.” Sec. 3715. Risk assessments for participation in ATD would be individualized and reviewed monthly. Importantly, enrollment in ATD would constitute “custody” for purposes of INA § 236, including the “mandatory detention” provision of INA § 236(c). Sec. 3715(d). If release is not appropriate, then the bill calls for placement in a custodial setting that “serve[s] as detention, including the use of electronic ankle devices.” Sec. 3715(d). Also, “[s]ecure alternatives shall not be used when release on bail or recognizance is determined to be a sufficient measure to ensure appearances at immigration proceedings and public safety.” Sec. 3715(c).

The proposal would require annual inspections of all detention facilities, including privately owned or operated sites. Sec. 3716(c). Contracts and reviews of detention facilities would be subject to disclosure under the Freedom of Information Act (FOIA), though, of course, there are plenty of exceptions embedded in FOIA that could prevent disclosure. Sec. 3716(c)(3). Failure to comply with DHS standards could subject the facility to financial penalties or termination of the contract.

Improving Immigration Courts

On a positive note, the bill would provide much needed funding for immigration courts. It would add 75 immigration judges in each of the 2014-2016 fiscal years. Sec. 3501(a). It would also require the Attorney General “ensure” that each IJ has “the equivalent of 1 staff attorney or law clerk and 1 legal assistant.” Sec. 3501(b). This additional staff would be tasked with ensuring that all decisions on whether someone in removal proceedings will remain in custody occur no later than 7 business days after the person was taken into custody except at the detainee’s request. Sec. 3717(a).

BIA staff attorneys would increase by 30 in fiscal years 2014-2016. Sec. 3501(c). It would also modernize the recording system currently used in immigration courts (shifting from cassette tapes to digital recordings), and require the EOIR to explore improvements to the transcription and interpreter selection methods. Sec. 3506(c).

IJs would also receive discretionary authorization to appoint counsel in any removal proceeding. Sec. 3502(a). Appointment of counsel would be required for unaccompanied minors, individuals deemed mentally incompetent to represent themselves, or otherwise “particularly vulnerable when compared to other aliens in removal proceedings.” Sec. 3502(c).

The well-regarded “legal orientation programs” that provide detainees with information about immigration law and process would be expanded. Sec. 3503(b). DHS would be required to ensure that LOPs are available for every detained person “within five days of arrival into custody.” Sec. 3503(c).

For the first time since its creation, the BIA would be codified in the INA. Sec. 3504(a). Also, noncitizens could appeal an IJ’s decision to a 3-judge panel of the BIA. Sec. 3504(c)(3).

Crime-based Ineligibility

The last of the bill’s myriad provisions that I’ll note are the many bars to eligibility for the provisional immigrant status that the bill would create, “Registered Provisional Immigrant Status.” Otherwise eligible individuals could not receive this status if they have been convicted of

  • an aggravated felony as that term is defined when the person was convicted,
  • convicted of a felony (other than one “for which an essential element was the alien’s immigration status or a violation of this Act”),
  • convicted of a three or more misdemeanors (except “minor traffic offenses or…offenses for which an essential element was the alien’s immigration status or a violation of this Act”) on different dates,
  • convicted of an offense under foreign law which makes the person inadmissible under INA § 212(a) (except the public charge provision of INA § 212(a)(4), the documentation requirements of § 212(a)(7), and the 3 and 10-year bars of § 212(a)(9)(B)) or deportable under INA § 237(a) (except the document fraud and false claim to citizenship provisions of § 237(a)(3)),
  • or voted unlawfully.

Sec. 2101(a). Individuals would also be ineligible if they are inadmissible to the United States on the basis of a crime-related ground. DHS would be granted authorization to waive most grounds of inadmissibility, but not those related to criminal activity. Sec. 2101(a).

On the flip side, individuals who have been removed may reapply for admission if they have a qualifying relative in the United States (United States citizen or LPR child or spouse) so long as they were not removed for a crime-based reason. Also, the proposal explains that, for purposes of RPIS eligibility, “conviction” “does not include a judgment that has been expunged, set aside, or the equivalent.” Sec. 2101(a). This would narrow the definition of conviction that’s currently in the INA, at least for RPIS purposes.

Update: The BSEOIMA has been numbered Senate Bill 744. Detailed information about amendments and the bill’s path through Congress is available through the Library of Congress’s Thomas web site.


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  2. Linus says

    It seems that under the Registered provisional ineligibility requirements under (3)(A) has different definition of conviction than the traditional 101(a)(48) provision, the definition of conviction for RPI seem to exclude expunged, or “set aside’ convictions. the RPI definition is limited to RPIs but I wonder if this change in definition may be something extended to all criminal convictions in the near future. unfortunately I looked at the entire bill and didn’t see any revisions to the definition of conviction generally and nothing directed towards 101(a)(48) though perhaps this statutory language could be used to challenge Matter of Roldan and Matter of Pickering.

  3. Cesar says

    Linus, My reading of it is that this definition applies only to the RPI status; not to the 101(a)(48) definition. Like everything else, as you say, that might change so we have to wait and see.

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