Still in President Biden’s first month in the White House, this week congressional Democrats released a massive immigration reform proposal that has the president’s support. Led by Representative Linda Sánchez and Senator Robert Menéndez, Democrats unveiled the 350-page U.S. Citizenship Act on Thursday.
While it’s legalization provisions have been covered in-depth by others, here I’ll identify several key features that turn on criminal activity or policing, including the creation of an immigration public defender system, crime-based obstacles to the legalization provisions, and a reforms of the Department of Homeland Security’s detention practices.
The proposal’s major promise is to create a path for roughly 11 million people who are already in the United States to legalize their immigration status. Under § 1106 of the proposed legislation, however, legalization would be off-limits for many people due to past involvement with criminal activity. As written, the proposal would not benefit people who have been convicted of a felony (excluding migration-related offenses) or 3 or more misdemeanors (excluding marijuana possession or any state marijuana crime that is no longer a crime in that state, migration-related offenses, non-violent civil disobedience, and minor traffic offenses).
This section would also not benefit people who have been convicted or committed an offense that makes the person inadmissible under much of existing immigration law. This includes people who have committed or been convicted of most drug offenses, a crime involving moral turpitude (itself a nebulous concept), prostitution, and people who renounced their U.S. citizenship to avoid taxation.
This section focuses on the definition of “conviction” used in immigration law. This is easy to overlook because it’s so specific and highly technical, but it’s a significant proposed change. Basically, the proposal narrows the “conviction” definition by requiring a “formal judgment of guilt.” Any outcome of the criminal legal process that ends without a formal judgment of guilt won’t qualify as a conviction. Most importantly, alternative dispositions will no longer be considered convictions for immigration law purposes. As I write in my first book, Crimmigration Law, published in 2015 but which I’m currently updating, “BIA case law that governed immigration law’s understanding of the term ‘conviction’ prior to 1996 held that deferred adjudication processes did not end in a conviction.” In effect, § 1202 would return to the pre-1996 norm.
This section also clarifies that cases being appealed aren’t convictions. Term of imprisonment only includes “period of incarceration ordered by a court,” deleting language in current INA that ignores suspension of sentence. Again from Crimmigration Law: “it has long been thought that for a conviction to result in adverse immigration consequences, it must have become final….[But recently] The BIA cast some doubt on that position and some circuits have followed its lead at least toward deferred adjudication.”
Revives a power that state and federal judges had for many years called the judicial recommendation against deportation (often referred to as JRAD). It used to do exactly what it sounds like except that it was really an order not to use a crime for deportation purposes rather than merely a recommendation. Now called “judicial recommendation against removal,” the proposal would give this power to any sentencing court. It doesn’t specify whether it should be read like the JRAD to be more of an order than a recommendation.
Here the proposal would expand the petty-offense exception to inadmissibility on the basis of a CIMT or controlled substances offense. If enacted, § 1203 would exempt from inadmissibility someone who has “committed not more than 2 crimes” instead of only 1 crime. It leaves the rest of the current petty-offense exemption untouched (a possible maximum penalty of 1 year imprisonment and, if convicted, was sentenced to no more than 180 days imprisonment.
This section expands waiver options across the board by allowing DHS or DOJ to waive “any 1 or more grounds of inadmissibility” (except the espionage/terrorist basis) for humanitarian purposes, family unity, or “in the public interest.” The proposal includes factors to consider, including the extent to which removal “would adversely affect the noncitizen.” This is significant because most waivers currently don’t allow consideration of removal on the person requesting the waiver.
§ 1204 would create a similar waiver for grounds of deportability, only the waiver of deportation would not help people convicted of murder, rape, or sexual abuse of a minor offenses, all of which are defined as aggravated felonies. People convicted of other aggravated felonies would be eligible for the waiver.
In Title II, the proposal turns to border policing. Section 2302 explicitly targets the border between the United States and México by requiring DHS to “manage and secure the southern border” using “smart technology.” The proposal doesn’t identify what constitutes “smart technology, but it does require that, as part of this smart technology network, DHS perform a “privacy evaluation” and identify “performance measures” for all tools.
The “smart technology” requirement has the ring of DHS’s failed SBInet, an effort “to manage, control, and secure the borders using a mix of proven, current, and future technology, infrastructure, personnel, response capability, and processes,” as the DHS Inspector General put it in 2006. Boeing received a massive contract to develop the SBInet under the George W. Bush administration. In 2011, DHS pulled the plug after Janet Napolitano, Secretary of Homeland Security at the time, concluded that the initiative “cannot meet its original objective.” The U.S. Citizenship Act offers no hint at how things will turn out differently this time around.
Focusing somewhat more squarely on the border wall, § 2305 requires the Comptroller General (not DHS or CBP) to study how “the environment, Indian lands, and border communities” have been impacted by waiver of environmental and other laws to build the border barrier and adjoining roads. Importantly, this is limited to study and nothing more. This is not, however, a repeal of the broad authority DHS possesses to waive a vast number of legal requirements for border policing goals.
Implicitly continuing its focus on the border, § 2308 requires DHS to “issue policies governing the use of force.” This will apply to all DHS units, but I say that it implicitly focuses on the border because this section would include CBP, an agency that for many years resisted adopting use of force guidelines commonly used by other law enforcement agencies. In addition, the proposal would require public disclosure of use-of-force incidents resulting in serious injury to a DHS officer or member of the public. The agency already publishes data on the number of use-of-force incidents (e.g., 415 in FY 2020 and 487 in FY 2019), but § 2308 would require additional information disclosure.
This section requires DHS to issue guidelines for “basic minimum standards of care” for people in CBP custody, which includes people held by the Border Patrol. It requires access to “appropriate” medical care, clothing, and “quiet, dimly illuminated sleeping quarters if he or she is detained overnight.” This would spell a dramatic improvement of detention conditions inside Border Patrol holding facilities which are notoriously cold and where migrants often sleep on the floor. Of course, improved conditions means that people would continue being housed inside those facilities.
In a similar vein, § 2402 requires guidelines for “treatment of children” in CBP custody. Importantly, these newly required guidelines must center on “the best interest of the child,” a common standard used in a variety of legal matters affecting kids but which is currently absent from immigration law. There’s a sense of having it both ways here. On the one hand, the proposal would continue allowing CBP to detain kids. On the other hand, it would bring the treatment of kids a bit more in line with U.S. legal standards toward children. The obvious clash is that it’s never in the best interest of a child to be detained. Indeed, the United Nations, American Academy of Pediatrics, and others suggest as much.
This section also bans the “removal of a child from a parent or legal guardian for the purpose of deterring individuals” from coming to the United States. This seems to be a direct response to the Trump administration’s family-separation practice.
Finally, § 2402 would require “reasonable arrangements for unannounced visits and inspections” by governmental and nongovernmental actors. This is a potentially impactful requirement because NGOs have almost no access to CBP facilities at the moment. That’s true of DHS facilities generally, but § 2402 only touches CBP. Still, allowing for unannounced visits would help bring to the public conditions and activities inside these facilities.
In Title IV, the proposed legislation turns to operation of the nation’s immigration enforcement and adjudication systems. Section 4101 begins by requiring expanded use of the “family case management program,” which is available to migrants who arrive in the United States in family units. The family case management program isn’t new, but it has never received much commitment from DHS. According to the DHS Inspector General, the family case management program operational in March 2017 had “overall compliance…[of] an average of 99 percent for ICE check-ins and appointments, as well as 100 percent attendance at court hearings. Since the inception of FCMP, 23 out of 954 participants (2 percent) were reported as absconders.” Despite this success, the Trump administration ended the program.
Section 4101 also requires creation of new “community-based” alternatives to detention. Interestingly, it instructs DHS to “contract with qualified nonprofit entities” for these ATD operations. This instruction is narrow in scope, but meaningful in practice. Before the Trump administration ended it, ICE contracted with a subsidiary of the GEO Group called GEO Care to run the program. According to the department’s inspector general, the respected nonprofit group Lutheran Immigration and Refugee Services had submitted a proposal deemed “excellent”—better than GEO Care’s “good” rating—but had been priced more expensively. Section 4101’s language would seemingly eliminate GEO Group from continuing to benefit from its existing ATD contract. It would, however, allow other troubled organizations to benefit, most obviously Southwest Key which has extensive experience operating facilities for migrant youth on behalf of the Department of Health and Human Service’s Office of Refugee Resettlement.
Separately, § 4305 requires DHS to establish ATDs “which shall offer a continuum of supervision mechanisms and options, including community-based supervision programs and community support.” This provision adds that DHS “may contract with nongovernmental community-based organizations” to provide these services. The discretionary language of § 4305 seems at odds with the mandatory language of § 4101.
Beginning with § 4102, multiple provisions of the proposed legislation target immigration court operations. This section would require the Justice Department hire at least 55 new immigration judges annually from fiscal year 2021 to 2024. It would also require the department to “strive” for parity in hiring IJs and BIA members “with Government experience in immigration and candidates…in the private sector, including nonprofit, private bar, or academic experience.” This is meaningful because most immigration defense attorneys work in private practice, but it’s a flexibly worded goal that can easily be ignored.
In addition, it requires the Justice Department to hire at least 23 staff attorneys annually for the Board of Immigration Appeals, the nation’s highest administrative appellate body, in FY 2021, 2022, and 2023.
Though these resource improvements are sure to please the National Association of Immigration Judges, the immigration judges’ union, there is no effort to remove the immigration courts from the Justice Department and turn them into an Article I court or independent agency, as the National Association of Immigration Judges, the Federal Bar Association, and others seek.
Among other things, § 4101 requires the Executive Office for Immigration Review, the formal name of the agency that houses the immigration courts and Board of Immigration Appeals, to allow electronic filing. Seemingly minor, electronic filing is the norm in most court systems, including the federal courts. To date, the immigration courts continue to rely heavily on paper filings. Incorporating electronic filing in immigration courts would get them to a technological level that many other court systems in the United States reached years ago. Better late than never.
In an attempt to boost the quality of justice meted out by immigration agencies, § 4105 would expand the Justice Department-funded legal orientation program run by NGOs to ensure these “are available for all noncitizens detained” by DHS. Started in 2003, the LOP initiative was close to shutting down in 2018 while Attorney General Jeff Sessions headed the Justice Department. During his tenure, the Justice Department announced that the LOP would be suspended only to reverse course a few weeks later.
As written, § 4105 seems to include people detained by CBP. Currently LOPs don’t operate in Border Patrol facilities. Indeed, few lawyers ever walk into Border Patrol holding facilities. Combined with the unannounced visits required by § 2402, the proposed legislation as a whole would bring desperately needed oversight to the Border Patrol.
A separate provision that appears in § 4106 would require DHS to “ensure that noncitizens have access to counsel inside all immigration detention and border facilities,” suggesting that the proposal is intended to treat Border Patrol and ICE facilities similarly.
After the legalization provisions that have made headlines, here is the game-changer tucked into the proposal: the creation of government-funded immigration defense fund. This isn’t quite a traditional public defender system, because most (but not all) public defender systems are governmental entities. But the effect is not all that different. It would ensure that all people facing the possibility of removal are afforded counsel.
Section 4106 removes language from the Immigration and Nationality Act that bars the government from funding legal representation. It would replace that with language that allows the Justice Department to “appoint or provide counsel, at Government expense, to noncitizens in immigration proceedings.”
This would be a huge boost to due process. “To courts, a stacked deck in legal hearings is an acceptable feature of due process. To me, this is a stain on the legitimacy of immigration law. As a lawyer, I know that a client’s path to life in the United States is often found deep in the nuances of federal laws,” I wrote in September. It would also likely transform immigration courts dramatically. In fiscal year 2019, 77 percent of people whose immigration court cases came to completion had no legal representation.
Separately, § 4106 requires that immigration judges appoint counsel “at the expense of the Government” for anyone facing removal who is “financially unable to obtain adequate representation.” This includes, but appears not to be limited to, a child; person with a disability; survivor of abuse, torture, or violence; pregnant or lactating woman; or the parent of a U.S. citizen minor.
To pay for government-appointed lawyers, the proposal would add a $25 surcharge to any fee required by immigration law.
In addition, § 4106 also would create a disclosure requirement in removal proceedings that would improve efficiency and fairness by requiring DHS to share documents in the government’s possession with people facing removal (and their lawyers). In effect, this would allow attorneys to see the documents that the government is using against their migrant clients, putting them on a more equal playing field. A similar practice is constitutionally required in criminal proceedings, but that’s not the case in immigration proceedings. Currently, the only way to get these documents is to file one or more FOIA requests. Doing it this way is inefficient because it requires asking a centralized FOIA office to disclose documents that are sitting on the desk in front of the DHS prosecutor. FOIA requests for immigration matters make up about half of all FOIA requests submitted to the entire federal government so this would free up a lot of resources to let FOIA do what it was intended to do—promote democratic oversight—rather than to act as an inefficient discovery tool in immigration court.
This section increases the number of U visas, which are available to some crime victims, to 30,000 per year from the current cap of 10,000. In turn, § 4304 would expand employment authorization available to U visa applicants and bar ICE from deporting these individuals.