Immigration Reform: What Stand Is The Right Stand?

In many states, today is César Chávez Day. And, today, the U.S. Senate is supposed to start debate on the controversal immigration bill, HR 4437 .

Matt over at Just Another Blog has written a nice piece on the battle over HR 4437, billed as a joint resolution on border protection and immigration issues.

In an earlier Link Dump, we noted that Texas Sen. John Cornyn is presently in a quandry over what to do concerning the legislation.

Today, after realizing why it isn’t appropriate to be silent on such an importnt issue, here are my thoughts on HR 4437.

HR 4437 is a harsh and far-reaching piece of legislation.

It makes unlawful presence in the U.S. a federal felony and has provisions that the Immigrant Legal Resource Center says may be interpreted to criminalize basic humanitarian work or casual assistance to any undocumented person.

So, what stand is the “right” stand on HR 4437? For Democrats, and for Americans, there is only one stand: Against HR 4437.

It’s Un-American legislation in a country founded by immigrants. Living in a state that touts its diversity and melting-pot of immigrants who came here in the 1880s: Germans, Polish, Czech, Norwegian, etc.—supporting HD 4437 just seems hypocritial.

Here are some excerpts from an analysis of the legislation by the Immigrant Legal Resource Center. I’ve selected the sections I believe are the worst parts of the legislation:

* HR 4437 criminalizes organizations and individuals assisting undocumented immigrants

HR 4437 greatly expands the definition of “alien smuggling” to include assisting a person to remain or attempt to remain in the United States when the “offender” knows the person is in the United States unlawfully – thereby treating social services organizations, refugee agencies, churches, legal services and others the same as smuggling organizations and imposing criminal penalties for providing such assistance. Even family members and charitable workers could face federal prison time for assisting undocumented immigrants.

* HR 4437 criminalizes undocumented immigration status

Under current law, presence in the United States without valid status is a civil violation, not a criminal act. HR 4437 would create a new federal crime of “unlawful presence” and would define immigration violations so broadly as to effectively include every violation, however minor, technical or unintentional, as a federal crime. In addition to permanently barring the entire undocumented population – including 1.6 million children – from the United States, this would also lead to the tragic separation of families as undocumented members of mixed-status families would never be able to secure lawful immigration status in the United States.

* HR 4437 grants state and local law enforcement agencies “inherent authority” to enforce immigration laws

HR 4437 would grant law enforcement agencies the authority to investigate, identify, apprehend, arrest, detain and transfer to Federal custody immigrants they find in the United States. When police act as immigration enforcement agents, it undermines their ability to keep communities safe because immigrants and their family members will be scared to report crimes, fires, and suspicious activity out of fear of exposing themselves, families or neighbors to police. Inevitably, crimes will be left unsolved and the safety of entire communities will be compromised.

* HR 4437 furthers the erosion of due process

Our immigration laws provide that some individuals in removal proceedings can be granted voluntary departure – essentially leaving the United States on their own, with their own money – at the conclusion of the immigration hearing process. This is an important alternative to receiving a removal order because it allows an immigrant to reenter the United States lawfully in the future, despite having been in removal proceedings in the past. It is only granted to individuals with good moral character at the discretion of an immigration judge. Under HR 4377, noncitizens would be required to waive all rights to any further motion, appeals or petition for review related to removal or protection from removal in order to be granted voluntary departure, essentially barring them from a list with their family in the United States

Currently, various circuit courts have ruled that immigration officials may be prohibited from simply removing an individual from the United States without a hearing, based on the reinstatement of a prior removal order. HR 4437 purges this appellate court precedent. As a result, if passed, HR 4437 would strip the rights of immigrants with prior removal orders to any sort of hearing before being removed again.

HR 4437 would also eliminate the ability of any person who wishes to enter the United States on a nonimmigrant visa (such as a tourist visa, a student visa, etc.) to have a hearing before an immigration judge in the event that he or she is later charged with an immigration violation. This is because HR 4437 would prohibit the issuance of a nonimmigrant visa unless the applicant first waives his or her right to any review or appeal of an immigration officer’s decision.

* HR 4437 expands the costly detention of immigrants

HR 4437 would require the Department of Homeland Security to detain all noncitizens apprehended along the border until they are removed from the United Statues – thus filling up already overcrowded and tremendously costly facilities as detainees wait for final decisions on their cases. To address the overcrowding issue, HR 4437 authorizes an increase in DHS detention capacity by contracting with state and local jails – thus further criminalizing immigrants by placing them in criminal facilities.

* HR 4437 guts the federal courts’ authority to review immigration matters

HR 4437 would prevent courts from reviewing any application for naturalization denied because of a discretionary determination of ineligibility based upon “any relevant information or evidence.” This gives the immigration agency practically unfettered authority to deny naturalization applications with no judicial review.

HR 4437 also completely eliminates judicial review where noncitizens visas are revoked and is a specific attempt to remove courts’ ability to review consular decisions.

For the few remaining immigration cases that could be reviewed by an appellate court, HR 4437 implements an unprecedented system whereby no appellate court review is available unless a single judge certifies that the petitioner has “made a substantial showing that the petition for review is likely to be granted.” The decision of the single judge to deny certification for review would be not be open to appeal or review of any kind.

* HR 4437 turns many minor crimes into aggravated felonies, which carry the worst possible immigration consequences

Because aggravated felonies are supposed to be reserved for the worst and most violent of crimes such as murder and rape, they carry the most serious immigration consequences. HR 4437 would make makes minor offenses aggravated felonies, with same concomitant consequences. As a result, misdemeanor drunk driving offenses, mere presence in the United States without documentation, assisting an undocumented immigrant to reside in the United States, and minor accessory roles in the criminal conduct of others would all qualify as aggravated felonies. Most of these changes would be retroactive, meaning that someone who committed an offense 20 years ago that was not a deportable offense then could be charged with an aggravated felony now. By making these offenses aggravated felonies, HR 4437 seeks to treat those who commit nonviolent, negligent acts or omissions the same as those who have acted with criminal intent to injure. Regardless of whether it is a major or minor crime, the mere characterization as an aggravated felony will trigger the same immigration consequences – mandatory deportation, mandatory detention, disqualification for almost all immigration benefits, permanent banishment from the United States without hope of lawful return, and the inability to present any equities to immigration judges regardless of how long the immigrant has been in the United States and how many ties he or she has here. Those at risk include permanent residents who have lived here lawfully for decades. In addition, because the noncitizen population in the United States is so large and many American families include both immigrants and citizens, these deportations will break up U.S. citizen families without any possibility of reunification.

* HR 4437 eliminates key safeguards concerning evidence used to prove that an immigrant is deportable for an aggravated felony

Since 1990, the United States Supreme Court has established guidelines, called the “modified categorical analysis,” for how a court can characterize a prior conviction. While this may sound technical, the categorical analysis is a vital safeguard that protects immigrants from wrongful deportation. It ensures that immigration judges consider only the most reliable information and documents from a prior conviction – and not from facts that were not established at the original criminal trial – to identify the offense for which the person was actually convicted. HR 4437 seeks to eliminate these guidelines for those accused of being aggravated felons in immigration proceedings. This means that immigrants could be deported for a conviction of an offense that is not actually an aggravated felony, simply because the offense is listed in the same state criminal statute that also includes an aggravated felony. Eliminating the categorical analysis is a radical violation of basic fairness that seeks to overturn years of established judicial precedent.

* HR 4437 reverses the burden of proof

Historically, the burden has been on the government to prove deportation, because the hardship of deportation is so great. Analogous to the criminal “innocent until proven guilty” standard, the longstanding rule has provided that the government may not simply arrest a long-time permanent resident, allege that she is deportable, and force her to prove that she is not. HR 4437 reverses this burden of proof for those charged with aggravated felonies. This would be an extreme blow to deeply-rooted and longstanding notions of fairness. The result in practice is that once the government decides to charge the person, the low-income, unrepresented, detained immigrant will be required to obtain the public records and to produce the extremely complex legal arguments required to disprove the government’s assertion. If the person cannot meet this nearly impossible burden, he or she will face mandatory detention, deportation, and permanent exclusion and separation from family and friends in the United States.

* HR 4437 undermines state court decisions regarding the reversal or vacation of convictions in immigration proceedings

HR 4437 would allow immigration authorities to ignore certain reversals and vacations of criminal convictions by state courts, such as the failure to advise the immigrant of the immigration consequences of the guilty plea. This provision will seriously undermine the concept of “full faith and credit” due to state courts. This is particularly so, in states like California, where the state Supreme Court and other lowers courts have ruled that the failure to advise and defend of the immigration consequences and giving affirmative misadvice as to the immigration consequences constitute ineffective assistance of counsel, meriting vacation of the conviction.

* HR 4437 imposes mandatory minimum sentences for many offenses

HR 4437 adds dozens of new mandatory minimum penalties to current law. It imposes the same sentences upon persons who aid or assist certain immigrants to enter the United States as the immigrants themselves would receive. The bill would also impose one to 10 year mandatory minimum penalties for those who reenter the United States after deportation. These mandatory minimum sentences punish arbitrarily and strip judges from the discretion to make the punishment fit the crime, while also increasing the cost of incarceration to American taxpayers.

As a descendant of immigrants, I have some difficulty believing that these measures are that necessary or that appropriate. On my mother’s side, my family is made up of Polish and Czech immigrants who came to Texas’ Hill Country in the 1880s and 1890s. My grandmother, a Kaminski from Chappell Hill and Granger, Texas, was part of only the second generation of her family to be born on Texas soil when she was born in 1912. The man she married, a Pekar from Granger, was the son of a Czech immigrant and part of the first generation of his family to be born in Texas.

The status of being part of an immigrant family is not likely too far in the past for many of us. Yet, look at the opportunities our families have had and how far we have come.

Does not another generation deserve the same opportunity, or, at least, a fair shake at the same opportunity? At the bare minimum, should the civil liberties of immigrants be trampled upon so? I think not.

Immigrants are almost by definition treated badly when they arrive in this country, either by individuals, by groups or by the government. Is it now appropriate to institutionalize this bad treatment and make it the law of the land? No. There are more reasonable ways to handle immigration issues.

For one, how about a bill drafted by Sens. McCain and Kennedy that would allow illegal immigrants to become eligible for permanent residency after working for six years. There is nothing wrong with that legislation and, to my knowledge, it doesn’t have some of the awful language in the resolution being debated today.

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