Removing Criminal Aliens and Protecting Public SAFEty

By W.D. Reasoner, August 5, 2013

There are major differences between the immigration bill passed a few weeks ago in the Senate and the SAFE Act, the immigration bill pending in the House of Representatives, especially in the approach taken toward aliens who, in addition to being in the United States illegally, commit criminal offenses.

The Senate bill goes out of its way to forgive a multiplicity of criminal and immigration offenses solely to ensure that illegal aliens will be eligible for amnesty and a "path to citizenship". Why we would want such individuals — who have proven their willingness and ability to flout our laws at every level — to legally remain is something I don't comprehend.

The House's SAFE Act bill takes a radically different approach, by recognizing that interior immigration enforcement is critical to regaining control of our borders, and a critical part of interior enforcement is apprehending and removing alien criminals. Title III ("Removal of Criminal Aliens") undertakes a number of legislative reforms to ensure the government is more effective in this effort. The fact that these reforms are necessary is a troubling indication of just how loose and how easily breached our system is in its current state, even by criminals and other miscreants who most observers would agree should be a clear case for inadmissibility or removal. It's impossible to provide all the details of Title III in a blog, but here are several:

  • Section 301: The definition of "aggravated felony" has been clarified. (This is important because under the immigration laws, aggravated felons are subject to expeditious removal and are barred from almost all forms of waivers and relief). The amendments —

    • Specify that sentencing enhancements may be used to determine whether an alien is an aggravated felon for immigration removal purposes;

    • Expand sexual exploitation crimes to include date rape situations, and additional offenses against minors; and

    • Add "aiding, abetting, counseling, procuring, commanding, inducing, or soliciting" to "attempting or conspiring" to commit the offenses themselves.

    The section also amends "conviction" to preclude, in many instances, subsequent actions to reverse, vacate, or expunge convictions, or modify sentences or the like, from adversely affecting the government's ability to remove the alien. And it permits federal authorities to consider evidence in addition to court conviction documents when needed to ascertain whether the crime and sentence imposed constitute an aggravated felony.

  • Section 302: Expands the grounds of inadmissibility and removability to aliens who —

    • Are convicted of Social Security fraud and identity theft crimes;

    • Illegally procure, or attempt to procure, U.S. citizenship (e.g. through fraud or misrepresentation) in violation of the federal criminal code;

    • Are convicted of or admit committing federal firearms offenses;

    • Are convicted of aggravated felonies; or

    • Are convicted of or admit committing domestic violence, stalking, or child abuse offenses, including violation of protective orders. (This provision also permits federal authorities to consider evidence such as police reports, in addition to court conviction documents, when necessary to determine the nature of the crime.)

  • Section 303: Modifies the grounds of inadmissibility relating to espionage to include additional crimes such as theft or unlawful export of sensitive goods, technology, or information, as well as acts aimed at overthrowing or controlling the government of the United States by force or illegal means.

  • Section 304: Closes loopholes in the federal criminal code relating to firearms by criminalizing the sale and possession of weapons to all but a limited class of aliens (e.g. lawful permanent residents).

  • Section 305: Standardizes the statute of limitations to 10 years for immigration- and citizenship-related criminal offenses.

  • Section 306: Amends federal racketeering statutes to include passport, citizenship, and visa fraud and counterfeiting crimes as predicate offenses.

  • Section 307: Amends the definition of "aggravated felony" to include passport, citizenship, and visa fraud and counterfeiting crimes.

  • Section 308: Precludes refugees or asylees who are convicted of aggravated felonies from obtaining waivers and adjusting status to become resident aliens.

  • Section 309: Makes recidivist alien drunk drivers inadmissible and removable from the United States upon a second conviction, whether for a misdemeanor or felony.

  • Section 310: Alters immigration law to —

    • Permit the government to retain custody of dangerous criminal aliens while attempting to expel them from the United States;

    • Clarify the timeframe the government is authorized to detain aliens after an order of removal but prior to expulsion;

    • Suspend that timeframe if an alien obstructs or refuses to assist the government in obtaining documents needed for removal;

    • Establish a review process for determining release conditions of cooperative aliens when removal within the authorized detention period is not possible; and

    • Authorize the DHS Secretary to maintain custody of certain aliens, without regard to timeframes, if they have a contagious disease; their release would adversely affect U.S. foreign policy; or release would threaten national security or public safety — although periodic reviews are required to determine if/when circumstances change.

  • Section 311: Creates an entirely new provision of law by —

    • Authorizing designation of "criminal gangs" (analogous to designating terrorist organizations under the immigration laws);

    • Defining predicate offenses needed for designation of a "criminal gang" (such as narcotics trafficking, crimes of violence, etc.);

    • Rendering aliens who are associates of criminal gangs inadmissible and deportable from the United States;

    • Requiring mandatory detention of such aliens during removal proceedings; and

    • Precluding claimed membership in a gang as a basis on which adjudicators may grant asylum or temporary protected status. (Yes, folks, it has come to that. Some gangbangers have claimed that having been part of a gang is membership in a "protected group" since they are subject to persecution by the government authorities and other gangs in their country — and gotten asylum in the United States on that basis — see case ES.010 on the U.S. Committee for Refugees and Immigrants website.

  • Section 312: Amends the identity theft statute by criminalizing use of documents by a person that are "not his or her own" rather than "of another person".

  • Section 313: Amends money laundering statutes to include peonage, slavery, involuntary servitude, forced labor, and alien smuggling and harboring as predicate offenses.

  • Section 314: Expands the alien smuggling and harboring statute by —

    • Enhancing penalties;

    • Clarifying standards for seizures; and

    • Criminalizing the use of firearms in the commission of such offenses.

  • Section 315: Enhances penalties for illegal entry into the United States and, importantly, closes the "I said nothing" defense for aliens who cross the border at a port of entry, but allege that either the inspector did not question them or that they simply remained silent about their alienage and are therefore not guilty of illegal entry since they crossed at a designated point.

  • Section 316: Amends the reentry-into-the-U.S.-after-deportation statute by restructuring and enhancing penalties and adding a new recidivist provision for aliens who illegally reenter after having been "denied admission, excluded, deported, or removed three or more times."

  • Section 317: Reforms Chapter 75 of the federal criminal code 18 U.S.C. 1541 – 1549, relating to fraud and misuse of passports, visas, and immigration and citizenship documents through —

    • Revised definitions;

    • Enhanced penalties (especially for violations used to further other offenses such as terrorism or narcotics trafficking); and

    • Refinements in the language outlining what constitutes violations of these important statutes.

  • Section 318: Renders forfeitable, any property that was used in commission of, or constitutes the fruits of, the crimes defined in Chapter 75 of the criminal code discussed above.

  • Section 319: Expands expedited removal procedures to include aliens who are inadmissible on certain criminal and national security grounds.

  • Section 320: Makes inadmissible and deportable any convicted sex offender who has failed to register as required by law.

  • Section 321: Prohibits convicted sex offenders from petitioning to bring spouses, fiances, or others to the United States unless the DHS Secretary finds that the would-be petitioner "poses no risk to the alien".

  • Section 322: Clarifies that when determining whether an offense is a crime of moral turpitude or violence that would render an alien inadmissible or deportable, federal authorities may consider evidence such as police reports, in addition to court conviction documents, when necessary.

  • Section 323: Criminalizes conduct by aliens who impede efforts to remove them for being inadmissible. Current law only criminalizes such conduct when the alien is deportable.

  • Section 324: Defines "pardon" in a manner to void, for immigration purposes, any such action granted for the purpose, in whole or in part, of permitting an alien to avoid removal.

That's pretty much a thumbnail sketch of the provisions contained in Title III of the SAFE Act.

What I particularly like about the cumulative approach it reflects is that it considers crimes from the points of view ignored by the Senate bill: that of the victims and that of society. How refreshing! Given my druthers, I'd rename Title III "Ensuring Victims' Rights and Protecting the Public Safety".