Hidden within President Biden's amnesty bill is a "sleeper" provision that grants amnesty to criminal aliens — or at least makes them eligible to seek it. The fact is, the difference is not that great, as I will explain. You could call it the "Drug Trafficker, Pimp, and Rapist Relief Act" (and include murderers, child sex offenders, and those who convicted of slavery, too).
You have to get down to section 1204, at p. 73, to find the provision, euphemistically named "Restoring Fairness to Adjudications". Sounds reasonable. Until you read it.
That section would add new waivers to sections 212(c) and 237(a)(8) of the Immigration and Nationality Act (INA). Let me give you some history to better explain how breathtakingly lenient those provisions are.
History of Section 212(c) of the INA
There had been a waiver in section 212(c) of the INA since 1952, but that was removed in 1996 by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Why was section 212(c) removed by IIRIRA?
Because it provided relief to some pretty unsavory criminal aliens. Here's how that provision read, from 1952 to 1990:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [their excludability under section 212(a) of the INA].
I will stop right there to explain what that means. The old 212(c) waiver was originally only available to aliens with green cards, and only then if they had been living in the United States for seven years. And it was originally meant to grant them a waiver if they were returning from abroad.
In 1976, however, the Board of Immigration Appeals (BIA) held that it also applied to green card holders who had not left the United States, finding on due process and equal protection grounds that it was not fair to treat returning immigrants differently. That made section 212(c) waivers a form of relief from deportation.
In 2001, the Supreme Court held that: "The extension of § 212(c) relief to the deportation context has had great practical importance, because deportable offenses have historically been defined broadly." In other words, if you were a lawful permanent resident criminal who had not left the United States, until 1976, you were likely to be deported (because that is what Congress wanted).
And it was granted pretty liberally: Between 1989 and 1995, more than 10,000 aliens were granted 212(c) relief, many if not most because those green-card holders were deportable on criminal grounds. One immigration judge (IJ) before whom I appeared told me that she would usually grant it to an alien at least once.
Recognizing that, again, some serious criminals were benefitting from this waiver, in 1990, Congress barred aliens convicted of aggravated felonies from 212(c) relief if they had served a sentence of five years or more for those crimes. That still allowed some serious criminals to stay, because even though many criminals are sentenced to more slammer time, few actually are in prison for a half decade.
Congress narrowed the waiver even further six years later, in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. It barred 212(c) relief to an alien convicted of any aggravated felony, drug crimes, firearms offenses, and some crimes involving moral turpitude.
But even then, five months later 212(c) was rescinded by IIRIRA and replaced by a different form of relief, cancellation of removal for certain permanent residents (42A cancellation), available only to lawful permanent residents who have not been convicted of aggravated felonies.
The decision to rescind 212(c) relief was hardly partisan — it was passed by a Republican Congress and signed into law by President Bill Clinton.
Section 212(c) Inadmissibility Waiver
Where the 1990 and AEDPA amendments toned down 212(c) relief by narrowing its application, section 1204 of the Biden bill supercharges it, by broadening its availability beyond any (objectively) reasonable limits, and well beyond even the 1952 version of 212(c).
The Biden proposal would allow any alien to seek a waiver of any ground of inadmissibility under section 212 of the INA — with the exception of the espionage, terrorism, and national security grounds in section 212(a)(3). Any alien and any ground, with just that narrow exception.
This provision would apply not only to green card holders who have lived here for seven years (again, the category of aliens who were eligible for old 212(c) relief), but also to any alien seeking admission on an immigrant or nonimmigrant visa, or applying for adjustment of status on an approved visa petition.
I note that this includes the labor certification requirements and the illegal presence ground. I really am not sure whether that was intentional or just poor drafting, so I will just focus on the criminal grounds.
Here's the first trick: Aggravated felonies are not a ground of inadmissibility. That means that any alien convicted of any aggravated felony as defined in section 101(a)(43) of the INA can seek a 212(c) waiver, assuming that he or she is an arriving alien, reentering, or seeking adjustment of status.
That includes murderers; child sex offenders; rapists; drug, sex, and firearms traffickers; pimps; and child pornographers. This is not an exhaustive list, as it also includes those who have slavery and peonage convictions (to name a few).
Importantly, even the exception does not mean much. Most terrorists and more than a few suspected spies are not charged with removability on the terrorism and espionage grounds. Those grounds are hard to prove, and proof may require the disclosure of national security information ("graymail"), and so most national security threats are charged under more mundane grounds.
If they are, however, they would be eligible for that new 212(c) waiver, too.
Section 237(a)(8) Deportability Waiver
Section 1204 of the Biden bill also includes a waiver (proposed section 237(a)(8) of the INA) of the grounds of deportability in section 237 of the INA, and the bars therein are just a bit broader.
That proposed relief would not waive convictions under the murder, sexual abuse of a minor, and rape portions of the aggravated felony definition, or the espionage, terrorism, and national security grounds of deportability.
Drug, sex, human, and firearm traffickers; pimps; and aliens who have slavery and peonage convictions would still be free to apply, along with — as noted — numerous other malefactors. And the graymail admonition above would apply, as well, often — if not usually —rendering a suspected terrorist or spy eligible for the waiver.
Avoiding the 237(a)(8) Murder, Rape, and Sexual Abuse of a Minor Restrictions
That said, don't get the idea that section 1204 of the Biden amnesty bill leaves deportable murderers, child sex offenders, and rapists without any hope. That is the second trick.
Deportable aliens are not barred from receiving a waiver under the new section 212(c) of the INA if they leave and return from abroad (which would render them inadmissible) before ICE catches up to them.
So, if a lawful permanent resident (LPR) has one of those convictions, the alien can simply depart and reenter on his or her green card, and seek a waiver under section 212(c). Yes, though he or she may still be detained upon reentry (more on that below), the LPR can nonetheless apply for the waiver.
Of course, if the alien is here and has access to an immigrant visa, that alien can simply apply for adjustment of status.
How, you might ask, would that be, given the murder, rape, and child sexual abuse restrictions? Simple.
In its 1993 decision in Matter of Gabryelsky, the BIA held that an LPR present in the United States with a firearm possession conviction, and a separate conviction for manufacturing methamphetamine, could (re)apply for adjustment of status, and therefore remain in the United States. Here's how:
Gun possession is not a ground of exclusion or inadmissibility, but it rendered (then and now) the respondent deportable. The BIA held in 1992's Matter of Rainford, though, that a deportable alien whose status was adjusted could no longer be deported, rejecting the so-called "futility doctrine" (under which an alien could not apply for adjustment if the alien would still be subject to deportation).
Drug trafficking, though, is an inadmissible offense, for which at the time a 212(c) waiver was available. The BIA held that, if granted adjustment of status and a waiver, the respondent could wipe out both his exclusion and deportation grounds.
The same would be true of the proposed section 212(c) waiver for all of those murderers, rapists, and child sex offenders.
The Waivers Are Not Automatic, but that Likely Does Not Matter Much
I will note that just because an alien is eligible for those waivers does not mean that he or she will get them. USCIS and IJs can grant those waivers for "humanitarian purposes", "to ensure family unity", or if such "a waiver is otherwise in the public interest".
That, of course, raises the question of whether granting a waiver to a murderer or child sex abuser is ever "in the public interest", or whether one should care much about humanitarian issues when it comes to an alien convicted of slavery, but those are questions for another day. I am focused on the practical application of the law.
In deciding whether to grant such a waiver, USCIS or the IJ must consider the severity of the offense, the length of time that the alien resided in the United States, rehabilitation, and the adverse effect that denial of the waiver would have on the alien's U.S. citizen or LPR "family members".
As an important aside, I would note that the last consideration is not limited to immediate family members — that is the alien's spouse or minor children. Logically, brothers, sisters, aunts, uncles, and cousins (in whatever degree) would qualify.
Now, the first factor may knock out those murderers, rapists, child sex abusers, and those convicted of slavery. Or maybe not. Would it exclude grants to drug traffickers? That would depend on the judge. Spousal abusers? Fraudsters? Tax cheats?
You would be surprised at the respondents I saw who were granted relief under the old 212(c) waiver. As the Supreme Court noted, "a substantial percentage of ... applications for § 212(c) relief have been granted." They weren't all caught just smoking a joint.
Still, the alien must be allowed to apply for those waivers, no matter how heinous the crime, and no matter how thin the equities. If you think there is a backlog in the immigration courts now, just wait until all but an extremely select number of respondents become eligible for relief.
And Biden does not appear to be that interested in detaining aliens, vowing on his campaign website to: "End prolonged detention and reinvest in a case management program." As the factors above show, the longer you have been here and the more family you have, the more likely you are to be granted a waiver. And, logically, the less likely you are to be detained.
That means that criminal aliens will be released to wait for hearings on their waivers that could take years (not counting appeals). They could die of old age — in the United States — before they are denied their waivers (even if they are denied).
That is especially true where the alien is applying for adjustment of status. Under Matter of Hashmi, IJs almost always have to continue cases where the respondent has a pending family-based visa application that would make the alien eligible for adjustment of status. And USCIS, which does not move quickly on those applications now, would slow to a crawl if it also has to dig out of millions of amnesty applications.
There are some important additional implications of section 1204 of the Biden amnesty, but I will leave it there. It is truly an amnesty within an amnesty. And a fairly scary one, at that.