The ‘Dream and Promise Act of 2021’ Amnesty, Part 2

Blanket waivers for criminal aliens

By Andrew R. Arthur on June 18, 2021

In my last post, I reported that on June 15, the Democrat-controlled Senate Judiciary Committee held a “listening session” hearing on H.R. 6, the “American Dream and Promise Act of 2021”. As I explained, committee Chairman Sen. Dick Durbin (D-Ill.) likely didn’t get the hearing he wanted. It opened a can of worms about the situation at the border, and specifically exposed many of the flaws in that bill, particularly having to do with criminal aliens.

Briefly, H.R. 6 would provide green cards (either permanent or “conditional”) to aliens who have been granted “prosecutorial discretion” under the Deferred Action for Childhood Arrivals (DACA) program, as well as to aliens granted Temporary Protected Status (TPS) or Deferred Enforced Departure (DED, which can be thought of as “TPS-lite”).

It does not end there, because the first part of the bill (the Dream Act of 2021) would grant conditional and then permanent status to not only DACA beneficiaries (who would be fast-tracked for green cards), but also status to other aliens who were not eligible for DACA, either because they were too old when they arrived or came here after DACA’s June 15, 2007, cut-off date for residence.

To be eligible for relief under the Dream Act of 2021, an alien must:

  1. Have entered the United States while younger than 19;
  2. Been physically present in the United States (with some pretty major exceptions) since January 1, 2021;
  3. Have graduated from or be in high school or tech school or have a General Educational Development (GED) credential or be in a GED or high school equivalent program;
  4. Be inadmissible or deportable from this country, or the son or daughter of an E-visa nonimmigrant treaty trader or investor, H-1B temporary worker, or L-visa intracompany transferee;
  5. Not be inadmissible on medical grounds (but there is a waiver), criminal grounds (major waiver and exceptions), national security grounds, as a smuggler (waiver), as a draft-dodger, as a polygamist, as an international child abductor, or as an unlawful voter (waiver);
  6. Pay a fee to cover costs, not to exceed $495, subject to many waivers;
  7. Submit biographic and biometric data (there are special rules for those with disabilities).

Relief under the Dream Act of 2021 is, initially, something called “permanent resident status on a conditional basis” (good for 10 years), which can — and almost always will — quickly lead to removal of those conditions.

There is no deadline for aliens eligible for benefits under the Dream Act to apply. Rather, aliens appearing “prima facie eligible for relief” must be given an (undefined) “reasonable opportunity to apply for such relief”.

That will grind removal of any alien who alleges eligibility to a halt, because such aliens cannot be removed until they have a chance to apply and — if denied and if they are not removable on criminal or national security grounds — have the opportunity for federal district court review (more on that later) and a decision on such appeal is issued.

Further, aliens 18 years and younger cannot be removed until they have the opportunity to meet the educational requirements listed above.

The American Promise Act of 2021 provides a green card to any alien who:

  1. Is eligible for (not granted) TPS on January 1, 2017, or DED on January 20, 2021;
  2. Applies within three years from enactment;
  3. Has been continuously present for three years (it’s not clear if that is as of the date of enactment or of application);
  4. Is not: inadmissible on medical (there is a waiver), criminal (waiver), or national security grounds; a stowaway (waiver) or a smuggler (waiver); under a final fraud order (waiver); student visa abuser (waiver); a draft-dodger, polygamist, international child abductor, or unlawful voter (waiver);
  5. Pays a “reasonable fee” not to exceed $1,140.

Although there are bars for those inadmissible on medical grounds, no medical examination is required (I assume DHS will operate on the honor system). And there are no caps on the number of aliens who would be eligible for benefits. At the June 15 hearing, senators suggested that up to 4.4 million aliens could receive green cards under the two parts of this bill.

There was not much in the way of actual debate on amnesty itself at that hearing, nor logically would there be — you’re either in favor of it or you aren’t.

The Democrats brought in as witnesses a physician who had received DACA and an alien granted TPS who was a nurse, but even then they had to admit that not all DACA or TPS recipients were medical professionals.

There was, however, significant discussion at the hearing on the disaster at the Southwest border (almost all raised by Republican members of the committee), for apparent good reason — despite the historically large numbers of aliens — and in particular unaccompanied alien children — who have been apprehended there in the past four months, the Democratic-led committee of jurisdiction has not held a held a hearing on the situation there, and no Democratic members have been to that border this year.

The border was plainly going to come up and swamp the testimony of the DACA and TPS recipients, raising the question of why, exactly, Chairman Durbin thought that having a hearing on an issue that has been lingering for two decades was a good idea now.

Green Cards for Criminals

All of that said, the major point of contention at the hearing had to do with the ability of criminal aliens to receive green cards under H.R. 6.

Former USCIS Acting Director Joe Edlow, a witness called by the Republicans, started hot out of the gate, asserting that H.R. 6 would “create blanket waivers for criminal aliens”.

That prompted a response from Durbin, who vehemently argued (among other things) that “dangerous criminals are not eligible for status under the Dream and Promise Act”; “[a]ll of the bars that apply to [the] Immigration and Naturalization [Act (INA)] apply to anyone seeking to become a citizen”; and that H.R. 6 “bars individuals guilty of a felony or three misdemeanors or crimes of domestic violence”.

In perhaps the strongest tell about the weakness of the bill when it comes to criminals, Durbin then asserted: “The notion that somehow, as Mr. Edlow said, that we are going to give amnesty to criminal aliens couldn’t be further from the truth. I am sorry that you [Edlow] said this on the record.”

That was a “tell” because while Durbin was vehement, Edlow was correct. I don’t blame the chairman, however, because you have to be pretty skilled in immigration law to understand why Edlow was correct. Here is an explanation.

First, the Dream Act does bar aliens who are inadmissible under the criminal grounds of removal in section 212(a)(2) of the INA from relief, as well as aliens convicted of a felony, three misdemeanors (with exceptions for possession of marijuana), and a misdemeanor offense of domestic violence.

Second, however, that all falls apart in a maze of waivers and exclusions, beginning with a huge exclusion to the definition of “misdemeanor offense of domestic violence” for purposes of the bar.

An alien can escape that bar if he or she shows that “the crime is related to the alien having been ... a victim of domestic violence, sexual assault, stalking, child abuse or neglect, abuse or neglect in later life, or human trafficking”, or related to the alien having been “battered or subjected to extreme cruelty”, or having been “a victim of criminal activity”.

Having been an immigration judge who heard from hundreds of aliens accused of spousal or child abuse, I can tell you that a common refrain was that they — the alleged offenders — were actually the victims, and that the cops wrongly took the alleged victim’s side. That carried little weight with me where there was a conviction, because I could rely on the state courts to have sorted the matter out.

H.R. 6, however, does exactly the opposite. The applicant — regardless of any vile and egregious facts as laid out in a certified conviction document — can simply state that they were defending themselves, or their children, and get relief.

For proof that this occurs, you need look no further than the Supreme Court’s recent decision on credibility in Garland v. Ming Dai.

One of the aliens in that case, Cesar Alcaraz-Enriquez, was convicted of “inflicting corporal injury on a spouse or cohabitant”.

The probation report in that case revealed that Alcaraz-Enriquez “locked his 17-year-old girlfriend in his bedroom ... , caught her trying to escape, dragged her back into the room, threatened to stab her and dump her body in a dumpster, and forced her to have sex with him.” He beat her again the next morning, resulting in “bruises on her back, neck, arms, and legs” (he stopped when she pleaded for her life).

“Later that evening, when she asked to leave, he dragged her out, threw her against the stairs, and kicked her as she rolled down. Her ordeal lasted nearly 24 hours.” Pretty heinous stuff.

He left the United States, and when he was apprehended attempting to reenter, he admitted he had hit the girl, but not “that hard” and only did so because he believed that she was “hitting his daughter”, and was coming to his daughter’s defense.

It took one immigration judge, at least one Board of Immigration Appeals (BIA) member, three circuit court judges (who accepted Alcarez-Enriquez’s testimony at face value), and nine Supreme Court justices (who didn’t) to sort this out. What, exactly, do you expect a single incredibly over-worked USCIS adjudicator to do when confronted with similar facts?

Even if that adjudicator denies the application, the alien gets an administrative appeal (the parameters of which are undefined, but do you trust DHS Secretary Alejandro Mayorkas?), and if he strikes out again, he can plead his case to a district court judge. Any one of them simply has to accept the alien’s version for the alien to get status.

Third, DHS can waive the criminal grounds of inadmissibility under section 212(a)(2) of the INA “for humanitarian purposes, family unity, or if otherwise in the public interest” — words that are so vague and undefined that they have no meaning, and form no bar to relief, at all.

It’s important to note at this point that the “one felony or three misdemeanor” bar still applies notwithstanding that waiver, but that brings up the fourth point.

In addition to the foregoing, DHS can waive one misdemeanor offense if the most recent occurred more than five years before the alien applies (and remember — there is no application deadline under the Dream Act, so the alien can cool his heels while acquiring “good time”), or two misdemeanor offenses if the last conviction was committed 10 years prior to the alien filing the application (ditto).

It’s also important to note that not all misdemeanors are created equal, a fact that DACA at least recognized. Aliens are barred from DACA protection if they have just one “significant misdemeanor”, defined as domestic violence, sexual abuse or exploitation, burglary, illegal firearms offenses, drug trafficking, or DUI.

That reveals two things. First, how an offense is characterized does not necessarily reflect how bad or dangerous it is. Second, even Janet Napolitano and Barack Obama considered those crimes dangerous enough to bar offenders from DACA relief (which they essentially made up from whole cloth).

The drafters of H.R. 6 plainly have stronger constitutions, because aside from domestic violence, they lumped those crimes in with all other misdemeanors, like passing off margarine as butter in Iowa or using X-rays to determine shoe size in Nevada. That is a serious omission.

How Many Is 'One'?

I have just gotten started, because that brings me to point five. “Three” misdemeanors are not really a bar, because to count as more than one, any additional misdemeanor must have occurred — get this — on a different date, and cannot have arisen “out of the same act, omission, or scheme of misconduct”.

Let me offer a real-world example. Imagine that an alien decides to rob a bank on Sansome Street in downtown San Francisco. He gets a gun (firearms offense), walks into the bank (a form of burglary), pulls the gun on the teller (assault) and demands and receives money (robbery).

He then shoots the guard (battery), commandeers a vehicle (carjacking), and forces the driver to take him from California to New York (kidnapping) on a spree that takes four days, during which the robber holds up gas stations throughout (robbery times 10).

For purposes of the Dream Act, that is one crime. “Same scheme of misconduct” cases come up in immigration court all the time, and those cases are factually hard to sort out, meaning our overworked adjudicator has his or her work cut out.

Or, imagine that our theoretical criminal is having a bad day, and goes into the Marina Lounge in San Francisco at 12:01 AM and gets into a fight (battery). He sleeps it off, but goes back to the Marina Lounge at 8 AM (trust me, it’s open) and gets into another fight, leaves, and gets into fights at every bar across town until midnight. That is one crime for purposes of H.R. 6 — most if not all misdemeanors.

Then, sixth, there is the issue of “felonies”. Any one will bar the offender from status under the Dream Act, but H.R. 6 has a very specific definition of felony that does not jibe with the one in the INA. It reads: “the term ‘felony offense’ means an offense under Federal or State law that is punishable by a maximum term of imprisonment of more than 1 year.”

To be fair, that is consistent with the federal definition of a felony. But there is a big difference between a sentence of “one year” and “more than one year”, and sentencing is generally based on that temporal distinction.

For example, a crime of violence is an aggravated felony for immigration purposes under section 101(a)(43)(F) of the INA if the term of imprisonment is “at least one year”. The same goes for theft offenses under section 101(a)(43)(G) of the INA.

For what it’s worth, rape and sexual abuse of a minor as aggravated felonies require no specific sentences at all, but prosecutors often plead those cases down to avoid having to put the victim through the trauma again by placing them on the stand. Many of those convictions thus likely count as “misdemeanors”, and numerous such offenses would “arise from the same scheme of misconduct”.

In fact, effective January 1, 2015, California amended sentences for misdemeanors to ensure that the maximum sentence would be 364 days (previously, the maximum sentence was “not to exceed one year”), and in 2017 attempted to make that change retroactive, as the BIA detailed in Matter of Velasquez-Rios.

The sponsor of that earlier bill promoted the change specifically to allow criminal aliens to escape the immigration consequences of their offenses. You can expect to see more such legislation if H.R. 6 passes, despite the fact that states are supposed to have no say over immigration — a uniquely federal responsibility.

As if allowing aliens with aggravated felony convictions to get immigration relief is not bad enough, the worst is yet to come.

There is a short, easily overlooked, provision shoehorned into H.R. 6 at section 301(b), captioned “treatment of expunged convictions”. Per that provision, the words “convicted” and “conviction” for purposes of the bill “do not include a judgment that has been expunged or set aside, that [sic] resulted in a rehabilitative disposition, or the equivalent.”

If you are not an immigration lawyer of some experience, those words likely mean little. They hide a lot, however, and buttress Edlow’s points while revealing the error in Durbin’s.

The ABA explains:

In law, “expungement” is the process by which a record of criminal conviction is destroyed or sealed from state or federal record. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record as well as, ideally, the public record.

A “vacatur”, on the other hand, is “A rule or order that sets aside a judgment or annuls a proceeding.”

In immigration law, however, some expungements and vacaturs erase criminal convictions for purposes of removal and relief, and some don’t, as the BIA explained in 2003’s Matter of Pickering.

That’s because the definition of “conviction” in section 101(a)(48)(A) of the INA makes no reference to post-conviction relief (all the INA’s definition requires is a finding of guilt and a punishment). Therefore, in immigration cases, courts only give effect to vacaturs or expungements where the conviction was vacated because of a procedural or substantive defect in the underlying criminal proceedings.

If, however, such post-conviction action is solely taken for the purposes of rehabilitation (to give the alien a “fresh start”) or to avoid immigration hardships (that is, to spare the alien from being removed), it is still valid for immigration purposes, and the alien is still deportable and barred from relief.

H.R. 6 turns that carefully crafted distinction on its head, and allows convictions for offenses — regardless of how heinous or violent — to be wiped off the applicant’s record for purposes of benefits thereunder.

In doing so, the bill invites tens of thousands of criminal aliens to go back to court —long after they have been convicted and served their time — and have their crimes re-categorized or their convictions expunged entirely. Convictions amended or erased for any reason will no longer be a bar to a green card.

You may think that courts rarely expunge or vacate convictions, but you would be wrong. There is a lot of immigration case law on post-conviction relief exactly because it is so common. Prosecutors are often overworked and interested only in applying statutory punishments — not in making sure that criminal aliens are not allowed to remain.

This trend, if anything, has only gotten worse with the election of “progressive” district attorneys, who are more interested in what they see as “justice”, notwithstanding punishments for crimes in statute and case law.

Take Chesa Boudin, the San Francisco district attorney who ran on a vow “to protect immigrants from deportation”. Can you seriously see his office not joining in on every motion to amend, expunge, or vacate every conviction — regardless of the crime — that would bar an amnesty applicant from benefits?

All of which brings me back to Durbin’s statements about criminal bars to citizenship (words that he — quite interestingly — chose carefully). It is true that the naturalization provisions in section 316 of the INA bar aliens who fail to show “good moral character” during the statutory period from being naturalized, and most crimes that render aliens removable are bars to a finding of good moral character.

That said, the general rule in immigration law (and I will spare you some mind-numbing analysis here) is that once an alien is granted a waiver or given a new legal status, those prior crimes have no effect for purposes of the INA.

Will that rule be applied to the naturalization of alien criminals who have been granted benefits under H.R. 6?

That remains to be seen, but I can guarantee you that many of the same people who are saying the INA blocks criminal aliens who have received green cards under H.R. 6 from becoming citizens will be the same people — five years or less down the road when those aliens start becoming eligible for citizenship — who will argue that it doesn’t. The bill itself is unclear, and this point needs to be further developed.

There was a measure of bipartisan support for amnesty for DACA recipients and others at the June 15 hearing. There were no Republicans who supported H.R. 6, or at least none who stated such directly, at that hearing, however.

I credit whoever wrote this bill, because it was carefully crafted to hide many of its true intentions. In the final analysis, however, Joe Edlow was correct — H.R. 6 would offer “blanket waivers for criminal aliens”. You just have to know where to look.