On November 23, PolitiFact (which modestly describes itself as “a nonpartisan fact-checking website to sort out the truth in American politics”) issued its opinion on a Facebook post claiming that H.R. 5376, the Build Back Better Act (BBB), would provide “’’Parole’ Amnesty for Millions of Criminal Illegal Aliens”. Not surprisingly, it rated the post “Mostly False”. I say “not surprisingly” because the author of that article doesn’t appear to fully understand what he is opining on and limited the experts on which he relied.
Immigration in the Build Back Better Act
By way of background, the BBB is a bill Democrats are attempting to ramrod through the congressional process without Republican support via a legislative maneuver known as “reconciliation”, which I explained in-depth in a September post.
The current iteration of H.R. 5376 passed the House on a mostly party-line vote on November 19. The lone Democrat voting “Nay” was Jared Golden (D-Maine), and he was joined by 212 House Republicans. It has since been sent to the Senate, where the immigration provisions are under consideration by that chamber’s parliamentarian.
The citation in the Facebook post in question is to section 60001 of the bill, found at pages 862 to 865 of the current text. As I explained on November 5, that section would extend what is known as “parole” to aliens who entered the United States — legally or illegally — prior to January 1, 2011.
That earlier post noted that “aliens who are removable under the criminal, national security, smuggling, draft-dodging, polygamy, international child abduction, and unlawful voter grounds of inadmissibility in section 212 of the Immigration and Nationality Act (INA) would not be eligible for” the benefits thereunder.
Immigration Parole, Explained
PolitiFact was apparently concerned that the Facebook post deliberately mislead readers about the term “parole”, which in the criminal context means something different from the term as defined under the INA.
Generally, in criminal law, “parole” means the release of a convicted criminal from confinement on conditions before that criminal completes his or her sentence.
By contrast, in the immigration context, the word “parole” describes a very limited authority Congress has extended to the executive branch in section 212(d)(5) of the INA. Under this parole authority, DHS can allow aliens to enter the United States temporarily without formally admitting them, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
Like criminal parole, immigration parole is conditional, but unlike in the criminal context, it rarely follows a criminal conviction.
Notably, the Facebook post in question never claims that the “parole” amnesty for aliens under H.R. 5376 is the same as criminal parole, but nonetheless, PolitiFact includes a large subhead that reads “Misleading use of ‘parole’ and ‘criminal’” — a claim that the author never proves.
Instead, the PolitiFact article elides this distinction by asserting: “The wording of the claim in the post may suggest that simply living in the U.S. without permission makes a person a criminal.” In certain circumstances, that may be true (as I explain below, it often isn’t) but asserting that the proper use of a term of art like “parole” (in quotes in the Facebook post) is “misleading” is inaccurate.
Some Criminals Would Be Eligible for Parole
Instead, the author offers opinions from immigration specialists as to whether “criminals” would, in fact, be eligible for the benefits in section 60001 of the BBB.
For example, the PolitiFact article states: “People convicted of crimes in the U.S. would not be eligible for immigration parole under this provision”, quoting one expert.
I question whether the person cited made this specific statement (which is not in quotes), because it is factually inaccurate. Notably, only aliens who are inadmissible under the criminal provisions in section 212(a)(2) of the INA are barred from parole under paragraph 60001(b)(3) of the INA — not all aliens with criminal convictions.
Under that provision in the INA, aliens are inadmissible:
- if they have been convicted of a crime involving moral turpitude (CIMT), a drug offense, or two or more offenses for which they were sentenced to five years or more;
- if they are drug traffickers;
- under certain prostitution or commercialized vice grounds; or
- if they have asserted immunity from prosecution for a serious crime.
Moral Turpitude and CIMTs
As an important aside, what is “moral turpitude” for CIMT purposes? The Board of Immigration Appeals (BIA) has explained that the term “generally refers to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”
That leaves a lot of room for interpretation, which is why I often say that as an immigration judge, I put on an 18th-century outfit to apply 19th-century concepts to a 21st-century world.
There is a waiver of certain of these criminal removal grounds at section 212(h) of the INA that may or may not apply to aliens eligible for parole under H.R. 5376. Even absent that, however, there are plenty of aliens who have been convicted of criminal offenses who are not inadmissible under section 212(a)(2) of the INA and are therefore not barred from parole under the BBB.
Drunk Driving Is Not a Bar. Take drunk drivers, that is persons convicted of driving under the influence (DUI) or driving while intoxicated (DWI) pursuant to various state criminal provisions.
As a general matter, aliens convicted of DUI or DWI are not inadmissible under section 212(a)(2) of the INA. In fact, Rep. Mike Johnson (R-La.) offered an amendment to H.R. 5376 in committee to bar aliens who had 10 or more DUI convictions from benefits under an earlier version of the bill, but it failed because 20 Democrats voted against it.
In FY 2019, ICE Enforcement and Removal Operations (ERO) arrested 74,523 aliens who had DUI arrests (25,417) or convictions (49,106). Unless there were some serious aggravating factors, or unless those aliens had some other conviction that rendered them inadmissible, each would be eligible for parole under the BBB.
Simple Assault Is Not a CIMT. Another example is simple assault. Almost 30 years ago, the BIA held that “[s]imple assault is generally not considered to be a” CIMT, because it does not encompass “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man”.
Most assault cases, in my nearly 30 years of experience, are pled down to simple assault regardless of the facts of the case, generally to avoid an extended jury trial.
ICE ERO arrested more than 45,800 aliens who had arrests or convictions for assault in FY 2019. Every case is different, but it is beyond cavil that many if not most of those aliens would not be removable under section 212(a)(2) of the INA, and therefore would be eligible for parole under H.R. 5376.
Gun Convictions Are Not a Ground of Inadmissibility. And, notably, gun convictions, absent some aggravating factor, do not render aliens inadmissible under section 212(a)(2) of the INA, either. In FY 2019, ICE ERO arrested 10,278 aliens who had arrests or convictions for weapons offenses. Many, most, or all those aliens are not inadmissible under section 212(a)(2) of the INA, and therefore are eligible for parole under the BBB.
There Is No Aggravated Felony Ground in Section 212(a)(2) of the INA. Like gun crimes, aggravated felonies as defined in section 101(a)(43) of the INA are not grounds for inadmissibility under section 212(a)(2) of the INA. Most crimes identified as aggravated felonies in that provision are also covered under section 212(a)(2) of the INA as CIMTs or drug trafficking offenses, but many serious ones (like certain crimes of violence and firearms trafficking) may not be, and many aren’t.
Immigration Offenses, Both Completed and Continuing. Then, there are immigration offenses. PolitiFact asserts: “Entering the U.S. without permission is a crime — though it’s not always prosecuted on its own — but living in the United States without authorization is a civil violation, not a criminal offense.”
There is a lot to unpack there. Under section 275(a) of the INA, first-time illegal entry is a misdemeanor offense, punishable by up to six months imprisonment and a fine, while subsequent offenses are felonies, carrying a possible penalty of two years incarceration and a fine.
Does that mean that people who are not actually convicted of those offenses are not criminals? Only under an unusually pinched definition of “criminal”. In August 2018, the then-head of ICE ERO testified that crossing the border illegally is a criminal offense under section 275 of the INA, and he’s right.
Additionally, the Supreme Court has specifically held that an alien’s failure to register under section 262 of the INA while living in the United States illegally is a “continuing crime” under that provision and section 266 of the INA.
I explained in a 2018 post that few if any aliens who entered illegally and who have not already applied for immigration benefits (that is many of the aliens eligible for parole under the BBB) are in violation of these provisions, a misdemeanor offense under section 266(a) of the INA. Neither PolitiFact nor the experts it cites referred to either that case (INS v. Lopez-Mendoza) or to sections 262 and 266 of the INA.
Criminal Gang Members
Then, there are criminal gang members. PolitiFact notes that an image on the Facebook post in question “alludes to members of criminal gangs”, and then states:
The photo of the man in the image appears to be cropped from a photo of three men that appears with articles about the MS-13 gang, which grew out of poor Los Angeles neighborhoods that housed many refugees from civil wars in El Salvador, Guatemala and Nicaragua in the 1980s. In the United States, law enforcement officials have indicted MS-13 members for a wide range of crimes, including racketeering, murders, attempted murders, assaults, obstruction of justice, arson and conspiracy to distribute marijuana.
I admit to ignorance concerning the “articles about” MS-13 referenced, but the rest of that statement is factually true (although the L.A. roots of the gang and the allusion to refugees from civil wars in Central America appear to be non-sequiturs).
Specifically, it is true that many MS-13 members have been “indicted” on various state and local charges, and many have been convicted as well — which appears to be a more salient point in the context of the PolitiFact article because an indictment alone wouldn’t bar an alien from parole.
What is more important in this context, however, is that simple membership in a criminal gang is not a ground of inadmissibility, let alone one that would bar an alien from eligibility for the parole amnesty in section 60001. A conviction for a removable offense incident to such membership would be, but that would be true even for an alien who is not a gang member.
A February memo from acting ICE Director Tae Johnson limiting his officers’ immigration enforcement activities makes this distinction clear.
Under that memo, only aliens convicted of offenses “for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a)” or who were 16 or older “and intentionally participated in an organized criminal gang ... to further the illegal activity of the gang” were “priorities” for ICE enforcement (essentially meaning other gang members were to be left alone unless they had been convicted of an aggravated felony).
DHS Secretary Alejandro Mayorkas wisely left this gang calculus out of his most recent ICE (non-) enforcement memo, but the Tae Johnson memo shows that some criminal gang members who have not been convicted of criminal offenses pose a danger to the community even under the restrictions on ICE enforcement therein, and that if they are otherwise removable they should be removed.
DHS Has No Discretion to Deny Parole Under the BBB
Here’s the problem. Section 60001 gives DHS no discretion to deny an alien described therein parole. Rather, that provision is written in the mandatory: “The Secretary of Homeland Security shall ... parole”. (Emphasis added.)
So, if the heavily tattooed individual depicted on the Facebook post were to apply for parole under the BBB, and is not otherwise inadmissible under section 212(a)(2) of the INA (or any other restrictions in section 60001), DHS would be required to grant him parole.
That would allow him to remain for another five to 10 years — even if officers know dispositively that he “intentionally participated in an organized criminal gang” to further the gang’s illegal activities — unless and until he is convicted of a removable offense under section 212(a)(2) of the INA.
The Low Clearance Rate for Criminal Offenses
This is not some sort of strawman assertion. There are plenty of criminals who go unpunished.
In 2020, just 54.4 percent of all murders and non-negligent homicides in the United States were “cleared”, meaning that either someone was arrested for the offense or an offender has been identified. Conversely, 45.6 percent of those who committed murder and non-negligent homicide were never dispositively identified and punished.
Curiously, murder is on the high side of the clearance scale. The clearance rate for rape (a common gang crime) was just 30.6 percent, and for robbery (a source of gang revenue), just 28.8 percent of cases were cleared in 2020. Arson, alluded to in PolitiFact? The clearance rate was a paltry 21.5 percent.
The Qualified and Subjective Statements in the Expert’s Opinion
I would be remiss if I were not to mention that the PolitiFact author cites a separate expert who explains, with qualifiers “almost every serious crime will disqualify you from the parole program under this bill”. (Emphasis added.) That is in quotes in the article.
To the degree that the expert in question means that “convictions for almost every serious crime will disqualify” aliens for parole in section 60001, that is a reasonable (if subjective) statement, but only if you don’t consider simple assault and DUI to be “serious crimes”, or unpunished offenses to be serious.
Drunk driving is responsible for more than 10,000 deaths on an annual basis, however, and costs tens of billions of dollars in deaths and damages each year. That is a “serious crime” in my opinion, however, especially if you can have 10 or more DUI convictions and still be eligible for parole under section 60001.
Note further that the PolitiFact article contains a box at the top that summarizes the findings therein, captioned “IF YOUR TIME IS SHORT”. It states: “People convicted of crimes would not be eligible for immigration parole.” As the qualifiers in the second referenced expert’s statement suggest, that just isn’t true.
How Facebook and Fact-Checkers Shut Down Debate
One can take issue with the salacious image on the Facebook post in question and still concede that while the facts presented therein are open to debate, they are still largely correct, depending on how you define specific terms like “criminal illegal aliens”.
Here’s the problem. PolitiFact states: “The image, shared on Facebook, was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed”. That means the debate will never take place, and readers who don’t know better will simply look at the conclusory statement that aliens “convicted of crimes” aren’t eligible for amnesty under H.R. 5376 and believe it to be true.
If it seems like I am being overly harsh on the author of that article, I don’t blame him for his lack of understanding of immigration law. His error, however, is in limiting the experts on which he relies. I have written about this specific provision in the BBB and would have been happy to talk him through it. He never called, nor did he ever appear to have talked to anyone skeptical about this mass amnesty.
Most chillingly, after the quote about “Facebook’s efforts to combat false news and misinformation”, he states (in parentheses): “Read more about our partnership with Facebook.” The link therein takes you to a separate Facebook page captioned “How is Facebook addressing false information through independent fact-checkers?”
I will assume (without conceding) that the PolitiFact author is independent; the problem is that his “fact-check” lacks context, and in places is just wrong (as explained above). Notably, “Providing more context on false information” is one of the things that Facebook claims it relies on fact-checkers to provide. Quis custodiet ipsos custodes? I will, assuming that this post is not flagged by the uninformed.