It is no secret that congressional Democrats are attempting to use a poorly understood legislative maneuver known as “reconciliation” to pass a massive amnesty for eight million aliens (plus) without any Republican votes before the 2022 mid-term election. What may be surprising is that House Democrats want to make those benefits available even to illegal alien criminals.
On Friday afternoon, House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) announced a mark-up at 10:00 a.m. on Monday (today) of such an amnesty. That would be short timing in the best of circumstances, but was especially abrupt given the fact that many members were (appropriately) planning to attend ceremonies marking the 20th anniversary of 9/11. It got worse, however.
First, the original version of that legislative language was released at 9:23 PM on September 10 — the very definition of legislating at the dark of night.
Then, at 10:26 AM on the morning of Saturday, September 11 (roughly 19 years, 364 days, 23 hours, and 58 minutes after the North Tower of the World Trade Center collapsed, or 20 years and 23 minutes after passengers on United Airlines Flight 93 gave their own lives to save Washington when they overpowered four terrorists who had seized the plane, crashing it into a field near Shanksville, Pa.), Nadler substituted his own version of the legislation.
There is a saying in Washington that “All process arguments are self-serving — including this one,” but still, jamming your fellow members with legislative language that you expect to mark up hours later is beyond the pale.
The problems with this bill are not strictly procedural, however.
The bill would grant green cards to a massive number of illegal aliens. How many is anybody’s guess. Four specific categories of aliens would be eligible for this amnesty:
- Aliens who entered the United States on or before January 1, 2021, who were 18 or younger when they entered and meet certain work or educational guidelines.
- Aliens who have been here since January 1, 2021, who have “demonstrated a consistent record of earned income in the United States” (whatever that means) in a pandemic-related “essential” job at any point between January 30, 2020, and August 24, 2021.
- Aliens who have been continuously present in the United States for three years as of the effective date who were nationals of countries designated for Temporary Protected Status (TPS) on January 1, 2017, who had or were eligible for TPS on that date.
- Aliens who have been present for three years as of the enactment date who had or were eligible for deferred enforced departure (DED) as of January 20, 2021.
Worse than DACA
The first category may look at first blush like aliens who benefitted from Deferred Action for Childhood Arrivals (DACA), but it’s not. To be eligible for DACA, an alien had to have been present on June 15, 2012, to have been continually resided in the United States since June 15, 2007 (allowing for “brief” departures), to have entered under the age of 16, and to have been born after June 14, 1981.
Unlike DACA, which had specific restrictions on the population of aliens who would be eligible for benefits, there could be 80-year-olds who would benefit from Nadler’s amnesty in 2060.
But still, it gets worse.
Aliens are barred from receiving DACA if they have been convicted of a felony (defined under that program as a crime punishable by more than a year), “three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission or scheme of misconduct”, or any one “significant misdemeanor”.
A significant misdemeanor is defined for purposes of DACA as an “offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence”.
In addition, any misdemeanor for which an alien was sentenced to more than 90 days that was not suspended (courts will often sentence defendants to time, and then suspend the sentence subject to “good behavior” on an extended term of probation) counts as a “significant misdemeanor, knocking an applicant out of DACA.
DACA is bad enough, because it gives quasi-legal status and employment authorization to aliens who are not only inadmissible because they entered illegally or overstayed, but because they are removable on criminal grounds. Nadler goes that one (or more) better by making every criminal alien in at least one of the four categories above eligible to apply for a green card.
Plenty of Outs for Criminals
That is not to say that there are no criminal bars in Nadler’s amnesty, because they are. The chairman, however, has written his provision carefully to hide the fact that it provides plenty of outs for alien criminals or, alternatively, so sloppily that even he has no idea what he is doing.
Under the Nadler language, aliens are not eligible for a green card if they are subject to removal because they are criminals, threats to the national security, smugglers, student visa abusers, ineligible for citizenship, polygamists, international child abductors, or have voted unlawfully.
In addition, aliens are barred if they have been convicted of a “felony” (a crime punishable by a year or more) or three misdemeanors for which they were convicted on different dates and were actually imprisoned (not merely sentenced) for 90 days or more.
The bill would allow aliens who have engaged in massive fraud to get amnesty, as well as aliens whose employment will adversely affect the wages and working conditions of workers in the United States (both U.S. citizens and lawful aliens). But, you might think, at least criminal aliens inadmissible on criminal grounds won’t get to live here forever.
If you do think that, you would be wrong because of what the bill gives to aliens and takes away from justice for the victims of crime. It’s not clearly written that way, of course.
Chairman Nadler’s proposal gives the DHS secretary the ability to waive applicants’ criminal, smuggling, student-visa abuse, and unlawful voting grounds of inadmissibility “for humanitarian purposes or family unity” or “if a waiver is otherwise in the public interest”.
Keep in mind that today, Biden’s DHS doesn’t even allow ICE officers to question (let alone arrest or remove) aliens who have been convicted of crimes that don’t fall within a narrow band of “aggravated felonies” or street-gang-related offenses, and even then those officers have to consider the criminal’s family ties, health, and civic engagement before doing so.
In fact, the Biden administration is actively fighting a judge’s order in federal court that would force it to arrest and deport serious criminal aliens (including murderers, child molesters, and drug dealers), whom it is required by law to arrest and deport.
Do you seriously think that DHS Secretary Alejandro Mayorkas is going to deny a waiver to any alien criminal who has a spouse, parent, or child in the United States?
But what, you may ask, about that Nadler provision that bars aliens convicted of felonies or three “offenses” (written in such a way that it only applies to misdemeanors), from getting green cards and being placed on a path to citizenship. Those can’t be waived, can they?
Well, that’s a good question, and one that the Biden administration will likely answer to the benefit of the criminal aliens.
Under the Nadler language, the DHS secretary can waive any of the criminal grounds of inadmissibility, but it is silent on the felony/three misdemeanor bar. Generally, under the immigration laws, once an offense is waived for one purpose, it is gone for good, meaning that it is dead for purposes of other provisions.
You can expect Biden Attorney General Merrick Garland (who is not exactly the law-enforcement type) to issue a decision that decides this issue in favor of criminal aliens and, even if he doesn’t, for Biden’s DHS to issue regulations that do so.
Let’s assume, however, that Biden has a “Gabriel Over the White House” epiphany and decides that criminal aliens are bad people. The federal courts could always decide this in the criminal alien’s favor, even if Biden, Mayorkas, and Garland don’t see it that way. And there are any number of activist district court judges who would see multiple holes in this slap-dash, 11th-hour language, and do just that.
That assumes that activist state-court judges or “progressive” prosecutors don’t take care of those criminal aliens first, because Nadler’s proposal puts them in the driver’s seat as an initial matter when it comes to criminal aliens.
His bill (p. 6, lines 16 to 25) prevents the DHS secretary from “automatically treat[ing] an expunged conviction as a conviction”. “Automatically treat” is not serious legislative language (can Mayorkas secondarily or tertiarily treat it that way?), demonstrating the undue haste with which House Democrats are acting to pass this proposal before anybody finds out what’s in there, but that’s just an aside.
Instead, the secretary must “evaluate expunged convictions on a case-by-case basis according to the nature and severity of the underlying offense to determine whether, under the circumstances, the alien should be eligible for adjustment of status”. To appreciate what a bad idea this is, you must understand how expungements are treated now.
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.
In immigration law, however, some expungements 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 Immigration and Nationality Act (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 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 removable and barred from relief.
Nadler’s proposal 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, it 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 again, 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 those so-called “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 and expunge every conviction — regardless of the crime — that would bar an amnesty applicant from benefits?
More Opportunities for Criminals
Of course, Mayorkas can still decide under the Nadler language to ignore those frivolous expungements (I seriously question that he would, but ...). There are still more problems with this provision.
First, nothing in this provision prevents alien criminals from seeking a writ of mandamus from a federal district court judge to force Mayorkas to grant a waiver in the applicant’s favor. If you don’t think that would happen, you were asleep throughout the entirety of the Trump administration when judges ran rampant rewriting the immigration laws to suit their tastes and fancies.
Second, however, Nadler’s proposal stays removal proceedings for any alien to give the alien “a reasonable opportunity to” apply for amnesty if the alien so much as “requests an opportunity to so apply”. The alien does not even have to be prima facie eligible for those benefits, due to the way the bill is drafted.
If you haven’t met the educational or work requirements for a green card, Nadler’s proposal forces DHS to stay your removal until you have had the chance to do so, even if you are barred on the criminal grounds. That part is particularly tricky, for two reasons.
First, the header for that stay refers to “certain children”, but the body of the bill makes no reference at all to an age requirement. That means that any alien criminal between the ages of 17 and death could seek a stay if he or she was under the age of 18 upon arrival here.
Second, while that stay provision for “children” bars those who are inadmissible on criminal grounds or who fall within the felony/three misdemeanor limitation, it only does so “subject to” the waiver and expungement provisions. Because of that, an alien “child” (who could be a 27-year-old convicted gang member) could always argue that he or she will apply for a waiver or seek an expungement to waive the criminal bars.
That means that ICE will have to find the criminal alien, then be forced to release the alien when the alien asserts that he or she will be applying for amnesty with a waiver. If ICE subsequently picks up the alien again, he or she could simply present a motion for an expungement to be released anew.
By the way, nothing prevents a criminal alien whose amnesty application has been denied from going to state court, getting an expungement of any crime that bars him or her from being given a green card, and moving to reopen the original application. Not just once, but multiple times, because there are no limits on motions to reopen under Nadler’s bill (which does not even mention them).
One last point on criminal aliens: The fact that the bill bundles up multiple misdemeanors for which the alien has been convicted on the same date and treats them as one misdemeanor means that in many (if not most) cases, aliens could be convicted of multiple offenses on separate dates and serve at least 90 days for each conviction two times and still be eligible for a green card.
In a June 18 post, I explained in a different context how such bundled convictions work in the real world, but you can trust me that the bar in the Nadler language is a low one for all but the most savage, reckless, or dangerous criminals to clear.
The bill language shows either an unconscionable lack of awareness for how serial sex offenders, domestic abusers, larcenists, and drunk drivers are actually tried and convicted, or is an attempt to allow tens of thousands of serious criminals to get green cards.
Finally, note that there is no cut-off date for aliens to apply for benefits under the Nadler language. That means that 40 years from now, alien criminals could still be applying for amnesty as “children”.
If House Democrats want to grant amnesty to alien criminals, they should at least have the decency to let the American people, let alone their fellow partisans and colleagues in the GOP, know what they are up to. And if they did not intend to offer a massive, unending amnesty to criminal aliens, they should have taken their time in drafting their proposal — and not be attempting to jam through haphazard language they drafted late at night when the nation was mourning its dead.