Revisiting the Immigration Implications of the First Step Act

By Dan Cadman on November 20, 2018

In my work for the Center, I've discovered how potentially controversial writing legislative analysis can be. Without wishing it, you can anger your critics and confound your friends. Worse yet, sometimes you find you've confounded your critics and angered your friends.

Perhaps this is because of the slightly anomalous approach I take to analyzing legislation, which is through the eyes of an operational guy. I look at the language and ask, is this going to help, or will it inadvertently hurt, Border Patrol or ICE agents going about their jobs? Such an approach is inevitable, I suppose, because that's how I spent my career, but it occasionally puts me on a conflict course with those whose analytical filters don't work quite the same way.

I raise these reflections because they're directly related to my most recent blog posting on the First Step Act, which has now been formally endorsed by the president, enhancing its likelihood of passage through the Senate.

Executive Director Mark Krikorian tweeted a reference and link to the blog post, and not long after that, received a sharp tweet retort from a senior staffer in the office of Senator Mike Lee (R-Utah):

followed by—

The tartness of the response surprised me because Sen. Lee is one of the good guys whose views are generally supportive of immigration enforcement and control efforts; he has a career immigration score of B+ from Numbers USA.

But when one of his staffers fires off a tweet like that, it obliges you to step back and consider your views carefully. I have, and I stand by my remarks for several separate but related reasons.

First, I don't think that the First Step Act does anything whatever to make deporting alien criminals easier and, unlike most Hill staff, I've actually been an agent and put the cuffs on alien criminals and then tracked their long and often tortuous way through our removals system. I know what's involved and how that system works for better or worse.

Second, I'm not sure why he chose to cherry-pick that one item out of the many observations I've made about the bill, but let me speak to the "home release thing". Home release is one of those things bundled under the general umbrella as "sentencing alternatives". With particular reference to aliens in custody of the federal Bureau of Prisons (BOP), the U.S. Sentencing Commission notes:

Non-citizens, as a practical matter, are ineligible for most alternatives because of their status as deportable aliens (resulting in immigration detainers that prevent their release into the community). Aliens convicted of many types of federal offenses are subject to deportation from the United States as “aggravated felons". [Emphasis added.]

In a telephone call subsequent to his tweet, the staffer was unable to provide me with a statutory reference for his claim, saying he'd have someone "check on it" and get back to me (at an unspecified date and time). What, then, was the basis of his certainty that such a federal law exists?

Here's how I see it: I'm not infallible, but I don't know of any absolute bar to aliens receiving home confinement such as the staffer has described. I could find none in the Sentencing Reform Act of 1984; nor in the Immigration and Nationality Act (INA), which is incorporated as Title 8 of the U.S. Code; nor in Part III of Title 18, having to do with prisons and prisoners. I do know that ICE agents can assume custody of individuals not in hard confinement (see my brief discussion below, which describes the problems inherent in that approach). But even if one posits a preexisting statute that excludes noncitizens from home confinement, there's a problem. When two federal laws aren't consonant, the general rule in interpreting congressional intent is to look at the most recent statutory language. That would be the First Step Act (if it were signed into law), and it doesn't distinguish between citizens and noncitizens for purposes of home confinement.

Further complicating things, because the Senate version does make reference to implementing section 238 proceedings for aliens to curb giving them "good time" sentencing reduction credits, it could (and almost certainly would) be argued by alien advocates that if Congress intended to exclude aliens from home confinement they would have overtly and specifically done so, since they were clearly already thinking about those areas of the bill where they wanted such distinctions to count.

However, to advert once again to the language of the Sentencing Commission: the line of reasoning making home confinement out of bounds because of the existence of an immigration detainer relies on an assumption that BOP can only honor the detainer by "hard confinement" in a penal institution. The problem is that there is no federal statute governing detainers and exactly what they mean, so it could be argued that nothing stops BOP honoring the detainer, while at the same time complying with the plain language of the First Step Act, which makes no exception or distinction between citizens and noncitizens for home confinement. Thus "home confinement" would still be considered as a form of BOP custody in which the detainer remains in effect.

Were I an advocate speaking on behalf of an alien inmate – say, a green card holder fighting removal based on the conviction for which he's in prison – that is what I would in fact argue, and if BOP declined to accept this interpretation, I would be inclined to file suit. Given what we have seen in recent years, can anyone absolutely vouchsafe that there isn't an activist judge somewhere in a reliably progressive location, probably in the jurisdiction of the Ninth Circuit Court of Appeals, who wouldn't agree with that interpretation? I wouldn't bet the inheritance on it. So why leave the interpretation of something so basic but so important to chance, and why open the door to endless and expensive litigation?

ICE agents might very well go ahead and take an alien placed in home confinement into custody to initiate deportation proceedings or to effect the removal – see the final unnumbered phrase of INA Section 236(a), 8 U.S.C. § 1226(a) for their authority to do so. But such a course of action would rely on the agents being aware that home custody had been ordered – which is no sure thing – and would in some ways put them at cross purposes with BOP, which is a distinctly undesirable state of affairs.

In sum, as I've said consistently with regard to the First Step Act, the simplest way to make it a clean bill where immigration enforcement is concerned is to say at the beginning of the bill that "none of the sections that follow in this bill apply to incarcerated aliens". What is so hard about that?