House Democrats’ immigration bill would use tax dollars to import crime to America

Congressman Jesús G. “Chuy” García’s (D-Ill.), “New Way Forward Act,” H.R. 5383, was referred to the Subcommittee on Immigration and Citizenship on Jan. 30.  It is cosponsored by 43 of Garcia’s fellow Democrats, four of whom are on the subcommittee, including Pramila Jayapal (D-Wash.), the Vice Chair. The bill is supported by more than 145 advocacy groups.

It is also the most ill-advised immigration legislation I have ever seen.

{mosads}Garcia claims his bill would correct racial and anti-immigrant injustices embedded in our immigration laws, but the bill’s main provisions would simply protect aliens who are subject to deportation because they have committed crimes.

Implementation would bury an already overwhelmed immigration court under an avalanche of new cases; it would allow dangerous criminals to remain in the United States, and it would use tax dollars to bring deported criminals back.

Would decriminalize migration

For starters — and the likely headline feature — Section VI of the bill would repeal 8 USC §1325(a) and 8 USC §1326 which make illegal entry into the United States a crime and makes it a crime to reenter the United States after being deported.

These laws are the main deterrents to illegal entries, and the bill fails to provide other means of deterrence.

According to a new TRAC report, illegal entry prosecutions fell recently. Resources have been devoted instead to prosecuting other types of federal offenses such as drug offenses, weapons, and white-collar crime.

While decriminalizing illegal entry should be no surprise in a Democratic immigration bill — it’s been discussed in presidential debates after all — it’s the other provisions in Garcia’s proposal that are jaw-dropping.

Would give old crimes a pass

The bill would create a statute of limitations to prohibit the initiation of removal proceedings more than five years after the date on which an alien became deportable or inadmissible, and this would apply retroactively to removal orders issued before the date on which the New Way Forward Act is enacted.

This doesn’t make sense. Does a dangerous criminal stop being dangerous when five years have passed since his conviction?                                                                

In addition to greatly increasing the immigration court’s workload — more of which in a moment — this would allow numerous aliens who have committed serious crimes to remain in the United States. 

Would end mandatory detention for criminal aliens

The bill would repeal 8 U.S.C. §1226(c), which requires mandatory detention for aliens who are deportable for committing specified criminal offenses, and it would give them the right to bond hearings before an immigration judge.

If an alien were arrested without a warrant, he would have a right to a hearing within 48 hours on whether the arresting officer had probable cause to think he was deportable.

The bill would require an initial custody determination within 48 hours of arresting an alien, and aliens who are detained would be entitled to a bond hearing within 72 hours of when the initial determination is made.

Detained aliens would be entitled to a new bond hearing every 60 days.

The profusion of required hearings would overwhelm the immigration court, which can’t handle the cases it already has. As of the end of December 2019, the average wait for a single removal hearing was 958 days — more than two and a half years. This bill, if enacted, would effectively paralyze the immigration court. 

Would handcuff local law enforcement

The bill would terminate the 287(g) Program, which trains and authorizes State and local police departments that want to be more involved with immigration enforcement to provide ICE with more active assistance in apprehending deportable aliens.

It would prohibit State and local police from assisting ICE in the performance of its enforcement activities — even in the case of dangerous criminals.

It also would repeal 8 USC §1644 which provides that no State or local government entity may be prohibited from sharing information with ICE about an alien’s immigration status.

{mosads}It makes no sense for Congress to pass immigration laws and then prohibit State and local jurisdictions from providing assistance needed to enforce those laws.

If State and local police are not going to be allowed to assist ICE, the bill should authorize funds to provide ICE with the additional officers it needs to enforce the law without assistance.

It’s clumsy and vague

Among other provisions, the bill also would amend the definition of “an aggravated felony” in 8 USC §1101(a)(43) to restrict it to felonies for which a term of imprisonment of five years or more was imposed.

These provisions take a meat axe approach to correcting harsh changes made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. I proposed less extreme changes in a bill I wrote for the Democrats on the House Judiciary Committee many years ago, the Restoration of Fairness in Immigration Act of 2002.

The bill also would authorize an immigration judge to grant relief to an ineligible alien if ineligibility is due to a disqualifying criminal conviction and relief is warranted for humanitarian purposes, to assure family unity, or is otherwise in the public interest.

That sounds nice, but the standard is so broad it doesn’t provide any guidance on when discretion should be exercised — and it fails to include consideration of the seriousness of the crime the alien committed, which should be a factor in deciding whether discretionary relief is warranted.

Creates a right to ‘come home’

Finally, the bill would allow aliens who were deported on or after April 24, 1996, to come back — at government expense — for new hearings if they establish that they would not have been deported if the provisions in this bill had been in effect back then when they were removed.

That would mean your tax dollars would pay for criminals — some of them violent and dangerous — to be transported back to the United States for a second chance of being set loose on our streets.

It’s also worth noting here that the standard practice — because the immigration courts take more than two years to hold a hearing — is to let aliens loose into the heartland while they await that hearing.

We’d be actively importing trouble.

This “decriminalization” bill would increase immigrant crime in America, which would not be a benefit to anyone but the criminals.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.