H.R. 2933 – Legislative Analysis and Proposed Amendments

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Since the potential for violence by foreign drug cartels within the U.S. is such a grave situation, perhaps a better option for H.R. 2933 would have been to include its new grounds of removability under the expedited removal process of Immigration Act Section 235(c)(1).

This section covers arriving aliens inadmissible under national security, terrorist grounds, and foreign policy grounds and bars them as well from the charade of the credible fear asylum hearing provisions (under Section 235(b)) which serve as a vehicle for aliens to be released in droves from the Department of Homeland Security's Immigration and Customs Enforcement (ICE) custody.

Including the new ground of gang inadmissibility – Section 212(a)(2)(J)(i) – in the current provisions of Immigration Act Section 235(c)(1) and 235(c)(2)(B)(i) would have the same effect as the current legislation, but would keep these cases AWAY from the Executive Office for Immigration Review (EOIR) litigation process.

In moving toward the goal of streamlined immigration enforcement for the removal of known dangerous criminal aliens, Congress should adopt a strategy of using the tools of summary removal provisions like Section 235 of the Immigration Act to create LESS, not MORE immigration litigation before the EOIR and the federal courts.  

In this respect, Congress should consider using Immigration Act Section 235(c)(1) and 235(c)(2)(B)(i) instead as the primary means for removing criminal alien gang members when encountered at ports of entry, rather than charging a ground of inadmissibility as part of Immigration Court proceedings before the EOIR. 

Under the current Section 235(b) expedited removal process, aliens charged with inadmissibility under Section 212(a)(6)(C) [fraud] and Section 212(a)(7) [no documents] provisions will be summarily removed WITHOUT HEARING before the EOIR (as long as they do not fear returning to their native countries).  But under the proposed new ground of gang inadmissibility – Section 212(a)(2)(J)(i) –  the gang members WOULD BE ENTITLED TO A HEARING before the EOIR! 

The current version of H.R. 2933 creates the somewhat illogical disparity of allowing the criminal alien gang member to plead his case before an EOIR immigration judge, but the arriving alien who is NOT a security threat (simply inadmissible for having a fraudulent document, or no document at a port of entry) would be summarily removed without hearing before the EOIR.  The criminal alien gang members are the ones who should be summarily removed here – and Congress should consider amending the proposed Section 212(a)(2)(J)(i) to include this ground of inadmissibility under the current Section 235 process reserved for aliens who present terrorist, national security and foreign policy threats covered in Immigration Section 235(c)(1) and 235(c)(2)(B)(i).

Using the summary removal tools of Immigration Section 235(c)(1) and 235(c)(2)(B)(i) would be a better alternative to EOIR hearings and virtually unlimited appeals battling over a ground of inadmissibility.

But assuming this legislation still chooses the EOIR route for the resolution of all the cases, there are some anomalies with the legislation as written which allow for criminal alien gang members to still apply for (and possibly be granted) certain forms of relief from removal in Immigration Court.  The legislation as written still leaves the door open for the charged criminal aliens to remain in the United States.

I have reviewed each form of potential relief for aliens charged with the new grounds of "gang membership" – Section 212(a)(2)(J)(i) and Section 237(a)2)(F)(i) – in future EOIR Immigration Court proceedings.  I have also suggested amendments to limit the eligibility for relief from removal for aliens charged under the new grounds of H.R. 2933.

AVAILABILITY OF RELIEF FOR ALIENS CHARGED UNDER H.R. 2933 GROUNDS:

Section 240A(a) – Cancellation of removal for certain permanent residents.  Aliens charged under H.R. 2933 grounds are still eligible for this relief if otherwise qualified.  Gang members could apply for relief before the EOIR and remain in the U.S. despite the new grounds.  Congress might want to consider a bar against LPR Cancellation eligibility for charged aliens.

Section 240A(b) – Cancellation of removal for non-permanent residents.  Charged aliens could possibly file for this relief based on the wording of Immigration Act Section 240A(b)(c), which allows an application is the alien "has not been convicted of an offense under Section 212(a)(2) or 237(a)(2) of the Immigration Act."  The legislation would add a new Section 212(a)(2) inadmissibility ground, but the part of the new ground dealing specifically with gang "membership" (NOT conviction of a crime) might not serve to bar an alien from applying for non-resident cancellation of removal.

Section 212(c) –  Former waiver of deportability/inadmissibility.  This waiver provision of the Immigration Act was resurrected in part by the U.S. Supreme Court in the case of INS v. St. Cyr. 533 US 289 (2001).  Charged aliens could make an argument for 212(c) eligibility if their predicate crimes (for the new gang crime charge) occurred prior to 1996, so that they would have an expectation of being able to apply for a waiver of inadmissibility based on St. Cyr.  Although the "no objection" provision of Section 2(c)(8) of H.R. 2933 would bar aliens from raising an objection to the specific designation of a criminal gang, charged aliens could nevertheless make an argument that the predicate crimes considered by the DHS Secretary's gang designation could have occurred prior to 1996, and are therefore covered under the logic of St. Cyr (allowing a Section 212(c) relief application even years after the fact).

Section 240B(a) – Pre-hearing voluntary departure.  Charged aliens would still be eligible for this relief, which would allow them to avoid a formal order of removal and allow them to depart the U.S. voluntarily at their own expense. 

Section 240B(b) – Post-hearing voluntary departure.  Charged aliens would still be eligible to apply for voluntary departure at the conclusion of Immigration Court proceedings.  To bar charged gang members from this relief, Congress would have to amend the definition of "good moral character" (GMC) under Section 101(f)(3) of the Immigration Act to include the new Section 212(a)(2)(J)(i) gang ground of inadmissibility.  This addition to the "good moral character" definition would bar a charged alien from receiving post-conclusion voluntary departure under the requirements of Section 240B(b)(1)(B).  Ironically, under H.R. 2933 as written, criminal alien gang members would still be considered as persons of "good moral character" under Section 101(f)(3) of the Immigration Act.

Section 316 – Naturalization to U.S. Citizenship.  An additional amendment including the new Section 212(a)(2)(J)(i) gang ground of inadmissibility in the "good moral character" definition of Section 101(f)(3) would also prevent the naturalization of aliens under Immigration Act Section 316, which relies on a good moral character requirement as well.  Under current immigration law, aliens convicted of an aggravated felony under Immigration Act Section 101(a)(43) are permanently barred from naturalization.  But under H.R. 2933 as written, criminal alien gang members are not permanently barred.  Congress might want to consider amending Section 316 to permanently bar aliens from naturalization if found inadmissible or removable under the new gang grounds. 

Section 208 – Charged aliens are barred from asylum.

Section 241(b)(3)(B) –  Charged aliens are barred from withholding of removal.

8 C.F.R. Section 208.16 – Charged aliens are barred from withholding of removal under the United Nations Convention Against Torture (CAT).  The charged aliens are already subject to the mandatory denial of withholding of removal under 8 C.F.R. section 208.16(d)(2) or (d)(3) in the legislation as written, similar to barred aliens convicted of a "particularly serious crime" under Section 241(b)(3)(B)(ii) of the Immigration Act.

8 C.F.R. Section 208.17(a) –  Charged aliens are still eligible for relief in the form of deferral of removal under the United Nations Convention Against Torture.  The existence of this form of relief will allow charged aliens a clear avenue of litigation all the way to the federal circuit courts of appeal in contesting orders of removal under the new grounds.  But to succeed in this form of relief, an alien would bear the burden of proving that "more likely than not" that the alien would be tortured to removed, as per 8 C.F. R. Section 208.16(c)(2).  This form of relief is currently a criminal alien's relief application of last resort, especially for aliens falling under the aggravated felony provisions of Immigration Act Section 101(a)(43).

AVAILABILITY OF OTHER ENFORCEMENT PROVISIONS:

Section 241(a)(5) and 8 C.F. R. section 241.8 –  Charged aliens would still fall under the reinstatement of removal provisions, but only if the Immigration Court cases are NOT brought within the federal Ninth Circuit Court of Appeals.   Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004).  The Morales-Izquierdo case presents an anomaly affecting H.R. 2933.  If Congress does not clarify the current regulation under 8 C.F.R. section 241.8 is entirely consistent with the intent of Immigration Act Section 241(a)(5) – in terms clearly understandable by the federal circuit courts of appeal –  this chaotic situation for immigration law enforcement will persist.  Currently, previously-deported criminal alien gang members (including aliens charged in the future under H.R. 2933 provisions) from the western (Ninth Circuit) states will be entitled to a hearing before the EOIR Immigration Court, while gang members from other parts of the country will not.  Congress should amend Section 241(a)(5) of the Immigration Act accordingly, to incorporate the language of 8 C.F.R. Section 241.8 in order to resolve this situation of the uneven applicability of federal immigration law.

Section 238(a)(1) –  Charged aliens will not be subject to the administrative expedited removal provisions currently in effect against aliens convicted under the aggravated felony provisions of Immigration Act Section 101(a)(43).  These administrative removal provisions should be amended to include aliens charged under the new H.R. 2933 gang ground of inadmissibility and removability.  As aliens covered by the aggravated felony provisions – the most serious criminal violations of immigration law – are subject to this form of expedited removal without EOIR hearing, aliens charged under the new gang grounds should be given the same treatment and summarily removed without EOIR hearing as well. 

OTHER CRIMINAL ALIEN LOOPHOLES IN IMMIGRATION LAW:

The following sections of law would affect charged aliens under H.R. 2933 in that these aliens might also be convicted under the aggravated felony provisions of Immigration Act Section 101(a)(43).  Under current immigration law, there are serious loopholes relating to criminal alien aggravated felons that allow them to remain in the U.S. legally despite their crimes.

Section 245 –  Adjustment of status of aliens convicted of an aggravated felony.  Congress should the adjustment of status provisions in Immigration Act Section 245, 8 U.S.C. 1255, by inserting the following:

(m) Any alien who previously obtained the status of a lawful permanent resident alien under any provision of law is ineligible to seek adjustment of status under this section.

 

(n)  Any alien who has been convicted of an aggravated felony is ineligible to seek adjustment of status under this section.

Effective date:  Amendments made by this section shall apply to applications for adjustment of status pending as of the date of the enactment of this Act, as well as all such applications filed on or after the date of the enactment of this Act.

This revision would prevent Lawful Permanent Resident aliens from avoiding removal for criminal offenses by filing a second application for adjustment of status—to become a permanent resident all over again — even while EOIR Immigration Court proceedings are in progress.  This section gives aliens just one chance for adjustment of status to permanent residence in the United States, rather than being able to repeatedly petition anew after having committed deportable crimes under the Immigration Act.  In addition, this amendment would ensure that aggravated felons are barred from ever getting a green card.

Section 212(h)(2) –  The waiver provisions of Immigration Act Section 212(h)(2), 8 U.S.C. 1182(h)(2), should be amended by DELETING the underlined sections:

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.

 

Effective date:  Amendments made by this section shall apply to waiver applications pending as of the date of the enactment of this Act, as well as all such applications filed on or after the date of the enactment of this Act.

This revision would insure that illegal aliens and permanent resident aliens convicted of an aggravated felony are both prevented from seeking an Immigration Act Section 212(h) waiver in order to adjust status to permanent residence.  This section eliminates the anomaly in the Immigration Act where previously-deported illegal aliens convicted of an aggravated felony in the U.S. could apply for adjustment of status, and be granted such status through a 212(h) waiver – while an existing permanent resident alien convicted of an aggravated felony are prevented from receiving a Section 212(h) waiver to readjust their status.  The readjustment avenue for existing permanent resident aliens will be eliminated by amending Section 245, but amending this section would insure that dangerous criminal aliens would not be eligible would be barred from receiving a Section 212(h) waiver.

Section 101(a)(43) –  A simple amendment to this section would seal the deportation of resident aliens convicted of felony drunk driving or repeat drunk driving causing injury or death to another.  Congress should amend the definition of an "aggravated felony" in Immigration Act Section 101(a)(43), 8 U.S.C. 1101(a)(43), by inserting the following:

"(V) any crime of reckless driving or negligent driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime is designated as a felony or involves personal injury to another."

Effective date:  Amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred, and shall apply under Section 276(b) of the Immigration and Nationality Act only to violations of Section 276(a) of such Act occurring on or after such date."

This section borrows existing language from Immigration Act Section 101(h)(3) which includes drunk driving crimes as "serious criminal activity" – when dealing with the inadmissibility provisions of Section 212(a)(2)(E) for previously-deported aliens.

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.