H.R. 2933 – Legislative Analysis and Proposed Amendments


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Bill Needs Some Help To Expel Alien Gang Members

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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
.