Model Amendments to the Immigration Act

See Deport Foreign Drunk Drivers! – Amend The Immigration Act!

Part 1 –  Amends 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 includes felony drunk driving and all crimes causing injury behind-the-wheel under the "aggravated felony" provisions of the Immigration Act, which bar aliens deportable under this charge from most forms of relief from removal.   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.)

Part 2 – Amends 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 section prevents Lawful Permanent Residents 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 section ensures that illegal aliens with felony drunk driving convictions or crimes causing injury behind-the-wheel are barred from ever getting a green card.)

Part 3 – Amends the waiver provisions of Immigration Act Section 212(h)(2), 8 U.S.C. 1182(h)(2), as follows 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 section insures 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 Part 2 (see previous amendment).  But under this section (Part 3), all convicted aggravated felons would be barred from receiving a Section 212(h) waiver.]

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