Photos courtesy of Mizue Aizeki
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Mission Statement
The Immigrant Defense Project promotes fundamental fairness for immigrants accused or convicted of crimes. We seek to minimize the harsh and disproportionate immigration consequences of contact with the criminal justice system by 1) working to transform unjust deportation laws and policies and 2) educating and advising immigrants, their criminal defenders, and other advocates.
Recent News & Events
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9th Circuit rules immigration judges can’t deport based on alleged facts a criminal judge or jury never found
In Olivas-Motta v. Holder, __- F.3d ___ (9th Cir. May 17, 2013) the Ninth Circuit became the fourth circuit court of appeals to reject the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), which permitted immigration courts to find some immigrants who have been convicted of crimes removable on the basis of alleged facts about their criminal conduct that were never established in the criminal case. (The Third, Fourth and Eleventh Circuits had previously rejected Silva-Trevino while the Seventh and Eighth had upheld it). IDP, joined by partner organizations including the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo Law School, prepared and filed an amicus brief in the case pointing out how re-trying criminal cases in immigration court is deeply unfair to immigrants, who are often detained and lack counsel and who may have accepted plea bargains specifically to avoid immigration consequences. The court’s decision adopted several of IDP’s arguments concerning why the Silva-Trevino rule misunderstood Congress’ intent in making deportation hinge on a “conviction” for removable conduct.
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NY Defendants Can Seek to Vacate Convictions Post-Deportation
On May 16, the First Appellate Dept. ruled in People v. Antonio Badia that it was improper to dismiss Antonio Badia’s 440 motion because the defendant had been deported. IDP, along with the Post-Deportation Human Rights Project, filed an amici brief arguing that defendants should be allowed to litigate post-conviction relief cases after deportation. The trial court had refused to look at the merits of the defendant’s post-conviction relief case, dismissing it only because the defendant had been deported after filing the case. The trial court dismissed the case despite acknowledging that this placed the defendant in a catch-22, since the conviction was the reason for his deportation.
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IJN ACTION ALERT: Call or Tweet Senate Judiciary Committee to not leave many out of path to citizenship
Tell members to protect parts of the immigration reform bill that allow immigration judges and officials to look at the individual circumstances of a person’s case and fight back against attempts to exclude more immigrants from the path to citizenship
The current immigration bill falls short of overhauling our broken immigration system. The heart of the bill is clearly the pathway to citizenship, but what’s missing from the conversation is the number of individuals who will actually be barred from the path. Several amendments that will be voted on this week further exclude immigrants, both undocumented individuals and green card holders, and will leave them off the path and without a fair day in court by
- expanding the categories of so called “aggravated felonies”, which include offenses that are neither aggravated nor felonies;
- targeting youth and their families for any “gang related” activity which infers guilt by association and not criminal conduct;
- leaving domestic violence survivors without any protections from deportation when reporting abuse, even if already on the path to citizenship; and
- taking away the bill’s already limited due process protections that allow immigration judges and officials to weigh individual circumstances in some cases before ordering deportation.
Decisions about these amendments will have a tremendous impact on immigrant families, and their ability to stay together in the United States. The SJC needs to hear from you— immigrant communities, advocates and allies— about the impact these amendments will have on our communities.
Please call members of the SJC (below is a sample script),
Staff will be reporting on the number of calls for and against each amendment to the Senators, so it is important to call and tweet on Monday and over the next week.
Senator Leahy: 202-224-4242 Senator Feinstein: 202-224-3841
Senator Whitehouse: 202-224-2921
Senator Klobuchar: 202-224-3244
Senator Durbin: 202-224-2152
Senator Schumer: 202-224-6542
Senator Franken: 202-224-5641
Senator Blumenthal: 202-224-2823
Senator Coons: 202-224-5042
Senator Hirono: 202-224-6361 Senator Lee: 202-224-5444
Senator Hatch: 202-224-5251
Senator Cornyn: 202-224-2934
Senator Flake: 202-224-4521
Senator Sessions: 202-224-4124
Senator Graham: (202) 224-5972
Senator Cruz: (202) 224-5922
Senator Grassley: 202-224-3744
Twitter:
On Twitter, use #CIRmarkup, #SJC (senate judiciary committee), #timeisnow, #p2c (path to citizenship).You can also tweet at Judiciary Committee members: @SenatorLeahy, @SenFeinstein, @ChuckSchumer, @SenatorDurbin, @SenWhitehouse, @amyklobuchar, @alfranken, @ChrisCoons, @SenBlumenthal, @maziehirono, @ChuckGrassley, @OrrinHatch, @SenatorSessions, @LindseyGrahamSC, @JohnCornyn, @SenMikeLee, @tedcruz, @JeffFlake
Sample Script:
“I am calling to ask Senator _ [name of senator]_ to support and protect parts of Senate Bill 744 that allow immigration judges and officials to review the individual circumstances of a person’s case to determine whether they should remain in the United States.
I also urge the Senator to oppose amendments that exclude more immigrants from the path to citizenship and deny them an opportunity to have their case considered and heard. Specifically, I ask the Senator to OPPOSE: Grassley #10, 21, 22, 43, 44, and 46; Cornyn #3 and 4; and Sessions #5 and 22.
Background:
In the current bill and under certain proposed amendments, a wide range of criminal convictions, no matter how old or how minor, and regardless of the fact that time was already served in the criminal justice system, would block and immigrant from gaining or keeping her legal status.
Over the years, America’s attempts to toughen our immigration laws took away, in many cases, the ability of immigration law enforcement and judges to consider the individual circumstances of a person’s case. An offense triggering the bars to legalization or deportation lasts forever, even if it was a mistake that occurred years ago. Under the current Senate bill, there are only a few exceptions or waivers to overcome these bars. The path to citizenship should allow the government to consider individual factors, such as family and community ties, the nature, seriousness, and other circumstances of the conviction, passage of time, medical conditions, and contributions to community and family. The existence of a waiver does not mean that it will be granted. Waivers should be available in all cases to account for individual circumstances.
Immigrants should not be treated only as the sum of their mistakes in a nation that values second chances. Immigration judges must be given back the power to grant a second chance and cancel someone’s deportation after looking at other aspects of a person’s life. Judicial discretion must be restored and expanded, and limits must be made on the number and categories of offenses that would exclude long time green card holders’ ability to maintain legal status and undocumented individuals’ eligibility to pursue the path to citizenship.
What would these amendments do?
Grassley #10: Mandates deportation, with only extremely limited exceptions, for people found ineligible for legalization. This would have a huge chilling effect on those hoping to come out of the shadows and apply for legalization. It will funnel hundreds of thousands of people into the deportation system.
Grassley #21 & 22: These amendments further take away the bill’s already limited due process protections that allow immigration judges and officials to weigh individual circumstances in some cases before ordering deportation.
Grassley #43: This amendment will exacerbate existing problems of misidentifying gang members, increase racial profiling, and result in targeting children and youth who are victims of crime and human trafficking. This amendment incriminates individuals for mere association and membership, not actual criminal conduct.
Grassley #44: This amendment expands the heavily criticized aggravated felony definition to include strict liability and negligence offenses, upends settled Supreme Court case law on the scope of aggravated felonies, and hurts families that have conquered alcohol abuse problems and gone on to live stable and productive lives.
Grassley #46: These amendments will harm domestic violence survivors; domestic violence groups overwhelmingly reject amendments that further expand domestic violence deportation grounds.
Cornyn #3 and Sessions #22: These amendments automatically excludes from legalization, with no possibility of discretion, several single misdemeanor convictions. This amendment will have the effect of excluding victims of domestic violence, someone whose only brush with the law was a bar fight, and a person with one DUI. This amendment lacks any sense of proportionality, automatically and permanently excluding people from legalization for offenses that were often deemed punishable with only a small fine in criminal court.
Cornyn #4: In the current bill, people with old deportation orders are allowed to apply for legalization if they’re otherwise eligible. This amendment would bar individuals with old deportation orders and any criminal convictions from applying. This amendment specifically targets individuals with domestic violence convictions.
Sessions #5: This amendment would add a new crime that provides a mandatory 90 day sentence for a noncitizen who overstays a visa.
Thanks for your help!
Alisa Wellek (IDP), Angie Junck (ILRC), Paromita Shah (NIP/NLG), and Aidin Castillo (ILRC)
The Immigrant Justice Network (IJN) is a collaborative formed in 2006 between the Immigrant Defense Project (IDP), the Immigrant Legal Resource Center (ILRC), and the National Immigration Project (NIP/NLG) to work towards the elimination of unjust penalties for immigrants entangled in the criminal justice system and to end the criminalization of immigrant communities. IJN members are amongst the foremost immigration advocacy and defense organizations with expertise in the intersection between the immigration and criminal justice systems. IJN accomplishes its goals through alliance building, public education, technical assistance, training, messaging, and legislative and administrative advocacy.
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URGENT: Action & Sign on Letter to Oppose CIR Deportation Provisions Based on Allegations of Gang Membership
To oppose deportation provisions and amendments in the Senate Immigration Bill (S. 744) targeting those alleged to be gang members, please:
1. Sign your organization (no individuals) to the letter here.
Sign-ons DUE by TOMORROW, May 15, 5 p.m. Eastern.
2. Call your senators Wednesday, May 15th and Thursday, May 16th (see action alert below):
ACTION ALERT:
(1) Ask the Senate Judiciary Committee to OPPOSE Grassley Amendment #43 which seeks to replace Section 3701 of S. 744′s gang deportation and ineligibility provisions for suspected gang members. This amendment will further increase racial profiling, increase targeting of youth of color and lead to the separation of families.
(2) Ask the Senate Judiciary Committee to ELIMINATE the new grounds of deportation and ineligibility (Sec. 3701) for suspected gang members.
What does Grassley #43 amendment do?
This amendment replaces and worsens the Senate bill’s 744 provisions regarding gang membership disqualification bars to legalization and deportation for those with lawful status by creating a new broad definition of criminal street gang and substantially increasing the burden of proof on a person to prove he did not know or reasonably should have known about the gang. A person would be permanently blocked from legal status and/or deported if the person falls within this new amendment. This amendment will target people who never committed any crimes whatsoever and who have obeyed all of our laws. The Los Angeles Times editorial board recently criticized the far–reaching provisions of this amendment.
Section 3701 of Senate bill S. 744 also contains new egregious deportation and disqualification bars for suspected gang members. Even though there is no sponsor for an amendment to eliminate Section 3701 of the Senate Bill, we ask that you call for the elimination of these existing provisions.
Background information is below.
What you need to do THIS WEEK, May 14-May 16:
The SJC needs to hear from you about the impact that Grassley Amendment #43 will have on our youth and families. Please focus your call on members of the Senate Judiciary Committee who are in bold. Below is a sample script. Staff will be reporting on the number of calls for and against each amendment to the Senators, so it is important to start calling TODAY, and increase call-in efforts on Thursday, May 16th.
Sample Script: “I am calling to ask Senator _ [name of Senator]_ to oppose Grassley Amendment #43 that relates to suspected gang membership. This amendment would punish mere “membership,” and is nothing more than guilt by association. There is no way to challenge the evidence being used to prove membership and it unfairly places the burden on the noncitizen to prove that he should not have known that the organization was a gang. This will lead to racial profiling, the increased targeting of youth and further separation of families.
Also, I object to Sec. 3701 gang removability grounds and the legalization ineligibility provisions in S. 744 because they are overbroad. We request that members of the Senate Judiciary Committee reconsider these new gang removability provisions and seek to eliminate it.”
Senator Leahy: 202-224-4242
Senator Feinstein: 202-224-3841
Senator Whitehouse: 202-224-2921
Senator Klobuchar: 202-224-3244
Senator Durbin: 202-224-2152
Senator Schumer: 202-224-6542
Senator Franken: 202-224-5641
Senator Blumenthal: 202-224-2823
Senator Coons: 202-224-5042
Senator Hirono: 202-224-6361
Senator Lee: 202-224-5444
Senator Hatch: 202-224-5251
Senator Cornyn: 202-224-2934
Senator Flake: 202-224-4521
Senator Sessions: 202-224-4124
Senator Graham: (202) 224-5972
Senator Cruz: (202) 224-5922
Senator Grassley: 202-224-3744BACKGROUND: What is wrong with having new gang deportability grounds?
It would be disastrous for youth, particularly for youth of color and those who live in communities with a high concentration of gangs.
This kind of dragnet approach targets the wrong people and risks deporting and separating from their families individuals who are not gang members. Young people living in “bad” neighborhoods will certainly be vulnerable. Moreover, these provisions do not adequately protect people who have left gangs and have stable and productive lives.
These proposals impose guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their associations with groups considered to be dangerous. For example, this provision could impact a person who resides with or associates with a family member known to be in a gang or lives in a neighborhood where there is a high concentration of gangs.These proposals will likely exacerbate racial profiling and bad police practices because the Department of Homeland Security will likely rely on heavily criticized gang databases or gang injunctions to assess membership or gang activity. Often, these law enforcement tools label a person as a “gang member” for living in a neighborhood where there is a high concentration of gangs or living with a family member who is a gang member.
These proposals make it very difficult to challenge and correct mistakes of misidentification. Gang databases face mounting criticism for their use of inconsistent definitions, improper documentation procedures and inadequate review. A person can be in a gang database without ever knowing about it, and most gang databases do not have accessible mechanisms for individuals to be removed from the database.
These proposals diminish public safety in communities that experience gang violence. Individuals will be less likely to report crimes and gang violence in their communities because they will fear that any interaction with law enforcement will lead to deportation.
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Press conference to End Stop-and-Frisk and S-Comm: May 15, 9 a.m. City Hall
Join us at a press conference on the one-year anniversary of ICE’s activation of “Secure Communities” in NY to call for an end to discriminatory policing and ICE’s deportation machine!
When: Wednesday May 15, 9 a.m.
Where: Steps of City Hall
Download flyer for event here