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"[C]hanges to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction… [A]ccurate legal advice for noncitizens accused of crimes has never been more important."
-U.S. Supreme Court, Padilla v. Kentucky (2010)
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.
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):
(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: 202-224-3744
BACKGROUND: 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.
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
URGENT Action Alert: CALLS needed TODAY (Thursday, May 9)
TODAY is the first day that the Senate Judiciary Committee will be considering amendments on the bipartisan immigration bill, S. 744. Today they will consider amendments on the bill’s border provisions. We’ve learned that Sen. Grassley of Iowa plans to offer his amendment 17 as a 2d-degree to Feinstein’s amendment 2 today. Grassley’s amendment 17 is aimed at gutting the judicial review protections in the Gang of 8 bill that are essential to protecting the RPI, DREAM, and AG JOBS programs.
Please call 202-224-7703 or 202-224-5225 TODAY to speak with the Majority and Minority offices of the Senate Judiciary Committee.Below is a sample script you can use. More information on the amendments is below.
Do you tweet? If you use Twitter, please note that @SenatorLeahy will be tweeting out real-time info on what amendment they are on, etc., and #CIRmarkup is the hashtag that Judiciary staff will be using. Tweet to oppose this amendment.
Please urge Senate Judiciary Committee (SJC) offices to:
Vote NO on Grassley 17 (to be offered as a second-degree to Feinstein 2)
Sample script: “I urge the Senator to OPPOSE amendment 17 proposed by Senator Grassley, which would eliminate judicial review and would deny individuals a way to correct an agency mistake over which they had no control.” [See below for further details, if you want them.]
The S.744 judicial review provisions provide for review of individual denials in district court or the court of appeals under the Administrative Procedures Act (“APA”) standard; the bill also provides for full review of pattern and practice violations and class action suits in the district court under APA standards. The Grassley 17 amendment would severely restrict review and provide 1) review only in the district court in DC, and 2) only over challenges to the constitutionality of sections of the program and implementing regulations. In other words, Grassley 17 would abolish all judicial review of decisions relating to RPI and adjustment of status applications, including those relating to Dreamers, agricultural workers, and the spouses and children of all these individuals — except to challenge the constitutionality of the law itself or the regulations.
The need for judicial review is critical because RPI/Dream/Ag Jobs will be newly created programs with new provisions being implemented for first time. Agency mistakes are inevitable. Under Grassley 17 — if the executive branch were to adopt a regulation, policy or practice that erroneously denies thousands of people legalization, there would be no way to correct it – even if the regulation, policy or practice was manifestly inconsistent with the legalization standards created by Congress. Without judicial review, Congress’s intent in the Act will be thwarted.
Giving an agency employee the sole responsibility on such important decisions puts far too much unchecked power in the hands of a single agency employee. A single error by a single agency employee will destroy the life opportunity that Congress has chosen to make available to the individual. In the RPI dependent context, such an error could result in long-term, often permanent, separation of spouses or separation of parents from their children. Without judicial review, these errors will go uncorrected.
By restricting judicial review to the DC district court only, Grassley 17 would be highly unfair to RPI applicants who are unable to travel to DC. As long as the DC Dist. Court says a provision or regulation is constitutional, an individual can be deported even if the legalization denial was blatantly wrong under the standards created by Congress.
In our justice system, it would be unprecedented to bar judicial review of administrative agencies’ decisions involving individual interests of this magnitude. Grassley 17 would be unconstitutional because it wouldn’t provide review over non-constitutional legal claims or even non-systemic constitutional claims, as required by US v. St Cyr and other Supreme Court cases.
IDP, the American Immigration Council, and the National Immigration Project have issued a practice advisory on the implications for drug charges and other issues involving the categorical approach of the Supreme Court’s long-awaited decision in Moncrieffe v. Holder. The Supreme Court held that an offense that punishes the transfer of small amounts of marijuana for no remuneration cannot be deemed a “drug trafficking crime” aggravated felony under the categorical approach. The Court’s 7-2 decision is also likely to have a beneficial impact on some other key issues regarding the proper way to assess the immigration consequences of convictions. Our practice advisory covers: (1) the holding in Moncrieffe; (2) the decision’s potential broader implications; (3) strategies for noncitizen criminal defendants; and (4) steps that lawyers (or immigrants themselves) should take immediately in pending or already concluded removal proceedings affected by Moncrieffe.
As the nation recovers from the horrific bombings in Boston, conservatives hastily called for delay of the Senate’s upcoming immigration reform debate, perhaps with the intent of proposing more extreme immigration measures and scoring political points with immigration opponents.
Some likewise used the fear after Timothy McVeigh’s 1995 bombing in Oklahoma City as an impetus to pass drastic changes to immigration laws in 1996, and again after 9/11. These laws exemplify the consequences to human rights when Congress legislates in knee jerk fashion.
By vastly expanding the number of crimes that can trigger deportation and making deportation a mandatory minimum for a wide range of offenses, these punitive immigration laws not only impose punishments disproportionate to the crime, but deny people their fair day in court. Noncitizens who get ensnarled in the criminal justice system — one that disproportionately targets and convicts people of color — face double jeopardy: they serve a sentence, and then, with few exceptions, get deported without an opportunity to argue their case to a judge.
After 9/11, the U.S. imposed severe “security” measures that have further eroded our rights and have deported over 3 million people — more than in the previous 110 years combined.
We should learn from the lessons of the 1996 laws and the post-9/11 era, and use the momentum for immigration reform to reverse the negative repercussions to our communities and to values of fairness and due process. We need to put an end to the ever expanding list of criminal offenses that bar an individual from relief from deportation and to allow judges to weigh the individual circumstances of a person’s case before he or she is permanently separated from family and expelled from the U.S.
While some are trying to use the Boston bombing to derail immigration reform, there is one significant difference between Boston and 9/11, when immigrants — regardless of status — came under political attack. The American public is clear that if basic rights are denied to one person, they are denied to all. A March 2013 national poll conducted by the Campaign for Accountable, Moral and Balanced Immigration (CAMBIO), found eight in ten (80 percent) in agreement, that “we should uphold American values of due process and human rights, which means immigrants should not be deported without a judge being able to evaluate the circumstances of their case.”
Under our current unfair legal system for immigrants imposed in 1996, thousands of Green card holders, asylum seekers and undocumented are prohibited from presenting their entire case before an immigration judge because they are accused of having committed “aggravated felonies,” an immigration legal term that includes a wide range of offenses that are neither aggravated nor felonies. An immigrant with an aggravated felony conviction is mandatorily deported and exiled forever.
Some parts of the bill proposed by the “Gang of 8″ begin to address these concerns, but the measure is riddled with provisions that would repeat and expand policy and political mistakes that led to record number deportations, including expulsion of many long time lawful permanent residents.
Congress should follow the advice of law enforcement veterans like Paul Grussendorf, who was an immigration judge in San Francisco and Philadelphia for seven years and is the author of My Trials: Inside America’s Deportation Factories.
“Federal legislation should include a waiver that allows immigration judges the discretion to grant relief from deportation in deserving cases by weighing the age of the conviction, the severity of the offense, evidence of rehabilitation, substantial family ties in the United States and other factors relevant to the public interest,” Grussendorf wrote recently in the San Francisco Chronicle.
Immigration reform, if handled correctly, will protect American values of fairness and due process, and preserve the well-being of families and the communities in which they live.
(View on the Huffington Post blog here)