THE BLOG

Putting an End to Sledgehammer Justice: Lawmakers Must Heed the Call for a Fair and Inclusive Path to Citizenship

05/21/2013 04:28 pm ET | Updated Jul 21, 2013

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 this path. Provisions in the bill and several amendments that senators will vote on this week exacerbate the current denial of due process rights in the immigration system. They aim to further exclude immigrants, both undocumented individuals and green card holders, leaving them off the path and without a fair day in court before facing permanent separation from their families.

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. Few other legal systems, criminal or civil, are as rigid or mechanical as our current immigration laws. An offense that disqualifies someone from legalization or triggers deportation lasts forever, even if it was a mistake that occurred years ago.

Among the many proposed amendments this week, Senator Grassley's amendments #21 and #22 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. In addition, Senator Sessions' amendment #22 automatically exclude from legalization, with no possibility of discretion, several single misdemeanor convictions. These amendments lack 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.

Law enforcement leaders like Robert Johnson, former president of the National District Attorneys Association, and Steven Jansen, Vice-President of the Association of Prosecuting Attorneys have shown that these short-sighted policies undermine public safety and the work of the criminal justice system. Immigration Judges, such as Judge Dana Leigh Marks, President of the National Association of Immigration Judges and Judge Paul Grussendorf, have also increasingly called for the restoration of discretion to immigration courts.

As Mr. Jansen explains, "Crime prevention and community safety demand a more nuanced approach, one that appreciates the ripple effect caused by mandatory deportations that leave communities depleted by unemployment and single parent households struggling to feed their families. The criminal justice system has been crafted to give us the leeway to consider these human factors when rendering punishment." He adds, "Legislation should consider a provision that allows immigration authorities and law enforcement to consider the humanitarian factors in every case before ordering deportation or denying a path to citizenship."

The case of Howard Bailey is a heartbreaking example. In 1989, Howard came to the United States at age 17 as a lawful permanent resident, with his mother who is a U.S. citizen. He joined the Navy after graduating high school and was soon deployed to the Persian Gulf to serve in Desert Storm. In 1995, soon after he returned home after service, some acquaintances sent Howard a package containing marijuana. Federal agents had been tracking the package and arrested Howard. Howard had never before had any interaction with the criminal justice system. His lawyer recommended that he take the plea and serve 15 months.

Upon his release, Howard was determined to rebuild his life. He saved up money to start a business. He first owned and ran a small restaurant with two employees and later started a trucking business, employing up to five drivers. He was able to buy two homes. His wife and children were always the center of his life. He became a mentor for other returning veterans.

In 2005, Howard applied for citizenship. He honestly reported his conviction from 10 years earlier and supplied all the records related to the case. After five years of delays, Howard's application was denied. Immigration officers handcuffed him in front of his wife and children and he was placed in deportation proceedings. Howard spent nearly two years in immigration jails far from his home. He tried to fight his case and ask a judge to consider his individual circumstances: an armed service veteran who defended the United States, a lawful permanent resident who owned a business and employed several people, a husband with a wife and two children who were dependent on him. But because, under current law, a judge has no ability to consider these circumstances, the judge had to mandate his detention and deportation based on Howard's old criminal conviction from more than fifteen years before,.

Howard was deported in May 2012 and is now in Jamaica, a country he hasn't seen in 24 years. He can no longer support his family and lives in constant fear for his own life, as deportees are stigmatized in Jamaica and targets of violence. At the same time, his family in the United States is deteriorating. His 16 year-old daughter has gone from being an honor roll student to barely passing and has attempted suicide. His 18 year-old son is struggling and starting to get into trouble. His home is in foreclosure, and his business has shut down.

Every day, lawful permanent residents, asylum seekers, and undocumented people who have lived in the country for decades battle disproportionately harsh laws that result in permanent exile and separation from their families. This is due in large part to the fact that many immigrants are not allowed to have their individual circumstances, such as family ties and length of time in the country, considered before being detained and deported. Under the current Senate bill, there are only a few exceptions or waivers to overcome bars to gaining or keeping legal status. People like Howard Bailey would still be permanently exiled and separated from their family despite all that they have accomplished in their lives. Proposed amendments now seek to remove even the limited chances for some people to have their cases heard and considered.

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.

For more of our amendment analysis, please read CAMBIO's amendment vote recommendation guide. The Immigrant Defense Project is a member of the Immigrant Justice Network (IJN) with the National Immigration Project of the National Lawyer's Guild and the Immigrant Legal Resource Center. IJN sits on the Steering Committee of the CAMBIO campaign.