June 6, 2013
Much of the Senate proposal is commendable, but reform to protect families will fall short if it doesn’t address the existing system’s inability to recognize the human capacity for change.

The immigration reform bill from the Senate Gang of Eight includes many provisions that would promote family unity. Most notably, it creates a path to citizenship for millions of people living in the United States who are already integral parts of American families and communities but have no legal status.

But the Senate plan, which is likely to form the core of any successful reform effort, falls short in at least one significant respect: it continues a “one-size-fits-all” policy that would deny a second chance to many non-citizens with criminal convictions. And immigration judges would be powerless to make exceptions for these non-citizens if they were put into deportation proceedings.

They may have lived in the United States since childhood and have strong family ties to U.S. citizens. They may have been lawful permanent residents, and the crime may have been relatively minor. No matter. Even people who have served out their punishment and been law-abiding ever since would have no hope of getting right with the law – only the prospect of detention and deportation.

Needless to say, deporting immigrants with criminal records is an easy political sell. That’s partly because it conjures up images of drug smugglers, gun runners and even terrorists. But the numbers tell a different story.

By Human Rights Watch’s calculations, 72% of non-citizens deported for criminal convictions from 1997 to 2007 had nonviolent offenses. More than 1 million family members were affected by these deportations. Given that at the current rate, almost 2 million people will be deported by 2014, the number of families torn apart by this policy is now probably much higher.

These “criminal aliens” include people whose “crime” is trying to stay in the country one step ahead of immigration enforcers. For instance, among the felons targeted for deportation are people whose crime was forging documents to say they were here legally or for reentering the United States after being deported once already.

Under current U.S. law, such convictions could be considered an “aggravated felony,” which would bar such immigrants permanently from living in the United States. The definition of “aggravated felony” is now so broad that convictions for offenses like working with a fake ID or shoplifting can result in exile. Immigration judges are powerless to take into account the circumstances of each individual's case, but must treat the immigrant as a dangerous criminal and order the person removed for life. Those who re-enter the country illegally after a conviction for such “aggravated felonies” can face up to 20 years in federal prison.

Immigration reform should restore immigration judges’ power to consider cases individually and narrow the definition of “aggravated felony” to crimes that are actually serious, violent offenses. The White House plan takes a step toward such reforms; the Senate plan does not.

Reform could also create avenues for people previously deported for criminal convictions who have strong ties to U.S. families to apply to return legally, if they provide evidence that they are not a threat to public safety. The Senate proposal, while barring those with criminal convictions from legalization, would allow those with misdemeanor convictions to apply for a waiver of that bar based on family unity. A similar opportunity to provide evidence of family ties and rehabilitation for those with felony convictions would not condone criminal conduct; it would simply give people a chance to reunite with their families in the country they consider home.

Much of the Senate proposal is commendable, but reform to protect families will fall short if it doesn’t address the existing system’s inability to recognize the human capacity for change, or to distinguish between those who truly represent a danger to our communities and those who could instead strengthen them.

Grace Meng is a U.S. researcher at Human Rights Watch and the author of several reports on U.S. immigration policy.