Obama wants judges to decide whether immigrants convicted of minor crimes should be deported

February 20, 2013

Buried in the White House's draft immigration bill is a new proposal that would give judges greater discretion to decide whether immigrants convicted of minor criminal offenses should be allowed to remain in the United States.

Marchers carry signs in support of immigrant rights as thousands of protesters march up Broadway during a May Day immigration rally in Los Angeles, California. (Reuters)
Marchers carry signs in support of immigrant rights as thousands of protesters march up Broadway during a May Day immigration rally in Los Angeles, California. (Reuters)

Under current law, non-citizen immigrants convicted of what's known as an "aggravated felony" face automatic penalties that make it far harder for them to be spared from deportation. While the term suggests a crime of a serious and violent nature, the definition of an "aggravated felony" has been expanded over the years, to the point where it includes crimes that are neither "aggravated" nor "felonies." Obama's draft immigration bill would narrow the definition of an aggravated felony by giving immigration judges greater discretion to grant leniency to individual immigrants convicted of minor offenses.

Originally, only a small handful of serious crimes were classified as "aggravated felonies" in immigration law, but the definition was expanded in 1996 to encompass a host of other more minor offenses. "As initially enacted in 1988, the term 'aggravated felony' referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices," explains a brief from the Immigration Policy Center, an immigration advocacy group. "Today, the definition of 'aggravated felony' covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court."

"Under immigration law, 'aggravated felony' can be as simple as a bar fight. The reason is that it's not measured in terms of the severity of the crime—it's measured in terms of technical sentence," says David Leopold, the general counsel for the American Immigration Lawyers Association.

"Even offenses that sound serious, such as 'sexual abuse of a minor,' can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old," explains the Immigration Policy Council.

Many crimes are classified as "aggravated felonies" if they carry a sentence of one year—regardless of whether that sentence is actually imposed or carried out in full. Immigrants convicted of such crimes are automatically required to be detained by federal immigration authorities after they're released from criminal custody and can then be summarily deported without a hearing before a judge. Aggravated felons are also ineligible for asylum or reprieve from deportation by a change due to family hardship, and they're prohibited from ever returning to the United States without special permission from the government. (Permanent residents are granted a hearing, but the judge still has limited authority to prevent deportation.)

Obama's draft bill would it possible for more immigrants convicted of minor criminal offenses to remain in the United States by giving judges far greater discretion to decide whether they should be deported. The proposal would redefine an aggravated felony to encompass crimes that carry at least a five-year penalty. It also would require fraud offenses to result in at least $100,000 in losses for victims rather than the current $10,000 to be classified as aggravated felonies.

That doesn't mean that all immigrants convicted of more minor crimes would be granted a reprieve from deportation: Rather, it would give immigration judges greater leeway to decide whether they should be deported or get a second chance. (Under Obama's draft bill, undocumented immigrants would be disqualified from receiving legal status if they serve more than a year in prison for a crime they've committed.)

The proposed changes have heartened immigration advocates, who believe that the draft bill reveals the White House's concern for due process and fairness. "The reason that's so important is because immigration judges have no jurisdiction over the kind of release in terms of an aggravated felony," says Leopold. "If somebody's committed a crime, let an immigration judge make the decision."

But the proposed changes are likely to be contentious: The Senate's bipartisan immigration group has yet to support such reforms, which weren't detailed in Obama's initial framework for reform. And immigration skeptics believe that loosening such standards would lead potentially dangerous, destructive criminals to remain in the United  States.

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