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What does the Recent Gang of Eight Announcement on Comprehensive Immigration Reform Mean: Some Initial Thoughts

What does the Recent Gang of Eight Announcement on Comprehensive Immigration Reform Mean: Some Initial Thoughts

The “Bipartisan Framework for Comprehensive Immigration Reform”, pitched by Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake, is being hailed as a major step forward America’s estimated 15 million undocumented immigrants. The Framework however is so long on concept and so short on specifics on so many crucial issues, that in the end, we’re left with the same empty “tough but fair” platitudes on immigration reform. The language of the Framework is also so vague that, once again, we're left to wonder what the drafters really mean.

Some highlights on the Gang of Eight CIR Proposal...

Two big cheers for reducing family visa backlogs and automatically granting green cards to PhDs with science and engineering degrees. These are two critical aspects of CIR aimed at keeping immigrant families together and American businesses competitive.

As for the rest...

It’s the same old we’re tough-but-fair rhetoric, heavy on the tough. The Framework states that the U.S. must get the Border “under control” with more enforcement, more employer sanctions, and, incredibly... the domestic use of drone aircraft (the mention of drone aircraft in an immigration reform proposal leads me to believe that the men who occupy the Gang of Eight are in a state of arrested adolescence and need to eject "The Bourne Legacy" from the Senate rec room VCR).

So while CBP works on its drone fleet, qualifying hardworking and law-abiding undocumented families will be accorded second class “probationary” status. What is probationary status? It’s something short of permanent residency, but likely includes a work authorization card. There is no mention however about acquiring a travel permit. Applicants must also pass a background check and settle "their debt to society by paying a fine and back taxes." To be clear however "probationary status" provides applicants neither with a path to citizenship nor the right to petition for their relatives, not even their children. These undocumented families must still wait to join the back of the permanent resident queue, and then, can only enter the queue once the U.S. Government issues its arbitrary pronouncement that its enforcement measures have been completed. How many years will this take?

Fortunately, childhood arrivals and agricultural workers will be able to avoid probationary status, and get in line for their green cards sooner. For everyone else, however, just what conditions might satisfy the Gang's enforcement benchmarks are unclear. Hasn't undocumented immigration already been slowed to a trickle by a weak economy and DHS enforcement? Hasn't the Obama Administration already deported immigrants in record numbers?

Now for my favorite subject, defending immigrants with criminal issues. On this score, the Framework states:

Individuals with a serious criminal background or others who pose a threat to our national security will be ineligible for legal status and subject to deportation. Illegal immigrants who have committed serious crimes face immediate deportation.

Two sentences, and yet so many questions. What does “serious criminal background” mean? What is meant by the term “serious crimes”? Is an “individual with a serious criminal background” the same as an “illegal immigrant who has committed serious crimes”? Does the term serious “crimes” (plural) mean more than one crime? And how do we define "serious crimes"? Are “serious crimes” the same as an “aggravated felonies” under INA § 101(a)(43), which are rigorously defined, or are they akin to “particularly serious crimes” which under INA § 208(b)(2)(A)(ii), could be aggravated felonies, but can also be defined on a case-by-case basis?

More questions... did the Gang of Eight really mean to focus on the commission of a serious crime, whether or not the Applicant was actually convicted? And if so, by what evidence and which procedures will DHS determine whether a crime was committed? For these reasons, immigration law already make a huge distinction between “convicted” and “committed”. It's a distinction well worth preserving.

And what do the Gang of Eight mean by the term “immediate deportation”? No such procedures currently exist under law. Did the Gang of Eight have in mind INA § 238(b) and 8 CFR § 238.1, which allows for the summary removal of non-legal permanent residents convicted of “aggravated felonies”? Or do the Gang of Eight actually intend the creation of a new procedure for the removal of immigrants with crimes?

Need we even pay close attention to the Gang of Eight CIR Framework? The Republican dominated House hasn't exactly been wowed by the Gang's proposal. Rep. Raul Labrador, a Hispanic Republican from Idaho who has been working on immigration policy for the GOP, said “creating a new pathway” to citizenship for undocumented workers “is not a good idea,” adding it would encourage more illegal immigration.

What might they have to add? Stay tuned...

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