PHOENIX -- In Arizona, more and more immigrants find themselves joining the ranks of a group that could be excluded from immigration reform: undocumented immigrants with criminal records.
The local grassroots pro-immigrant group PUENTE is calling on Congress to enact an immigration reform package that includes those whose criminal records are related to the state’s crackdown on undocumented workers.
But the question is a controversial one, and one that some immigrant rights advocacy groups may not be willing to touch. A movement that has long touted the motto, "We are not criminals," may not want to fight for the legalization of those who have any kind of criminal record.
“It’s an uphill battle,” said Pablo Alvarado, director of the National Day Laborer Organizing Network (NDLON). “Most immigrant rights organizations are not willing to risk it, and they would give up on people with some sort of criminal background in exchange for the legalization for everybody else. They’re not willing to have that fight.”
A White House draft of an immigration reform bill that was leaked to the media touched on the controversial subject. USA Today reported that the draft stipulated that those who were convicted of a crime and spent a year in jail, or had three crimes on their record and spent 90 days in jail, would be disqualified from legalization under immigration reform.
Alvarado’s perspective is perhaps one of the most inclusive -- he believes most immigrants, regardless of their offense, should be given a second chance. A U.S. citizen who is convicted of a crime does not lose his or her citizenship, he notes, and undocumented immigrants should not be treated any differently.
“A drunk driver is a drunk driver. If you’re stopped as a drunk driver and you’re a citizen, you pay for your crimes. It should be the same for an undocumented driver,” he said.
Where to draw the line
Tamar Jacoby, president of Immigration Works, a Washington, DC-based group that advocates for immigration reform, said that the issue of accepting immigrants with criminal records needs to be looked at strategically.
“I just don’t think it’s realistic to think that very many Republican members of Congress are going to vote for people with serious criminal records to get a path to citizenship,” she said.
Other immigration advocates and legal experts differ on where the line should be drawn -- a result of the complexity of immigration law and the unique circumstances in which undocumented immigrants find themselves in the United States.
Some believe that there should be a distinction between non-immigration related offenses (such as drunk driving) and immigration-related offenses (for example, individuals who were deported and re-entered the country illegally to reunite with their families; or those charged with working with false documents).
Both re-entering the country illegally and working with false documents, depending on how it is charged, could be deportable offenses.
Yet some immigration experts say these kinds of crimes are a consequence of the person being in the country without papers, and should be treated differently from other offenses.
“Those are victims of injustice in the immigration system,” said Alvarado. “Those individuals should not be deported at all.”
Others argue that the line should be drawn based on the seriousness of the offense, and that undocumented immigrants who have been charged with minor, nonviolent offenses should still be able to be eligible for legalization.
“Sometimes very minor conduct can get you deported,” noted Kamal Essaheb, an immigration policy attorney with the National Immigration Law Center (NILC).
Having two convictions for shoplifting, for example, could lead someone to be deported, he said, because, like “any theft crime,” it is considered a crime of “moral turpitude.”
Crimes of moral turpitude – a legal definition of a certain type of crime that is considered a deportable offense – include rape and murder, but the list also includes nonviolent crimes like robbery, forgery, and fraud.
“A lot of people don’t know that, and when they think of immigrants with criminal convictions they think these are serious offenses like drug trafficking; they think murderers; they think rapists,” Essaheb said.
Essaheb believes that undocumented immigrants who have criminal records should be excluded from any possibility of legalization if they have been convicted of a serious offense and have spent more than a year in jail.
That is not how current immigration policy works.
A long list of deportable crimes
Immigration judges have little discretion when it comes to granting an opportunity to stay in the country to someone with a criminal offense in their record, said Essaheb.
“If somebody fits into a certain category, regardless of how sympathetic their case is, there’s nothing judges can do about it, they’re going to deport them,” he said.
Judges’ discretion to make decisions is restricted in part because of the changes that took place under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Under that law, “the list of what made you be subject to deportation was vastly expanded,” explained Doris Meissner, director of the U.S. immigration policy program at the Washington, D.C. think tank Migration Policy Institute.
Meissner, who also is a former commissioner of the U.S. Immigration and Naturalization Service (INS), said there are a couple of ways the drafters of an immigration reform bill could handle the issue. They could prescribe through Congress who will be eligible based on their record and who will not -- or leave it open to a decision by the Department of Homeland Security (DHS).
The latter might be the more flexible choice, but one that Congress might not be willing to make, said Meissner. Either way, it is possible that waivers could be offered to people based on their individual cases, she added.
“This is a very important area of negotiations. It’s going to be a very big issue in the legislation because everybody knows that a large share of these people have violated the laws because of their [immigration] situation,” said Meissner.
Essaheb doesn’t think the issue of criminal records and where to draw the line is getting as much attention as it should.
“A lot of people are focused on making sure there’s a path to citizenship,” he said. “People need to understand that the path to citizenship only works if it’s inclusive, if it captures as many of the 11 million [undocumented immigrants] as possible.”