A lot depends on Trump's definition of ‘criminal’ and ‘immigrant’

Ianus · 01-03-2017, 04:55 PM

A return to Secure Communities?

Quote:

As President-elect Donald Trump’s inauguration approaches, his hard-line supporters and the unauthorized immigrants he has pledged to oust are waiting to find out how Trump will define a group that he has often railed against — “criminal immigrants.”

Both words of that phrase raise questions about Trump’s main targets for immigration policy.

“Criminal” raises questions because while a person’s immigration status is considered a civil matter, anyone who crosses the border without permission could be charged with a misdemeanor, illegal entry. Anyone who does it twice could be charged with a felony, illegal re-entry. Some wonder whether Trump will increase prosecution of these offenses as part of his plan to deport criminals.

“Immigrant” raises questions because, while Trump’s supporters seem focused on unauthorized immigrants, those who are here legally — such as with a green card — can also commit crimes and be deported for it.

Advocates on both sides want to know whether Trump really is zeroing in on the unauthorized, or whether green card holders who have committed crimes will be equally affected by Trump’s proposed increased enforcement.

Trump’s supporters say the law is clear, that violators should know and face the consequences, and they expect Trump to follow through.

“Any illegal alien that’s committed any crimes here should be immediately deportable,” said Jeff Schwilk, founder of San Diegans for Secure Borders. “If you have one in custody, why would you let that person go?”

Attorneys who work in criminal defense and immigration say the lines are murkier, that the inequalities of the criminal justice system seep into the immigration court system. They worry that casting too wide a net will unnecessarily flood already-backlogged immigration courts and crowded detention centers with people who could otherwise contribute positively to American society.

“Deportation should not be used as a weapon to punish people who have already paid their debt to society and moved on with their lives,” said attorney Ginger Jacobs, chair of the San Diego Immigrant Rights Consortium, in an emailed statement. “We should reject this double jeopardy style of justice. It only serves to separate hardworking families and undermine trust in law enforcement, putting everybody’s safety at risk.”

Current Priorities

Deportation priorities have changed under President Barack Obama. He first ramped up a program piloted in the last year of the Bush administration called Secure Communities that prioritized unauthorized immigrants who were arrested. Trump has often praised the Secure Communities program and indicated an interest in going back to it.

Under that program, according to an analysis by The New York Times of government documents, “two-thirds of the nearly two million deportation cases involved people who had committed minor infractions, including traffic violations, or had no criminal record at all.”

As Homeland Security Secretary Jeh Johnson pointed out in the memo that ended the Secure Communities program, federal courts found parts of the program problematic.

Obama’s new Priority Enforcement Program, announced in November 2014, more specifically targets those convicted of felonies, high level or repeated misdemeanors and crimes associated with gang activity. It also prioritizes those apprehended crossing the border and those suspected of terrorism or other national security concerns.

Even so, only about 10 percent of deportation proceedings, or 19,577 cases, filed in fiscal 2015 involved a criminal charge, according to the Transactional Records Access Clearinghouse based out of Syracuse University. In 2016, it was about 7 percent of the cases, and so far in fiscal 2017, that number is back at 10 percent, with 1,218 such cases filed through the end of November.

The majority of cases are for civil immigration violations, which include entering the U.S. without being inspected at the border, overstaying a visa, and working while on a visa that does not allow it.

It’s not yet clear what form Trump’s priority program will take. He said in an interview with “60 Minutes” after the election that there were two or three million people with criminal records that he felt should be deported.

The Migration Policy Institute, a think-tank generally viewed as favoring immigrants, estimated that there are 820,000 convicted criminals who are unauthorized immigrants. About 690,000 of those individuals are convicted of crimes that are currently prioritized for deportation by President Barack Obama’s administration, according to the report.

The Department of Homeland Security estimated in a report on fiscal years 2011 through 2013 that there were 1.9 million non-citizens who had committed crimes and were “removable.” These include green card holders and others in the country legally.

Some believe that in order to reach Trump’s estimated figure, he will have to cast a wider net than presidents in years past.

What does ‘criminal’ mean?

Trump has said that he will increase punishments for those who are convicted of illegal reentry, but it is less clear what he plans to do in terms of federal prosecutors using their discretion in deciding whether to charge people with that crime.

Lauren Cusitello, attorney and founder of the Crossroads Justice Center of San Diego, said that locally it’s rare to see someone charged with illegal entry, but it happens more in Arizona. Most first-time border crossers who are caught at the border are put through an expedited removal process and quickly taken back out, she said.

Those who are caught crossing who already have a deportation on their records do get prosecuted in the San Diego area for illegal reentry, said Cusitello, a criminal an immigration defense attorney.

Immigration-related crimes made up 52 percent of all federal prosecutions in 2016, according to a report from the Transactional Records Access Clearinghouse. Of the 133,041 prosecutions that year, 35,367 were for illegal entry, and 28,930 were for illegal reentry.

The Southern District of California ranks 5th in the nation for such prosecutions. The Southern District of Texas ranks first.

“There’s some concern that when the Trump administration uses the term ‘criminal,’ they are not limiting that to people who have been convicted, and they are often not limiting that potential to people who have been charged with crimes,” Cusitello added.

To Cusitello, who practices both criminal law and immigration law, prioritizing non-citizens who have committed crimes for deportation runs counter to the movement in the criminal justice sphere away from punishment and toward rehabilitation.

“I think when it comes to citizens, the Obama administration has been very good at explaining that people who have criminal pasts deserve a second chance, reentry into the community is important and people are not boiled down to the worst decisions they’ve made,” Cusitello added. “That sympathy hasn’t been given to the immigrant community.”

Who does ‘immigrant’ include?

Cusitello said she sees a lot of drug cases come through immigration court even though drug possession charges are not part of Obama’s priorities.

“That’s the area I would say there’s the biggest disconnect between what they say priorities are and what you see in court,” Cusitello said.

Such prosecutions could come into play as a deportation trigger more frequently if Trump decides to go after legal immigrants in addition to those who are unauthorized.

Jose, a 31-year-old immigrant from El Salvador who lives in Los Angeles, had a green card before he was deported for a misdemeanor marijuana possession charge that originally cost him an hour of jail time and about $100 bail. Then he came back, reentering the country illegally and committing a felony to escape the gang violence of his home country.

Because of his immigration status, The San Diego Union-Tribune has agreed to use his first name only. Jose said the El Salvador he went back to was not the El Salvador he left.

“They [the gangs] knew that I had no people over there, nobody, no friends,” Jose said. “Until this day, it’s still the same thing. People get killed for anything.”

Jose came back in 2011.

“Illegal reentry is a felony, but, like I said, I have no choice,” Jose said. “I’m sorry, America.”

Jose said he thinks immigration officials know that he’s here. He said Trump’s victory made him even more insecure.

How the systems interact

Schwilk emphasized that he what he really wants from Trump is equal enforcement of the law.

“From our side, we just want the laws enforced equally, and there’s no special classes of citizens and non-citizens who are immune from our laws,” Schwilk said. “If the laws are on the books, it applies to everybody.”

Some immigrant rights advocates say that because of systemic racial bias in the criminal justice system, using that system as a prioritization tool for immigration enforcement is questionable from an equality perspective.

“Relying on the criminal justice system as a means of indicating who should stay is problematic because it is a stark betrayal of equality concerns embedded in our constitution,” said Carrie Rosenbaum, who teaches immigration law at Golden Gate University School of Law. “Should the U.S. be able to determine who can and can't come here? Yes, that's something that Congress is empowered to do and has been considered a question of national sovereignty, but Congress should also not forget about equality considerations and keep in mind the U.S.'s long and problematic history with racism with respect to African Americans, as well as immigrants.”

Rosenbaum cited examples like the Chinese Exclusion act and the national origin quota system, which she said disparately impacted non-citizens of color from countries like Mexico, the Philippines and India.

“Most immigrants are NOT criminals, but they've been painted out to be criminals in the public imagination through racism and fear,” Rosenbaum said via email. “Most immigrants deported as ‘criminals’ are not criminals in the way most people think of criminals.”

She said creating possible paths to lawful status would allow the government to screen people for national security concerns, and simultaneously working to improve conditions in the countries that people are fleeing would be a preferable alternative to enforcement focusing on those who have committed crimes.

“People generally don't want to have to leave their homes,” Rosenbaum said, “but if they are motivated to do so out of desperation to feed their families, or flee persecution, they will keep coming, regardless of the physical or legal barriers erected.”

eva02 · 01-03-2017, 05:21 PM

Judging by his tweets regarding the house and how they should focus on tax reform and healthcare as priorities, Trump is about to forgo immigration as a top priority.

dado123 · 01-03-2017, 07:24 PM

Quote:

Originally Posted by eva02

Judging by his tweets regarding the house and how they should focus on tax reform and healthcare as priorities, Trump is about to forgo immigration as a top priority.

Hopefully the anti's get the same treatment we got when Obama promised CIR in his first 100 days. That said, I think we all appreciate DACA.

eva02 · 01-03-2017, 07:27 PM

Quote:

Originally Posted by dado123

Hopefully the anti's get the same treatment we got when Obama promised CIR in his first 100 days. That said, I think we all appreciate DACA.

Trump is getting a taste of public backlash after this ethics panel debacle. Mind you, he wasn't even involved in it. DACA will be his sole decision. He will bear the brunt of opposition.

2Face · 01-03-2017, 07:53 PM

Quote:

Originally Posted by eva02

Judging by his tweets regarding the house and how they should focus on tax reform and healthcare as priorities, Trump is about to forgo immigration as a top priority.

I definitely think he's going to be tackling immigration reform but its not going to be what people have been expecting. People have been expecting him to "deport everyone" or "immediately build a wall." None of that stuff is happening. I'm actually very excited for what plan he comes forward with. I am just extremely confident that DACA recipients in particular will be the first in line towards FINALLY on a path towards legal status. It's just inevitable man. Dreamers and especially DACA recipients are very very coveted bunch among the undocumented community.

lakers1824 · 01-03-2017, 08:10 PM

you guys are forgetting Bannon has the ear of the president any second he wants. very anti immigration even legal. Trump loves him. Only one reasonable in his inner circle may be his kids and Priebus. The rest of them are right-wing nutjobs. You have Sessions, Kobach, King, Bannon and Hannity. Fox News will kill him if he offers anything to dreamers. They will be running segments how Trump put Dreamers first over american kids and exaggerate lies, saying we commit murder,rape violent acts since we know Fox News loves telling lies.

eva02 · 01-03-2017, 08:12 PM

Quote:

Originally Posted by 2Face

I definitely think he's going to be tackling immigration reform but its not going to be what people have been expecting. People have been expecting him to "deport everyone" or "immediately build a wall." None of that stuff is happening. I'm actually very excited for what plan he comes forward with. I am just extremely confident that DACA recipients in particular will be the first in line towards FINALLY on a path towards legal status. It's just inevitable man. Dreamers and especially DACA recipients are very very coveted bunch among the undocumented community.

I think he's going to let the GOP have whatever agenda they want in return for them not impeaching him as he cements his wealth again. I don't think he ever really cared to be president anyways. He'll help the GOP pass some sort of inmigration reform to take that issue away from democrats.

isk84life · 01-03-2017, 08:56 PM

Quote:

Originally Posted by lakers1824

you guys are forgetting Bannon has the ear of the president any second he wants. very anti immigration even legal. Trump loves him. Only one reasonable in his inner circle may be his kids and Priebus. The rest of them are right-wing nutjobs. You have Sessions, Kobach, King, Bannon and Hannity. Fox News will kill him if he offers anything to dreamers. They will be running segments how Trump put Dreamers first over american kids and exaggerate lies, saying we commit murder,rape violent acts since we know Fox News loves telling lies.

Fox news will jump on the amnesty bandwagon soon. Rupert Murdock, the owner, is really pro immigrant and pro amnesty. Remember the media can easily reshape what people think about issues. Most people just take things they hear for granted.

2Face · 01-03-2017, 09:14 PM

Quote:

Originally Posted by isk84life

Fox news will jump on the amnesty bandwagon soon. Rupert Murdock, the owner, is really pro immigrant and pro amnesty. Remember the media can easily reshape what people think about issues. Most people just take things they hear for granted.

Yes! This Congress/Fox News will do anything Trump says! Just look today the House Repubs decided to reverse course on the ethics issue right around the time Trump made a tweet speaking up about it saying they were wrong! Trump is the Golden one to watch I think.

isk84life · 01-03-2017, 10:04 PM

Quote:

Originally Posted by 2Face

Yes! This Congress/Fox News will do anything Trump says! Just look today the House Repubs decided to reverse course on the ethics issue right around the time Trump made a tweet speaking up about it saying they were wrong! Trump is the Golden one to watch I think.

http://www.wsj.com/articles/rupert-m...ait-1403134311

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A lot depends on Trump's definition of ‘criminal’ and ‘immigrant’