Hunting ‘criminal aliens’ is more semantics than sensical.

Sunday, May 22nd, 2011
By: Jonathan MontagJ.D.

There’s a tale that Abraham Lincoln was asked, “If you call a horse’s tail a leg, how many legs does a horse have?” His evocative answer was, “Four.” Evocative because we learn so much about Lincoln from the answer. At least this is what I taught in school as a child. No one ever taught me what it taught about Lincoln or even why it was the right answer. I, in my “not going to become President” manner, am partial to the answer, “Five.”

The concept of calling something something else and then capitalizing on the change in nomenclature is not rare. If I say that ketchup is a vegetable, does that mean it is appropriate to cut another vegetable out of school lunch? Lincoln probably would not look at it this way – if ketchup is called a vegetable, the school lunch is still not a balanced meal.

Here’s what I think it all means. If you say that Concept A is in the family of Concept B, we can either accept the axiom or we can reject it – like Lincoln did.

This happens in the law a lot. There was a big dust up in England last week of this manner. The Conservative Secretary of State for Justice, Kenneth Clarke, stated that even though we call lots of things rape, the violent attack on a woman in the woods is not the same as an 18 year old having consensual sex with a 15 year old. Just because we call sex with a woman not of legal majority “rape,” does not make it the same as the brutal rape of a stranger. Abe Lincoln would have understood. The school lunch critics would have understood.

Another example, in the immigration law context, is the concept of “admission.” Immigration law divides foreigners into two groups – those who were admitted and those who were not. Certain rights and certain consequences attach depending on which you are. However, some people came into this country without being admitted and then became lawful residents through adjustment of status. These people do not fit easily into the “admitted” and “not admitted” dichotomy, so the courts have had to decide that when these people adjusted status they were then “admitted.” So, like Lincoln’s tail story, if you call an alien who entered without inspection and then adjusted status “admitted,” then all the rights and consequences of being admitted then inure to them. Those who have big stakes in the purity of the concept of “admission” may take exception, just as horse-leg lovers or ketchup-in-school-lunch haters would. For a discussion of “admission” and all its implications and complications, read this case.

There is another less-technical way this “word problem” occurs in immigration law. This is the concept of “criminal alien.” ICE has released memos like this one stressing that its priorities in removing people do not include undocumented students who came to the United States as children, but rather its highest priorities include removing “criminal aliens.” Indeed, ICE is finding “criminal aliens” and placing them in removal proceedings. While new elsewhere in the United States, identifying non-U.S. citizens in jails has been going on for quite a while in San Diego and only rarely do I encounter recent convicts who avoided ICE upon release from jail.

As ICE has already picked the low-hanging fruit and has processes in place to identify and arrest the new convicts, it, now more and more it seems, is arresting aliens who are long-standing permanent residents who are indeed criminal aliens but whose criminal pasts are in the distant past. A man who was convicted of possessing drugs in 1984 is arrested at home at 5 a.m. and placed in removal proceedings. Same with a man who delivered a package of what turned out to be drugs in 1985. A man is placed in removal proceedings and found ineligible for relief because of a 1998 shoplifting. A man is placed in proceedings for a 1991 grand theft. A woman is detained for eight months for a 2003 drug conviction. All of these people have been crime free for years and years, have families, have good jobs, are church goers, and completely rehabilitated. All who were eligible, ultimately were forgiven by an immigration judge or had their cases terminated. While technically criminal aliens, they are criminal aliens the way a tail is a leg. They are not dangerous people, fugitives, nor anything but assets to the country. Just figuring out the immigration consequences of these crimes is difficult because court records are sometimes not available so long after the conviction and the laws governing the impact of the convictions have changed many times since their convictions. I read the transcript of a hearing for a person who was in deportation proceedings in 1971 last week. Almost every legal point seems to have changed since 1971, from the procedures for determining deportability, the laws that governed deportability, and the relief available to ward off deportation. To litigate these cases the lawyers and judges have to delve into “ancient” legal history and sometimes litigate complex retroactivity issues, like here  and here. Assuming resources are not limited, arresting, retaining, and prosecuting in removal proceedings people with decades old criminal convictions who have not broken the law in many years is a waste of resources, imposes great burdens on people who can scarcely remember their crimes anymore and great burdens on their families, and does nothing to make America safer or immigration laws more respected. Equating these people with a current drug dealer or commercial alien smuggler or murder is like calling ketchup a vegetable. If Congress and executive agencies responsible for immigration law really want to be efficient about the use of resources, they should agree on a change in the law or promulgate regulations or simply implement a policy that states that if an alien is a lawful permanent resident and has not been placed in removal proceedings for X years (pick a number 5, 10, 14 years) and has no serious criminal involvements since then, he or she will not be subject to removal proceedings, or, if proceedings are necessary, that the alien is presumptively a person whose presence in the United States is desirable, the linchpin in deciding deservedness for relief from removal and relief should be granted through a quick, pro forma process. Of course, if a person is crime free, but otherwise obviously a dirt bag, the presumption can be overcome. Implementing a system like this would free up resources, end the practice of detaining and terrorizing people whose convictions are decades or more old, and allow for judges and prosecutors to use their time in a manner more beneficial to the United States taxpayer.

It is hard to know why ICE is applying its resources to go after people who committed crimes a generation ago. A theory is that the Obama administration wants to show its “cred” in enforcement so it will be successful in passing reforms to the immigration system. Perhaps the President is following another famous adage attributed to President Lincoln, “The best way to get a bad law repealed is to enforce it strictly.” Posted April 22, 2011.

 


 

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