Friday, November 30, 2012

ACHIEVE Act would bar most youth with criminal history

By César Cuauhtémoc García Hernández

It’s unlikely that the ACHIEVE Act, the immigration reform proposal introduced by a handful of Republican senators this week, will become more than a blip in the long history of immigration law reform debates, but it’s clear that it reflects a well-trodden tradition of excluding people who have encountered the criminal justice system from receiving immigration benefits. The proposal’s drafters seem to have gone out of their way to exclude almost anyone convicted of a crime from receiving one of the W-1 non-immigrant visas the act would create. Despite this obvious intention, a close reading of the proposed statutory text suggests that they threw the act together rather hurriedly, leaving a great deal of ambiguity to be sorted by immigration lawyers, judges, and government officials if the proposal becomes law.

The proposal’s text explicitly excludes from eligibility anyone who has been convicted of the wide range of offenses that the Immigration and Nationality Act currently renders inadmissible or deportable from the United States. This includes the two major INA provisions listing crime-based removal: the inadmissibility grounds of INA § 212(a)(2) and deportation grounds of INA § 237(a)(2). Importantly, because the ACHIEVE Act simply references inadmissibility under INA § 212(a)(2), among a host of other provisions, some individuals who have not been convicted of a crime are also ineligible—namely, anyone who admits to having committed an offense classified as a crime involving moral turpitude (CIMT), an amorphous categorization that one federal appellate court said lacks “any coherent criteria for determining which crimes fall within that classification and which crimes do not,” Nuñez v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010), but that has been part of immigration law since 1891. See Immigration Act of March 3, 1891, § 1, ch. 551, 26 Stat. 1084.

Immigration lawyers are well aware that INA §§ 212(a)(2) and 237(a)(2) go a long way to covering all manner of crimes—from the most serious (e.g., murder) to the most trivial (e.g., simple possession of marijuana or passing a bad check). Yet the ACHIEVE Act’s drafters weren’t content with relying on existing crime-based removal mechanisms. Instead, the act would add an additional preclusion for anyone “convicted of a felony, any offense that may be described as a crime of moral turpitude…or a misdemeanor under Federal or State law, punishable by imprisonment for more than 30 days, unless such misdemeanor is the result of a traffic violation that odes not involve the applicant being under the influence of alcohol or any substance listed in Schedule I of the Controlled Substances Act.”

There is a lot to wonder about why this passage is necessary and what it means. First, the existing forms of INA § 212(a)(2) and § 237(a)(2), which the ACHIEVE Act wouldn’t alter, include CIMTs so the act’s earlier reference to those sections seems to do part of what this section repeats—exclude anyone convicted of a CIMT from eligibility for the new W-1 non-immigrant visa.

Second, it’s curious that the act explicitly states that the misdemeanor can be a state or federal misdemeanor, but doesn’t explain what kind of felony it’s referring to. Does this mean that the felony has to be a federal felony? Does it have to be a state felony? I’m skeptical that the proposal’s Republican backers meant to choose one. Instead, this strikes me as nothing more than poor drafting. Unfortunately, if this proposal were enacted into law it wouldn’t be the first time that those of us who deal with immigration law get stuck with a poorly written statute.

On a related note, it’s unclear whether the 31 days imprisonment requirement applies only to misdemeanors or whether a felony conviction also precludes eligibility if the crime was “punishable by imprisonment for more than 30 days.” Intuitively, adding this requirement to the felony conviction basis of ineligibility is redundant since the definition of a felony includes the possibility of imprisonment well in excess of 30 days—usually at least a year. I would be tempted to read the text intuitively if it wasn’t for the text that’s actually used. The 31 days imprisonment clause follows the references to felonies, CIMTs, and misdemeanors. Importantly, the imprisonment clause is set off from the misdemeanor preclusion clause by a comma. This indicates that the drafter’s intended to separate the imprisonment clause from the misdemeanor clause. If the imprisonment clause were meant to restrict the misdemeanor clause only (by precluding eligibility only for people convicted by a misdemeanor that is punishable by more than 30 days imprisonment), then a comma should not separate it. As it’s currently written, though, the punctuation chosen suggests that the imprisonment clause applies to all three preclusion grounds listed—felonies, CIMTs, and misdemeanors.

The reason that this matters isn’t because it casts doubt on whether the 31 days imprisonment clause applies to the felony preclusion. It matters because it leaves some question about whether it applies to the CIMT preclusion. If the imprisonment clause apples to the CIMT preclusion, then an offense that “may be described as” a CIMT bars eligibility for the W-1 nonimmigrant visa only if it carries a potential term of imprisonment of 31 days or more. If the imprisonment clause doesn’t apply to the CIMT preclusion, then all offenses that “may be described as” CIMTs preclude eligibility. A CIMT preclusion bar that requires a certain amount of prison time would reflect the basic structure of INA § 237(a)(2)(A)(i)(II) which provides that a person is deportable if convicted of a CIMT only if the crime carries a sentence of one year or longer. Perhaps the drafters were aware of this and wanted to make sure that some people who are not deportable are nonetheless ineligible for the W-1 visa.

Another odd feature of the act’s text is that it requires conviction of an offense “that may be described as” a CIMT. What’s the “may be described as” mean? That phrase doesn’t appear in INA § 212 or § 237 so we don’t have a ready-made interpretation to apply. More importantly, it seems that this phrase conflicts with the categorical approach and modified categorical approach to statutory interpretation which require that immigration lawyers, judges, and others involved in applying immigration law (such as DHS) figure out whether someone was convicted of a CIMT by examining the statute of conviction or record of conviction. This language in the ACHIEVE Act seems to ask that DHS do less than that. Instead of actually analyzing a crime using the interpretive devices already familiar to us, the act seems to ask DHS to make a ballpark estimate: does the offense look like something that’s a CIMT? Even the Attorney General’s decision in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), doesn’t do that.

The bottom line is that the ACHIEVE Act’s criminal preclusions are obviously broad and poorly worded. If it’s enacted, the end result is a lot of confusion for those of us who spend our days applying or interpreting immigration laws, and a lot of frustration for the countless individuals who have maintained entirely ordinary lives in the United States, including the ordinariness of being convicted of a crime at some point. Of course, it’s unlikely to be enacted. Nonetheless, it suggests what’s to come as Congress contemplates getting serious about immigration law reform next year.

César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of, a blog about the convergence of criminal law and immigration law.

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