Letter Regarding Harmful Criminal Bars in the Dream & Promise Act of 2019

RE: Criminal Bars to Legalization in H.R. 6, the Dream and Promise Act of 2019

Dear Chair Nadler, Chair Lofgren, Congresswoman Roybal-Allard, Congresswoman Velázquez, and Congresswoman Clarke:

We, the undersigned organizations, write to respectfully urge you to amend the criminal bars to eligibility in H.R. 6, the Dream and Promise Act of 2019, to ensure that the bill is more inclusive and that a waiver is available for all grounds of exclusion. We believe these changes are necessary to bring the bill in line with principles of racial justice and fairness. 

First, we would like to thank you for your longstanding commitment and leadership on the DREAM Act and efforts to fix our enforcement system. We share your commitment to getting the best version of the American Dream and Promise Act signed into law. In that spirit, we request that you bring the American Dream and Promise Act legislative text in line with the New Way Forward Act, and align it with President Biden’s U.S. Citizenship Act of 2021 which we understand will not create any new criminal bars to legalization on top of the existing grounds of inadmissibility.

Making these changes is critical to ensuring that congressional leadership and the White House are presenting a unified vision of inclusive legalization. Eliminating the additional criminal bars to status will ensure that otherwise eligible people will not suffer unjust double punishment. It will also ensure a faster and fairer implementation process.

We applaud President Biden’s commitment to racial justice and acknowledgment that racial bias permeates our criminal legal system. Indisputably, Black and brown communities face disproportionately higher rates of arrest, prosecution, and incarceration. The same tough on crime era policies of the 1990’s that brought us mass incarceration and the rise in private prisons also dramatically expanded the range of convictions that made a noncitizen deportable and inadmissible. When Congress imposes criminal bars to legalization, it also imposes the racially biased consequences of the criminal legal system twice over, and often on the communities most impacted by structural racism. Even apart from the inherent racial bias, criminal legalization bars constitute a form of double punishment: people who have already completed their sentences then face the penalty of never achieving permanent status in this country and the perpetual threat of exile. Such barriers and threats frustrate the processes of rehabilitation and healing and run contrary to the goals of criminal justice reform.

1. H.R. 6 should conform its standard to the New Way Forward Act.

Any criminal bars graft the racism of the criminal legal system onto the immigration system. Incorporating the lessons of the criminal justice reform movement, the New Way Forward Act (re-introduced on January 26) begins to undo the harms caused by the cruel and excessively punitive 1996 laws by amending the grounds of inadmissibility and deportability in current federal immigration law (which provide the basis for criminal bars to legalization under H.R. 6). Particularly at issue here, the New Way Forward Act repeals two especially broad and harmful grounds of inadmissibility: those that exclude individuals for any drug-related offense or for any offense deemed a “crime involving moral turpitude,” (hereinafter “CIMT”).

Consistent with that approach, grounds of inadmissibility that conform with the New Way Forward Act would be limited to subsections (2)(B), (2)(C), (2)(D)(ii), 2(E), 2(G), 2(H), 2(I) or (3) of section 212(a) of the Immigration and Nationality Act.

The Reuniting Families Act, which was introduced in the last Congress, also incorporates a universal waiver, providing that any ground of inadmissibility or deportability may be waived for family unity, humanitarian, or other factors in the public interest. Providing the opportunity for those applying for benefits to seek a second chance is critical to ensuring that any legalization program gives every person a fair chance to seek protection.

H.R. 6 likewise should adopt the same inadmissibility grounds and waiver described above, showing a united front in pushing for broad, bold, and equitable legalization. Doing so solidifies Democrats’ position as being on the right side of history and makes a clear and unequivocal statement that the 11 million undocumented people in this country should have an unobstructed path to citizenship.

At the very least, H.R. 6 should be amended to reflect the standard put forth in President Biden’s bill, the U.S. Citizenship Act of 2021 (hereinafter “the USCA Bill”). Rather than impose the excessively punitive criminal bars found in HR6, we understand that the USCA Bill does not add any new criminal bars to those already imposed by INA § 212(a). Under current law, individuals seeking to adjust their status to lawful permanent resident on the basis of marriage, family, or employment must show that they have not been convicted of any of the disqualifying crimes or categories of crimes under that section. Thus, the USCA Bill subjects would-be applicants to the same requirements green card applicants currently face. Additionally, and crucially, we also understand that the USCA Bill includes a universal waiver, which would permit USCIS to grant status to individuals who merited an exception based on the equities of their case.

In 2019, H.R. 6 was an important showing of solidarity with DACA-recipients and TPS-holders in the face of the Trump Administration’s cruel and racist attacks. However, in 2021, the legislation should go farther and demand a broad and equitable legalization program. Amending H.R. 6 to match the eligibility requirements of the New Way Forward Act or at the very least, the USCA Bill, would show that united front.

2. The criminal bars of INA 212(a) are already extremely punitive.

While the USCA Bill makes great strides towards a more equitable approach to legalization, the criminal bars it imposes are still extremely punitive. There is no reason to impose additional barriers to citizenship on top of them. Any criminal bars to legalization impose a harsh and often disproportionate penalty; import the inherent racial bias of the criminal legal system into the immigration system; and inflict a double punishment. Moreover, INA § 212(a) already encompasses a broad list of offenses, including:

• Any “crime involving moral turpitude” (with a one-time exception if the maximum sentence for the sole offense committed was ≤ 1 year and the actual sentence imposed was ≤ 6 months)
• 2 or more offenses with an aggregate sentence of > 5 years
• Any drug offense
• Any person the government has “reason to believe” engaged in drug trafficking
• Prostitution-related offenses
• Money laundering
• Human trafficking

This list encompasses very minor offenses. It is important to note that “crime involving moral turpitude” has no statutory definition, and has been interpreted to include minor property crimes, including shoplifting and using a fake bus pass. Therefore, because the exception only applies to one offense, a person twice convicted of shoplifting and sentenced to no jail time would still be barred. Meanwhile, the law does not provide for any exceptions for drug convictions, no matter when received, which runs counter to major legalization and reform initiatives of the past decade.

The version of  H.R. 6 that passed the House would impose these grounds and also impose the grounds of deportability found at INA § 237, as well as any felony, any three misdemeanors, or any crime of domestic violence -- no exceptions. The deportability grounds at INA § 237 include:

• Any 2 crimes involving moral turpitude
• Any “aggravated felony” offense
• Any drug offense (with an exception for a first time marijuana possession)
• Any firearms offense
• Any domestic violence or stalking offense, or any violation of protective order
• Any child abuse or neglect offense

Like INA § 212(a), this list reaches very minor conduct.

H.R. 6 would also require a “secondary review” process that gives the government the ability to deny an application based on a “public safety risk” finding that can be triggered by any conviction; juvenile delinquency proceedings; and even unproven, alleged conduct that is deemed gang-related. These provisions would harm exactly the communities that H.R. 6 aims to help, and would further entrench the racial inequities of the criminal legal system. The “secondary review” process would inevitably discriminate against young people of color who are already targeted based on national origin, neighborhood, and appearance, and result in biased decision-making that relies on “gang databases” repeatedly proven to be unreliable and riddled with biases.  Youth often have to explain in immigration court that having tattoos or wearing a soccer jersey from El Salvador are not indicative of gang membership; a new legalization program offers the opportunity to move away from these shameful due process violations. Twenty-six juvenile justice and child welfare organizations wrote to House Judiciary Chairman Jerrold Nadler in May 2019 urging him to oppose H.R. 6 unless these discretionary bars were removed.

Layering additional criminal bars to legalization beyond those found in INA § 212(a) and the USCA Bill is at odds with principles of racial equity and due process. Moreover, given the potentially extreme consequences of INA § 212(a), a universal waiver, such as that reportedly provided for in the USCA Bill and included in the Reuniting Families Act, a bill you cosponsor, is absolutely necessary.

3. H.R. 6’s multiple layers of review could lead to inefficient and unfair implementation.

As written, H.R. 6’s multiple grounds of exclusion and especially its “secondary review” will frustrate equitable and speedy implementation. As discussed above, H.R. 6’s “secondary review” essentially provides a discretionary catch-all ground for denial. That degree of discretion invites disparate and discriminatory adjudication: different processing centers, indeed, different officers, will apply that ground differently, and some of them unfairly.

Moreover, the “secondary review” would also dramatically slow implementation of H.R. 6, should it become law. USCIS is already facing extreme backlogs; for example the current estimated processing time for a U Visa application is approximately five years. Additional layers of scrutiny only extend processing times. Furthermore, H.R. 6’s multiple and overlapping criminal bars will increase the complexity of adjudication, and with it the time required to approve an application. The “secondary review” compounds this problem, adding a whole layer of bureaucracy to an already difficult process.

Rather than invite discriminatory exercises of discretion and add to the long list of backlogged applications for relief, H.R. 6 should simplify its implementation by streamlining its review process and amending its criminal bars to conform to the New Way Forward Act, or at the very least, the USCA Bill.

We are in an exciting moment of opportunity. We hope that you will work with us to ensure that H.R. 6 fulfills its promise and helps over two million people achieve citizenship.

Sincerely,