Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the 96 Act) increased criminal penalties for immigration-related offenses, reorganized the process for removal and deportation, restricted eligibility of immigrants for public benefits and imposed new requirements for sponsors of relatives who wish to immigrate. In addition, the 96 Act amended the definition of ?aggravated felony? to include (partial list) the crimes of rape and sexual abuse of a minor; added offenses related to gambling, bribery, and perjury; and lowered the imprisonment threshold for crimes of theft, violence, racketeering and document fraud from five years to one year. More importantly, the amended definition of an ?aggravated felony? was retroactive and applied to offenses that occurred before the enactment of the 96 Act as well as those offenses that occurred on and after the date of enactment. So, a prisoner who was sentenced to prison for three years for theft (which prior to the 96 Act would not have required that she be deported) found herself subject to deportation under the amended definition of ?aggravated felony.?
In May 2005, new legislation was introduced by Senators John McCain and Ted Kennedy which intends to reform U.S. immigration law. If enacted the Secure America and Orderly Immigration Act of 2005 will allow millions of immigrants who live and work in the U.S. to legalize their status. Some of the proposals include: stricter immigration enforcement including a new electronic employment verification system, a new temporary work visa, an improved family reunification system, and, legal status for most undocumented immigrants who live and work in the U.S. including provisions for those immigrants who were brought to the U.S. as children. Unfortunately, this proposed legislation does not appear to include any changes to the definition of an ?aggravated felony.?
Some women immigrants may be able to remain in the U.S. under provisions of the Battered Immigrant Women Protection Act (BIWPA) which is Title V of the Victims of Trafficking and Violence Protection Act and was signed into law in October 2000. To qualify for relief under BIWPA, a woman files a petition and shows that she is a person of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) describes the conduct that will render an immigrant ineligible for consideration as a person of good moral character. However, there are provisions which allow certain conduct to be waived so that the petitioner can still be considered a person of good moral character. For example, if a woman was convicted of simple possession of 30 grams or less of marijuana, and she is the battered spouse of a U.S. citizen, that conviction can be waived, but the Secretary of the Department of Homeland Security (DHS) must consent to the waiver. There are no waivers for anyone who has a conviction for any ?aggravated felony? committed on or after November 29, 1990.
Jail and prison officials are required to notify the DHS when an undocumented immigrant is due for release. DHS then has 48 hours to pick up the released prisoner. The person is re-arrested and transported to a detention center where she or he remains until a decision is made regarding the removal/deportation of the person. If DHS fails to pick up the person within the 48-hour time limit, that person is FREE.
For more information contact: Immigrant Legal Resource Center, 1665 Mission St., SF, CA, 415-255-9499, www.ilrc.org; National Immigration Law Center, 405 14th St., Oakland, CA, 510-663-8282, www.nilc.org