A way forward for immigration reform


Some of the changes brought about by the 1996 “IIRAIRA” bill, which amended many sections of current US immigration law or the 1952 bill, were in my opinion unintended and need to be reviewed.  The “IIRAIRA” states that any crime considered an “aggravated felony” can bar a person from American citizenship and get them deported. US immigration law has always taken a dim view of criminal behavior.  From the earliest days of the USA, a criminal record could bar a person from entering or residing in the country. The “aggravated felony” section of the IIRAIRA amendments drastically enlarged the category of crimes which could bar a person from the US to include any crime of violence, theft or burglary for which a possible maximum sentence of 1 year imprisonment could be imposed.  

In some states, petty theft, verbal assault and even disorderly conduct —the last two classified as crimes of violence—can carry a possible maximum sentence of 1 year imprisonment. These sentences are seldom if ever imposed for these types of petty crimes which in most states are misdemeanors and not felonies at all. However, under the IIRAIRA, a person who got into a shouting match with their neighbor, was summoned to court for verbal assault and plead guilty and paid a small fine, could now be deported and barred from ever entering the US.  (Verbal assault in such states as Georgia carries a maximum possible sentence of one-year imprisonment.)

When Robert came to my office he was married to Emily, an American citizen, and had applied for a green card. His case, based on marriage to an American citizen, was straightforward. However, there was one little glitch. He had been arrested for stealing a packet of peanuts from a local 7 Eleven store on the campus where he was a student six years before. He never thought that this packet of peanuts would come back to haunt him and almost ruin his life. Robert had been a foreign student for 6 years, and now had a bachelors and master’s degree in computer science. Unfortunately, he had pilfered a packet of peanuts in California, a state in which petty theft carries a possible maximum sentence of one-year imprisonment. Immigration law is bound by the actual conviction regardless of the circumstances or the seriousness of the crime. In other words, under immigration law, stealing a packet of peanuts is an “aggravated felony.”

Our only recourse was to apply to the Immigration Service for a waiver of past criminal conduct. Such a waiver is granted under certain conditions, the most important and relevant of which is establishing that the US citizen would suffer extreme hardship if their foreign-born spouse were deported and barred from living in the US. One of the arguments against granting the waiver is that the US citizen can go and live abroad with their spouse in their country. Our response was that this would force the US citizen to give up his or her birthright, the standard of living in the US and the opportunities that this country affords. The alternative is separation, and most likely divorce.  

Because Immigration law will not look behind the conviction and unreasonably lumps together all kinds of crimes, the same standard of hardship is required for the waiver regardless of the nature of the crime. Neither Robert nor his wife could understand that stealing a ninety-nine cent packet of peanuts is in the same category as selling cocaine or even crimes of violence under US Immigration law.  It was hard for them to understand the convoluted process of obtaining a hardship waiver for such a petty incident that had been dismissed by the criminal court.   

In Robert’s case, we showed that his wife’s employment opportunities would be severely limited in Venezuela . She was a professional urban planner who specialized in eco-friendly mass transit systems in large cities. She did not speak Spanish, which is the official language of Venezuela . Also, her entire extended family lived in the US siblings, parents and cousins.  Fortunately, the appeals’ office agreed with my argument that Robert’s US citizen wife would experience extreme hardship whether she lived alone in the US or went to live with Robert in Venezuela . The process took two years, a lot of stress, some tears, and much expense and time. All of this for a packet of peanuts.

Recently, on June 14, 2010 the United States Supreme Court (in Chiricuri v Attorney General) threw out the deportation order of a person who had lived in the U.S. as a lawful permanent resident since the age of five but was placed under deportation for two minor drug-related offenses: simple possession of a small amount of marijuana and possession without a prescription of one anti-anxiety tablet. The Supreme Court concluded that automatic deportation for such minor offenses is out of proportion with the crimes and is against common sense.