Part III: Gang of Eight Breaks Promise to Bar Criminals from Receiving Amnesty

A close analysis of the Senate Gang of Eight’s Amnesty bill (S.744) shows that its authors have broken their promise to bar criminals from receiving amnesty, called “registered provisional immigrant” status (RPI status).At first, S.744 appears to prohibit most criminals from receiving amnesty under the bill. The bill provides that an illegal alien is ineligible for RPI status if he/she:

• Has a conviction for a felony;
• Has a conviction for an aggravated felony, as defined under 101(a)(43);
• Has a conviction for 3 or more misdemeanors (other than minor traffic offenses) if the alien was convicted on different dates for each of the offenses (Sec. 2102(b)(3)(B)(i));
• Has a conviction for any offense under foreign law that if committed in the U.S. would render the alien inadmissible or removable under the INA
• Has a conviction for unlawful voting under INA 237(a)(6); and
• Is reasonably believed to be engaged in, or likely to engage in, terrorist activity (Sec. 2102(b)(3)(A)(iii)
• (Sec. 2101, INA 245B(b)(3), p.61-66)

However, when one looks at the details, one sees that these bars do not apply a wide range of criminal conduct. First, the language provides that aliens with certain “convictions” are ineligible for RPI status. This means that anyone charged with the offense and released on bond is still eligible. It also means that juvenile aliens who committed egregious offenses will not be barred from eligibility, as they are technically “adjudicated delinquent” not “convicted” of a crime. Finally, barring aliens with convictions for certain crimes ignores the fact that many individuals will “plea down” their offenses in order to turn a felony conviction into a misdemeanor conviction or a misdemeanor conviction into a misdemeanor conviction with a lesser penalty.Next, the bill contains a glaring loophole: it allows DHS to waive misdemeanor convictions for the purposes of determining eligibility for amnesty. Indeed S.744 allows DHS to waive multiple misdemeanor convictions.(Sec. 2101, p.65) And while most people’s knowledge of misdemeanor offenses relates to traffic violations, misdemeanors span a wide range of activity. In Florida, for example, misdemeanor crimes include:

• Assault, Fla. Stat. § 784.011;
• Assault on law enforcement officers, Fla. Stat. §784.07;
• Battery, Fla. Stat. § 784.03;
• Stalking, Fla. Stat. § 784.048;
• Human smuggling, Fla. Stat. § 787.07;
• Unlawful carrying of a chemical weapon or other deadly weapon (non-firearm), Fla. Stat. § 790.01;
• Unlawful placing or discharging of a bomb that results in any bodily harm, Fla. Stat. 790.1615;
• Unnatural and Lascivious Act, Fla. Stat. §800.02; and
• Exposure of Sexual Organs; Fla. Stat. § 800.03.

Similarly, In Texas, misdemeanor crimes include:

• Public Lewdness, Texas Penal Code § 21.07;
• Indecent Exposure, Texas Penal Code § 21.08;
• Terroristic Threats, Texas Penal Code § 22.07;
• Burglary of Vehicles, Texas Penal Code § 30.04;
• Deadly Conduct, Texas Penal Code § 22.05;
• Assault, Texas Penal Code § 22.01;
• Soliciting Membership in a Criminal Street Gang, Texas Penal Code, § 71.022;
• Soliciting Prostitution, Texas Penal Code § 43.02;
• Unlawful Carrying of Weapons, Texas Penal Code § 46.02; and
• Engaging in Organized Criminal Activity, Texas Penal Code § 71.02.

In New York, misdemeanor crimes include:

• Assault, New York Penal Law § 120.00;
• Stalking, New York Penal Law § 120.45;
• Forcible touching, New York Penal Law § 130.52;
• Sexual abuse in the second degree, New York Penal Law § 130.60;
• Unlawful imprisonment in the second degree, New York Penal Law § 135.05;
• Endangering the welfare of a child, New York Penal Law § 260.10;
• Insurance fraud in the fifth degree, New York Penal Law § 176.10;
• Health care fraud in the fifth degree, New York Penal Law § 177.05;
• Welfare fraud in the fifth degree, New York Penal Law § 158.05; and
• Criminal possession of methamphetamine manufacturing material in the second degree, New York Penal Law § 220.70

S.744 also authorizes DHS to waive a broad array of criminal behavior for the purpose of determining admissibility, including convictions for:

• Gang-related crimes (INA 212(a)(2)(F))(added to the INA by §3701)
• Three or more drunk driving offenses (INA 212(a)(2)(J))(added to the INA by § 3702)
• Domestic violence, stalking, child abuse, and violation of protective orders (INA 212(a)(2)(K))(added to the INA by §3711)

Also for the purpose of determining admissibility, S.744 allows DHS to waive the following conduct, which does not require a conviction in order to make an alien inadmissible:

• Committing crimes or of moral turpitude (INA 212(a)(2)(A)(i)(I));
• Violating federal or state drug laws (INA 212(a)(2)(A)(i)(II));
• Trafficking in passports (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Providing fraudulent immigration services (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Trafficking immigration documents, including document fraud (INA 212(a)(2)(A)(i)(III))(added to the INA by §3709);
• Prostitution (INA 212(a)(2)(D)(i));
• Gang membership (INA 212(a)(2)(F))(added to the INA by §3701);
• Misrepresenting a material fact to procure visas or other immigration benefits (if done for any purpose other than submitting an amnesty application) (INA 212(a)(6)(C)(i));
• Violating student visas (INA 212(a)(6)(G));
• Falsely claiming citizenship (INA 212(a)(6)(C)(ii)); and
• Illegally re-entering the U.S. after deportation (a felony)(INA 212(a)(9)(C).

When the Senate Gang of Eight unveiled S.744 at a press conference April 18th, they made repeated promises that illegal aliens applying for amnesty would have to undergo a criminal background check. While that may be true, a background check is only meaningful if aliens who committed serious crimes are actually barred from receiving amnesty and being placed on that pathway to citizenship. The specific text of the S.744, combined with its numerous waiver provisions, demonstrate that criminal illegal aliens will indeed be eligible for amnesty under the Gang of Eight plan.