Supporters of the Senate Gang of Eight comprehensive immigration reform bill stress that currently-illegal immigrants will be required to undergo a thorough background check before winning legal status in the months after the bill is passed. “They will have to come forward and pass a rigorous background check,” Sen. Marco Rubio, the leading Republican on the Gang, said in April. “If they’re criminals, they won’t qualify.”
What Rubio and other Gang members don’t say as often is that even if a background check discovers significant criminal activity in an immigrant’s past, exceptions and waivers written into the bill will allow the immigrant to still achieve legal status. On top of that, the bill gives Secretary of Homeland Security Janet Napolitano virtually unlimited power to ignore many criminal acts and grant legal status whenever she chooses.
The Gang bill says an immigrant cannot be legalized if he has been convicted of a felony, or if he has been convicted of three or more misdemeanors. But as far as those misdemeanors are concerned, there are some big exceptions.
The first is that the misdemeanor count excludes convictions for “minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status or violations of this Act.” So the government simply will not count immigration-related misdemeanors.
Then, the bill says the three misdemeanors that would disqualify an immigrant count as three misdemeanors only “if the alien was convicted on different dates for each of the three offenses.” What that means is that if a person is accused of multiple misdemeanors, and convicted of them during a single court session — a fairly common occurrence — the multiple convictions would count as just one conviction for the purposes of the Gang of Eight bill, since they all happened on one day.
“Say that because of court backlogs, an alien is awaiting trial on a misdemeanor committed in June,” says one Republican source. “In August, he is again arrested on a misdemeanor, and then a third time in September. Each time he posts bond. In the interest of judicial economy, all three trials are consolidated and held on the same day in December, and the alien is convicted of all three. Three different offenses, but all three convictions occurring on the same date. Under the language of the bill, such an alien is entitled to apply for legal status.”
The same principle would hold for any number of convictions, if they happened on the same day. The bottom line is an immigrant could have more than three misdemeanor convictions in his background check and still qualify for legalization.
But that is not the biggest exception in the bill. A few lines later, the legislation gives the Secretary of Homeland Security authority to ignore an immigrant’s record and grant legal status no matter how many misdemeanor convictions the immigrant might have. “The secretary may waive [the misdemeanor requirement] on behalf of an alien for humanitarian purposes, to ensure family unity, or if such a waiver is otherwise in the public interest,” the bill says. It is within Janet Napolitano’s discretion to decide what is in the public interest.
Gang supporters might argue that all these provisions involve the least serious sort of crimes. But depending on jurisdiction, some cases of vehicular homicide, drunk driving, domestic violence, sex offenses, and theft are all categorized as misdemeanors.
There are also cases in which even more serious crimes are negotiated down to misdemeanors. “Given the incessant pressures on district attorneys to accept a plea in exchange for downgrading the crime charged and to ignore most arrests entirely, it takes considerable effort to rack up two misdemeanor convictions — whether by dealing drugs, assaulting fellow gangbangers, stealing, or tagging,” writes the Manhattan Institute’s Heather Mac Donald. “The bill’s authors apparently think that staying on the right side of the law is an insuperable burden and that having a criminal record is an ordinary part of being an American.”
The Gang bill made it through the Senate Judiciary Committee without any tightening of its lenient misdemeanor provisions. Some Republicans will try to fix that as debate continues on the Senate floor. But so far, the bill’s “rigorous” measures are not that rigorous at all.