Speech #1040070300

This is a drastic and unnecessary expense to the taxpayer. It takes jail space and resources away from more pressing criminal enforcement. Under this provision. a Cuban refugee convicted of shoplifting in certain States could face life imprisonment in an INS jail. Finally. by providing that all criminal aliens be removed within 30 days of the issuance of a deportation order. the provision ignores real law enforcement needs. The 30day requirement may be waived where criminal aliens are cooperating with law enforcement as witnesses. However. there is no allowance for other law enforcement purposes. For example. an alien convicted and ordered deported for one offense could not be held in the United States for trial under other offenses for which the alien may subsequently be charged. In the World Trade Center bombing. for example. one of the suspected conspirators in the case was already in jail for another crime. Under this provision. he would be subjected to mandatory deportation within 30 days of the issuance of a deportation order for the first crime. and would not be available for prosecution under the secondand far more serious--crime. In addition to undermining the war on crime. this amendment virtually eliminates the Attorney Generals flexibility to grant discretionary relief from deportation for longtime permanent residents convicted of lesser crimes. This discretionary relief is available to permanent residents who have resided here for at least 7 years. It is granted if the immigration judge believes their equities in the United States--such as American citizen spouses or children or contributions to their communitiesoutweigh the gravity of their offense. Under current law. permanent residents with aggravated felony convictions who serve at least 5 years in prison are ineligible for this discretionary relief from deportation. However. under this provision. this discretionary relief would be denied to permanent residents for carrying a concealed firearm. drug abuse. or addiction. in which no conviction would even be required. any drug offense involving more than 30 grams of marijuana. and other such crimes. They could live here productively for 30 years and have an American citizen wife and children. But for them. it is one strike and you are out. Similarly. refugees could also be deported to the hands of their persecutors for relatively small offenses. Under this provision. for example. a refugee from Rwanda could put a bill in the mailbox and realize he forgot to put a stamp on it. When he innocently tries to remove the letter from the mailbox and he is arrested for tampering with the maila felony. Due to poor representation. he accepts a plea bargained sentence of 1 year. To his surprise. he is suddenly subject to expedited deportation with no judicial review. Under this provision. an older immigrant who came to the United States as a child but was never naturalized gets tired of a rash of robberies on her store and buys a firearm which she doesnt realize is illegal. She is convicted of a felony. Even though she is married to an American and has four U.S.-citizen children. she must be placed in expedited deportation proceedings with no recourse to the courts. A longtime permanent resident could decide to go fishing. He hooks and kills what he does not realize is a rare fish. which is a strict liability felony with a mandatory minimum of 1 year. Even though he is married to an American and has U.S.-citizen children. he is convicted. serves his time. and is immediately deported with no prospect for judicial review. These are the kinds of cases which can easily happen if this drastic provision is allowed to stand. Even if we acceptas this provision proposesthat virtually any offense results in automatic deportation. the elimination of judicial review alone would be grounds for opposing this provision. This is a major departure from fair principles of due process. The need for judicial review in this instance is obvious. Immigration judges in the Justice Department make mistakes. For example. in a recent ninth circuit case. the panel reviewed an immigration judges deportation order against someone convicted of drug trafficking who claimed to be a U.S. citizen but did not have a lawyer. The court found that the immigration judges order was "not based on substantial evidence." In this case. a possible U.S. citizen could have been erroneously deported if the court had not intervened. It is because of cases such as these that the standing policy of the American Bar Association is that legislation should not: Limit the availability and scope of Judicial review of administrative decisions under the Immigration and Nationality Act to less than what is provided . . . in the Administrative Procedures Act: in particular judicial review of ... denials of stays of execution of exclusion or deportation orders ... and constitutional and statutory writs of habeas corpus. I had intended to offer an amendment to the counterterrorism bill which would correct these problems. While I will not offer the amendment at this time. it is my hope that the grave problems of the current language will be addressed as the bill proceeds.