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Thread: Rehabilitative Statutes In Immigration Laws (thoughts)

  1. #1
    I think a big source of problems in the US immigration law is that it's sort of "incomplete". In typical criminal law or immigration laws of most countries, there are always rehabilitative statutes for all offenses barring perhaps murder. In the US immigration law, it has been mostly left to the courts to decipher the Congress' intention for example with the term "conviction". Typically a conviction ceases to exist for example upon expungement, which is the rehabilitative nature of the common criminal law. However since the Congress hasn't specifically mentioned this in the INA, the courts have taken the stance of judging in more restrictive sense since it hasn't been specifically approved.

    This in some ways is questionable, since one could question whether it was in the intention of the Congress to abolish the common conventions relating to the rehabilitative statutes with the immigration law in mind. The contrived reasonings of the courts in this area often reek of a specific agenda rather than reaching an objective and fair interpretation of the law. In this sense the application of the law has often defied the common sense interpretation of it. Also the courts' stance has been contrary to the findings of the Supreme Court where the deportation is likened to an exile of the US citizen, which is one of the most extreme forms of punishment. In that light the Supreme Court has been forced to judge in favor of the defendant where possible to avoid such judgement.

    Likewise the courts have chosen to not respect any foreign rehabilitative measures like foreign expungements or typically pardons for crimes committed outside of the US. The US federal law is typically applied to the charges being committed and the crime is evaluated in this way as if it had happened on the US soil. This is faulty and fruitless like some of the more recent rulings of the courts have declared. The goal of the immigration law can't be that of equal judgement of all people, since the nature of the laws either within the US, or outside of it are not such. How could for example a substance use or prostitution be considered a crime in the eyes of the immigration if it wasn't a crime where it happened like for example in Amsterdam? Likewise a person behaves according to the context of his environment and may defend his case with the applicable local law in mind. Due to this for example many offenses committed in one state and successfully defended as misdemeanors suddenly become aggravated felonies when a completely different federal law is applied to them. Likewise with a foreign conviction in mind this is even more of a stretch, as a foreign person could not possibly consider the later implications of applying the US federal standards on his actions. Due to this, it is fruitless to try to find a common ground, and the crimes should be treated in relation to how they have been judged in the jurisdiction where they occurred. With the exception of jurisdictions that have themselves been challenged or found illegal such as Nazi Germany.

    In addition mistakes do happen in criminal matters so it should be reasonable to allow some form of relief for any offense at some point in time. Right now the US immigration law deals with finality and absolutes for example barring a person from the US permanently with no hope for relief other than the change in the law itself. This is why it's important to respect measures such as an expungement, and in addition to create rehabilitative statutes of some sort to the immigration law itself.

    As an example of laws outside of the US, we can look at Canada since it's fairly close to the US and culturally very similar. Canada has a rehabilitative statute which allows discretionary relief after 5 years, and allows automatic rehabilitation after 10 years of the offense. The period is longer for particularly serious crimes, but the seriousness of the crime is determined by the actual sentence imposed, as it's a more correct measure of the seriousness of the act in the correct and possibly foreign context. This is very reasonable and shouldn't really be questionable for anyone, considering the humanitarian and other implications deportation and inadmissibility to the US can cause. People sometimes make mistakes and it is not reasonable to treat ones indiscretion in such a harsh terms, especially when considering the Supreme Courts analogy of deportation being the equivalent of exile of an US citizen. Would an US citizen be exiled based on a substance offense, unless it was extremely serious in nature (talking about hundreds of kilos involved and organized crime here)?

    I liked how the Comprehensive Immigration Reform Act was looking around 2002. It actually granted relief for many things, although an all encompassing rehabilitation was still missing. Along the years and coming 2007 it has become very minimal in nature and more interested of legalizing the illegal immigrants via a guest worker program rather than dealing with the inherent unfairness and harshness of the other inadmissibility concequences. This, I find quite sad.

    Perhaps with the democrats in charge and if another democrat President is elected, more reforms could be expected. It would be nice to have reasonable moderation after decades of ever harsher and unreasonable laws.

  2. #2
    I think a big source of problems in the US immigration law is that it's sort of "incomplete". In typical criminal law or immigration laws of most countries, there are always rehabilitative statutes for all offenses barring perhaps murder. In the US immigration law, it has been mostly left to the courts to decipher the Congress' intention for example with the term "conviction". Typically a conviction ceases to exist for example upon expungement, which is the rehabilitative nature of the common criminal law. However since the Congress hasn't specifically mentioned this in the INA, the courts have taken the stance of judging in more restrictive sense since it hasn't been specifically approved.

    This in some ways is questionable, since one could question whether it was in the intention of the Congress to abolish the common conventions relating to the rehabilitative statutes with the immigration law in mind. The contrived reasonings of the courts in this area often reek of a specific agenda rather than reaching an objective and fair interpretation of the law. In this sense the application of the law has often defied the common sense interpretation of it. Also the courts' stance has been contrary to the findings of the Supreme Court where the deportation is likened to an exile of the US citizen, which is one of the most extreme forms of punishment. In that light the Supreme Court has been forced to judge in favor of the defendant where possible to avoid such judgement.

    Likewise the courts have chosen to not respect any foreign rehabilitative measures like foreign expungements or typically pardons for crimes committed outside of the US. The US federal law is typically applied to the charges being committed and the crime is evaluated in this way as if it had happened on the US soil. This is faulty and fruitless like some of the more recent rulings of the courts have declared. The goal of the immigration law can't be that of equal judgement of all people, since the nature of the laws either within the US, or outside of it are not such. How could for example a substance use or prostitution be considered a crime in the eyes of the immigration if it wasn't a crime where it happened like for example in Amsterdam? Likewise a person behaves according to the context of his environment and may defend his case with the applicable local law in mind. Due to this for example many offenses committed in one state and successfully defended as misdemeanors suddenly become aggravated felonies when a completely different federal law is applied to them. Likewise with a foreign conviction in mind this is even more of a stretch, as a foreign person could not possibly consider the later implications of applying the US federal standards on his actions. Due to this, it is fruitless to try to find a common ground, and the crimes should be treated in relation to how they have been judged in the jurisdiction where they occurred. With the exception of jurisdictions that have themselves been challenged or found illegal such as Nazi Germany.

    In addition mistakes do happen in criminal matters so it should be reasonable to allow some form of relief for any offense at some point in time. Right now the US immigration law deals with finality and absolutes for example barring a person from the US permanently with no hope for relief other than the change in the law itself. This is why it's important to respect measures such as an expungement, and in addition to create rehabilitative statutes of some sort to the immigration law itself.

    As an example of laws outside of the US, we can look at Canada since it's fairly close to the US and culturally very similar. Canada has a rehabilitative statute which allows discretionary relief after 5 years, and allows automatic rehabilitation after 10 years of the offense. The period is longer for particularly serious crimes, but the seriousness of the crime is determined by the actual sentence imposed, as it's a more correct measure of the seriousness of the act in the correct and possibly foreign context. This is very reasonable and shouldn't really be questionable for anyone, considering the humanitarian and other implications deportation and inadmissibility to the US can cause. People sometimes make mistakes and it is not reasonable to treat ones indiscretion in such a harsh terms, especially when considering the Supreme Courts analogy of deportation being the equivalent of exile of an US citizen. Would an US citizen be exiled based on a substance offense, unless it was extremely serious in nature (talking about hundreds of kilos involved and organized crime here)?

    I liked how the Comprehensive Immigration Reform Act was looking around 2002. It actually granted relief for many things, although an all encompassing rehabilitation was still missing. Along the years and coming 2007 it has become very minimal in nature and more interested of legalizing the illegal immigrants via a guest worker program rather than dealing with the inherent unfairness and harshness of the other inadmissibility concequences. This, I find quite sad.

    Perhaps with the democrats in charge and if another democrat President is elected, more reforms could be expected. It would be nice to have reasonable moderation after decades of ever harsher and unreasonable laws.

  3. #3
    Someone12
    Guest
    let all illegals 'rehabilitate' back in their own country...for about 10-20 years....

  4. #4
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
    let all illegals 'rehabilitate' back in their own country...for about 10-20 years.... </div></BLOCKQUOTE>

    That is actually a quite reasonable proposition. Different people might have differing opinions about the exact length of the rehabilitation period, but I'm happy that you support the principle.

  5. #5
    This is a good post. While some of the information is not accurate, the post reflects the crude reality of immigration law when criminal issues are present.

    Under 212(h), discretionary relief is available 15 years after the commission of the disqualifying offense, regardless of any issues of hardship if the alien is rehabilitated. The relief is currently not available, and should remain unavailable, to those convicted of murder, rape and other very grave offenses.

    However, the real problem is the lack of proper balance that exist between criminal and immigration law resulting from numerous amendments, patches and additions that have unintentionally created serious issues of applicability. Criminal courts exist to consider each and every offense according to the criminal code and rules of criminal procedure established to resolve criminal matters in the best interest of society. The authority of a criminal court is primordial and incontestable when it comes to criminal issues however, considerations and determinations of the criminal courts are often discarded or ignored by immigration law. Under INA, a disqualifying misdemeanor and a disqualifying felony will be treated in a similar way when considering admissibility.

    One may think that this is completely irrelevant, but it raises issues worth mentioning. When it comes to mixed families, a minor conviction and its real implications under immigration law could result in forcing the U.S. citizen relatives to chose family or country. The Constitution protects against cruel and unusual punishment and exile is considered as such however, immigration law in all practicality often imposes exile upon citizens who are not guilty of any criminal offense and are not even prosecuted or tried as criminals.

    It's somewhat strange that immigration law considers foreign convictions valid, regardless of the integrity of the process, but declines to recognize foreign rehabilitation statutes questioning the "fairness and integrity" of these provisions. But note how foreign convictions of U.S. citizens are not considered when applying the "felon in possession" regulations.

    Some immigration statutes completely ignore rehabilitation, others ignore the fundamental presumption of innocence in the criminal context. Even in the world of civil litigation, it's the plaintiff who bears the burden of proof, but immigration law often ignores this principle. A person who used a controlled substance once, 30 years ago, is inadmissible even in the absence of a conviction, while a person convicted of assault is admissible the day he or she is released from custody.

    There's no balance between the real implications to society of the criminal or illegal activity and the actual immigration consequences resulting from such conduct. Immigration law fails to consider reality, not only from the criminal point of view, but also from a humane, family-oriented perspective.

    Congress now has a unique opportunity to change all this and design effective, enforceable and comprehensive law. The issues are many, and the topic controversial but the talent in Congress is abundant and it's trajectory impeccable, there's no reason to expect inaction given the great implications of the matter at hand. Let's just see what happens.

  6. #6
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen.

  7. #7
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

    I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006.

  8. #8
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

    I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006. </div></BLOCKQUOTE>

    &gt;&gt; I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible. &lt;&lt;

    How come it is not compromising the US sovereignity when accepting foreign convictions. It just doesn't make sense, that the INA would have the power to condemn someone for the rest of their life, when all the world would accept an expungement. I shall view this as most arrogant and inhumane!
    “...I may condemn what you say, but I will give my life for that you may say it”! - Voltaire

  9. #9
    Someone12
    Guest
    who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane....

  10. #10
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
    who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane.... </div></BLOCKQUOTE>

    ....even Gods fight to stupidity to no avail - Friedrich Schiller!!
    “...I may condemn what you say, but I will give my life for that you may say it”! - Voltaire

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