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Crime Provisions Of House's DREAM Act

by César Cuauhtémoc García Hernández

After last week's House vote in favor of the DREAM Act and the Senate's fancy procedural footwork, it looks like the Senate will return to this important legislation this week. The Senate is expected to take up the House version, H.R. 6497.

I have sifted through H.R. 6497 to identify all the crime-based obstacles facing young people who would otherwise be eligible for lawful status under the House version. As a preliminary note, the proposal would create a "conditional nonimmigrant" status that would allow people who receive this status to live and work in the United States. H.R. 6497, § 3(3).

The House proposal would preclude individuals who are inadmissible or deportable under virtually all of the crime-based grounds currently included in the Immigration and Nationality Act (INA). H.R. 6497, § 4(a). Specifically, individuals who are inadmissible under the following INA provisions are not eligible for conditional nonimmigrant status: " § 212(a)(2): all the major crime-based grounds of inadmissibility, including a crime involving moral turpitude, a controlled substances offense, and two or more offenses of any type where the aggregate term of confinement was five years or more; " § 212(a)(6)(E): anyone who has "encouraged, induced, assisted, abetted, or aided" another noncitizen to enter the country unlawfully; " § 212(a)(10)(A): practicing polygamists; " § 212(a)(10)(C): anyone who refuses to comply with a child custody order issued by a court in the United States or helps someone else do this.

Similarly, individuals who are deportable under the following INA provisions are not eligible for conditional nonimmigrant status: " § 237(a)(1)(E): anyone who has "encouraged, induced, assisted, abetted, or aided" another noncitizen to enter the country unlawfully; " § 237(a)(2): all the major crime-based grounds of deportability, including one or multiple crimes involving moral turpitude, aggravated felonies, controlled substances offenses, firearms offenses, and domestic violence offenses.

Because anyone convicted of an aggravated felony is ineligible for conditional nonimmigrant status it is worth noting that the definition of aggravated felony (listed at INA § 101(a)(43)) consists of twenty-one sections many of which are divided into subparts. Aggravated felonies include many offenses that are not defined by state or other federal law as felonies and that are not typically considered "aggravated."

Importantly, many of these grounds of inadmissibility and deportability have exceptions or waivers that apply. Also, I have only listed here bases of ineligibility for conditional nonimmigrant status that are frequently prosecuted as crimes. The House legislation includes several non-criminal bases of ineligibility that I have not included.

The House legislation also precludes individuals who have been convicted of "any offense under Federal or State law punishable by a maximum term of imprisonment of more than 1 year." H.R. 6497, § 4(a)(C)(iv)(I). The "term of imprisonment" language is not new to immigration law. It is interpreted to mean that a sentence of one year or more of prison time could have been imposed even if it wasn't actually imposed. Sentences that are "suspended" by the criminal court would seem to fall within this provision. As such, a person who was convicted of a crime that is punishable by one year of imprisonment but has spent no time in jail could be ineligible for conditional nonimmigrant status.

The House version also precludes individuals who have been convicted of "3 or more offenses under Federal or State law, for which the alien was convicted on different dates for each of the 3 offenses and sentenced to imprisonment for an aggregate of 90 days or more." H.R. 6497, § 4(C)(iv)(II). Again, the "sentenced to imprisonment" language suggests that a person does not need to have spent ninety days in jail to be ineligible under this provision.

Importantly, the INA explicitly defines "conviction" in a manner that is different from state and other federal law insofar as it includes criminal dispositions (such as a deferred adjudication) that do not result in entry of a conviction in state criminal proceedings. INA § 101(a)(43)(A).

The House legislation grants the Secretary of Homeland Security the power to waive some crime-based grounds of inadmissibility-INA § 212(a)(6)-and deportability-INA § 237(a)(1)-"for humanitarian purposes or family unity or when it is otherwise in the public interest." Only time will tell how "humanitarian purposes," "family unity," or "public interest" would be interpreted.

Having a record free of any of these offenses at the time of initial application for conditional nonimmigrant status is not enough. A person who receives conditional nonimmigrant status and subsequently commits one of these crime-based grounds of inadmissibility or deportability loses the conditional nonimmigrant status. H.R. 6497, § 5(c).

Furthermore, because H.R. 6497 requires that a person who is granted conditional nonimmigrant status reapply after five years, committing one of these offenses in the intervening period will result in denial of an extension. H.R. 6497, § 5(d)(1)(B). An applicant for extension must also have maintained "good moral character" during that period, a term that is defined at INA § 101(f) to include "habitual drunkard[s]" and people who illegally gamble, among others. H.R. 6497, § 5(d)(1)(A).

Overall, news reports that the DREAM Act would only benefit individuals with a "clean" criminal record are correct.

About The Author

César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and of counsel at the Law Offices of Raúl García & Associates. He writes the blog

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.