Thursday, November 5, 2015

Dealing with the Reailty: No Chance for Comprehensive Immigration Reform Until 2017

by Anish Vashistha

I know it has been a while since my last post, but I was waiting for some big news regarding Comprehensive Immigration Reform ("CIR"), and finally that news has come.  The news is it's not happening, or at least while U.S. President Barack Obama remains in office.  Here is what the U.S. Congress's House of Representatives' new Speaker Paul Ryan had to say on the subject earlier this week:
NBC's Meet the Press November 1, 2015

So where does that leave us?  With the unlikelihood that the U.S. Court of Appeals for the Fifth Circuit ("Fifth Circuit"), which last heard oral argument in the matter about four months ago, will issue an order permitting the U.S. Government to institute the U.S. President's announced Executive Actions of November 20, 2014, i.e., DACA's Expansion and DAPA, many undocumented individuals in the U.S. feel that they are without hope to resolve their immigration-related problems.

However, the silver lining, if any, in Speaker Ryan's comments above is the room for negotiation on the issue of enforcement, despite the intransigence on the issue of benefits.  There may be room for compromise in an area concerning enforcement but that nonetheless still could lead to a benefit, particularly for foreign nationals with certain criminal history.  Less than a week ago many saw with their own eyes what had been announced less than a month prior with the release by the U.S. Sentencing Commission of 6,000 federal inmates sooner than their sentences permitted.  Unfortunately, a third of those federal inmates face the prospect of deportation from the U.S. despite such release because they are not U.S. citizens.  Their release from federal-prison custody likely was not met with the type of joy the other two thirds of the released federal prisoners presumably experienced just a few days ago.

So far the discussion about criminal-sentence reform has mainly focused on how the U.S. government can pursue it and whether mass incarceration is really a good policy.  This discussion is necessarily intertwined with the perceived failure of the "War on Drugs" pursued by the U.S. since the 1980s, expanded in the 1990s, and continued until today with the exponential increase of non-violent drug offenders within prisons and jails across the U.S. but with no discernible decline in the trafficking and usage of illegal narcotics.  This "illegality" policy, meaning the criminalization of what essentially is a disease, an addiction, or at the very least a recreation, has also plagued the U.S. Immigration and Nationality Act ("INA"), which for the most part renders any non-U.S. citizen other than maybe a person who has a Lawful-Permanent-Resident card ("Green Card") and who has resided continuously in the U.S. for at least seven years before committing his/her first drug-related offense, both removable from the U.S. and without hope for relief from such removal.

A dismantling or overhaul of the U.S. "War on Drugs" should include a commensurate reform of the INA relating to penalties for controlled-substances violations.  As a practitioner, it amazes me how many foreign-national adults face removal because of non-violent drug-related experimentation when they were younger, something in which many young U.S. citizens engage as well.  This reform need not be styled in a manner as a benefit to foreign nationals but rather be instituted as a smarter enforcement approach.  Thereafter, and only if such reform is successful in easing the burden on enforcement resources that pursuing non-violent drug offenders necessarily involves, maybe the overall "illegality" policy to the INA may be reformed as well.

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