Micro-Amnesty for Some Illegals Pending Before Congress

By David North on June 14, 2010

While it is taboo to talk about a policy that would prohibit the admission of migrants who might not be able to assimilate – such as Muslims who insist that women must wear the burqa – soon it may be possible to use the variable of cultural assimilation to give amnesty to an illegal alien.

As the immigration lawyers' trade paper Interpreter Releases headlined in its May 24 issue (which arrived on June 12). there is a move afoot regarding "Sentencing Guideline Amendments Sent to Congress Including Downward Departure for 'Cultural Assimilation' in Illegal Reentry Cases." The story was based on a May 14 Federal Register filing.

That headline can use a little interpretation.

First, "downward departure" is not a deportation to Mexico, as opposed to Canada; downward departure is a legal term about giving flexibility to judges to hand out a sentence that is less strict than the ones in sentencing guidelines.

In this instance, the usual sentence of deportation could be modified for a particular class of illegal aliens; such aliens must: a) be in deportation proceedings; b) be repeat violators of the immigration law, as it apparently applies to only those reentering the U.S. illegally; c) be among those who "formed cultural ties primarily with the United States from having resided continuously in the U.S. from childhood . . . "; and d) "those cultural ties provided the primary motivation for the defendant's illegal reentry."

Further, the lesser sentence, presumably allowing continued, and now legal, presence in the U.S., must make it "not likely to increase the risk to the public from further crimes of the defendant."

The concept that "cultural ties provided the primary motivation for the defendant's illegal reentry" is an interesting one. Does the act of growing up in America, one that many of us have experienced, give one a legally justifiable motivation for breaking our laws?

The group of people covered by the proposed rule cannot be very large because most of the 12 million or so illegal aliens in the U.S. do not qualify for the full set of five requirements for the "downward departure" of the sentencing guidelines. But it would allow a judge-created amnesty for some, presumably young, illegal aliens; an amnesty not available to others who arrived later in life or who were (oddly) not lucky enough to get pulled into deportation proceedings.

The mechanism by which this micro-amnesty would be implemented involves a congressionally created segment of the judicial branch of the government, the U.S. Sentencing Commission. The commission held hearings on this issue on March 17, decided to recommend the downward departure in these cases, and sent that recommendation to Capitol Hill. If Congress does not act negatively on it, it will become part of U.S. law on November 1 of this year. I suspect Congress will not stop this process.

Meanwhile, the same issue of IR reminds us that while some discuss a new legalization program, the old one – passed a generation ago – is still, partially, alive and well.

USCIS, understandably, some years ago decided that some applicants for legalization under the Immigration Reform and Control Act of 1986 (IRCA) had abandoned their applications by leaving the country. Without my getting into the details, let me note that the courts decided that at least some of the applications of those aliens should be, in fact, considered on their merits, and that the former filing fees, not the current (and higher) ones should be charged.

We reported on a somewhat similar judicial decision some months ago in a blog entitled "Legalization Forever, for the Judges Make It Long."