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Amendments that Matter: The Path to Citizenship–"Criminal" Bars

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If you think the Senate Judiciary Committee’s markup of the Gang of 8 bill has been intense so far, you ain’t seen nothin’ yet. As the SJC moves into Titles II and III of the bill—which cover everything from E-Verify to detention policy to family immigration to agricultural workers, not to mention the path to citizenship itself—we’re highlighting some of the major areas we expect to see addressed, and the amendments we’re particularly hopeful about or upset by within each one. That’s why we’ve started this “Amendments that Matter” blog series. Below is a guest post from David Leopold, general counsel and past president of the American Immigration Lawyers Association, writing about amendments using “criminal” bars to restrict the path to citizenship in the Senate Gang of 8 immigration bill.

Also view our list of key amendments filed in the Senate Judiciary Committee to S. 744

Hopefully, the result of the Senate Judiciary Committee’s S.744 markup will be an immigration bill that keeps America’s families safe and together and gives American business the tools it needs to compete in the global economy.   As the committee turns its attention to Title II, which includes a tough but reasonable road to citizenship, the 11 million undocumented immigrants living in America’s shadows will come into the nation’s focus.  Let’s remember that the hardworking mothers, fathers and students who lack immigration papers are not the reason the system is broken.  They are the most tragic symptom of its dysfunction.  Title II is intended to fix that, to provide the undocumented the chance to earn their way to citizenship.  To be sure, the road will be long and arduous–full of rigorous, yet even-handed, requirements.  S.744 gives nothing to anyone.  The right to remain permanently in the U.S. will have to be earned.

But that’s not enough for Senators Grassley, Cornyn and Sessions.  They’ve offered amendments to Title II designed to keep as many undocumented immigrants as possible in the shadows. Here are three I hope the Judiciary Committee rejects:

Grassley 8—This is one of a series of amendments offered by Grassley which are intended to severely limit who is eligible for Registered Provisional Status–by making the application process as daunting and expensive as possible.  Grassley 8 is particularly insidious because it’s directly aimed at people who have been unfairly criminalized by laws like Arizona’s SB1070, which go far beyond the federal immigration statute by defining foreign nationals criminals based on their lack of immigration documents. Grassley seeks to extend what’s left of the patchwork of draconian state immigration laws to bar undocumented immigrants who have suffered convictions under state immigration laws from obtaining RPI status.  Not only is his amendment unfair—the Supreme Court declared the core of such laws unconstitutional last summer in U.S vs. Arizona—but Grassley’s amendment, if passed, would lock scores of undocumented immigrants into permanent unlawful status because of the state in which they live, not because of anything they’ve done.

Cornyn 3—This amendment would bar immigrants from obtaining RPI status if they have been convicted of certain misdemeanors— including, in some cases, a single domestic violence or DUI—and prohibits immigrants with three misdemeanor convictions from receiving a waiver under any circumstances.  These harsh bars and waiver prohibitions would apply regardless of the circumstances of the offense—for example a non-English-speaking abused spouse whose abusive husband lies to the police and gets her charged with domestic violence–the passage of time, rehabilitation, a person’s family ties, work history, or civic and church involvement. S.744 is already tough on criminals, as it should be.  But Cornyn’s amendment would substitute a well-balanced provision with an unnecessarily inflexible and punitive bar.

Sessions 24—For the past decade, and in particular over the past four years, record numbers of people have been deported from the U.S.   Among those are noncitizens who were forced to leave behind their US citizen husbands, wives and children.  The deported include young DREAMers, brought to the U.S. as children through no fault of their own.  They were raised and schooled in America only to be removed from the only country they’ve ever known.

S.744 seeks to correct an injustice by including a very narrow waiver which allows the deported parents and spouses of U.S. citizens and green-card holders, as well as DREAMers, to apply for RPI status.

Yet Senator Sessions, in his never ending quest to strip the bill of any semblance of humanity, has offered his amendment 24, which not only strikes the narrow family unity provision, but goes on to bar legalization to anyone who has reentered the country without papers after deportation.


In drafting S.744, the Gang of Eight has proposed some of the toughest enforcement provisions in immigration history.  The bill adds new grounds of inadmissibility for gang-related convictions and DUI offenses.  It includes an arduous road to citizenship for the undocumented, and makes it clear that those who don’t respect America’s laws need not apply.  Grassley 8, Cornyn 3, and Sessions 24 are not offered to make the country safer, as Senators undoubtedly will argue, but as a pretext to keep as many aspiring Americans as possible from beginning the long journey toward earned citizenship.