tags: , , , , , AVEF, Blog

Amendments that Matter: Due Process

Share This:

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’re starting this “Amendments that Matter” blog series today. Below is a guest post from David Leopold, general counsel and past president of the American Immigration Lawyers Association, writing about due process and the Senate Gang of 8 immigration bill.

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

“Due process and fundamental fairness” are not words often associated with immigration enforcement, especially the deportation process.  So, as the Senate Judiciary considers the interior enforcement provisions contained Title III keep a close eye on a several amendments, some promising, others not so much, which go to the heart of due process in immigration proceedings.

Here are a couple of the amendments to root for:

Blumenthal 14— This amendment goes a long way toward restoring due process and fundamental fairness to the immigration courts by proposing four basic due process improvements, including:

  • Giving respect to state court judgments to vacate, expunge, or otherwise nullify their own judgments of conviction.
  • Preventing the removal of noncitizens from the US for an offense that would not have resulted in deportation at the time the time it was committed.  This long-overdue provision reflects our most basic value of fairness.
  • Enhancing the procedural protections already in the bill which protects the rights of noncitizens in removal proceedings. Importantly, it adds much needed protections to noncitizens who, through no fault of their own—they were not notified of the hearing date, they were seriously ill, they were attending to a family emergency—did not appear at their removal hearing.
  • Making important technical changes which would prevent the deportation of individuals for minor offenses, including in some cases offenses for which they spent no time in prison.

Coons 5—This amendment ensures that a noncitizen facing deportation will receive a copy of their immigration file.  That’s important because immigration law is very complex.  Even though a person may be subject to deportation, the immigration law may include the right to apply to the immigration judge for the right to remain lawfully in the US.  But a person in deportation proceedings may not even know he or she is eligible for relief from deportation without looking at their immigration file.  By giving immigrants in deportation proceedings a chance to review their immigration history, this amendment strengthens the integrity of our immigration courts.

And here are a couple of amendments that are cause concern:

Grassley 43—The base bill already gets tough on noncitizens convicted of gang related crimes.  But as the Los Angeles Times said on its editorial page, this amendment goes too far by “excluding immigrants who have no criminal history simply because their names appear in a database of gang members or on a gang injunction.” Relying on factors like tattoos, style of dress, ethnic background, or neighborhood associations,  it gives no opportunity for an alleged gang member to present his/her case to a judge and could lead to racial profiling and discrimination..

Grassley 44—The bill already provides tough provisions against drunk driving. But this amendment goes too far by making 3 drunk driving offenses an aggravated felony.  That would mean automatic detention and permanent exile, regardless of how old the offense is, U.S. family ties, or evidence of rehabilitation. It would also apply to DUI convictions that occurred years ago, regardless of rehabilitation, offending our basic notions of due process and fairness.

Grassley 45-47–These amendments would lead to the imprisonment of more immigrants for what is essentially a status offense, wasting taxpayer dollars, worsening prison crowding problems, and diverting law enforcement from going after traffickers, smugglers, and other dangerous criminals.


The amendments would also needlessly harm immigrants who are actually victims of domestic violence.  Often, both parties in a domestic dispute are arrested, and at times, the person who speaks less English or is undocumented is mistaken for the abuser.  That will harm our communities by breaking up families and putting domestic violence survivors at risk of deportation.

Finally these amendments would strip long-needed due process protections and procedural improvements to the fairness and efficiency of the immigration custody review process contained in S.744. It also eliminates an important provision that would align immigration bond determinations with criminal justice standards.

As the Senate marks up Title III it is critical that the senators strike an important balance between necessary enforcement of the immigration law and the protection of fundamental fairness and due process.  We need to ensure that the immigration law ultimately enacted by Congress jealously guards the cherished freedoms and protections we all hold dear.