Should Non-Citizens Who've Been Convicted of a Felony or At Least Two Misdemeanors Be Deported? (H.R. 2989)

What is H.R. 2989?

(Updated August 13, 2021)

This bill — the Criminal Alien Removal Clarification Act of 2019 — would amend the Immigration and Nationality Act (INA) to require the deportation of non-citizens who have been convicted of a felony or two misdemeanors under state or federal law. 

Argument in favor

Non-citizens who commit felonies or are repeat offenders shouldn’t be allowed to stay in the U.S. This bill would clarify that the government has authority to deport those who undermine public safety and give the Dept. of Justice (DOJ) and Homeland Security specific guidance on how to remove non-citizens who break the law.

Argument opposed

This bill would lead to the unjust deportation non-citizens for a felony conviction or convictions for at least two misdemeanors, which is a threshold that could be crossed with relatively minor offenses. The federal government should only prioritize the deportation of non-citizens with more egregious criminal histories.

Impact

Non-citizens; non-citizens who commit crimes; non-citizens who are convicted of crimes; non-citizens who are convicted of a felony; non-citizens who are convicted of two or more felonies; the INA; and deportation of non-citizens under the INA.

Cost of H.R. 2989

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Paul Gosar (R-AZ) reintroduced this bill from the 115th Congress to ensure that non-citizens who have been convicted of a felony or two or more misdemeanors can be removed from the U.S. When he introduced this bill in the 115th Congress, Rep. Gosar said: 

“The lack of clarification regarding criminal alien eligibility for deportation cripples our government's authority to keep our communities safe and free of violent criminals. This legislation provides a reasonable solution that prioritizes American citizens. Aliens with lawful status are here as guests, and should not maintain their status if they break the law."

In the release, Rep. Gosar’s office adds that this bill’s language “is simple, satisfies Constitutional scrutiny, avoids loopholes, and gives codified guidance to the DOJ and Homeland Security in order to remove non-citizens who break our laws.” In an interview with Breitbart, Rep. Gosar said it “makes absolute, perfect sense” for GOP leadership to begin collecting support from Americans and members of Congress for this legislation.

A large-scale The Marshall Project investigation into the link between immigration and crime found that in 136 metro areas (nearly 70% of the study’s areas), immigrant populations increased from 1980 to 2015 while crime rates stayed stable or fell. Only 54 areas (slightly more than 25% of the study’s areas) saw a positive association between crime and immigration. Finally, the 10 places with the largest increases in immigration from 1980 to 2016 had lower crime rates in 2016 versus 1980. Given these findings, The Marshall Project concluded, “the study’s data suggests either that immigration has the effect of reducing average crime, or that there is simply no relationship between the two, and that the 54 areas in the study where both grew were instances of coincidence, not cause and effect.”

In a literature review published in the Annual Review of Criminology in January 2018, researchers Graham Ousey and Charis Kubrin found that there’s no evidence supporting the claim that immigrants are more likely than native-born Americans to commit crimes. In fact, they found that researchers often observed the opposite relationship (immigrants are less likely than native-born Americans to commit crimes).

CityLab adds that beginning with the Regan administration, “crimmigration” — the intertwining of immigration and criminal law — has caused non-citizens to increasingly face a risk of deportation for minor offenses. This, in tandem with harsher prosecution for unauthorized migration (crossing the border unauthorized or reentering after being reported), has led to a general criminalization of immigrants and created a system that César Cuauhtémoc García Hernández, a law professor at the University of Denver, argues “emphasizes imprisonment and removal” and tags offenders with criminal records.

This bill has 17 Republican cosponsors and has not yet received a committee vote in the current Congress. In the 115th Congress, it had 32 Republican cosponsors and didn’t receive a committee vote.

Of Note: Rep. Gosar originally introduced this bill in response to a Supreme Court ruling in invalidating 118 U.S.C. § 16(b) of the aggravated felony definition, as incorporated in section 101(a)(43)(F) of the Immigration and Nationality Act (INA), for being too vague. This provision’s original purpose was to remove aliens convicted of violent crimes. The Court’s ruling created a loophole whereby criminal aliens, including felons, could be allowed to stay in the U.S. and return to the country from elsewhere.

Andrew R. Arthur, a former immigration judge and current resident fellow in law and policy at the Center for Immigration Studies, an anti-immigration group, criticized the Court’s decision: 

“I think the biggest problem with this decision is it’s the sort of decision that only people who think too much and know too little actually do, and I don’t want to criticize Justice Gorsuch or Justice Kagan, but, again, it’s a very theoretical decision that doesn’t actually have anything to do with the way that this statute is applied in the real world. Justice Roberts, on the other hand, in his dissent actually explains how it’s applied in the real world and explains how it’s not really that difficult of a statute to apply and how it’s not really that vague. As Justice Roberts noted, there are some serious implications to this decision. There are a lot of very dangerous aliens who are not going to be removable because of this decision, plus the crime of violence definition … applies in a bunch of different criminal statutes, and each one of those is going to be very adversely affected by the court’s decision. Again, we can’t allow that to get in the way of a constitutional analysis if a provision is plainly constitutionally invalid, but, again, I concur with Justice Roberts: it’s not, and it should have been allowed to stand, but the court didn’t see it that way. Under the immigration laws, we define certain things as aggravated felonies; they have very serious consequences: you’re not eligible for certain forms of relief, including asylum, cancellation, and removal. Plus, you’re removable from the United States. One of the subsections of the aggravated felony definition is for crimes of violence, and it defines a crime of violence [in] 18 U.S.C. 16. At issue in the case was 18 U.S.C. 16 subsection (b), which defines a ‘crime of violence’ as any other offense that is a felony and by its nature involves a substantial risk of physical force against the person or property of another in the course of committing the offense. Now, the typical case in which we think of this is burglary. When you break into somebody’s house, you do it with the possibility that that person will be home, that they’ll be armed, that you’ll be armed, or that you’ll actually have to use force against that individual, but force will actually have to be used in the commission of the offence… [James Dimaya] is a fellow who committed two burglaries. This isn’t a guy who drunk drove a couple of times or wrote bad checks. These are serious crimes, and these are crimes that actually have an effect on the community. For the courts to issue a decision like this, such a sweeping decision, was a little bit of a surprise.” 

To close the loophole opened by the Court, Arthur advised Congress to pass legislation specifically defining a “crime of violence.” He said: 

“[Congress] will have to put in some sort of fix for this hole in the law for these dangerous individuals who are going to be released or not removed because of this. We keep hearing Democrats saying, ‘Deport criminals. Don’t break up families.’ If you want to deport criminals, here’s your opportunity. Here’s a good, strong bill that is going to allow you to deport burglars and kidnappers and individuals who engage in assault. Sign onto it. Put your money where your mouth is. Burglary, indecent assault and battery, stalking, and manslaughter: those are four pretty serious crimes. The idea that you can be a lawful permanent resident, commit one of these crimes, commit several of these crimes, and be allowed to continue to live among us, that’s a serious problem. In the short run, until this gets fixed, those individuals are going to be allowed to remain in the United States and stalk and burglarize and engage in assaults and batteries until this can be resolved.”

Writing in 

Sponsoring Rep. Paul Gosar (R-AZ) Press Release

Breitbart

The Marshall Project (Context)

Breitbart (Context)

The Atlantic (Context)

CityLab (Context)

Summary by Lorelei Yang(Photo Credit: iStockphoto.com / Brad Greeff)
, David Frum notes that the Democratic Party has been pushed leftward on immigration under the Trump era. He observes: 

“[T]he political rise of Donald Trump has radicalized many of his opponents on immigration. Some mainstream liberal commentators, such as Farhad Manjoo of The New York Times, have called for completely open borders. While not many Democrats have gone that far publicly, some—including most prominently the 2020 presidential hopefuls—have expressed ever greater unease about removing people who cross borders unauthorized. Julián Castro, the secretary of housing and urban development under Obama, has endorsed a pathway to citizenship for all immigrants living in the U.S. illegally. Senator Kamala Harris pledged not to vote to reopen the federal government in January unless the financing bill confirmed protection for Dreamers, young people who grew up in the United States without legal status. Senators Elizabeth Warren and Kirsten Gillibrand have called for abolishing the U.S. Immigration and Customs Enforcement agency. Gillibrand denounced the agency as a ‘deportation force’—as if it were possible to enforce immigration laws without deportation.”

Media:

• Sponsoring Rep. Paul Gosar (R-AZ) Press Release
  
• Breitbart
  
• The Marshall Project (Context)
  
• Breitbart (Context)
  
• The Atlantic (Context)
  
• CityLab (Context)