Fact Check: Durbin Assures 'Serious' Criminal Records Prevent Legalization


Immigration Bill

Sen. Dick Durbin (D-IL) claimed Monday that if the pending Senate immigration bill becomes law, illegal immigrants who have committed serious crimes would not qualify for legalization, a statement that is partly true at best.

“They have to register with this government and then submit themselves to a criminal background check,” Durbin said. “If they’re found to have a serious problem in their background, they don’t have a chance to become legal in America.”

Durbin’s comments are not backed up by the actual text of the legislation. As Sen. Jeff Sessions (R-AL) detailed as far back as May 1, the bill allows loopholes that let illegal immigrants who have committed crimes “related to gang activity, child abuse, domestic violence, and drunk driving” to slip through the cracks and attain legalized status.

The Washington Examiner’s Byron York recently outlined how some jurisdictions classify serious crimes like drunk driving, gang activity, child abuse, and domestic violence, among others, as mere misdemeanors. York wrote, “depending on jurisdiction, some cases of vehicular homicide, drunk driving, domestic violence, sex offenses, and theft are all categorized as misdemeanors,” adding that many times felonies and “even more serious crimes are negotiated down to misdemeanors.”

Technically, the bill requires that illegal immigrants with felony convictions or three or more misdemeanor convictions not qualify for legalized status. Even so, as Sessions detailed back in early May, the bill allows the Secretary of Homeland Security Janet Napolitano “enormously broad discretion to block the removal of any future legal and illegal aliens--including convicted criminals--where such a removal is not in the ‘public interest’ or would result in mere ‘hardship’ to the alien’s U.S. citizen or permanent resident parent of a child, spouse or child.”

The bill would allow the Secretary of Homeland Security, when determining whether an individual is eligible for amnesty, to overlook that individual’s convictions for the following types of offenses that would otherwise render the alien inadmissible to the United States: a crime involving moral turpitude (which could include theft, child abuse, domestic violence, and a variety of other serious crimes); a controlled substance (non-trafficking) offense; and multiple drunk driving offenses (which, interestingly, is added as a ground of inadmissibility elsewhere in the bill), if the Secretary determines that granting the individual amnesty would serve "humanitarian purposes," "ensure family unity," or is in the "public interest."

With specifically drunk driving, for instance, in most states, one or two convictions would not bar an illegal immigrant from legalization. 

However, even if the bill had more stringent requirements for misdemeanor criminal convictions, law enforcement agents say they are still prevented from enforcing such laws.

Immigration and Customs Enforcement (ICE) National Council president Chris Crane noted in a recent letter to Sens. Marco Rubio (R-FL) and John Cornyn (R-TX) that the bill would “handcuff” law enforcement like him and his agents while allowing criminals who are illegal immigrants to run free.

In addition, Kenneth Palinkas, the president of the union representing U.S. Citizen and Immigration Services (USCIS), stated recently that USCIS agents--the federal law enforcement officers who handle immigration applications--do not and will not have the resources to effectively check everyone’s background under this bill. "The culture at USCIS encourages all applications to be approved, discouraging proper investigation into red flags and discouraging the denial of any applications,” Palinkas said, arguing that the bill does nothing to solve the problem. “USCIS has been turned into an ‘approval machine.’” 

Palinkas also said it is current policy under President Barack Obama’s administration for USCIS agents to consider immigrants, legal and illegal, “customers” of the United States government:

A new USCIS computer system to screen applications known as "Transformation" has proven to be a disaster as the agency has spent upwards of $2 billion for a system that would eventually allow an alien--now referred to as a "customer" under current USCIS policy--to upload their own information via the internet for adjudication purposes. To date, only one form can be accepted into the program that has been in the making for close to 10 years.


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