The Democratic budget reconciliation bill would protect illegal immigrants who committed crimes such as manslaughter and domestic violence from deportation and make them eligible for amnesty, according to Republican Senate offices and former immigration officials.
Immigration provisions in the legislation shield all illegal immigrants who have been in the country for at least 10 years from deportation unless they have been convicted of a "crime involving moral turpitude" (CIMT), a vague legal category of crimes that involves "intent," "vicious motive," or "culpable mental state." An analysis of the provision by Senate Republicans determined it would shield illegal immigrants with a variety of criminal backgrounds.
That analysis, which was shared with the Washington Free Beacon, listed six potential crimes, such as domestic violence and assault and battery, that courts have found do not constitute CIMTs. An appeals court found in 2009, for example, that some instances of reckless assault of a minor should not be considered a CIMT. A New York court in 2005 found that assaulting a police officer was not necessarily a CIMT because, according to the judge’s opinion, the crime might constitute "the mildest form of intentional resistance" that would not "denote moral depravity."
Under the Democratic plan, illegal immigrants would be eligible for deportation protection by the Department of Homeland Security through a provision called parole, normally assigned, according to federal law, "on a case-by-case basis for urgent humanitarian reasons or significant public benefit."
The amnesty provision comes as the country is seeing a historically high number of illegal immigrants attempt to enter the country through the southern border. The provision could put many Democrats who are up for reelection and concerned about the party’s leftward lurch on social issues in a precarious position—especially at a time when a plurality of voters consistently put immigration as a top issue of concern in surveys.
Under the bill’s language, DHS would have 90 days to write specific regulations to implement the program, meaning the agency could write exemptions for crimes such as domestic violence. But critics of the provision say left-wing activist groups, such as the American Civil Liberties Union, could challenge the DHS rules in court and dramatically narrow the number of illegal immigrants who do not receive deportation protections.
"CIMTs are always messy and always developing," said former DHS adviser Jon Feere. "If this becomes law, aliens who aren’t qualifying will sue to get judges to declare that even more crimes don’t count as CIMTs."
In 1965, a federal immigration panel found that a conviction of lewd and lascivious conduct does not constitute a CIMT because the crime "does not require a specific intent and it does not appear that it is essential that the defendant have a vicious motive or corrupt mind." That same panel concluded in 1979 that a Mexican national living legally in the United States who was convicted of possessing a concealed sawed-off shotgun did not commit a CIMT. Such rulings show how much wiggle room there is in defining a CIMT.
A Republican staffer also noted that gang members could receive parole should they have a clean criminal background, even if their names appear in a police department’s database. Moreover, the staffer alleged that left-wing district attorneys may bring more lenient charges against illegal immigrants if it means protecting them from losing their amnesty. Even in cases of murder, a savvy prosecutor may consider filing lesser charges. Consider, one Senate staffer said, how a federal immigration board found in 1971 that involuntary manslaughter is not a CIMT after the federal government attempted to deport an immigrant who shot and killed someone with a gun in Alaska.
Previous attempts by Democrats to insert amnesty provisions into the budget reconciliation package have been rejected by the Senate parliamentarian, who argued that providing residency to millions of illegal immigrants is a major policy change, not just a budgetary issue. Left-wing activists have staged multiple protests demanding amnesty provisions, and Democratic Party leaders have said they will do anything in their power to ensure deportation protections are included in the final package.
The amnesty push has been met with swift condemnation by Republicans, who say it is nothing more than a desperate ploy to appease the Democratic Party's base, with the public having little knowledge of its consequences.
"Democrat amnesty proposals aren’t about justice," Rep. Darrell Issa (R., Calif.) said. "They excuse the breaking of our laws and would exonerate all including some that are domestic abusers and serious criminals."
Congressional staff who spoke with the Free Beacon under the condition of anonymity say the likelihood of blanket amnesty passing the Senate parliamentarian's scrutiny is unlikely and questioned the judgment of Democrats in swing districts supporting such a measure before the midterm elections. One senior Senate GOP aide suggested the immigration provision in the bill would become a top campaign issue for Republicans.
"Every House Democrat who votes for the reckless tax and spending spree will have to answer to their constituents next year why they voted to make their communities more dangerous by supporting amnesty for illegal immigrants who have committed crimes," the aide said. "They will be attaching a political anchor around their necks with this vote."
The Biden administration has already faced attacks from members of both parties about its failure to resolve the border crisis, with critics alleging that the reversal of former president Donald Trump’s immigration policies have created incentives for migrants from around the world to attempt to cross the border.