Guillermo Bustos migrated to the United States when he was a child. He spent his formative years in Los Angeles, where he graduated from Huntington Park High School in 2006. Guillermo’s entire family and life is in California. He was raised by his mother, Maria Bustos, a lawful permanent resident, and his older sister and brother-in-law, who are both US citizens and small-business owners. In 2014, Guillermo was granted Deferred Action for Childhood Arrivals, the Obama-era policy that allowed undocumented people who had been brought to the United States as children to get a work permit and avoid the threat of deportation. He was on a path to having a stable documentation status in this country.
But two years later, Guillermo was convicted of a felony for being a passenger in a car that was carrying drugs. Even after serving his sentence, Guillermo now sits in a precarious position: Because of a double punishment written into American immigration law, his conviction bars him from legal status and citizenship, and he now faces permanent banishment from his entire family and the country that he has called home for 20 years. He has been caught in a punitive part of the US immigration system that advocates call the prison-to-deportation pipeline.
When President Joe Biden was elected last year, there was hope that he would put an end to the discriminatory immigration policies of the Trump administration, and perhaps even undo some of the overly aggressive policies of previous administrations, both Democrat and Republican. His administration has canceled Trump’s travel bans and reversed the “remain in Mexico” policy. But so far, the legislation put forward during the Biden administration does little to undo the prison-to-deportation pipeline that has put immigrants like Guillermo in its sights. Perhaps the most significant piece of immigration legislation of the Biden administration to date, the American Dream and Promise Act (HR 6), voted on March 18, 2021, in the House of Representatives, continues the decades-old, bipartisan tradition of targeting immigrant communities with an ever-present specter of deportation. By failing to remove criminalization bars—the parts of our immigration code that make conviction of a whole host of crimes grounds for deportation—and expanding the power of the Department of Homeland Security to deny legal status to tens of thousands of immigrants, HR 6 categorically excludes people brought to the United States as children from the opportunity ever to legalize their status. Representatives Jesús “Chuy” Garcia, Pramila Jayapal, Ayanna Pressley, and Alexandria Ocasio-Cortez have put forward amendments to remove these provisions and have gained significant congressional support, but so far they remain in the bill.
As public defenders active in the Public Defenders Coalition for Immigrant Justice, we know that while there is undoubtedly an urgent need to create avenues to legal status for millions of immigrants, HR 6’s criminalization bars deepen a dangerous divide in our nation’s immigration system. With an approach reminiscent of the Clinton administration’s punitive “tough on crime” policies that fueled the mass incarceration crisis and the Obama administration’s “felons, not families” enforcement guidelines that led to the deportation of 3 million people, Congress is yet again defining those who are “deserving” based on labels applied by the often arbitrary and inequitable criminal legal system. Fueling the jail-to-deportation pipeline with its criminalization bars, HR 6 places the power to withhold citizenship in the hands of the local police and prosecutors who dictate the arrest, charges, pleas, and sentences that the bill would enshrine—even as our nation struggles to deal with the fact that the application of these discretionary powers is deeply informed by ZIP code and skin color.
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Despite the growing awareness of the anti-Blackness and racism that plague policing and the criminal legal systems, our immigration protocols rely on those very same systems to define who is worthy of legal status. As with the criminal legal system, HR 6’s sweeping and punitive criminalization bars would disproportionately punish poor Black people and other communities of color. For example, the bill bars immigrants from obtaining lawful status, with very limited exception, if they have been convicted at any time in their lives of any three misdemeanors, which include offenses such as jaywalking, disorderly conduct, street vending without a license, shoplifting, and trespass. As public defenders, we know that rap sheets with multiple offenses like these reflect over-policing of impoverished communities, where people are arrested and charged with multiple offenses for one incident, and often held in jail to obtain a guilty plea. In states where ICE courthouse arrests are permitted, many immigrants are pressured into a plea bargain rather than risk ICE arrest, which under HR 6 would render them ineligible for the legal status that would have afforded them the security to pursue trial.
HR 6 also bars any person who has been convicted of a single felony from applying for lawful status. Felonies can include a second shoplifting offense, possession of a small amount of drugs, petty theft, joyriding, and failure to disclose even the most nominal income on a single application for public assistance with their child’s food or medical care. Felony convictions already disenfranchise millions of US citizens from voting, and now Congress similarly would disenfranchise immigrants from ever becoming US citizens, even those who have lived in the United States since childhood.
HR 6 also includes a “secondary review” process that expands the DHS’s power to deny applications under the guise of “public safety,” a well-known pretext for targeting immigrants with criminal legal system contact. It is inexplicable that Congress aims to give even more power to a federal agency that has woefully flouted the rule of law, openly defied federal court orders, and exacerbated the Covid-19 pandemic throughout the past four years. Congress should not reward the DHS’s misbehavior by entrusting it with more power. To the contrary, Congress should recognize that federal immigration agencies enforce civil regulations, yet often employ tactics that leave communities and the public far less safe.
Under this administration, America has an opportunity to lift up immigrant communities by building inclusive pathways to legal status and US citizenship. Now is the time to end the jail-to-deportation pipeline by introducing legislation to help communities and families like Guillermo’s achieve stability in this country. We urge members of Congress and the Biden administration to reject the criminalization bars in HR 6, and to ensure that all proposed immigration reform, including the US Citizenship Act, does not exclude our country’s most policed and vulnerable communities.
The Public Defenders Coalition for Immigrant Justice includes public defender offices representing noncitizens in criminal and immigration proceedings across the country including Alabama, California, Florida, Georgia, Illinois, Louisiana, Maryland, Massachusetts, Nebraska, New York, Oregon, Texas, and Washington.
