A Tale of Two Typos

As members of Congress struggle to reconcile their opposing views on immigration reform, rapid-firing amendments and counter-amendments across the aisle, we all should remember the successes and failures of our last immigration law overhaul in 1996. If the current attempt at reform succeeds, legislative inertia will leave statutory language, whether good or bad, on the books for decades. To illustrate the point -- and make a call for change -- I will focus on two flawed provisions in the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) with drastic consequences, likely far more draconian than legislators intended.

These two provisions contain obvious typos -- a clear signal that a work product received insufficient attention. They have landed hundreds of noncitizens I personally have advised in removal proceedings. Undoubtedly, they have caused thousands to be deported since IIRIRA was passed. The provisions appear deliberately designed to toss the maximum number of persons out of the country, since they cause offenses deemed minimally significant in the criminal realm to trigger virtually automatic deportation.

Specifically, IIRIRA made theft crimes and "crimes of violence" punished by sentences of one year or more "aggravated felonies." An "aggravated felony" is a deportation ground that equates to the kiss of death in immigration law: it generally makes a noncitizen's removal all but inevitable. It is irrelevant whether the noncitizen actually spent time in jail. Criminal judges often hold suspended sentences over defendants' heads to encourage, say, compliance with probation. Even if the defendant never experiences incarceration, and never commits another crime, the suspended sentence may lead to her mandatory deportation.

What is wrong with these provisions, setting aside (momentarily) the typos? Criminal law draws a clear distinction between crimes punishable by up to one year's imprisonment, on the one hand, and crimes punishable by over one year's imprisonment, on the other. In most jurisdictions, the former are misdemeanors, while the latter are felonies. In other words, IIRIRA drew the line in the wrong place. Because the aggravated felony provisions capture offenses with sentences of one year or more, the provisions are off by one day. As an example, I advised a 19-year-old with a one-year suspended sentence for shoplifting a sports jersey (a misdemeanor under criminal law). If the sentence had been 364 days instead of one year, the offense would not have been labeled an aggravated felony under immigration law.

As the Senate Judiciary Committee noted in releasing its draft reform bill, these provisions encompass even decades-old shoplifting offenses. Similarly, they cover decades-old schoolyard fights between teenagers. Under the current House version of the bill, such infractions would bar refugees and asylees from obtaining green cards. Under the Senate's most recent draft, these offenses would preclude attaining "registered provisional immigrant" status -- the highly coveted path to citizenship for which so many noncitizens and legislators hope and pray. In other words, these two misguided provisions are on the verge of becoming even more devastating than they already were.

Once upon a time, I thought the provisions were crafted by anti-immigrant geniuses. Today, my belief is that the one-day discrepancy went unnoticed during the drafting process. Prior to IIRIRA, theft offenses and "crimes of violence" with sentences of five years or more were aggravated felonies. In IIRIRA, legislators lowered the number of years from five to one. The legislative history does not indicate that Congress was mindful of the difference between drawing the line at one year or more, rather than over one year.

Oh yes: let me get to those typos. Law is a profession where all may be won or lost on the details. However, the drafters of IIRIRA's aggravated felony provisions missed some basic non-details, known correctly by my nine-year-old as "verbs." Thus, the provisions render offenses aggravated felonies so long as "the term of imprisonment [sic!] at least one year." The omission is sufficiently eye-popping to suggest carelessly crafted work product.

What devils lie in the details of the current draft bills? Each day, legislators, lawyers, and scholars pore over every proposal to assess its ramifications. In the meantime, however, can we please clean up this 17-year-old mess? Congress should change the line drawing in these two provisions from one year or more to over one year. It sounds modest; it sounds technical. But that one simple edit would change thousands of destinies, and comport far better with the entirety of our system of justice.

Laura Murray-Tjan, a former law clerk to Justice Sonia Sotomayor, directs a federal appeals clinic focusing on immigration cases at Boston College Law School.