Immigration, Probation

Immigration Probation

The case for Probationary Resident Status

There are an estimated 11 – 22 million undocumented immigrants in the United States presently. When a person is found guilty of a crime and sentenced to prison, unless given a life sentence there is a date when the person will complete their sentence and be released.  When a person is paroled prior to the completion of their sentence they are on probation for a set amount of time.  The function of probation is an important one as it reduces the prison population and gives the person on parole an opportunity to prove to the government they can be a productive member of society.  Intending immigrants and undocumented immigrants should be given that same opportunity.  Presently there is no end date for illegal immigrants.  Having a probationary period for documented and undocumented immigrants would address this issue in a realistic way and give a proverbial “light at the end of the tunnel” for the millions of people presently in the country without status and give hope to those looking for a chance to pursue the American dream.

I’m going to list two sections of law regarding illegal immigration.  The first section pertains to criminal immigration offenses.  The second covers administrative immigration offenses.  The difference between the two is night and day.

Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens. Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).

Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You may be barred from reentering the United States for:

  • 3 years, if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings;
  • 10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
  • Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

You can find these bars in the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i)(I) and (II) (the 3-year and 10-year unlawful presence bars) and INA 212(a)(9)(C)(i)(I) (the permanent unlawful presence bar).

If you are in the United States without having been admitted to or paroled into the country by an immigration officer, then you started accruing unlawful presence on the day you entered the country without admission or parole.

I referenced the two sections of law to differentiate between criminal offenses that carry a prison sentence and administrative offenses that result in removal proceedings.  To make this even clearer, the first section can land you in jail because you violated a criminal law.  The second means you didn’t have permission to stay or come in and now you have to go.

What is not often discussed is parole.  Everyone knows criminals who are in prison are eligible for parole on a case-by-case basis.  What are not discussed in the media are waivers for prior immigration and criminal violations along with being paroled.  Immigrants and non-immigrants have been granted both by consular officers on a similar case-by-case basis for decades.  This is not amnesty per say, its discretion.

There is no perfect one size fits all solution to solve our nation’s immigration issues. Regardless of which side of the aisle you are on, I’m sure you have heard your fair share of people’s opinions that are for and against fixing our immigration system. Even if it is done in on a trial basis and with a limit on how many people that can apply I believe probation, if implemented fairly will satisfy the needs of the majority of people that are left, right and center of the aisle in regards to immigration. 

If we can grant parole or allow people to be freed after they have served their time, thus paying their debt to society, shouldn’t a person whose crime is purely administrative be given the chance to do the same?

Immigration, Probation
The case for Probationary Resident Status

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