Immigrant-Sentencing Changes Please Experts

     WASHINGTON (CN) – Immigration advocates and analysts applauded the new changes to U.S. sentencing guidelines for immigration offenses, but warned that there is work to be done yet.
     Amendments to the illegal re-entry guidelines that the U.S. Sentencing Commission adopted Friday change how courts weigh a person’s past criminal history in the penalty phase. Moving away from a focus on the type of offense committed, the new rules instead consider the sentence received for that offense.
     The rules also keep steady the base-level offense for people who are caught re-entering the country illegally, while ratcheting up penalties for people caught smuggling unaccompanied minors into the country.
     “The commission was concerned by evidence that 48 percent of illegally returning offenders were convicted of at least one criminal offense, other than illegal reentry, after their first deportation,” Chief Judge Patti Saris, who chairs the commission, said in a statement. “Overall, immigrants convicted of illegal re-entry have re-entered the country an average of 3.2 times. However, the base-offense level will remain the same as we also understand that there are many low-level offenders who return to the United States for reasons related to family or work, as well as reasons relating to conditions in their home country.”
     Barring any interference by Congress, the guidelines will take effect in November.
     How the changes might impact immigration policy going forward is up for debate, and more than 40 advocacy, law-enforcement and government groups submitted comment to the commission ahead of its decision.
     A group of judges who submitted comments applauded the new focus on what sentences prior crimes met with, rather than the type of crime committed.
     As U.S. District Judge Larry Alan Burns wrote, the move away from the so-called “categorical approach” will make sentencing easier for judges.
     “Such a change will, in my opinion, greatly reduce the complexity of sentencing in these cases, and should also significantly reduce the number of sentencing appeals,” Burns wrote.
     As Chris Rickerd, policy counsel with the American Civil Liberties Union noted, judges consider state rules when sentencing, meaning they might give a longer sentence to a person knowing they will not spend the full time in jail.
     “So if you know for instance that someone will not end up serving a quarter of their sentence, you might end up giving them more than that in order to land on the number that you want them to be in prison,” Rickerd said. “So under the Sentencing Commission’s time imposed, that would be an overstatement of the severity, right? Because that would not be looking at the actual time the judge expected and the actual time served.”
     One other takeaway from the new guidelines is the commission’s move to reconsider assessment of prior offenses when sentencing people caught re-entering the country illegally, said Joshua Breisblatt, policy analyst for the American Immigration Council.
     The new guidelines weight crimes committed after the re-entry in question more heavily, taking into account that old re-entry sentences will take older crimes into account, Breisblatt said.
     “It wouldn’t make a lot of sense to constantly be piling on by multiple factors various convictions that you have that are very old that have already been taken into account by a judge when you’ve been sentenced,” Breisblatt said. “It makes sense that the next time you’re looking at one thing that’s already taken these things into account as opposed to re-adding them all up plus the other illegal re-entry conviction then going to sentencing.”
     Greg Chen, director for advocacy for the American Immigration Lawyers Association (AILA), said he was happy to see the commission resist calls to strengthen base offenses for illegal re-entry, granting one of the requests the association made in its public comments on the proposed guidelines.
     “From AILA’s perspective that is a welcome decision by the U.S. Sentencing Commission because AILA has serious concerns, as reflected in our comments that those kinds of increases in guidelines would really harm a number of different vulnerable groups and would likely serve no clear purpose and no clear goal from the criminal justice sentencing commission perspective,” Chen said in an interview.
     Raising the baseline punishment for illegal re-entry could harm people seeking asylum, which Chen said they have a right to pursue.
     Rickerd also said people caught re-entering the country illegally are often difficult for judges to sentence because they empathize with offenders, most of whom were raised in the country and are returning to reunite with family members.
     “These are not any definition priorities under the Department of Justice’s guidelines or a danger to the community such that sentences should be increased,” Rickland said.
     But the commission’s work wasn’t all good for AILA, Chen said. Programs like expedited removal and Operation Streamline, a Department of Justice initiative that funnels a high percentage of immigrants caught crossing the border into the federal criminal justice system, still give Chen pause.
     “It does keep the status quo, it doesn’t make the situation any worse,” Chen said.
     Victor Manjarrez Jr., project director for the Center for Law and Human Behavior at the University of Texas at El Paso, said the decision to increase penalties on people who smuggle unaccompanied minors could provide a tough deterrence to would-be smugglers.
     “It’s big business because they know there’s no penalty,” Manjarrez said of smugglers under the current guidelines.
     Even though there are still areas of the law they would like to see changed, all of the analysts agreed the commission’s changes could represent a step in the right direction for the way immigration law is treated.
     “I think during a time when Congress is looking at criminal justice reform, potentially doing away with mandatory minimums for various types of cases, I think it was good to see that they weren’t arbitrarily increasing a base offense level like that and further criminalizing migration,” Breisblatt said.

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