Ruh: The trouble with ‘Troubling indeed’
Butch Mazzuca’s Feb. 16 column, “Troubling indeed,” troubled me enough to make me go and read the text of H.B. 5383, known as the New Way Forward Act. I was surprised to discover that the purpose of the act was not to protect criminals, rapists and child molesters from being deported but instead was intended to remedy the many abuses that led to the incarceration of would-be immigrants without due process and in sub-standard and inhumane conditions that have been all too evident recently.
Title I of the act calls for the elimination of for-profit detention facilities, which were a major source of the sub-standard living conditions imposed on detainees. The bill also provides for various protections related to detaining aliens, such as: requiring Department of Homeland Security to make an initial custody determination and establish probable cause within 48 hours of taking an alien into custody, establishing a rebuttable presumption that the alien be released in hearings related to such determinations that the alien be released, and when detention is deemed necessary, requiring immigration judges to impose the least restrictive detention conditions necessary. These provisions are intended to remedy the failure to provide due process, which is a core value of our legal system, and to minimize the amount of time an alien can be kept in custody without legal proceedings being initiated.
Additional provisions protect a person from being interrogated as to his or her immigration status based solely on factors such as the person’s race, religion, sexual orientation or spoken language.
The bill also removes mandatory detention requirements for certain aliens, such as asylum seekers with a credible fear of persecution.
None of the above provisions seem particularly “troubling” in light of the abuses they were intended to correct and in fact would seem to be long overdue.
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Perhaps Mazzuca was troubled by the bill’s intent to abandon the test of “moral turpitude” in determining whether a legal immigrant can be deported for committing a crime. I was curious about the definition of that term and, not surprisingly, found that the actual definition is vague and broad and can vary from state to state with often many factors involved. It can involve either a misdemeanor or a felony. It generally involves an element of intent.
The U.S. Citizen and Immigration Service defines it in its policy manual as being “contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” With this degree of vagueness and the potential for abuse that it can encourage, I can only commend the authors of the bill for their attempt to substitute a more objective test for whether deportation is the appropriate remedy. It may be necessary to further refine the new test imposed by the bill — that the crime results in a prison sentence of five or more years — but it certainly is a step in the right direction and deserves further debate and possible refinement.
Finally, Mazzuca challenged me to “read the bill” that he says would require the use of taxpayer dollars “to bring deported criminals back to the United States.” So I read the bill and found that it only would apply in cases where a person was deported or returned to their country of origin voluntarily under the draconian rules and definitions of “moral turpitude” that this new act is intended to replace. For example, a father deported for the “morally turpitudinous” crime of possession of marijuana would actually be able to rejoin his family and be able to financially and emotionally support them.
I don’t disagree that the bill as currently written could benefit from further discussion and debate, but that is what will happen with it when it is referred to committee. In the meantime, I find that it is Mazzuca’s distortions regarding the nature of this bill that is “troubling indeed.”
“A half-truth is the most cowardly of lies.” — Mark Twain
Bobbie Ruh is a retired attorney, former judge and lecturer at the University of Colorado Law School. She is an active Rotarian and has worked with Youth Exchange for over 30 years, including serving as chairman of the Youth Exchange Program for District 5470. She fills her copious free time with skiing, travel, the creative arts and volunteering for Vail Health. She also loves hanging out with her three adorable granddaughters.