Recently a concerned colleague sent a me a link to a bill that is under consideration in both the Florida House of Representatives and the Senate.
The crux of the bill is to make it illegal for immigrants to be in the State of Florida after they have a final order of deportation. For a copy of the bill follow these links:
Companion House Bill:
When I read the bill and what is proposed, I could hardly believe my eyes. The immigration attorney in me was aghast by a law that makes it an extremely serious first-degree felony simply to be knowingly present in the State of Florida after receiving a final order of deportation. This means that if you were ordered deported by an Immigration Judge or an officer from Immigration and Customs Enforcement (ICE) and you are in Florida but have not yet been deported, you are guilty of a crime punishable by up to 30 years in prison. That’s disturbing enough.
Then the former ICE attorney and state prosecutor in me read the bill and I was equally troubled by the fact that there is only one exception to the law. The only way you could avoid being guilty of this crime is if your order of deportation was stayed pending judicial review, that is, review by a court. I have been a Florida resident for more than 30 years, I have been practicing criminal and immigration law in Florida for almost half that time. I know that that there are thousands of Florida residents who have a final order of deportation that is not currently “stayed pending judicial review.”
Many of these individuals are in our state prison system, some are in our state psychiatric system. Some are homeless, some are former green card holders and U.S. military veterans with their entire families in the U.S. Many are Cuban nationals who have final orders not subject to a judicial stay of removal, but who cannot be deported to Cuba through no fault of their own. Cuba will not accept 99.9% of its nationals back from the United States through deportation.
This bill is a complete nightmare both it what it purports to do (criminalizing an immigration status, or lack their of) and the required evidence to prove the crime. There is no requirement that the individual “willfully” be present in Florida after having a final order. Rather, the only requirement is that the person’s presence is “knowingly.” Knowing where you are is completely different than willingly being there; ask anyone in jail or middle school.
The majority of immigrants in the U.S. with a non-stayed final order of removal are still in the U.S. precisely because our government is unwilling or unable to deport them. Why in the world should we punish individual immigrants because of our government’s decisions not to deport someone or their government’s decision not to take them back. That makes absolutely no sense.
Many other immigrants with final orders of removal have stays that are granted by ICE itself, an administrative, non-judicial branch of government. Under this law, unless your order of removal is stayed pending judicial review, then you can be prosecuted criminally. ICE grants non-judicial stays of removal all the time to immigrants with final orders who need to stay in the U.S. to take care of their sick, young or elderly family members. Why would we punish immigrants simply because of which branch of government chose to issue them a stay.
The drafters of this bill appear to be both misguided and ignorant to the real-life applications of our immigration laws. Criminalizing the participants of our completely dysfunctional immigration system is both unwise and unfair as it is our own and foreign governments who are to blame for this specific problem.