In his joint session to Congress on Tuesday, President Donald Trump highlighted a new immigration policy, which many, many, many mistakenly assume applies only to undocumented immigrants (a.k.a. “unlawful immigrants”). The policy, however, applies at least to “removable aliens”—a precise term of art in immigration law—and that class of individuals clearly includes legal immigrants. Let’s break this down.
In his speech, Mr. Trump stated without reference to the status of immigrants:
“I have ordered the Department of Homeland Security to create an office to serve American Victims. The office is called VOICE — Victims Of Immigration Crime Engagement. We are providing a voice to those who have been ignored by our media, and silenced by special interests.”
The president then described two vicious murders each committed by an “illegal immigrant.” “Illegal immigrant” is not a well-defined term; it has no meaning as a matter of federal immigration law, though it is often used colloquially to refer to noncitizens who are not authorized to be in the United States—because they snuck into the United States or overstayed their visas. But if we assume that is the way the president was using the term, the DHS program apparently sweeps much more broadly.
In a published Q&A, DHS described the new program as applying to “removable aliens” (a broader term than illegal immigrants):
Q6: What is ICE doing to support victims, and the family members of victims, of crimes committed by removable aliens?
A6: ICE is currently identifying resources and realigning existing personnel to support and establish the Victims of Immigration Crime Engagement (VOICE) Office. ICE is in the process of drafting outreach materials for victims and families impacted by immigration crime.
Put to one side that the Q&A is cleverly constructed not to say that VOICE will exclusively apply only to “removable aliens.”
As a matter of statute and judicial interpretation, here’s what “removable aliens” clearly means: it means any noncitizen who is deportable under federal immigration law. That includes unauthorized immigrants—people with no lawful status. But it also includes lawful immigrants—even green card holders—who have been convicted of crimes that render them deportable. So if a green card holder who has lived in the United States for several decades is convicted of minor drug crime (often a deportable offense), VOICE appears to make the reporting of their crime a national priority.
Finally, notice a problem with the administration’s proposal: under immigration law, a noncitizen does not become a “removable alien” simply by committing a crime. Only a conviction for a qualifying crime can generally make a noncitizen removable. But the President seems to be directing DHS to report crimes when they occur. Thus, the program could become one that generally reports all crimes committed by any noncitizen in the country, even if those persons are never convicted or are never found to be deportable.