Judges in Alaska may soon lose the power to help noncitizens stave off an almost-certain deportation — even if that means reducing a prison sentence by as little as 24 hours.
House Speaker Mike Chenault, R-Nikiski, has proposed legislation, HB218, which prohibits judges from factoring in the possible deportation of a person convicted when deciding the punishment.
“The immigration status of a person convicted of a felony should be a neutral factor in sentencing a person — it shouldn’t be a reason to increase or decrease a sentence above or below the presumptive range,” said Tom Wright, senior staff to Chenault.
The deportation component of HB218 was not included in the original bill that addressed sentencing for individuals with prior offenses against correctional officers. Instead, it was added as an amendment at the request of the state Department of Law.
The proposal follows an Alaska Court of Appeals case last fall where the court ruled a three-judge sentencing review panel has the authority to alter sentences to help a criminal avoid deportation.
“I don’t believe anyone should have the right to have more rights than a U.S. citizen,” Chenault told the Senate Judiciary Committee on Monday during a brief testimony on his bill.
Under federal law, legal immigrants who commit an “aggravated felony” are typically not eligible to apply to have their deportation cancelled. “Aggravated felony” encompasses an array of offenses, including thefts or violent crimes where the term of imprisonment is at least one year.
Because of the added potential of deportation, one opponent of the bill told the committee that the effort is not a matter of seeking equality or fairness, but rather one of discrimination.
“This group of people are going to be denied the right to argue their case to a three-judge panel because we have a problem with looking at deportation issues as a factor,” said Margaret Stock, an Anchorage immigration attorney. “We looked at everything else but were not going to look at this one issue — what we’re doing here is creating more unfairness in the law.”
She added that the bill violates federal equal protection laws and the prohibition of national origin discrimination found in the state constitution.
“This amendment was clearly motivated by a desire to treat foreign-born people differently,” Stock said.
The law as-is does not result in safeguarding the defendants from the possibility of deportation, but rather in allowing judges to shorten sentences by a day so the federal government has discretion in determining if the individual should be deported, Stock said.
“The offenses these folks committed will cause them to be sent before an immigration judge,” Stock said. “What we are talking about is preventing them from arguing to the immigration judge that they should be given a chance to stay in the United States.
“The one-day difference in sentence — and the three-judge panel can reduce their sentence by one day — makes a huge difference in the immigration consequences,” she added.
The committee took no action on the bill.