09 Aug The Immigration and Naturalization Act should be bound by a statute of limitations

By Kendall Reeves

In 1999, Chris, a 20-year-old college student, and Simon, a 20-year old immigrant who had been living in the United States for 6 years, each committed armed robbery. Since the crimes took place in remote towns with no film footage and the amounts in question were so little, neither was caught or prosecuted for the robberies.

18 years later, Chris and Simon both have families and businesses. Neither have run afoul of the law since 1999. In the state where Chris lived, the statute of limitations for armed robbery was only 3 years; after 2002, it was too late for Chris to be prosecuted for that offense. However, in 2017 during Simon’s process of “adjustment of status,”¹ the U.S. government discovered evidence of his robbery and charges were filed against him. He was found guilty of a “crime of moral turpitude”² and therefore “inadmissible” to the U.S. He was therefore deported.

The default statute of limitation for most federal crimes is 5 years.³ Congress can adjust for a higher or lower statute based on seriousness of crime or other considerations. Unlike most of the rest of federal law, the grounds for inadmissibility under the Immigration and Naturalization Act (INA) are not bound by any statute of limitations, no matter the offense.  

Previously, the limitations for grounds for inadmissibility was five years, but the INA deliberately omitted any express limitations. It is time to reconsider this 65-year-old policy choice. The elimination of all statute of limitations for grounds of inadmissibility runs counter to American legal principles, lacks in rationality, and can have harmful effects on communities in America.

The rich history, freedoms and justice of American law are some of the most essential factors that draw immigrants to the U.S. in the first place. As a concept, statutes of limitations have been an important cornerstone of our law, preventing undue delay or lack of diligence in the prosecution of a crime. They can prevent the injustices and inefficiencies that would arise from prosecuting an offense that is no longer remembered well, promoting fairness to the defendant.4

At the center of the concerns that gave rise to statutes of limitations is a concept that eventually an otherwise law-abiding citizen who has been a productive member of society should be able to live at ease for an old, stale crime. The Supreme Court stated they provide “a deadline after which the defendant may legitimately have peace of mind” and “that after a certain period of time it is unfair to require the defendant to attempt to piece together his defense to an old claim.5

The INA and its elimination of statutes of limitations was drafted and enacted shortly after World War 2, in a climate of racial fears and irrational hatreds. Many of the other irrational components have since been repealed. The injustice of this panicked law-making did not go unnoticed. A presidential immigration commission said “that it is wrong to keep the threat of punishment indefinitely over the head of one who breaks the law is a principle deeply rooted in the ancient traditions of our legal system.”6 This is so particularly when it relates to relatively minor crimes.

Additionally, when the U.S. government has an immigrant’s entire life to investigate, expend resources and deport an immigrant, this can result in waste, misguided priorities and economic turmoil.7 Over time, law-abiding citizens become assets in their communities. They have children who get educated in the community. They open and run thriving businesses. They pay taxes, bolster local businesses, and add to the vibrant diversity of communities. Holding them accountable for their entire lives for stale crimes they have never repeated and removing them can rip them away from their families and from the communities they have contributed to for so many years. This can leave a hole in families and communities here in the U.S. Houses could go into foreclosure with the missing income, leading to a loss in property values in a community. Business that provided jobs for the community could shut down. The children left behind could suffer to continue to have a balanced lifestyle and education. It not only punishes the offender (who, if he/she was a citizen, would have fallen outside of the statute of limitations in some cases), but the rest of the community as well.  

To be sure, there are waivers and discretion available to certain offenses, but these are typically only applicable in limited circumstances. Additionally, some of the offenses in the INA are fairly serious and should be treated as such. However, even most serious felonies committed by American citizens are limited by a statute of limitations.  

Everyone can benefit from a reworking of the INA to make the grounds of inadmissibility more clear, less arbitrary and more demonstrative of American legal values. The INA should, just like other federal laws, have a default statute of limitations of 5 years. For more serious offenses, there can be a longer statute of limitations or – for the most heinous – there can be an express provision stating there are no limitations for them.

Kendall Reeves is a summer law clerk at TCRP’s Austin office. 

¹That is, his application to become a Legal Permanent Resident after marrying a spouse of U.S. citizenship)
²Under the Immigration and Naturalization Act, a noncitizen may be found inadmissible if they have committed what is referred to as a “crime involving moral turpitude.” 8 U.S.C. 1182(a)(9). A crime involving moral turpitude is not defined anywhere in the INA. The widely accepted definition used by many courts is “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” (for example, Vidal y Planas v. Landon, 104 F. Supp. 384 (S.D. Cal. 1952). The United States Department of State Foreign Affairs Manual has provided a list of common crimes of moral turpitude, however, including robbery. 9 FAM 303.3-2(B)(2)(U)(04/24/2017).
³18 U.S.C. 3282
4All of these reasons were given as purposes of statutes of limitation in Smith v. Grumman-Olsen Corp., 913 F. Supp. 1077, 1083 (E.D. Tenn. 1995).
5Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980).
6“Whom Shall We Welcome” (President’s Commission on Immigration and Naturalization Report, 1953, p. 197).
7The grounds of inadmissibility come into play once a non-citizen seeks some type of immigration relief, such as adjustment of status. Therefore, an offense could be prosecuted 1 year after its commission, or 30 years later or more, depending on when the noncitizen seeks relief.