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Letter to Chairman Nadler: NAKASEC Opposes Racist Criminal Exclusions in House Reconciliation Legislation

By September 13, 2021No Comments

September 13, 2021

CONTACT: Michelle Liang |


Letter to Chairman Nadler: NAKASEC Opposes Racist Criminal Exclusions in House Reconciliation Legislation


The Honorable Jerrold Nadler


House Committee on the Judiciary 

2132 Rayburn HOB

Washington, DC 20515

Dear Chairman Nadler:

On behalf of the NAKASEC Network, we write to express deep concerns about expanded criminal exclusions and border enforcement provisions in the FY22 budget reconciliation legislation for a pathway to citizenship. 

NAKASEC is a member of Until We’re Free, a newly formed Black-led coalition convened by the Black Alliance for Just Immigration with the mission of pursuing anti-racist and transformative solutions to inequities in immigration policy. Until We’re Free and NAKASEC recognize that additional layered grounds of exclusions will first and foremost harm Black immigrants, in addition to other immigrants of color who are most impacted by our racist criminal justice system, such as Southeast Asian immigrants. Billy, a Cambodian American community member of NAKASEC, is one such example. He immigrated to escape the Khmer Rouge genocide at five years old and would be excluded from a pathway to citizenship due to the criminal exclusions in S. 264. 

Furthermore, as we explain in this letter, there is not only a racial justice responsibility, but also a strategic responsibility to eliminate criminal exclusions and border enforcement provisions that would drive the legislation away from budgetary concerns towards policy concerns, thus inviting Byrd Rule objections.

Thus, we urge you during the committee markup process to leverage your leadership in the House Committee on the Judiciary to:

  • Eliminate restrictions on who can apply for the expanded adjustment of status on the basis of interactions with the criminal justice system. Specifically, the standalone immigration legislation proposals of 2021 layer new and unprecedented criminal exclusions on top of already horrific bars in current immigration law. We urge that the reconciliation package omit the criminal provisions from the 2021 immigration legislation proposals, including S. 264.
  • Eliminate so-called “smart surveillance” methods of immigration enforcement that utilize invasive digital and biometric tools to track, deter, and punish migrants. Smart technology is more enduring, invasive, and deadly than a physical wall. Evidence shows smart technology oftentimes trickles from the border to policing communities of color, such as Black Lives Matter protestors in 2020.
  • Include a simple waiver provision to the bill. A simple waiver will ensure that every person has a chance to tell their story and seek the stabilization legalization provides; the waiver should be comprised of text identical or similar to that at sec. 104 of the Reuniting Families Act, H.R. 3799, simply stating that the Secretary of Homeland Security or the Attorney General may waive the operation of any one or more grounds of inadmissibility for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.
  • The imperative to keep immigration legislation clean of toxic provisions is one of racial justice.

First and foremost, the imperative to keep immigration legislation clean of toxic provisions is one of racial justice. The Immigration and Nationality Act already includes extensive grounds of inadmissibility. Additional layered grounds of exclusion will render federal immigration law and policy even more harmful and punishing towards primarily Black immigrants. The criminal exclusions in S. 264 would disqualify undocumented immigrants who have been convicted of three misdemeanors, which many organizations serving communities of color recognize as extremely common for individuals to experience. Furthermore, S. 264 does not include exceptions for marijuana-related convictions. It is essential that provisions continue to honor communities of color and the marginalization they face from the criminal justice system. Especially in light of the increased awareness and commitments of solidarity around racial justice that elected officials have expressed over the past months, Congress has a duty to ensure that any immigration legislation does not further marginalize Black communities. 

Congress has an ethical imperative to pass a pathway to citizenship that does not leave a single person behind. Justin and Billy are two of NAKASEC’s community members who would be excluded from a pathway to citizenship that includes the criminal bars from S. 264.  Billy immigrated as a refugee from Cambodia when he was 5 years old to escape the terror of the Khmer Rouge era of Guerilla war and dictatorship.When his brother ran away and joined a gang, Billy expressed that he felt lonely and lost; he soon also became involved in a gang and committed a crime that sentenced him to life in prison. After 21 years in prison, he was transferred to ICE and subjected to extraordinarily dehumanizing circumstances, as he was shipped around for interviews, shackled, and subjected to random detentions and re-detentions by ICE without any notice. It is essential to the safety and well-being of those, such as Billy, that all immigrants receive a pathway to citizenship.

  • Extraneous language, such as criminal exclusions and border enforcement, drives the legislation away from budgetary concerns towards policy concerns, thus inviting Byrd Rule objections.

Citizenship for all rather than a piecemeal compromise solution, or a bill with criminal bars, makes even greater strategic sense during this Congress because of the strictures of budget reconciliation. To be eligible for implementation through the budget reconciliation process, policies must pass the Byrd Rule, which specifies that the policy’s budgetary changes must not be merely incidental to non-budgetary components. Under these constraints, passing a clean pathway to citizenship presents two main advantages over its alternatives. A more convincing case can be made that universally expanding adjustment of status is primarily a budgetary policy than one that buries the expansion of adjustment of status under layers of politically determined eligibility requirements. 

To expand upon this point, onerous restrictions that impact which individuals qualify for a pathway to citizenship, especially based on politically sensitive groupings such as interactions with the criminal justice system, may push the text of the reconciliation bill away from budgetary concerns and towards policy concerns. Furthermore, the delegation of funds for novel technological modes of border security may constitute, as Senator Byrd wished to have excluded from the reconciliation process, “legislation that makes drastic alterations in policy.”

The oft cited precedent for reconciliation being utilized for immigration policy is a draft of the Deficit Reduction Act of 2005 which proposed that unused green cards be recaptured and distributed. In that proposal, we see no mention of additional qualification requirements for taking part in the application process for the acquisition of these green cards beyond what is already in statute. That is likely because the drafters of the 2005 bill were privy to the fact that adding in policy-laden qualification requirements would increase the chance that the Senate Parliamentarian would view the provision as one in which the non-budgetary components outweigh the budgetary components. 

Secondly, the more people that are given the option to apply for adjustment of status, the greater the direct budgetary impact of the policy. The administrative scaffolding needed to process the claims of the 11 million undocumented immigrants then eligible for citizenship would have a massive direct budgetary impact. 

  • So-called “smart technology is more enduring and invasive than traditional forms of enforcement.

Congress should also avoid pairing a pathway to citizenship with increased funding for border security, whether “smart” or traditional. The Biden administration and Democratic Party have long supported “smart and effective” border security- even a “smart wall”- as supposedly more humane than Trump’s infamous wall. Yet, biometric scanning, DNA databases, and drone surveillance are more enduring and invasive than traditional forms of enforcement, driving migrants towards much more dangerous and deadly methods of crossing the border. So-called “smart technology,” drones, and surveillance technology derive from corporations who provide weapons to war zones and conflict areas like the Middle East, such as Lockheed Martin, Raytheon, Boeing, Northrop, General Dynamics, and Elbit Systems. This “smart” technology will cause even more deaths in the desert and along the border, and severely restrain freedom of movement. This so-called “smart technology” then trickles from the border to policing communities of color, such as Black Lives Matter protests in 2020. 

Finally, and this cannot be stressed enough, Congress has an ethical imperative to pass a pathway to citizenship that does not leave a single person behind. Spending limited political capital on policies that leave the threat of deportation hanging over the heads of millions is not just tantamount to family separation, but is family separation in a literal sense. History amply proves that appraisals of who should be allowed to live in the United States are more a matter of caprice and the prejudices of the time than rigorous moral reasoning. 

The NAKASEC Network represents Asian Americans and undocumented immigrants with a variety of immigration statuses, ages, and dates of arrival. We oppose increased border enforcement, including so-called “smart technology,” and anti-immigrant policies that privilege some immigrant communities at the expense of others. This is a historic opportunity to pass immigration change with a simple majority vote, and we urge you to take public leadership in fighting against attempts to pair a pathway to citizenship with unnecessary anti-immigrant policies. The good immigrant/bad immigrant dichotomy pits communities against each other, is morally and politically bankrupt, and certainly should not be used as a public policy tool. The pragmatic, compassionate, and sustainable policy is citizenship for all undocumented immigrants without extraneous criminal exclusions and border enforcement provisions. 

A pathway to citizenship for all is not just a moral imperative but a strategic necessity. Anything less would amount to an ethical failure, especially to communities most impacted by our racist criminal legal system, such as Black immigrant communities. As such, we urge you to take leadership during committee markup to ensure legislation for a pathway to citizenship is devoid of policies that further harm the most marginalized communities.

Please do not hesitate to reach out to Michelle Liang, NAKASEC’s Policy Manager ( with any questions.


National Korean American Service & Education Consortium (NAKASEC)

NAKASEC’s network is MinKwon Center for Community Action (New York), Woori Center (Pennsylvania), Hamkae Center (Virginia),  HANA Center (Illinois) and Woori Juntos (Texas).