Amnesty has become a politically-charged term over the years, which has resulted in Members of Congress, activists, reporters, etc., jumping through hoops to try and prevent the term from sticking to their bill of choice. Let's break down the definition-
Amnesty is defined by Black's Law Dictionary1 as "A pardon extended by the government to a group or class of persons, usu. for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted ." (emphasis mine)
The first key to amnesty is some sort of pardon or forgiveness extended by the Government, regardless of which branch it comes from. This seems like a simple step to understand, but it has resulted in a lot of confusion.
Status- In immigration, a lot of time discussing whether a policy is amnesty is focused on what sort of legal status or path to legal status an amnestied individual gets. Unfortunately, this misses the amnesty altogether. A bill that grants forgiveness for unlawful presence or unlawful entry and then grants a "path to citizenship" would be more than a simple amnesty. The first step--the government saying it will withhold civil/criminal liability, or other penalties like deportation, otherwise available under the law--is the amnesty, regardless of what eventual status, if any, someone gets in the end. By way of illustration, if a government said that all individuals who stole a truck between 2002-2005 came forward and paid $10, they would be forgiven, that would be an amnesty. It doesn't matter if the government then offers them the truck to keep. To bring this back to an immigration hypothetical, if an act of Congress told a class of aliens that, if they presented themselves at a port of of entry and left voluntarily, the US would not bar them from entering again lawfully on a visa or hold them liable in other ways, that would qualify as amnesty.
Permanence- Another question often arises as to whether or not an act of forgiveness that is renewable or otherwise temporary qualifies as amnesty, like the Deferred Action for Childhood Arrivals program (DACA) or deferred action in general. Here is how USCIS defines "deferred action"-
"Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence."
Note that the individual with deferred action is "not considered to be unlawfully present during the period," which means that, while previous unlawful presence is not outright forgiven, as long as they maintain deferred action status, they will not be held responsible for previous periods of inadmissibility. The government is essentially saying that, as long as you maintain or renew your status, we will pretend to have forgiven you. If your deferred action lapses, that forgiveness will lapse, as well. So, deferred action is a temporary but renewable amnesty. However, a permanent amnesty is also present. "For purposes of future inadmissibility" means that, if your temporary amnesty does lapse, you will not be held responsible for the period of deferred action where you had not been conferred lawful status. In other words, you were not in lawful status and we will never punish you for that particular period of time that you were not in lawful status.
Penalties- Finally, there remains a peculiar assertion that, if any penalty or fee is levied against an alien to bring about forgiveness, that it does not qualify as amnesty. The key is that the penalty is always different or substantially less than the penalties under the law. As Black's Law stated above, IRCA in 1986 is almost universally recognized as an immigration amnesty bill. Under IRCA, amnesty applicants were required to pay a fee/penalty as part of their application process. Furthermore, they were not exempted from liability for their three previous years of back taxes. But they were not subject to deportation or to civil or criminal liability—the standard penalties in the law for entering the country illegally or overstaying a visa.
For a non-immigration illustration, my alma mater had a strict parking policy and students were known to build significant parking-fine debt. One year, they offered a one-time "parking amnesty," where you could pay a fraction of your parking fee and have the entire balance wiped out. It's noteworthy, however, that the parking amnesty did not grant you permanent legal parking status at any spot of your choice.
A Class of Persons
This part of amnesty is less complex than the previous element. The fact that amnesty is generally for a class of individuals helps differentiate it from a standard pardon or legitimate use of prosecutorial discretion. An individual prosecutor’s decision not to charge an individual for a crime on a case-by-case basis isn't amnesty. A government defining a class of individuals who will not be charged with crimes they otherwise could be charged with is amnesty.
The HEROES Act (HR 6800), passed recently by the House, has a couple of provisions in Sec. 191203 that qualify as amnesty.
The first provision grants deferred action (forgiveness) to aliens working in critical infrastructure who are physically present in the U.S. and are inadmissible and deportable (class) for a period from the first day of the public health emergency declaration until 90 days after the declaration is terminated.
The second provision deems employers of the above class of illegal aliens (class) to not be in violation of the law prohibiting the employment of illegal aliens (forgiveness) for a period from the first day of the public health emergency declaration until 90 days after the declaration is terminated.
Not only does the HEROES Act have an amnesty for illegal aliens, it has an amnesty for employers of illegal aliens, as well. Both are temporary amnesties, but both clearly forgive a class of persons who are subject to prosecution but have not yet been convicted.
GRANT NEWMAN is the Chief of Staff for NumbersUSA
1 Garner, Brian A., Black's Law Dictionary.
Updated: Wed, Jun 3rd 2020 @ 2:55pm EDT