Saturday, December 17, 2005

The fly in Mr. Sensenbrenners ointment.

Sponsored by House Judiciary Committee Chairman James Sensenbrenner (R-WI) the 'Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005" " (H.R. 4437) was passed last Friday in a late-night vote of 239 to 182 with 38 Democrats voting for it. The bill, which also incorporates the border security legislation approved by the Homeland Security Committee last month, (H.R. 4312), allows for some of the most far-reaching changes in US immigration policy in the past thirty years.

Not only are there many very troubling provisions in this bill, the ability to enforce it in any reasonably equitable way seems to be impossible given the current state of the U.S. Citizenship and Immigration Service.

The bill would:

  • Increase security forces and surveillance along the border.
  • Give the power to immigration officials within 100 miles of the border to expel without a hearing anyone believed to be a recently arrived illegal immigrant.
  • Expand mandatory detention to apply to all non-citizens arriving at a port of entry or “along” the border.
  • Limit the basic rights of immigrants to judicial review, even by the constitutionally guaranteed writ of habeas corpus.
  • Criminalize all violations of immigration law, even if the violation was unintentional or the result of processing delays
  • Give additional powers to detain non-citizens indefinitely without judicial review, potentially placing many non-citizens in a legal black hole that subjects them to a life sentence after having served a criminal sentence, or, in some cases, without ever having been convicted of a crime.

(more below the fold)

“Expedited Removal”: Deportation Without a Lawyer, Hearing, Or Court Review
Expedited removal under current immigration laws is applied to non-citizens arriving at airports with apparently improper documents, to un-documented non-citizens arriving by sea, and a few other narrow categories of non-citizens. Basically, if you show up at JFK without paperwork, you are put on the next plane back without having any sort of hearing or review.

H.R. 4312 will expand on the policy of “expedited removal,” and grant powers to even low-level immigration officers to remove individuals anywhere along the border. It would require the border patrol to pick up and deport, without any administrative hearing, anyone within 100 miles of the border that an agent thinks is an undocumented immigrant who has been present less than 14 days. How the officers are to determine the legal status of the deportees is not addressed in the legislation. The de facto result of this legislation is that anyone within 100 miles of the border (north or south) who is suspected of being here illegally could by deported without any sort of hearing or reviews.

Mandatory Detention
Under current law, individuals who arrive without documents, including asylum-seekers, are subject to mandatory detention. Again this applies mainy to those arriving at airports or by sea. 60% of detainees are held in local jails under contract to the federal government, where they are generally not segregated from the criminal population even if they are asylum-seekers and others with no criminal record.

Under this new bill, the mandatory detention policy would be extended to all non-citizens who are detained at any port of entry or anywhere “along” the border for any reason.

“Illegal Presence” and “Aggravated Felonies,”
Section 203 of HR 4437 calls for the creation of a new federal crime of “illegal presence”. As defined in the bill it includes any violation, even technical, of any immigration law or regulation. Even if the immigrant was to fall “out of status” unintentionally, or do to paperwork delays. In essence, the bill makes every immigration violation, however minor, into a federal crime. As drafted, the bill also makes the new crime of “illegal presence” an “aggravated felony” for immigration purposes. This classification would have the further effect of restricting ordinary undocumented immigrants (including those with pending applications) from many forms of administrative or judicial review. Those convicted of an "aggravated felony" would be subject to indefinite detention and/or expedited removal.

Indefinite Detention
Indefinite detention currently applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless. Most often they come from countries without good relations with the United States.

HR 4437 would permit indefinite detention of an increased broad class of non-citizens, including:

  • those with a contagious disease
  • any non-citizen convicted of an “aggravated felony,” (see above)
  • non-citizens whose release would pose foreign policy problems
  • non-citizens charged even with very minor immigration violations who, based on secret evidence, are deemed a national security risk.

The bill also includes provisions to "combat the hiring of illegal workers"
The bill calls for an employment eligibility verification system in which employers will check the Social Security numbers and alien identification numbers provided by employees against Social Security Administration and Department of Homeland Security (DHS) records in order to weed out fraudulent numbers and ensure that their employees are not working in the U.S. illegally. The system is modified from a voluntary pilot program currently in use. The bill also increases civil and criminal penalties for knowingly hiring or employing an illegal worker.


The problem with all of HR 4437 (outside of its possible unconstitutionality, racist overtones, and a lack of judicial checks and balances) is that all of these new programs are predicated on the government having a reliable, accurate and easily accessible information management system to ensure that those who don't "belong" here are kept out, while those who do belong are not penalized.

Currently immigrants can wait for months and sometimes years to have their paperwork handled. Often they will fall "out of status" for long periods of time while they wait for the government to process their paperwork. Work permits expire, TPS status expires, and immigrants must wait for their new cards to be processed. Under 4437 all of these immigrants would automatically be subject to prosecution.

Then there is the problem of the computer systems and record keeping. The US Citizenship and Immigration Service, a branch of Homeland Security, has come under fire from outside analysts and government auditors for having one of the most ineffective data management systems in the entire government.

Thousands of airline passengers unexpectedly found themselves stranded in line at U.S. border checkpoints in August, after a Department of Homeland Security computer crashed.

The crash shuttered the government's main immigration database in Virginia, affecting scores of border entry points. The shutdown highlights the computer problems that the Homeland Security Department is grappling with, as it struggles to reshuffle myriad functions once performed by the now-defunct Immigration and Naturalization Service.

Aging, incompatible systems and outdated processes have contributed to a backlog of approximately 1 million people waiting for a decision from the department's Citizenship and Immigration Services bureau. Computer problems at its Immigration and Customs Enforcement bureau caused a snafu in which student visa holders were jailed overnight or barred from entering the United States.

But the problems are not limited to a one time crash

The U.S. Citizenship and Immigration Service’s systems have come in for particular criticism from outside analysts and government auditors, who say these are simply not up to the task of serving the public, especially when coupled with a continuing reliance on paper forms. In some cases, for instance, information typed into one computer must be manually retyped into a second or third.

"All filings are paper-based, which means that everything you submit has to be keyed into the computer, which of course opens up the additional possibility of error, slows the process down and prevents some processes from being automated," said Crystal Williams, deputy director for programs at the American Immigration Lawyers Association.


One problem is that applications for different types of immigration status are saved in separate records. These aren't interlinked, which means an application for a H1-B visa is not tied to the same person's application for a green card--causing more paperwork and delays, until the two records can be matched by hand.

Other procedures are equally inefficient. "Heaven forbid if an attorney should change their address," Williams said. "They have to send a change of address for every separate case they've got pending. (Once) I had between 500 and 1,000 cases pending at one time."


Combining this ineffectual information system with the new draconian measures proposed in the Sensenbrenner bill is nothing short of an invitation for abuse. Although presented under the guise protecting America from terror, this bill has far more to do with a xenophobic attempt to stop the flow of immigrants from Mexico and points south than protecting the US from radical Islamists.

Any attempt to “fix” the immigration problem through tougher penalties for both immigrants and employers is not a solution given the current state of the immigration bureaucracy and laws. When the U.S. Citizenship and Immigration Service can’t even process the paperwork it has and guarantee the validity of an immigrants status, how can we even contemplate giving them more power over peoples live and livelihoods.

When this bill now moves on to the Senate we must keep careful watch. This is one of the most disastrous pieces of immigration legislation in years, and if the Republicans can get it through the upper house without major modifications, the results will be significant.


Contact your Senator
Contact the Media
Contact the Senate Judiciary Committee

American Immigration Lawyers Association

Justice for Immigrants The Catholic Campaign for Immigration Reform

National Immigration Forum

National Council of La Raza


King claims HR4437 not to punish humanitarians: I say prove it

HR 4437: King promised changes, but none made

Unions, Catholic Church and US Chamber of Commerce oppose HR4437

Congressmen with least immigrants in districts support HR4437… those with most oppose it

Cardinal calls for civil disobedience against HR4437

300,000 march against HR4437 in Chicago

Sensenbrenner's State relies on undocumented workers to keep farm economy running

US Begins Internment of Undocumented Immigrants


Major Provisions of HR 4437

Library of Congress:H.R.4437

Voting record on HR 4437

White House letter of support for HR 4437

ACLU on HR4437

NCLR on HR4437

Human Rights First on HR4437