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Walk On By: Pass Up Sensenbrenner's Misguided Border Bill And Insist On A Winner

by Lory Diana Rosenberg

We are facing an increasingly urgent question about the kind of country and society in which we want to live. More precisely, what must we do to transform our immigration system so that it works smoothly and efficiently, enabling us to uphold our tradition as a welcoming and inclusive country, enriching and benefitting the lives and well-being of all those who, in turn, enrich and benefit America? Congressman Sensenbrenner (R-WI), Chair of the House Judiciary Committee, who last week introduced the “Border Protection, Antiterrorism, and Illegal Immigration Control Act" (H.R. 4437), answers that question by equating sound policy and effective management with mandatory detention, mandatory minimums, micromanaged federal courts, and a militarized border. With due respect, he’s way off the mark.

Instead of facilitating the fair and truly comprehensive immigration reform that most Americans want and need – Congressman Sensenbrenner's bill would virtually criminalize everything that troubles him about the immigration situation today, and it would do so retroactively. Rather than acknowledging the myriad of failed, pointlessly harsh, enforcement measures that have preceded H.R. 4437 – such as the excessive provisions which were added in 1996 – his bill piles on more of the same. Rather than respecting core American due process values and engaging in a pragmatic analysis of the interests at stake, his bill is an exercise in circumventing rational Supreme Court interpretations and striking out against whichever Ninth Circuit decisions are his or his allies’ pet peeve du jour. Rather than recognizing the reality of employment verification capabilities and working with them, the bill mandates that unreachable goals be imposed now. Rather than reducing the incidence of unlawful immigration status or immigration-related crime, Congressman Sensenbrenner's bill increases it. A lot of sound and fury to be sure, but what would this “get-tough” bill actually achieve? And at what cost?

Making unlawful presence in the United States a felony --- at taxpayers’ expense
The bill’s get-tough on unlawful presence provision cracks down on anyone who is the United States unlawfully, literally transforming the approximately 11 million undocumented or out-ofstatus noncitizens in the United States - many of whom are hard-working, taxpaying, neighbors, community leaders, friends and family members - into criminals. See Section 203. This provision would turn asylum seekers, battered women and children, temporary professional workers, students, newlywed spouses who overstayed a nonimmigrant visa, and even young people who arrived as infants on their parents' tourist visas or without documents at all, into felons who are both subject to prosecution and likely to be ineligible for lawful residence, even if they could qualify to immigrate as an immediate relative, or through a family or employment-based petition. In a stunning irony, actual implementation of this unfounded provision would not only clog the federal courts’ criminal docket, but would potentially increase the federal deficit by triggering the Fifth and Sixth Amendments right to counsel in felony prosecutions under this provision. Cost? Potentially billions. Literally.

Broadening the criminal "smuggling" provisions – to penalize anyone who assists
The bill’s get-tough on smugglers provision would include anyone who assists a noncitizen without lawful status to reside or remain in the United States, potentially turns those in faith-based programs, teachers, lawyers, healthcare workers, and even the constituent service staffers of elected United States representatives into criminals when they assist immigrants and refugees seeking to regularize their status. See Section 202. This provision does not stop at penalizing someone who might encourage or entice someone to enter the United States illegally, or who makes travel arrangements and brings someone to the United States unlawfully, or who provides actual transportation and helps someone sneak across the border, or who actually “harbors” someone who is in the United States unlawfully to keep him or her from being discovered by officials by providing a place to live or hide. As written, it includes any assistance - so why not rewrite it to be more reasonably limited? Because that law already exists. Cost? Redundancy, confusion and over-kill.

Making nonimmigrants waive their rights - to have as few rights as visa waiver participants
The bill’s get-tough on nonimmigrants provision conditions getting admitted on agreeing to accept removal without due process. The process of "expedited removal" (meaning: deportation from the United States without a hearing) would make virtually all nonimmigrants – from temporary professional workers to victims of domestic violence – relinquish their right to an impartial removal hearing if later charged with an immigration violation. See Sec. 806. Making expedited removal a condition of getting into the United States does away with the opportunity for impartial oversight or review of DHS charges and decisions regarding nonimmigrants charged with immigration violations. This tradeoff most likely means that relief from removal, such as adjustment of status, or cancellation of removal for battered spouses, children or others whose removal would result in extremely unusual hardship will be unavailable, as there is no mechanism to submit or consider such requests in expedited removal cases, and DHS is already overwhelmed with unreasonable backlogs of other types of applications. Cost? No smooth transitions, potential family and employer disruption and separation, inconvenience and hardship, and unlawful presence penalties.

Imposing a Hobson’s choice on refugees - to either forego appeal to be free to leave
The bill’s get-tough on all “removable” noncitizens provision sets up a system that conditions being granted "voluntary departure" on entering into a “contract” that involves giving up any appeal or motion to the BIA or to any court. The bill makes asylum seekers and others opt between "voluntary departure," which entails leaving the United States independently and would avoid forcible removal to one’s home country, and appeal, which challenges the immigration judge’s removal order and could result in correction of an erroneous decision. See Sec. 208. This is an especially untenable choice for a refugee who desperately wants to avoid forcible return to the country where she experienced or fears persecution, and equally desperately needs to secure surrogate protection. Costs? An individual who reneges on a voluntary departure contract would be required to pay a mandated penalty to qualify for alternative relief. What is more, the human cost of being forcibly removed to a country in which one is at risk of persecution is excessive.

Ignoring “knowing and voluntary” principles - at the expense of full faith and credit
This get-tough on convicted noncitizens provision that proverbially thumbs its nose at the Constitution as well as agency jurisprudence. See Sec. 613. In modifying the definition of a conviction to reject a trial court’s determination that a plea was involuntary and unconstitutional, where the basis of involuntariness was failure to advise of immigration consequences, the bill tampers with constitutional protections committed to state court judges. While present immigration law respects judicial determinations based on the inherent or express powers of a state court to correct legal or constitutional infirmities in a judgment, the bill would require a constitutionally infirm plea that was not knowing and voluntary to be treated as a conviction despite the state court's judgment to the contrary. Cost? Comity down the drain and nagging separation of powers issues.

Introducing extrinsic criminal trial evidence - to make a record that supports removal
This get-tough on aggravated felony offenders provision focuses on a conviction for sexual abuse of a minor, and would authorize consideration of extrinsic evidence of age, rather than relying on an existing record of conviction. See Sec. 613. In its zeal to capture every potential offender in its net, the bill brings the criminal trial right into the immigration judge's courtroom. This unprecedented expansion defies immigration practice and precedent dating back over 50 years, as well as extensive Supreme Court authority that restricts the determination of the nature of an offense to the "crime as defined" in the criminal statute of conviction. Costs? Erroneous and inappropriate decisions, as permitting introduction of extrinsic evidence requires immigration judges to conduct “mini-trials” beyond their expertise, and case backlogs, as going beyond the record of conviction imposes greater time demands on already crowded immigration court dockets.

Dictating the management of judicial review - to restrict access to the courts
This get-tough on judicial review petitioners provision continues to erode judicial review. Only months after Congressman Sensenbrenner insisted that the circuit courts were the appropriate place to go – and just when you thought it was safe to go into a circuit court of appeals – this bill once again attacks the availability of judicial review. See Sec. 805. The bill initiates an unprecedented gatekeeper system, requiring certification by one judge before judicial review can proceed. Such an extreme proposal inappropriately comes at a time when the circuit courts are increasingly critical of the quality of BIA and immigration judge decision making, and the number of cases that are reversed and remanded reflect that the majority of petitions for review are far from "meritless" as the bill's author contends. What is more, several courts of appeal have independently initiated far less drastic measures to handle the present surge in petitions for review, which are better managed by the courts themselves than by Congress. Costs? More work for the courts created by imposition of the certification program that would be mandated by the bill, and the likelihood that the courts’ role in ensuring fairness and providing needed oversight would be undermined.

Enforcement-Only Provisions Are Unbalanced and Out of Proportion
Overall, the bill contains countless other objectionable and unreasonable provisions too numerous to detail individually, which would drastically increase the number of individuals subject to mandatory detention, removal and disqualification from relief from removal or naturalization, unreasonable employment verification requirements, prosecution, and multiple civil and criminal penalties. Moreover, adding insult to injury, the bill is written to make every provision apply retroactively and to foreclose judicial review at every opportunity. This bill will have not only have a devastating effect on all immigrants, refugees, and asylum seekers in the United States, it will result in loss and hardship to their children, family members, employers, fellow students, and community members who depend on and benefit from these immigrants' and refugees' presence, productivity, and important contributions. And for what?

Truly Comprehensive Immigration Reform Requires Balance and Effectiveness
Just how badly does Congressman Sensenbrenner want to drive foreign students from our universities, researchers from our laboratories, or refugees from our supposedly welcoming shores? To what lengths is he willing to go to overlook current economic, business and labor realities, put aside the need to maintain intact family units, and ignore critical efforts to counter human trafficking, exploitation and domestic violence? Enforcement efforts over the past decade effort have resulted in increased smuggling, fraud, growing use of false documents, escalating immigrant deaths, and an expanding undocumented workforce. As we become less and less able to rely on our state drivers’ license databases as resources to keep track of who are neighbors are, how willing is Congressman Sensenbrenner to sacrifice our security by pushing those without documents even further underground?

Immigration reform that consists of little more than extremely punitive “get-tough” enforcement measures is doomed to fail. That does not mean, however, that simply tossing in a guest worker program as a bone would justify unfettered enforcement or guarantee successful reform of current immigration policies. Real immigration reform should not only address our broad economic, security, humanitarian, community and family interests, but must revamp the culture and standards responsible for the agency attitudes and practices that drive the administration and implementation of our immigration laws. Real reform must provide a legal means of immigrating to satisfy legitimate employment, educational, family unification or resettlement purposes consistent with those interests, accompanied by standards, limitations and restrictions that contain some flexibility and are actually enforceable. Thoughtful, well-rounded legislative proposals, such as the “Save America” bill offered by Congresswoman Sheila Jackson Lee (and others), and the “Secure America” bill offered by Senators McCain and Kennedy (and others), reflect the realities of our immigration situation and present the greatest hope for achieving these objectives.

In conclusion, the provisions in Congressman Sensenbrenner’s bill, like the harsh and excessive enforcement-only efforts that came before it, will only drive immigrants and refugees further underground, making them more vulnerable to real criminals, such as professional smugglers and traffickers, and more prone to exploitation. Enforcement alone has not worked to bring about a rational or effective immigration system, and ignores the realities of existing family ties, mutual employment needs and the need for truly comprehensive immigration reform to make the system work. Congressman Sensenbrenner’s bill grossly undermines our American traditions of due process, fair and impartial hearings, access to the courts, compassion and common-sense. In short, the bill is a travesty that we cannot afford.

About The Author

Lory Diana Rosenberg is the founder of IDEA- Immigration Defense and Expert Assistance offering consultation and training for lawyers, judges and advocates. Lory Rosenberg is a former Board member, Board of Immigration Appeals, 1995-2002. She can be reached at or Ph: 301-424-9048, Fax: 301-424-8732
200-A Monroe St., Suite 305, Rockville Maryland, 20850.