Walk On By: Pass Up Sensenbrenner's Misguided Border Bill And Insist On A Winner
Introduction
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 Loryrosenberg@cs.com or lorysidea@comcast.com. Ph: 301-424-9048, Fax: 301-424-8732
200-A Monroe St., Suite 305, Rockville Maryland, 20850.
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