Radical Bill Would Criminalize All Aid To Undocumented Persons
This month the U.S. Senate is expected to debate legislation that may
have dire consequences for all persons who give assistance to
foreigners. Now is the time to contact the Senate to express opposition.
On December 16, 2005, the U.S. House of Representatives passed "The
Border Protection, Antiterrorism, and Illegal Immigration Control Act of
2005," H.R. 4437, sponsored by F. James Sensenbrenner, Jr. (R-WI). The
bill passed by a margin of 239-182. 17 Republicans were opposed, but 36
Democrats voted for it.
Among other horrors, Section 202(a) of the bill amends Section
274(a)(1)(C) of the Immigration and Nationality Act (8 U.S. Code Sec. 1324) to
make it a felony to: "assist . . . a person to reside in or remain in
the United States, or to attempt to reside in or remain in the United
States, knowing or in reckless disregard of the fact that such person
is an alien who lacks lawful authority to reside in or remain in the
United States." The bill also provides for forfeiture of all assets of a
person who does that.
That language is so broad that it appears to criminalize all the work
of everybody, including church groups, charities, lawyers, and private
citizens, who act in any way to help a person who is technically out of
immigration status for whatever reason. This measure has incredibly
broad scope, because every year millions of people go technically out of
immigration status due to incompetence, errors, and delays of the U.S.
government in processing applications or petitions for change or
extension of status, even though they were lawfully admitted, have never
broken the law, have American families and friends and neighbors, and so
Office-based business immigration lawyers, who rarely if ever toil in
immigration court on messy asylum and deportation cases, may assume they
would be untouched by such legislation. They would be wrong. There is
not a single business immigration practice that will not run into
potential criminal liability several times a year. Examples are legion, and
they do not require any professional misconduct by the lawyers or their
Imagine, for example, a routine H-1B extension for a husband and his
H-4 wife. The law firm does everything properly. The couple misplaces the
papers and is one day late getting the I-539 extension of status form
back to the law firm to file. The wife goes out of status. Under the
letter of H.R. 4437, she thereby becomes an aggravated felon. By
continuing to reside with his wife, the husband also becomes an aggravated
felon. By discussing this situation with the couple, the lawyers and their
employees become felons, with all their assets subject to forfeiture.
That is the plain meaning language of the law. If the Sensenbrenner
bill passes, it is likely that at least a few such cases will be brought
by grandstanding prosecutors. The very existence of the law will
terrorize the entire bar and have a chilling effect on all who try to help
The Catholic News Service reported on January 6, 2005 that Cardinal
Theodore E. McCarrick, the Archbishop of Washington, told reporters that
the U.S. bishops are "very concerned about this." One particular worry
is that provisions to criminalize immigration violations would be
applied to church workers who help needy people without regard for
immigration status. Under current law, being in the country illegally violates
only civil law, not criminal codes. By making immigration violations a
crime, those who even unknowingly assist people who are in the country
illegally could be subject to prosecution. "People who are trying to
help immigrants will be finding themselves turned into criminals,"
Cardinal McCarrick said. "That's going to include people at churches." For
such church programs to screen out needy people based on their
immigration status is not an option, he said, "if you want to do what the Lord
told you to do." Cardinal Roger M. Mahoney of the Archdiocese of Los Angeles, the
largest Catholic archdiocese in the United States, has called on
parishioners to devote the Lenten season (which began March 1, 2006 and
lasts for 40 days) to speaking out against Congress's current immigration
reform plans. He has called on priests to ignore the law if passed.
The legislation has many other radical provisions. For example, it
would provide that "unlawful presence" would now be considered a crime and
an "aggravated felony," meaning that undocumented immigrants may have
to serve jail time and would be permanently barred from future legal
status and from re-entry into the country. That is true, even though
thousands of law-abiding foreigners, who were lawfully admitted to the
United States and have always obeyed the law, go into unlawful presence
every day due to errors and delays by the U.S. government in processing
lawful and proper applications for extension of status.
If passed, I predict that this legislation will provoke an even deeper
division between business immigration lawyers, who will increasingly
sacrifice client interests in order to stay safe, and other immigration
lawyers, especially those who handle asylum and deportation cases, who
will be driven further towards civil disobedience.
H.R. 4437 is the most evil immigration legislation in the United States
for 150 years. The nation is so preoccupied by other issues that I
think it has a good chance to pass. I urge everyone to write the U.S.
Senate in opposition.
© 2006 by Bruce Hake. Reprinted with permission.
About The Author
Bruce Hake is a lawyer in private
practice in Maryland. With his partners, he founded the ILW.COM website
and operated it from 1995 to 1999.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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