This update was prepared by the Rights Working Group for its members.
March 30, 2006
Dear RWG members,
This week, the Senate Judiciary Committee referred an immigration bill to the floor of the Senate. The bill is an amended version of Senator Arlen Specter’s (R-PA) Chairman’s Mark. Currently, there are two bills that may be considered by the Senate: the Judiciary Committee’s bill and Senator Bill Frist’s (R-TN) immigration enforcement bill. It is not yet clear which bill will be the primary legislation under consideration by the Senate.
We are concerned that both bills contain numerous provisions that impact the civil liberties and human rights of non-citizens including the following:
1. Short-circuiting comprehensive immigration reform: Today, Senators Kyl and Cornyn offered an amendment to the Specter bill that would make hundreds of thousands of immigrants ineligible for comprehensive immigration reform because of a prior order of removal or for other reasons. This would seriously undercut any temporary guestworker program by making many immigrants ineligible. The Specter bill and the Frist bill would also make passport, document and visa fraud an aggravated felony with limited exceptions for vulnerable populations such as asylum seekers. Some of the crimes that are included in this new provision are very minor. For example, providing the government with inaccurate information on a government form would be an aggravated felony. This provision would make many immigrants ineligible for immigration benefits such as the temporary worker program that was included in the Judiciary Committee bill. For example, if an individual submitted inaccurate information on an I-9 employment eligibility form, that individual would be ineligible for any immigration benefits under the new law.
2. Expansion of the government’s power to remove individuals without providing a hearing: The Specter and Frist bills would greatly expand the system of ‘expedited removal,’ a system that allows the government to deport an individual without any hearing or access to a lawyer. This provision would expand ‘expedited removal’ to apply to individuals without documents who are apprehended within 100 miles of the border and within 14 days of entry. The bills also expand the use of summary proceedings for non-citizens including permanent residents who committed certain types of crimes and minor offenses.
3. Mandatory detention: Both bills would mandate the imprisonment of every individual attempting to cross the border unlawfully with very limited exceptions. This would expand the number of people who are being detained in jail-like conditions by the tens of thousands. The bills would also mandate detention for vulnerable individuals including even pregnant women, the elderly and individuals with serious medical concerns.
4. Expansion of the number of minor criminal offenses that make non-citizens deportable: Both bills would expand the sweeping ‘aggravated felony’ category to include minor crimes such as ‘accessory’ roles in the conduct of others, additional document-related offenses, and suspected gang related offenses where there was no conviction for any crime. The consequence of expanding this category are severe because aggravated felony convictions automatically trigger the most drastic of immigration consequences, including detention, mandatory deportation, and permanent banishment from the United States without any hope of lawful return. Long-term lawful permanent residents will be deportable for minor offenses, separating them from their family and their home. The bills do not permit any consideration of extraordinary individualized circumstances in determining whether removal is appropriate.
5. Expansion of government databases without mandating important privacy protections: Both bills would expand the use of the National Crime Information Center (NCIC) database. The database would be flooded with hundreds of thousands of names of immigrants without assurances that the information is accurate or relevant to apprehending criminals or terrorists. Employers would be required to verify electronically whether every single employee is legally entitled to work, even though pilot programs have shown significant error rates in such systems, with particularly high error rates for immigrant communities.
6. State and local law enforcement of immigration laws: Both bills give state and local law enforcement the inherent authority to enforce complicated immigration laws and detain those whom they believe to be in violation of the laws. There will not be adequate checks against abuse of such broad discretion, including arbitrary or selective enforcement of the laws based on race, ethnicity or religion. The proposal could also undermine local policing efforts, by discouraging people with immigrant backgrounds from seeking police assistance against domestic violence and other crimes, including terrorism, for fear that doing so may result in the deportation or conviction of a family member or friend.
7. Indefinite detention of non-citizens: The bills allow the government to jail indefinitely foreign-born individuals who cannot be deported to their country of origin through no fault of their own. The government could indefinitely detain non-citizens with no individualized consideration as to whether detention is necessary. The provisions would also limit the ability of non-citizens who are being indefinitely detained to seek a hearing regarding their detention.
8. Concentration of Unchecked Power in Hands of Unaccountable Administration Officials to Make Naturalization, Deportation, and Detention Decisions: Both bills contain several provisions that would limit judicial review of decisions made by agency officials. Both bills would grant agency officials sole, unreviewable discretion to detain, deport, and impose monetary penalties based on an unreviewable – and often secret - determination that an individual lacked good character, associated with the wrong people, or failed to comply with some provision of a departure order. Moreover, under the Frist bill, low level agency officials would have unreviewable authority to judge whether an applicant for citizenship meets the “good moral character” test required for naturalization. This would reverse over 200 years of precedent and statutes that make the courts the ultimate arbiters of who can become a citizen.
9. Criminalization of the undocumented and certain types of assistance to immigrants: Senator Frist’s bill would criminalize unlawful presence and many types of assistance to undocumented immigrants. Similarly, Senator Specter’s original bill would have made unlawful presence a misdemeanor and multiple offenses an aggravated felony. Thanks to an amendment by Senator Durbin (D-Ill,) the Senate Judiciary Committee bill limits criminalization of unlawful presence. Senator Durbin also introduced an amendment to create a humanitarian exception to the provision that would criminalize assistance to the undocumented and this amendment passed. However, certain types of assistance to undocumented immigrants would still be a crime under the Senate Judiciary Committee’s bill.
10. Create ‘guilt by association’ provisions: The bill contains provisions that would deny immigration benefits, including asylum, to individuals based on suspected activity instead of actual criminal convictions. For example, non-citizens who are ‘suspected’ of gang-related activity or associating with gangs could be barred from any immigration benefit even if the individual was not convicted of any crime.
11. Penalties for Failure to File a Change of Address: Both bills create new penalties for failure to file a change of address. The failure to timely file a change of address form is a very minor civil offense that should not considered to be a crime and should not result in deportation.
Unlike Senator Frist’s bill and the Sensenbrenner-King bill in the House, the Senate Judiciary Committee bill contains elements of comprehensive immigration reform, including an earned path to legal permanent residency for certain undocumented immigrants, a temporary work program with a path to legal permanent residency and provisions to address long family backlogs. It also includes a program to provide more protections to agricultural workers and a path to legal permanent residency and citizenship for college age students, known as the DREAM Act.
We are concerned that many of the provisions highlighted above undercut the gains of any comprehensive immigration reform program as well as erode civil rights and civil liberties. Both bills would also undercut security because they discourage people from coming forward and registering for any comprehensive immigration reform program by threatening them with prosecution and deportation for minor offenses. Advocates are working to make Senators aware of these provisions and we urge you to continue to educate lawmakers, the public and your community about these provisions. We are concerned that these provisions undercut the gains of any legalization program as well as erode civil rights and civil liberties.
ACTION: We urge you to call your Senators and let them know that smart enforcement respects individuals’ basic human rights and civil liberties, and that they should vote against any bill that contains these unnecessarily harsh and punitive provisions.
Please see memos from the National Immigration Forum for more information:
