Guest Column
Walk On By: Pass Up Sensenbrenner's Misguided Border Bill And Insist On A Winner
- By Lory Diana Rosenberg
- Immigration Daily
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 benefiting 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.
- http://www.ilw.com/articles/2005,1219-rosenberg.shtm
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