Immigration Reform: Restrictionists Win in the House*

by Stanley Mailman and Stephen Yale-Loehr**

The House of Representatives has fired the first major salvo in the legislative battle to reform our nation's immigration laws. On December 16, 2005 the House passed H.R. 4437, a tough immigration enforcement bill, by a vote of 239-182. Among other things the 257-page bill would criminalize the estimated 11 million undocumented immigrants currently living in the United States. This article summarizes the House bill and contrasts it with immigration reform measures pending in the Senate.

Criminalizing Unlawful Presence

H.R. 4437 is co-sponsored by Rep. James Sensenbrenner (R-Wis.), chairman of the House Judiciary Committee, and Rep. Peter King (R-N.Y.), chairman of the House Committee on Homeland Security. The bill, called the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, contains several problematic provisions. For example, section 203 would amend INA § 275, 8 U.S.C. § 1325 to create a new federal crime of "unlawful presence." Under current law, presence in the United States without valid immigration status is a civil, not a criminal, violation. Section 203 of H.R. 4437 defines unlawful presence broadly to mean "present in violation of the immigration laws or the regulations prescribed thereunder." This would essentially make every immigration violation, however minor, technical, or non-intentional, a federal felony punishable by a year in jail. Such crimes would include lawful permanent residents who fail to report a change of address to the Department of Homeland Security within ten days. See INA § 237(a)(3)(A), 8 U.S.C. § 1227(a)(3)(A); 8 C.F.R. § 265.1. It would also make it a crime for university students on an F-1 visa to drop below a full course load. See INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i); 8 C.F.R. § 214.2(f)(6)(iii).

If this provision were to become law, all of the estimated 11 million noncitizens currently in the United States without proper immigration status would commit a felony by remaining here. If the government were to prosecute them for this new crime, they would be entitled to the same rights as other criminal defendants, such as the right to appointed counsel and a jury trial. Imagine the headlines: "New Law Adds Billions to the Federal Deficit by Requiring Court-Appointed Attorneys in 11 Million Unlawful Presence Cases."

Making It a Crime to Assist Others

Section 202 of H.R. 4437 would expand the alien smuggling provisions of INA § 274, 8 U.S.C. § 1324 to make it a crime to assist or encourage a noncitizen to enter or remain in the United States if the offender acts with knowledge of or in reckless disregard of the fact that the person lacks "lawful authority" to be here. The section would define "lawful authority" as any permission or authorization that is expressly provided for under the INA or immigration regulations. Thus, a noncitizen who violated even a minor immigration regulation would lack "lawful authority" to remain in the United States and would have committed a crime per section 203, discussed above. That would apply even to something like a failure to request an extension of status on time (INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), 8 C.F.R. § 248.1(b)). Knowing that a client has failed to file a timely request to extend her stay, does her lawyer commit a federal crime by advising her on her immigration options? Similarly, under this section, does an attorney who knows that a noncitizen has fallen out of status and who advises him that he might qualify for a green card by marrying his long-time girl friend thereby commit a felony?

Depending on how it is interpreted and how aggressively the government decides to prosecute, this section could also criminalize the work of social service organizations, refugee agencies, churches, and other groups that counsel immigrants by treating them the same as smuggling organizations. In addition, family members and employers could be fined and jailed for "harboring," "shielding," or "transporting" undocumented family members or employees. Section 202 would also mandate the seizure and forfeiture of any real or personal property used to commit or facilitate the commission of a violation of this section. Those who violate section 202 could be jailed between three and 30 years, depending on the violation.

Expanding the Definition of "Aggravated Felony"

"Aggravated felony" is a term of art in immigration law. It was first used in 1988, and at the time referred only to serious crimes such as murder and rape. Over the years Congress has expanded it to include a multitude of crimes, including a crime of violence for which the jail term is at least a year, theft offenses, and certain crimes involving fraud or deceit. See INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). It can even include convictions for crimes that are only considered misdemeanors under state law. See, e.g., Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) (conviction for solicitation of sexual act by minor under Illinois state law, although a misdemeanor, constituted an aggravated felony for immigration purposes). Noncitizens convicted of aggravated felonies are subject to mandatory detention and are ineligible for most types of immigration relief, including asylum, cancellation of removal, and voluntary departure. They are also generally precluded from judicial review. See generally Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 71.05[2] (2005).
 
Section 201 of H.R. 4437 would expand the definition of "aggravated felony" to include all smuggling offenses, illegal entry and reentry crimes with a sentence of one year or more, and solicitation and aiding and abetting specified crimes. This would effectively overrule cases holding that such crimes are not aggravated felonies, such as Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005) (aiding and abetting theft does not constitute an aggravated felony), and Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999) (conviction for solicitation to possess marijuana not an aggravated felony because solicitation is not punishable under the Controlled Substances Act). The bill would make these changes retroactive to 1996. Thus, if the House bill becomes law, a lawful permanent resident who was convicted of soliciting the sale of marijuana nine years ago as a teenager, suffered no immigration consequences then, and has since led an exemplary life would now be considered an aggravated felon, be subject to mandatory detention, have virtually no relief from deportation, and could not get a court to review his case.

Revising the Employment Verification System

Section 701 of H.R. 4437 would make major revisions to the current paper-based I-9 employment eligibility verification regime set forth in INA § 274A, 8 U.S.C. § 1324a. The section would require the Secretary of Homeland Security to create a system for telephonic or electronic verification of an individual's employment authorization. It would require the system to provide verification or tentative non-verification of an individual's identity and employment eligibility within three days of the inquiry. If there is a tentative non-verification, a secondary process for final verification or non-verification would have to be done within ten days. The Commissioner of Social Security and the Secretary of Homeland Security would be responsible for developing a process for comparing the names against the respective databases to ensure timely and accurate responses to employer inquiries. When a single social security account number has been submitted in a way that suggests potential fraudulent use of the number, the Secretary of Homeland Security would have to investigate.

Section 705 would significantly increase the civil penalties for hiring, recruiting, and referral violations. Employers who are found to have hired an unauthorized worker would initially be fined $5,000. For companies previously subject to cease and desist orders, the section would raise the minimum penalty to $5,000 and the maximum penalty to $10,000 for each offense. For entities previously subject to more than one such order, the minimum penalty would be raised to $25,000.

The civil penalty levels for paperwork violations would also significantly increase. Paperwork offenses, including failure to use the new verification system, would be subject to a minimum $1,000 penalty and maximum $25,000 penalty.

The new employment verification system would take effect two years after enactment. The U.S. Chamber of Commerce and other business groups oppose these changes, not on the merits but because the implementation timetable is too fast and relies upon expanding and making mandatory current voluntary pilot programs that have flaws. The U.S. Chamber wrote that it "support[s] the concept of a workable verification system as part of a comprehensive reform package, but new laws that simply place more burdens on employers through worksite enforcement alone are not the answer." U.S. Chamber of Commerce, Key Vote Letter Opposing the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (Dec. 15, 2005), at http://www.uschamber.com/issues/letters/2005/051215border.htm. See also Stanley Mailman & Stephen Yale-Loehr, Immigration Reform: Balancing Workers and Enforcement, New York Law Journal, Aug. 22, 2005, at 3, reprinted in 10 Bender's Immigr. Bull. 1403 (Sept. 15, 2005).

Next Steps

The House bill now goes to the Senate, where it will compete with several very different immigration reform bills already pending there. The three main Senate bills are: (1) the Secure America and Orderly Immigration Act (S. 1033), introduced in May by Senators John McCain (R-Ariz.) and Edward Kennedy (D-Mass.); (2) the Comprehensive Enforcement and Immigration Reform Act of 2005 (S. 1438), introduced in late July by Senators John Cornyn (R-Tex.) and Jon Kyl (R-Ariz.); and S. 1916-1919, a series of immigration-related bills introduced in October by Senator Chuck Hagel (R-Neb.) In addition, Senator Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, has floated a draft immigration reform bill that combines elements of the three bills for comments.

Like H.R. 4437, the three main Senate bills would increase immigration enforcement, but not as radically as the House bill proposes. All of the Senate bills go beyond the House bill, however, to also include new temporary worker programs, although they differ in details. And all of the Senate bills except the Cornyn-Kyl bill would include a way for undocumented immigrants in the United States to earn permanent resident status over several years.

As Demetrios Papademetriou of the Migration Policy Institute noted in a recent article, to be effective any immigration reform must include three elements: expanded visas, earned regularization or adjustment, and enforcement. Expanded visas means both creating temporary visa programs that address our work needs and reduce the current backlog of immigrant visas. Earned regularization means offering a realistic and fair opportunity to the unauthorized resident population in the United States to earn lawful permanent resident status over time. Enforcement means devising smarter border and interior controls that are consistent with U.S. values, temperament, and philosophy of government powers. We need border enforcement that focuses on real security threats--smugglers and traffickers-not busboys and farm workers. Only a bill that combines those three Es will succeed. Demetrios G. Papademetriou, Reflections on Restoring Integrity to the United States Immigration System: A Personal Vision (Sept. 2005), at http://www.migrationpolicy.org/pubs/Insight_Sept05_5.pdf.

Based on those criteria, H.R. 4437 fails. As the New York Times editorialized, "the immigration bill passed last week by the House of Representatives is shameful--a reflection of the power of xenophobic politicians who want to fence in America, lock up illegal immigrants and send them back where they came from. . . . Cracking down on immigrants and their employers will succeed only as part of a comprehensive solution that includes a guest worker program and some path to longer-term legal status for those who are already here." N.Y Times, Cheap Border Politics, Dec. 21, 2005, at A38.

Conclusion

We shall see whether the Senate can actually pass a comprehensive immigration reform bill that combines all three elements. If it does, a conference committee would have to reconcile very different House and Senate bills. Whether Congress could then agree on a final compromise measure, especially in an election year, and whether the President would take a hand, are still big questions.
_________________
* This article originally appeared in the December 28, 2005 issue of the New York Law Journal. Copyright (c) 2005 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.