Immigration Legislation in the House of Representatives--Update

Tomorrow the Senate will continue debate on The Border Security, Economic Opportunity, and Immigration Modernization Act (S.B. 744). As we pay attention to Senate proceedings, we must also be aware of what is happening in the House where legislation has also been introduced and is scheduled for markup beginning this week. Unlike the Senate, the House is taking a piecemeal approach to reforming our nation’s immigration laws. This means that several pieces of legislation have been introduced to address specific components of our immigration system instead of a comprehensive piece of legislation. Tomorrow, the House Judiciary Committee will begin markup of the SAFE Act (H.R. 2278), which was introduced by Representative Gowdy. Following the SAFE Act, the Committee will begin markup of Representative Goodlatte’s Agricultural Guest Worker Act (H.R. 1773).

H.R. 2278, the SAFE Act introduced by Representative Gowdy, would bring a dangerous expansion of interior enforcement, detention, and deportation that would further criminalize our immigrant brothers and sisters. Below is a summary of key sections of the SAFE Act put together by the National Immigration Law Center. The bill would: 

• Grant states and localities full authority to create, implement, and enforce their own criminal and civil penalties for federal immigration violations so long as the penalties applied do not exceed those under federal law. This provision would directly overturn the Supreme Court’s decision last year in Arizona v. United States, 132 S. Ct. 2492 (2012), which reaffirmed that states cannot enact their own criminal penalties for violations of federal immigration law, even when the state law mirrors the federal provision. Allowing all 50 states and countless localities to enact their own immigration enforcement laws is unworkable and will decrease public safety and adversely impact our nation’s foreign relations.

• Require the federal government to assume custody over every person identified by a state or local government as inadmissible or deportable upon request by such agency. Such persons must be held in detention in a federal, contract, state, or local prison, jail, detention center, or other facility. This section takes away the ability of the Secretary of Homeland Security to exercise discretion in deciding whether a person should be released on bond, under an order or supervision, or on their own recognizance rather than continuing to detain a person.

• Allow state or localities to detain people who are inadmissible or deportable for 14 days after the completion of their jail or prison sentences in order to transfer the person to ICE custody. This unprecedented and unconstitutional expansion of detention authority hinges on an untrained local officer’s determination of whether a person is inadmissible or deportable. This section also allows state and local law enforcement officers, untrained in federal immigration law, to issue an immigration hold (detainer) and to detain the individual indefinitely until the Department of Homeland Security (DHS) assumes custody. This completely unchecked authority to detain individuals in prison for 14 days or longer will result in the prolonged detention of U.S. citizens and lawfully present immigrants.

• Make changes that would expand the failed 287(g) program. This provision strips away federal control by requiring that DHS accede to any state or local jurisdiction’s request to participate in the program, except where good cause exists to refuse participation. Under current law, either DHS or the state or local party to the 287(g) agreement may terminate for any reason, however this provision restricts DHS’ ability to terminate. This is particularly problematic given the many documented abuses by deputized state and local officers that have occurred under the program.

• Prohibit states and localities from limiting compliance with ICE detainer requests and from issuing policies, resolutions, or ordinances that restrict local cooperation with federal law enforcement. This section is a direct response to a number of jurisdictions—most prominently Cook County, Illinois—that have adopted policies or ordinances setting guidelines for when local law enforcement will extend the detention of a person based on an ICE detainer request. This undermines the ability of state and local agencies to direct their policing resources based upon the public safety needs of the communities they serve.

• Dramatically expand the crime of illegal entry to include virtually anyone who entered without inspection. This section removes the traditional limit on the crime of illegal entry, which only criminalized individuals apprehended while entering the United States and instead makes it a continuing offense until the time an individual is discovered by federal officials. This would dramatically expand the number of individuals subject to this criminal penalty and comes shockingly close to criminalizing unlawful presence in the United States.

• Attempts to authorize the indefinite detention of persons who have been ordered removed. In Zadvydas v. Davis, 33 U.S. 678 (2001), the Supreme Court held that indefinite detention of a non- citizen who has been ordered removed, but whose removal is not significantly likely to occur in the reasonably foreseeable future, would raise serious constitutional concerns. This section attempts to overturn the Zadvydas decision except for a narrow category of cases. Worse the provision also appears to restrict court review of indefinite detention for individuals who cannot be removed and limits the decision to continue to detain to the sole discretion of DHS.

• Create new grounds of inadmissibility and deportability for persons whom DHS knows or “has reason to believe” are current or former members of a criminal gang. Such persons would be subject to mandatory detention and barred from receiving asylum and Temporary Protected Status. This would sweep in people who have never been convicted of a crime and are merely suspected of being in a gang, as well as people who are erroneously listed on gang databases due to living in neighborhoods with gang activities.