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Just before Congress left for its Easter recess in
April, Sen. Arlen Specter (R-PA) introduced S 2611, the
Comprehensive
Immigration Reform Act of 2006. S 2611, which he
introduced on April 7, embodies the bill that was reported
out of the Senate Judiciary Committee on March 27, as
modified by a late-night compromise that was hammered
together by Sens. Mel Martinez (R-FL), Chuck Hagel (R-NE),
and several others. It is the base bill that is now being
considered and amended on the Senate floor, a process that
is expected to end sometime before Memorial Day. (For an
analysis of what happened to the compromise efforts before
the Easter recess, see "Efforts Stall in
Senate: Compromise Bills Contain Mixture of Generous and
Regressive Provisions That Present Legislators with Tough
Choices.")
The senators who negotiated the
compromise that became S 2611 primarily focused their
attention on two titles of the Judiciary Committee bill:
Title IV, which would create a new guest worker program, and
Title VI, which includes the various mechanisms by which
undocumented immigrants can obtain a path to legal status.
The other titles of S 2611 are essentially identical to
those approved by the Judiciary Committee. (For an analysis
of the Judiciary Committee bill see "Senate Judiciary
Committee Approves Sweeping Immigration Bill.")
The biggest changes to the
Judiciary Committee bill were made to Title VI, which
included the
DREAM Act, the AgJOBS bill, and provisions
enabling undocumented immigrants who were working in the
U.S. on Jan. 7, 2004, to qualify for temporary lawful status
for six years if they paid a fine and fees, complied with
tax filing requirements, had not committed certain crimes,
and understand or are studying English, U.S. civics, and
history. After the six-year period, they would be able to
adjust to lawful permanent resident status after paying an
additional fine and application fees. Those who did not
meet these requirements would be required to leave the U.S.
Like the Judiciary Committee bill,
Title VI of S 2611 includes the DREAM Act and AgJOBS, but
its other provisions have been significantly changed. It
would divide undocumented immigrants now in the U.S. into
three classes: (1) those who have been present in the U.S.
for at least five years before Apr. 5, 2006, (2) those who
have been present fewer than five years but for at least two
years (since Jan. 7, 2004) (the "two/five-year" group), and
(3) those who have been present fewer than two years (i.e.,
only since Jan. 6, 2004, or a more recent date) or who do
not otherwise qualify for the first two groups.
Only those
present for more than five years would have access to the
earned adjustment process described in the Judiciary
Committee bill. Individuals in the two/five-year group
would be eligible for a process of deferred mandatory
departure and reentry. They could be granted deferred
mandatory departure for a period of three years but would be
required to leave the U.S. during that time. They could
immediately return and would be eligible to apply to adjust
their status to lawful permanent residence in about eight
years. Those who entered the U.S. less than two years ago
would be required to leave the country without the
protections of deferred mandatory departure and reentry,
though if they did so they would be eligible to apply to
return under the guest worker program provided for in Title
IV of the bill, assuming there were slots available under
that program.
As discussed above, all of the
other titles of the Judiciary Committee bill remained intact
in S 2611, including Title II, dealing with immigration
enforcement. Pro-immigrant advocates have serious concerns
about several provisions in Title II that would do little or
nothing to "enforce" immigration laws, but would undermine
the legalization provisions of Title VI or otherwise be
contrary to core American values. Some of the
provisions that could prevent large numbers of undocumented
immigrants from qualifying for any of the legalization
programs outlined in Title VI are discussed below.
Section 208 ("Reform of passport,
visa, and immigration fraud") would create a new criminal
violation entitled "Immigration and visa fraud" at 18 U.S.C.
section 1546. The new section 1546 would create expansive
immigration "fraud" crimes, encompassing a range of
activities involving "any immigration document," such as
using, forging, falsely making, submitting with false
statements, possessing, distributing, or transferring. The
new section 1546 also would prohibit the use of a false or
fictitious name to evade immigration laws.
Another provision that would be
created by Section 208 of the compromise bill -- at 18 U.S.C.
section 1553 -- would broadly define "any immigration
document" to include not only those specified in an itemized
list of immigration documents, but also "other evidentiary
documents, arising under or authorized by the immigration
laws of the United States," as well as "any document,
photograph, or other piece of evidence attached to or
submitted in support of an immigration document." It would
define "falsely makes" to include preparing or making
documents that are false, have no basis in fact or law, or
fail to state material facts. It also would define "false
statement" to include "personation" (claiming to be another
person) as well as "omission."
Section 209 of the bill would make
the crimes described in what would be 18 U.S.C. section 1546
grounds of inadmissibility under section 212(a)(2)(A)(i) of
the Immigration and Nationality Act. These are criminal
grounds of inadmissibility, which do not require an actual
conviction to be triggered. An immigrant who admits to
having committed acts that constitute the essential elements
of a violation of section 1546 would be treated, for
immigration purposes, as if he or she had actually been
convicted. Moreover, the bill specifically provides that
violations of this section could not be waived under the
guest worker, earned adjustment, or deferred mandatory
departure provisions of the bill.
This is of enormous consequence
for non-U.S. citizens seeking lawful status. Millions of
undocumented people who would otherwise be eligible for
legalization under other provisions of the compromise bill
will likely have committed some act that, under the
provisions described above, would constitute a criminal
violation, thus making them ineligible. For example, using
another person's Social Security number (SSN) to obtain
employment, or using another person's name or an invented
name, or presenting an identification document or birth
certificate that is counterfeit or that belongs to another
person would all be considered crimes under new 18 U.S.C.
sections 1546 and 1553.
Section 209(c) of the Hagel-Martinez
compromise bill provides that the new inadmissibility and
removal provisions regarding passport and immigration fraud
offenses would take effect such that they "apply to
proceedings pending on or after the date of enactment, with
respect to conduct occurring on or after that date." This
is a significant ban on retroactive application of the
ground of inadmissibility to pre-enactment conduct.
However, it is not complete. Continued use of a fraudulent
document or name provided prior to enactment could be
interpreted by the Dept. of Homeland Security to constitute
a violation, even if no new document were presented after
enactment. For example, if after the bill is enacted a
worker receives a paycheck issued to him or her under an SSN,
not the worker's own, that the worker provided before the
bill was enacted, this could constitute "use" of an
immigration document (namely the SSN the worker provided in
order to obtain employment) issued or designed for the use
of another. Continued use of false or fictitious names used
to obtain a job prior to the law's enactment could also be
interpreted to constitute immigration fraud.
Moreover, even if the Section 209
of the compromise bill were interpreted to be fully
prospective, undocumented people would not immediately be
able to apply for lawful immigration status once the bill
became law, because they would have to wait for the DHS to
create and adopt regulations that implement the law's
provisions. During the period between the law's enactment
and the time they could apply for legalization, they could
become inadmissible and ineligible for legal status if they
used another person's name or SSN, or false documents, or
committed some other violation covered/created by Section
208 of the compromise bill. Moreover, omissions in
applications for legal status could render an immigrant
inadmissible.
Ultimately, DHS could decide on a
rational interpretation of Section 208 and admissibility
requirements that would not prevent millions of undocumented
people from obtaining legal status under the other
provisions of the Hagel-Martinez compromise bill. But
whether it would in fact do so is unknown. If the
compromise bill, as currently written, were to become law
and DHS were to interpret it strictly and restrictively,
undocumented people who might otherwise qualify for
legalization would have little legal recourse, because other
provisions in the bill would limit their access to
administrative and judicial review if their legalization
applications are denied. One possible legislative solution
to this situation would be to eliminate the provision in
Section 209 of the compromise bill that would make
violations of new 18 U.S.C. section 1546, or other criminal
violations created by the compromise bill's Section 208,
criminal grounds of inadmissibility. Another possible
solution would be to include in the bill a provision that
would make available a waiver of inadmissibility for people
who have committed acts covered under section 1546 but who
otherwise have obeyed the law. To date, Congress has taken
neither step.
By
Joan Friedland,
NILC immigration policy attorney, and
Josh Bernstein,
NILC director of federal policy
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