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Fraud Provisions in Immigration Reform Bill

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Immigrants' Rights Update, Vol. 20, Issue 2, May 23, 2006

Document Fraud Provisions in Senate Immigration Bills Could Put Legalization Out of Reach for Millions

By Joan Friedland, former NILC Immigration Policy Attorney,
and Josh Bernstein, former NILC Director of Federal Policy

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.