Senate State/Local Immigration Enforcement Bill Goes Further Than House "Clear Act" Bill

IMMIGRATION LAW & POLICY

Congressional Developments

SENATE STATE/LOCAL IMMIGRATION ENFORCEMENT BILL GOES FURTHER THAN HOUSE "CLEAR ACT" BILL
Immigrants' Rights Update, Vol. 17, No. 8, December 18, 2003

A bill recently introduced in the Senate that would compel state and local police to enforce federal civil immigration law goes even further in jeopardizing the rights of non-U.S. citizens than a similar bill that was introduced in the House of Representatives earlier this year. If the bill as currently written were to become law, any interaction between state or local police and people who look or sound foreign would be fraught with risk, and states would be compelled to spend their limited resources trying to decide who is in violation of immigration law-a complicated and costly undertaking-instead of protecting public safety and national security. The bill's provisions also would undermine states' reasonable judgments about what policies best promote public safety, a development that, in light of the congressional majority's touting of states' rights against a too-powerful federal government, is highly ironic.

The Homeland Security Enhancement Act (S. 1906) was introduced on Nov. 20, 2003, by Sens. Jeff Sessions (R-AL) and Zell Miller (D-GA). Its counterpart in the House is HR 2671, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act. (For more on HR 2671, see "Sweeping Legislation Introduced to Require Local Police to Enforce Immigration Law," IMMIGRANTS' RIGHTS UPDATE, Sept. 4, 2003, p. 1.) The Senate bill reportedly was drafted to meet policy positions and recommendations provided by Kris Kobach, former counsel to Attorney General John Ashcroft and currently Republican candidate for Congress in Kansas.

The following are among the Senate bill's key provisions:

It would criminalize all immigration law violations committed by non-U.S. citizens. (HR 2671 criminalizes only those violations related to "unlawful presence.")
The bill would force states to enforce immigration law by withholding State Criminal Alien Assistance Program (SCAAP) funds, which reimburse states for incarcerating noncitizens, if the states do not repeal policies that limit police enforcement of immigration laws.
Cash-strapped states would be required to take on these additional responsibilities without receiving additional federal funding. In contrast to HR 2671, S. 1906 would not provide states with funds obtained via the forced forfeiture of undocumented immigrants' assets, or from visa processing fees or administrative judgments. Neither does the bill provide for grants to state and local police agencies to pay for the equipment and technology they would need to enforce federal immigration law.
S. 1906 would authorize entering specific types of immigration information into the National Crime Information Center (NCIC) database-i.e., records regarding noncitizens who have received final orders of removal, agreed to voluntarily depart the U.S., or overstayed temporary visas. (HR 2671, in contrast, would not limit the type of immigration violation-related information that could be entered into the NCIC.)
S. 1906 would require that the federal government acquire enough new detention space to hold 10,000 more individuals in federal custody or at federal expense, and the bill includes new provisions related to state and local facilities maintaining an incarcerated criminal non-U.S. citizen in custody between the time that the individual's criminal sentence has been served and when the federal government can arrive to take the person into custody.
The bill would, in effect, require that driver's licenses issued by states to non-U.S. citizens who are not permanent residents expire when the noncitizen's authorization to remain in the U.S. expires. The bill would force the states to adopt such a policy by forbidding federal agencies to accept as identification any driver's license that does not expire with the nonimmigrant visitor's authorization to be in the U.S. and by denying highway safety funds to states that issue driver's licenses to noncitizens who are not in lawful status.
S. 1906 would narrowly limit the documents that the federal government could accept as identification when providing federal public benefits or services in the U.S. The only acceptable documents would be (1) those issued by a U.S. or state authority and subject to verification by law enforcement agencies or (2) passports in the possession of people lawfully in the U.S. who are from countries whose nationals are not required to obtain a visa before visiting the U.S. (i.e., nonimmigrant visitors from "visa waiver" countries). If it became law, this provision would preclude the use for such purposes of a vast array of commonly accepted identity documents issued by countries around the world to their citizens, including passports, consular ID cards, national ID cards, birth certificates, foreign driver's licenses, and school ID cards. It would also preclude the use of many nongovernmental documents issued in the U.S. itself, including hospital birth certificates, school ID cards, and church baptismal certificates.