What is so bad about HR4437?

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What is so bad about HR4437?

Post by admin » Fri Jan 20, 2006 11:15 pm

Let us count the ways...

[quote]Reference: http://www.ilrc.org/HR4437.html
Below is a summary of just a sampling of the areas of greatest concern to the ILRC. See also for more information about drastic possible changes regarding immigration consequences of criminal convictions that would result if HR 4437 were passed.

* HR 4437 criminalizes organizations and individuals assisting undocumented immigrants

HR 4437 greatly expands the definition of “alien smuggling” to include assisting a person to remain or attempt to remain in the United States when the “offender” knows the person is in the United States unlawfully – thereby treating social services organizations, refugee agencies, churches, legal services and others the same as smuggling organizations and imposing criminal penalties for providing s
uch assistance. Even family members and charitable workers could face federal prison time for assisting undocumented immigrants.

* HR 4437 criminalizes undocumented immigration status

Under current law, presence in the United States without valid status is a civil violation, not a criminal act. HR 4437 would create a new federal crime of “unlawful presence” and would define immigration violations so broadly as to effectively include every violation, however minor, technical or unintentional, as a federal crime. In addition to permanently barring the entire undocumented population – including 1.6 million children – from the United States, this would also lead to the tragic separation of families as undocumented members of mixed-status families would never be able to secure lawful immigration status in the United States.

* HR 4437 grants state and local law enforcement agencies “inherent authority” to enforce immigration laws [/si

HR 4437 would grant law enforcement agencies the authority to investigate, identify, apprehend, arrest, detain and transfer to Federal custody immigrants they find in the United States. When police act as immigration enforcement agents, it undermines their ability to keep communities safe because immigrants and their family members will be scared to report crimes, fires, and suspicious activity out of fear of exposing themselves, families or neighbors to police. Inevitably, crimes will be left unsolved and the safety of entire communities will be compromised.

* HR 4437 furthers the erosion of due process

Our immigration laws provide that some individuals in removal proceedings can be granted voluntary departure – essentially leaving the United States on their own, with their own money – at the conclusion of the immigration hearing process. This is an important alternative to receiving a removal order because it allows an immigrant to
reenter the United States lawfully in the future, despite having been in removal proceedings in the past. It is only granted to individuals with good moral character at the discretion of an immigration judge. Under HR 4377, noncitizens would be required to waive all rights to any further motion, appeals or petition for review related to removal or protection from removal in order to be granted voluntary departure, essentially barring them from a list with their family in the United States

Currently, various circuit courts have ruled that immigration officials may be prohibited from simply removing an individual from the United States without a hearing, based on the reinstatement of a prior removal order. HR 4437 purges this appellate court precedent. As a result, if passed, HR 4437 would strip the rights of immigrants with prior removal orders to any sort of hearing before being removed again.

HR 4437 would also eliminate the ability of any person who wishes to enter the United States on a non
immigrant visa (such as a tourist visa, a student visa, etc.) to have a hearing before an immigration judge in the event that he or she is later charged with an immigration violation. This is because HR 4437 would prohibit the issuance of a nonimmigrant visa unless the applicant first waives his or her right to any review or appeal of an immigration officer's decision.

* HR 4437 expands the costly detention of immigrants

HR 4437 would require the Department of Homeland Security to detain all noncitizens apprehended along the border until they are removed from the United Statues – thus filling up already overcrowded and tremendously costly facilities as detainees wait for final decisions on their cases. To address the overcrowding issue, HR 4437 authorizes an increase in DHS detention capacity by contracting with state and local jails – thus further criminalizing immigrants by placing them in criminal facilities.

* HR 4437 guts t
he federal courts' authority to review immigration matters

HR 4437 would prevent courts from reviewing any application for naturalization denied because of a discretionary determination of ineligibility based upon “any relevant information or evidence.” This gives the immigration agency practically unfettered authority to deny naturalization applications with no judicial review.

HR 4437 also completely eliminates judicial review where noncitizens visas are revoked and is a specific attempt to remove courts' ability to review consular decisions.

For the few remaining immigration cases that could be reviewed by an appellate court, HR 4437 implements an unprecedented system whereby no appellate court review is available unless a single judge certifies that the petitioner has “made a substantial showing that the petition for review is likely to be granted.” The decision of the single judge to deny certification for review would be not be open to appeal or review of any ki

* HR 4437 turns many minor crimes into aggravated felonies, which carry the worst possible immigration consequences

Because aggravated felonies are supposed to be reserved for the worst and most violent of crimes such as murder and rape, they carry the most serious immigration consequences. HR 4437 would make makes minor offenses aggravated felonies, with same concomitant consequences. As a result, misdemeanor drunk driving offenses, mere presence in the United States without documentation, assisting an undocumented immigrant to reside in the United States, and minor accessory roles in the criminal conduct of others would all qualify as aggravated felonies. Most of these changes would be retroactive, meaning that someone who committed an offense 20 years ago that was not a deportable offense then could be charged with an aggravated felony now. By making these offenses aggravated felonies, HR 4437 seeks to treat those who commit nonviolent, negligent ac
ts or omissions the same as those who have acted with criminal intent to injure. Regardless of whether it is a major or minor crime, the mere characterization as an aggravated felony will trigger the same immigration consequences – mandatory deportation, mandatory detention, disqualification for almost all immigration benefits, permanent banishment from the United States without hope of lawful return, and the inability to present any equities to immigration judges regardless of how long the immigrant has been in the United States and how many ties he or she has here. Those at risk include permanent residents who have lived here lawfully for decades. In addition, because the noncitizen population in the United States is so large and many American families include both immigrants and citizens, these deportations will break up U.S. citizen families without any possibility of reunification.

* HR 4437 expands the consequences of an aggravated felony and other offenses

Despite the current drastic consequences of an aggravated felony, HR 4437 seeks to add more. It would bar an immigrant from establishing good moral character required to become a U.S. citizen if they have an aggravated felony conviction in the past – even if they could prove that at the time the offense occurred it was not characterized as an aggravated felony, and they presently have excellent moral character. Under HR 4437, aggravated felonies would also bar admission to the United States and bar the ability to re-immigrate to the United States via an immediate relative as defense to removal. There would be no waiver available. It would further bar an asylum seeker who has an aggravated felony conviction from ever becoming a permanent resident. These provisions will eliminate the little available relief and benefits for immigrants with aggravated felony convictions who demonstrate rehabilitation and strong family, social and economic ties.

* HR 4437 eliminates key safegua
rds concerning evidence used to prove that an immigrant is deportable for an aggravated felony

Since 1990, the United States Supreme Court has established guidelines, called the “modified categorical analysis,” for how a court can characterize a prior conviction. While this may sound technical, the categorical analysis is a vital safeguard that protects immigrants from wrongful deportation. It ensures that immigration judges consider only the most reliable information and documents from a prior conviction – and not from facts that were not established at the original criminal trial – to identify the offense for which the person was actually convicted. HR 4437 seeks to eliminate these guidelines for those accused of being aggravated felons in immigration proceedings. This means that immigrants could be deported for a conviction of an offense that is not actually an aggravated felony, simply because the offense is listed in the same state criminal statute that also includes an aggravat
ed felony. Eliminating the categorical analysis is a radical violation of basic fairness that seeks to overturn years of established judicial precedent.

* HR 4437 reverses the burden of proof

Historically, the burden has been on the government to prove deportation, because the hardship of deportation is so great. Analogous to the criminal “innocent until proven guilty” standard, the longstanding rule has provided that the government may not simply arrest a long-time permanent resident, allege that she is deportable, and force her to prove that she is not. HR 4437 reverses this burden of proof for those charged with aggravated felonies. This would be an extreme blow to deeply-rooted and longstanding notions of fairness. The result in practice is that once the government decides to charge the person, the low-income, unrepresented, detained immigrant will be required to obtain the public records and to produce the extremely complex legal arguments required to
disprove the government's assertion. If the person cannot meet this nearly impossible burden, he or she will face mandatory detention, deportation, and permanent exclusion and separation from family and friends in the United States.

* HR 4437 makes an immigrant associated with any street gang deportable and ineligible for any immigration benefits

Under HR 4437, immigrants who have never committed any crimes whatsoever and who have obeyed all of our laws can be deported, denied admission and the ability to obtain lawful status, subjected to mandatory detention, and denied all forms of protection such as asylum and temporary protected status, simply because the Attorney General has determined that they are associated with a designated street gang. The Attorney General, through a secret process that provides no notice or opportunity to be heard to the immigrant, can designate any formal or informal group of three or more persons who have committed two or mor
e enumerated gang crimes a “criminal street gang.” As a result of this designation, many immigrants who never committed or supported a single criminal act may be punished severely for exercising their right to association – they may be deported to a country where they face interrogation, torture, detention and even death.

* HR 4437 undermines state court decisions regarding the reversal or vacation of convictions in immigration proceedings

HR 4437 would allow immigration authorities to ignore certain reversals and vacations of criminal convictions by state courts, such as the failure to advise the immigrant of the immigration consequences of the guilty plea. This provision will seriously undermine the concept of “full faith and credit” due to state courts. This is particularly so, in states like California, where the state Supreme Court and other lowers courts have ruled that the failure to advise and defend of the immigration consequences and giving a
ffirmative misadvice as to the immigration consequences constitute ineffective assistance of counsel, meriting vacation of the conviction.

* HR 4437 imposes mandatory minimum sentences for many offenses

HR 4437 adds dozens of new mandatory minimum penalties to current law. It imposes the same sentences upon persons who aid or assist certain immigrants to enter the United States as the immigrants themselves would receive. The bill would also impose one to 10 year mandatory minimum penalties for those who reenter the United States after deportation. These mandatory minimum sentences punish arbitrarily and strip judges from the discretion to make the punishment fit the crime, while also increasing the cost of incarceration to American taxpayers.

To inquire about ILRC technical support on these and other immigration law issues, please contact our consultations program by email, ilrc@ilrc.org


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Another view

Post by admin » Fri Jan 20, 2006 11:26 pm

http://migramatters.blogspot.com/2005/1 ... tment.html

Saturday, December 17, 2005

Sponsored by House Judiciary Committee Chairman James Sensenbrenner (R-WI) the 'Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005" " (H.R. 4437) was passed last Friday in a late-night vote of 239 to 182 with 38 Democrats voting for it. The bill, which also incorporates the border security legislation approved by the Homeland Security Committee last month, (H.R. 4312), allows for some of the most far-reaching changes in US immigration policy in the past thirty years.

Not only are there many very troubling provisions in this bill, the ability to enforce it in any reasonably equitable way seems to be impossible given the current state of the U.S. Citizenship and Immigration Service.

The bill would:
  • Increa
    se security forces and surveillance along the border.
  • Give the power to immigration officials within 100 miles of the border to expel without a hearing anyone believed to be a recently arrived illegal immigrant.
  • Expand mandatory detention to apply to all non-citizens arriving at a port of entry or “along” the border.
  • Limit the basic rights of immigrants to judicial review, even by the constitutionally guaranteed writ of habeas corpus.
  • Criminalize all violations of immigration law, even if the violation was unintentional or the result of processing delays
  • Give additional powers to detain non-citizens indefinitely without judicial review, potentially placing many non-citizens in a legal black hole that subjects them to a life sentence after having served a criminal sentence, or, in some cases, without ever having been convicted of a crime. [/*:m]
“Expedited Removal”:
Deportation Without a Lawyer, Hearing, Or Court Review
Expedited removal under current immigration laws is applied to non-citizens arriving at airports with apparently improper documents, to un-documented non-citizens arriving by sea, and a few other narrow categories of non-citizens. Basically, if you show up at JFK without paperwork, you are put on the next plane back without having any sort of hearing or review.

H.R. 4312 will expand on the policy of “expedited removal,” and grant powers to even low-level immigration officers to remove individuals anywhere along the border. It would require the border patrol to pick up and deport, without any administrative hearing, anyone within 100 miles of the border that an agent thinks is an undocumented immigrant who has been present less than 14 days. How the officers are to determine the legal status of the deportees is not addressed in the legislation. The de facto result of this legislation is that anyone within 100 miles of the border
(north or south) who is suspected of being here illegally could by deported without any sort of hearing or reviews.

Mandatory Detention
Under current law, individuals who arrive without documents, including asylum-seekers, are subject to mandatory detention. Again this applies mainy to those arriving at airports or by sea. 60% of detainees are held in local jails under contract to the federal government, where they are generally not segregated from the criminal population even if they are asylum-seekers and others with no criminal record.

Under this new bill, the mandatory detention policy would be extended to all non-citizens who are detained at any port of entry or anywhere “along” the border for any reason.

“Illegal Presence” and “Aggravated Felonies”
Section 203 of HR 4437 calls for the creation of a new federal crime of “illegal presence”. As defined in the bill it includes any violation, even technica
l, of any immigration law or regulation. Even if the immigrant was to fall “out of status” unintentionally, or do to paperwork delays. In essence, the bill makes every immigration violation, however minor, into a federal crime. As drafted, the bill also makes the new crime of “illegal presence” an “aggravated felony” for immigration purposes. This classification would have the further effect of restricting ordinary undocumented immigrants (including those with pending applications) from many forms of administrative or judicial review. Those convicted of an "aggravated felony" would be subject to indefinite detention and/or expedited removal.

Indefinite Detention
Indefinite detention currently applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless. Most often they come from countries without good relations with the United States.

HR 4437 would permit indefinite
detention of an increased broad class of non-citizens, including:
  • those with a contagious disease
  • any non-citizen convicted of an “aggravated felony,” (see above)
  • non-citizens whose release would pose foreign policy problems
  • non-citizens charged even with very minor immigration violations who, based on secret evidence, are deemed a national security risk.[/*:m]

The bill also includes provisions to "combat the hiring of illegal workers"
The bill calls for an employment eligibility verification system in which employers will check the Social Security numbers and alien identification numbers provided by employees against Social Security Administration and Department of Homeland Security (DHS) records in order to weed out fraudulent numbers and ensure that their employees are not working in the U.S. illegally. The system is modified from a voluntary pilot program
currently in use. The bill also increases civil and criminal penalties for knowingly hiring or employing an illegal worker.[/quote]

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Post by admin » Mon Jan 23, 2006 4:55 pm

National Council of La Raza
Border and Immigration Enforcement Act (H.R. 4437)
“Sensenbrenner Bill”
This bill is an attack, not an answer. This is not an antiterrorism bill, not a border security bill, not an enforcement bill, and not an immigration reform bill. This bill fails to address many of the most important elements of immigration reform, including backlogs in family visas, regulation of the future flow of migrants, and the presence of a sizeable undocumented community in the United States. Worse, this bill's approach presents a grave threat to deeply-held American values, including due process of law, family unity, and the safety and security of all Americans. It targets all immigrants for punishment and does not contribute to our securit
y or to immigration reform.

The bill contains too many harmful provisions to list. Democrats on the House Judiciary Committee recognized that the bill was “unfixable” and did not even attempt to make it better. This is an extremely far-reaching piece of legislation that goes beyond border security and enforcement of current laws. While far from a complete list, the following provides a sample of the provisions of H.R. 4437:
  • Criminalizes millions of immigrants. Anyone in the U.S. illegally would be subject not only to deportation but imprisonment as well.
  • Greatly expands the definition of smuggling in a way that could severely penalize innocent acts of kindness and daily, casual contacts that many Americans have with undocumented immigrants. U.S. citizens married to undocumented immigrants could be convicted of aiding aliens. Persons driving their nannies to an appointment could be convicted of transporting aliens.

    b2eedae]Greatly expands mandatory detention and expedited removal, potentially imprisoning millions of persons and generating huge costs to the taxpayer while accomplishing little in the way of deterring migration.
  • Expands the definition of “aggravated felony,” rendering legal immigrants convicted of minor offenses in the past ineligible for immigration benefits including naturalization. Those negatively affected by this will inevitably be American families, who could face separation as a result.
  • Deputizes local law enforcement officials to enforce federal immigration laws over the objections of many such officials, who believe that this authority undercuts their ability to protect the public safety.
  • Mandates a broad-reaching employment verification system that requires employers to retroactively verify the employment status of employees who have been employed for years. It also mandates that churches, NGOs, and others involved in workforce deve
    lopment prescreen potential job applicants before referring them to jobs, a procedure that is likely to result in employment delays and possibly discrimination.
  • Severely reduces due process rights for legal immigrants in a way that dramatically undercuts basic principles of American justice.[/*:m]
Extensive changes to our immigration system deserve far more analysis and discussion. House Judiciary Committee members and advocates received the 170-page bill less than two days before they voted on it. All House members are expected to vote on it a week later, leaving no time for serious analysis and debate. Our nation's immigration laws are far too important to be changed so radically and so quickly.

The bill will harm immigrants, American families, businesses, and communities. If passed, this bill would drive immigrants further underground, leaving entire communities less safe.
Extreme provisions in the law go beyond targeting undocumented immigrants and go after legal immigrants, taking away their basic right to their day in court and making it more difficult for them to become citizens. It proposes a dramatic expansion of employer verification, which will expose all U.S. workers to possible employment disruptions, and does not create any legal channels for needed workers, thereby disrupting the economy. With its excessive deportation provisions, the legislation would separate millions of U.S families.

We need a solution, not a headline. Hispanic Americans, like all Americans, want effective reforms of the nation's immigration laws, not shortsighted measures that appear tough on immigration but do not resolve the underlying problems. Only a comprehensive approach that provides a path to citizenship for current undocumented immigrants, creates new legal channels for future flows of needed immigrants, reduces family immigration bac
klogs, and protects worker rights will reduce undocumented immigration and bring order to our immigration system. We strongly believe that smart, effective, and realistic enforcement of a well-functioning immigration system is possible. H.R. 4437 does not take us down the path of real immigration reform. This bill is a slap in the face to leaders of both parties who are working to bring about meaningful, comprehensive immigration reform.[/quote]

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