A thorough analysis by the Center for Immigration Studies of S.744 finds that the enforcement and compliance provisions of the Gang of Eight bill are designed to reward and protect lawbreakers while undermining many effective and common-sense provisions in our immigration law. A number of the provisions mask their true intent under innocuous or downright misleading titles.
The enforcement-related measures in this bill have profound implications for public safety and will greatly hamper federal and local law enforcement programs designed to prevent criminals and terrorists from settling and operating here. Because the bill essentially excuses nearly all forms of immigration and identity fraud, the integrity of our immigration system is greatly compromised by this bill.
Take, for example, the innocuously titled "Correction of Social Security Records" at section 2107(a). The provision in fact provides relief from criminal penalties for aliens applying to legalize under the bill's Registered Provisional Immigrant (RPI) program who misused Social Security accounts and numbers through identity fraud. Although the section forgives their identity fraud, it provides no basis for unscrambling the accounts or earnings of the citizens and lawful resident aliens who were victimized.
Among the most serious flaws that have public safety, national security, and/or enforcement implications:
Public Safety Concerns
- The bill allows the legalization of aliens who have been convicted of up to three misdemeanors on separate occasions, excluding "minor" traffic offenses. This provision will allow the legalization of those with multiple offenses for drunk driving, vehicular homicide, domestic violence, certain sex offenses, theft, identity theft, and other misdemeanors.
- It requires immigration agencies to ignore convictions under state laws on alien smuggling, human trafficking, and harboring illegal aliens altogether.
- It waives criminal offenses for anyone under 18 (as opposed to 16 under current law), no matter the seriousness of the offense, and even if the offender was tried as an adult. This provision will be most helpful to convicted gang members aged 16-18.
- It eliminates all enhancements and punishments for aggravated felons that allow for these individuals to be barred from re-entry or punished if they do. It permits aggravated felons to be placed in "soft" detention such as group homes and electronic monitoring.
- The bill forces the government to justify the detention of aliens charged with being deportable — and whose detention is mandatory by law due to the severity of the offense, such as aggravated felons — and guarantees aliens a hearing on the detention every 90 days.
- For the first time in history, the Attorney General would be required by law to provide lawyers to certain aliens in deportation proceedings at taxpayer expense.
- The bill provides sweeping new standards of judicial review for aliens denied benefits. It expands review into the federal district courts as well as circuit courts of appeal, and encourages class action suits against DHS.
- The bill hampers use of accelerated forms of removal, such as expedited removal, stipulated removal, reinstatement of a prior order of removal, and administrative removal of an aggravated felon.
- Anyone claiming eligibility for any legalization program may not be detained or removed, and need not show proof of eligibility or proof of application.
- Information in the legalization application is shielded from use by law enforcement and may not be used to remove an alien.
National Security Concerns
- The bill guts controls in the asylum system; eliminates the requirement that an asylum claim must be made within one year of arrival; allows aliens denied on that basis to reopen asylum claims for two years after passage of the bill; permits examiners to grant asylum on-the-spot to arriving aliens, without background checks or in-depth examination of the claims; and prohibits prosecution of aliens for illegal entry, reentry after deportation, or any criminal passport or visa fraud violation, so long as they have a pending claim for asylum (including the appellate review or de novo renewal) whether or not it is frivolous.
- The bill fails to mandate the creation of entry and exit tracking at the land ports, where the largest volume of foreign visitors enter, and puts off implementation of a biometric entry-exit system at air and sea ports for 10 years.
- The bill waives existing grounds of ineligibility for illegal aliens seeking amnesty, including bars for national security or terrorism risks. The rules are so lenient that it appears that even the 9/11 hijackers could qualify for legalization under this bill.
- It allows the DHS Secretary to waive national security and criminal background checks for aliens seeking legalization.
- It could allow terrorists and criminals to be admitted as refugees if they are members of a "persecuted" group, regardless of other ineligibilities they may have.
- It allows for the re-entry and legalization of individuals from countries of "special interest" in counter-terrorism who were identified after 9/11 as part of the NSEERs registration program, which resulted in the removal and departure of more than 10,000 illegally resident aliens from Pakistan, Indonesia, Algeria, Morocco, Iran, and other countries that are incubators of terrorist activity.
- The bill forgives serious immigration offenses for legalization applicants who have committed fraud and misrepresentations, including:
- False claims to U.S. citizenship;
- Use of false documents;
- Student visa fraud and abuse;
- Reentering the United States after having been deported;
- Becoming fugitives by failing to appear for their duly ordered immigration judge hearings;
- Refusing to leave after being given the privilege of departing voluntarily in lieu of being formally deported by a judge;
- Deportation (regardless of the reasons for the removal);
- Previously filed frivolous asylum applications.
- There are no criminal penalties for application fraud in the many provisions of the bill granting legalization and adjustment, with the single exception for applicants of blue card (agricultural worker) status. The lack of criminal penalties, plus shockingly broad confidentiality provisions that prohibit use or sharing of applicant information for any purpose (including removal for the fraud) will encourage abuse on a massive scale. In addition, the bill would create new statutes of limitation for fraud cases — three years in some cases — which is shorter than the time it can take to discover and investigate certain complex fraud cases.
- The bill bars certain kinds of information sharing between federal agencies on tax records that would facilitate the investigation of identity fraud and illegal employment. Neither ICE nor other federal agencies may access the E-Verify system for investigations.
These shortcomings are meticulously detailed in this extensive table. (Note that our analysis was based on the language reflected in version MDM13301 as of April 29, 2012, which was produced, as we understand it, after a redlining of the original version of the bill by legislative counsel in the Senate.)
The flaws in the Gang of Eight bill are so extensive that it is extremely unlikely that they can be corrected through an abbreviated mark up, amendment, or debate process. Lawmakers should start from scratch with more narrowly focused bills that permit more thorough scrutiny and allow for law enforcement agencies and others to consider the public safety, national security, and enforcement implications.