On December 5, 2017, Sens. Grassley, Cornyn, Tillis, Lankford, Cotton, and Purdue filed the ''Security, Enforcement, and Compassion United in Reform Efforts Act'' (SECURE Act of 2017), S. 2192. That bill contains many positive provisions, but there are also a number of problematic sections that will need to be amended in markup.
In particular, Title IV of that bill is identical to S. 128, the "Bar Removal of Individuals who Dream and Grow our Economy" Act or "BRIDGE Act", which was sponsored by Sens. Graham, Durbin, Murkowski, Feinstein, Flake, Schumer, and Harris in January 2017, and unfortunately shares its flaws.
Like S. 128, Title IV of S. 2192 amends the Immigration and Nationality Act (INA) to provide three years of provisional protected presence from the date of enactment to qualifying aliens. During that period, those aliens are eligible for employment authorization and may not be removed from the United States unless their protected presence is rescinded.
The three-year period of provisional presence simply maintains the status quo for those aliens who are DACA beneficiaries, but this title is not limited to those who applied for and received DACA benefits, nor does it permanently settle the status of those aliens.
An alien is eligible for this protected presence and employment authorization if the alien: (1) was born after June 15, 1981; (2) entered the United States before attaining 16 years of age; (3) continuously resided in the United States from June 15, 2007, until the date that the alien files an application thereunder; (4) was physically but unlawfully present in the United States from June 15, 2012, until the date the alien files application thereunder; (5) was unlawfully present in the United States on June 15, 2012; (6) on the date the alien files an application, the alien is enrolled in school or in an education program assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a general educational development exam or other State-authorized exam, has graduated or obtained a certificate of completion from high school or a general educational development certificate, or is an honorably discharged U.S. Coast Guard or Armed Forces veteran; (7) has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors not occurring on the same date and not arising out of the same act; and (8) does not otherwise pose a threat to national security or a threat to public safety.
Significantly, this title provides for confidentiality of application information, with certain national security and law enforcement exceptions. It also sets forth the criteria under which DHS may grant and rescind protected presence.
The confidentiality provision is particularly problematic, however. In my experience, and with limited exceptions, such confidentiality provisions generally only serve to protect fraudulent applications. Further, they usually don't make much sense from a public policy standpoint, either: If an alien wishes to obtain an immigration benefit, the alien should accept the fact that any information provided may be used against him or her in any future immigration or law-enforcement action, as is true for an applicant for driver's license or a gun permit.
Nor does it make any sense for one agency of the United States government to possess information that it is barred from disclosing to another agency, absent a strong policy rationale that does not exist in Title IV.
Moreover, this confidentiality provision is particularly stringent. It states: "The Secretary [of Homeland Security] may not refer individuals whose cases have been deferred pursuant to DACA or who have been granted provisional protected presence under this section to U.S. Immigration and Customs Enforcement" [ICE]. The limited exception to this rule allows for such information to "be shared with national security and law enforcement agencies ... for assistance in the consideration of the application for provisional protective presence; to identify or prevent fraudulent claims; for national security purposes; and for the investigation or prosecution of any felony not related to immigration status."
While ICE would, presumably, be a "law enforcement agency" for purposes of this exception, it is not clear how fraudulent claims would be identified for ICE referral without ICE assistance from the outset. In any event, such assistance would likely be helpful in identifying such fraud, but could not be provided under this bill.
Further, the bar to referral of information to ICE for the investigation of immigration-related felonies serves no public purpose, aside from the concealment of such felonies, a goal that logically undermines the immigration system as a whole. Similarly, the bar to release of information for purposes of investigating and prosecuting misdemeanors would subvert the criminal justice system in any case.
The confidentiality provision, however, is not the only troubling portion of this title. New section 244A(c) of the Immigration and Nationality Act (INA) would bar certain criminal aliens from this benefit, but not others. That bar is, under the terms of the INA itself, too limited.
In particular, only criminal aliens who have been convicted of "a felony; a significant misdemeanor; or three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct" are barred from receiving provisional protected presence. For purposes of this bar, the term "significant misdemeanor" refers to:
[A] Federal, State, or local criminal offense (excluding a State or local offense for which an essential element was the alien's immigration status) for which the maximum term of imprisonment is greater than five days and not greater than one year that ... regardless of the sentence imposed, is a crime of domestic violence (as defined in section 237(a)(2)(E)(i) [of the INA]) or an offense of sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence if the State law requires, as the element of the offense, the operation of a motor vehicle and a finding of impairment were blood alcohol content of 0.08 or higher; or ... resulted in a sentence of time in custody of more than 90 days, excluding an offense for which the sentence was suspended.
These limitations would exclude many otherwise removable criminal offenses, in essence placing an alien who entered the United States illegally in a better position than a lawfully admitted alien as it pertains to removal.
Finally, although section 1511 of the SECURE Act renders aliens associated with criminal gangs inadmissible and deportable, those new grounds of inadmissibility and deportability would not bar aliens from receiving provisional protected presence under Title IV. Rather, only aliens who have "been convicted of an offense for which an element was participation in a criminal street gang (as defined in section 521(a) of title 18, United States Code)" would be considered "threats to public safety", barring them from benefits under proposed 244A(c)(8) of the INA.
Again, the issues identified relate to the bill as it was introduced, and there will be opportunities for amendment, both in the Senate and the House, assuming that S. 2192 is brought to the floor of either body at all. These issues, however, suggest that there is much work to be done before Title IV of the SECURE Act is ready for the president's desk.