The worst enforcement provision is criminalizing simply being in the United States without status or violating any aspect of civil immigration law (p. 170). This would turn millions of unauthorized immigrants into criminals overnight. It would also criminalize legal immigrants who fail to update their addresses, carry their green card with them at all times, or otherwise abide by the million inane regulations that Congress imposes on them. Take, for example, the status provided to Dreamers in this bill. It requires them to maintain an annual income of at least 125 percent of the poverty line (p. 396). If they fall below that level for 90 days — not only are they subject to deportation again — they would be criminals. This bill literally criminalizes poverty among Dreamers. This legislation would immediately undo much of the progress that the Feds have made on criminal justice reform and reducing its prison population.
The analysis above (which does not cite the pertinent regulations) is based on an apparent misapprehension of the immigration laws and conflation of (and misreading of) different provisions in that bill.
To begin with, section 2206 of Division B of SAFA amends section 275 of the Immigration and Nationality Act (INA) to subject aliens unlawfully present in the United States (as defined in section 212(a)(9)(B)(ii) of the INA) for 90 days or more to criminal penalties. Pursuant to the scheme set forth therein, for example, a first violation of this provision would be a class B misdemeanor under 18 U.S.C. § 3559(a)(7), consistent with the penalty for illegal entry under current section 275(a) of the INA. Under section 212(a)(9)(B)(ii) of the INA, "an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled."
Section 1102 of Division B in SAFA provides nonimmigrant status to aliens who are beneficiaries of Deferred Action for Childhood Arrivals (DACA). Paragraph 1102(b)(4) in that section renders various aliens ineligible for that status. In particular, subparagraph (L) therein bars an alien from receiving that status if the Secretary of Homeland Security determines that the alien:
[I]f over the age of 18, has failed to demonstrate that he or she is able to maintain himself or herself at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission as a contingent nonimmigrant, unless the alien has demonstrated that the alien is enrolled in, and is in regular full-time attendance at, an educational institution within the United States.
This requirement is consistent with the current public charge and affidavit of support provisions in the INA. In particular, section 212(a)(4) of the INA renders inadmissible: "Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge."
Section 213A(a)(1) of the INA allows a sponsor to submit an affidavit of support to establish that an alien is not inadmissible under the public charge provision in section 212(a)(4) of the INA. That affidavit must be "executed by a sponsor of the alien as a contract" wherein "the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable."
It is eminently reasonable that the same public charge requirements apply to DACA beneficiaries who are seeking nonimmigrant status under Division B, section 1102 in SAFA. Plainly, the American people should not be required to provide support to those aliens assuming that they are of an age to work, and are not currently in school.
Nor, if press reports are to be believed, will this be a difficult standard for those DACA beneficiaries to meet. For example, the Center for American Progress in August 2017 detailed the results of a national survey fielded "to further analyze the economic, employment, educational, and societal experiences of DACA recipients." It stated:
The data illustrate that DACA recipients continue to make positive and significant contributions to the economy, including earning higher wages, which translates into higher tax revenue and economic growth that benefits all Americans. In addition, DACA recipients are buying cars, purchasing their first homes, and even creating new businesses. The survey's results also show that at least 72 percent of the top 25 Fortune 500 companies employ DACA recipients. Moreover, 97 percent of respondents are currently employed or enrolled in school.
The confusion in the CATO article apparently arises from a misunderstanding of the requirements for obtaining status under Division B, section 1102 in SAFA and the regulations that that govern maintenance of nonimmigrant status.
Section 237(a)(1)(C)(i) of the INA provides for the deportability of aliens who have failed to maintain nonimmigrant status. It states:
Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248 [of the INA], or to comply with the conditions of any such status, is deportable.
The regulations implementing this provision are as set forth in 8 C.F.R. §§ 214.1 and 214.2. These regulations are narrowly tailored, particularly as they relate to a failure to maintain nonimmigrant status.
Section 214.1 references maintenance of status in four subsections. First, 8 C.F.R. § 214.1(a)(3)(ii) states:
At the time of admission or extension of stay, every nonimmigrant alien must also agree to depart the United States at the expiration of his or her authorized period of admission or extension of stay, or upon abandonment of his or her authorized nonimmigrant status, and to comply with the departure procedures at section 215.8 of this chapter if such procedures apply to the particular alien. The nonimmigrant alien's failure to comply with those departure requirements, including any requirement that the alien provide biometric identifiers, may constitute a failure of the alien to maintain the terms of his or her nonimmigrant status. [Emphasis added.]
Second, 8 C.F.R. § 214.1(e) bars certain aliens from working in the United States, and provides: "A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized." Pertinently, that regulation states: "Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section (a)(1)(C)(i) of the" INA. (Emphasis added.)
Similarly, 8 C.F.R. 214.1(f) states:
Registration and false information. A nonimmigrant's admission and continued stay in the United States is conditioned on compliance with any registration, photographing, and fingerprinting requirements under § 264.1(f) of this chapter that relate to the maintenance of nonimmigrant status and also on the full and truthful disclosure of all information requested by the Service. Willful failure by a nonimmigrant to register or to provide full and truthful information requested by the Service (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the [INA]. [Emphasis added].
Finally, 8 C.F.R. § 214.1(g) makes clear that a nonimmigrant's conviction in a jurisdiction in the United States "for a crime of violence for which a sentence of more than one year imprisonment may be imposed (regardless of whether such sentence is in fact imposed) constitutes a failure to maintain status under section (a)(1)(C)(i) of the" INA. (Emphasis added.)
Of these provisions, only 8 C.F.R. § 214.1(a)(3)(ii) would come close to a provision that would address a general failure to comply with the terms of an alien's nonimmigrant status, but even then, only in terms of the alien's failure to depart upon abandonment of that status, not noncompliance with that status.
In addition, 8 C.F.R. § 214.2 provides "[s]pecial requirements for admission, extension, and maintenance" of the various current nonimmigrant visa categories. For this reason, none of them pertains to the nonimmigrant status proposed in section 1102 of Division B in SAFA, or in particular mandates that a nonimmigrant thereunder maintain a required income at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission. To the degree that they do reference section 237(a)(1)(C)(i) of the INA, each of those provisions relate to unauthorized employment.
That said, however, any regulatory amendment to 8 C.F.R. § 214.2 implementing the nonimmigrant provisions in section 1102 of Division B of SAFA mandating that an alien "maintain an annual income of at least 125 percent of the poverty line" would be ultra vires.
Significantly, section 1102(b)(4)(L) does not require that an alien maintain him- or herself "at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission;" rather, it conditions a grant of nonimmigrant status to a showing of an ability to do so at the time of application. Look again at the language of the bill:
An alien is ineligible for contingent nonimmigrant status if the Secretary determines that the alien—
(L) if over the age of 18, has failed to demonstrate that he or she is able to maintain himself or herself at an annual income that is not less than 125 percent of the Federal poverty level throughout the period of admission as a contingent nonimmigrant, unless the alien has demonstrated that the alien is enrolled in, and is in regular full-time attendance at, an educational institution within the United States.
This subparagraph does not state the an alien is ineligible if the alien "has failed to demonstrate that he or she is maintaining himself or herself at an annual income," or more pointedly, "has failed to demonstrate that he or she will maintain himself or herself at an annual income." It states than an alien is ineligible for status if the alien "has failed to demonstrate that he or she is able to maintain himself or herself at an annual income."
This is not a distinction without a difference – had Congress wanted to make the maintenance of such an income an ongoing requirement for an alien granted this status, it could have easily written it in to the bill, but it has not done so. Rather, the alien just has to show at the time of application that he or she is "able to maintain" himself or herself at that income.
That said, however, an alien who fails to maintain that level of income would likely be ineligible for a subsequent three-year extension under section 1102(c)(9)(B) of Division B of SAFA. The alien would not, however, be subject to criminal liability unless the alien remained after that status expired.