Two Immigration Enforcement Bills Are Introduced in the House

By Dan Cadman on June 27, 2017

Two immigration bills worthy of notice are wending their way through the congressional maze, both introduced by Rep. Bob Goodlatte (R-Va.), who is chair of the House Judiciary Committee. The two bills are the much-discussed "Kate's Law", H.R. 3004, and the "No Sanctuaries for Criminals Act", H.R. 3003.

Neither bill, considered by itself, takes a holistic view of immigration enforcement; put together, they come closer to the mark. The problem of course is that because they are two separate bills, there is no guarantee that they will both proceed to passage.

What would be preferable would be a broader approach to amending those portions of the immigration law having to do with enforcement, detention, and removal – specifically, the Davis-Oliver Act introduced in both the House and the Senate in prior years, and which underwent mark-up again in the House last month (see here, here, and here). We'll see where that goes.

In the meantime, you play the hand you're dealt, and in this case, that means the two bills described below.

The more important of the two is H.R. 3003, the "No Sanctuaries for Criminals Act". In addition to Goodlatte, co-sponsors of the "No Sanctuaries" bill include Reps. Steve King (R-Iowa) and Andy Biggs (R-Ariz.). This bill tackles the issue of sanctuary jurisdictions head-on, by rewriting the prohibitions on state or local governments in any way impeding or inhibiting cooperation with federal immigration officials, or exchanging information with them, or notifying them of the existence of an alien who appears to be in the U.S. in violation of the immigration laws (including, of course, alien criminals in the custody of state or local enforcement authorities). Those prohibitions are encompassed to some extent in existing 8 U.S.C. Sec. 1373, but this bill puts teeth into failure to comply. That's welcome news because while the so-called sanctuary movement is just one of many problems with immigration enforcement today, it is one of the most urgent problems. This bill would go far toward restoring the rule of law throughout the nation.

Significantly, the "No Sanctuaries" bill predicates eligibility for various federal enforcement funds and grants upon such cooperation. The bill lays out a requirement that the DHS secretary must annually prepare a list of noncompliant state and local governments, which list is to be reported to Congress. State or local governments determined to be noncompliant and placed on the list are ineligible for a multiplicity of programs administered by both the Departments of Justice and Homeland Security; those funds that cannot be allocated to a government because of noncompliance may be reallocated to other governments which have shown themselves to be cooperative with federal immigration enforcement efforts.

The bill also establishes new statutory language authorizing detainers issued by federal immigration authorities after a determination of "probable cause," a phrase that is defined in the bill. State or local governments that comply with the detainers are provided with immunity from suit. The bill also provides that in the event a lawsuit is filed, the proper defendant is the federal government, and not the state or local government (or its contracting detention entity) which honors the detainer. This is important because among the reasons some state or local enforcement agencies have become reticent to honor immigration detainers is not just fear of being sued, but also of being left high and dry by federal agencies responsible for immigration law enforcement and forced to fend for themselves in defending against such suits.

In addition, H.R. 3003 provides that when state or local governments fail or refuse to comply with federal immigration enforcement efforts, then DHS and its component agencies may similarly decline to turn over to them, aliens who are in federal immigration custody against whom state processes such as warrants, writs, or summonses have been issued.

Another section of the bill provides for a private right of action by victims or their survivors against a state or its political subdivision if that state or local government has released a removable alien from custody despite existence of an immigration detainer, if that alien goes on to commit murder, rape, or any felony, as defined by the state, for which the alien was convicted and sentenced to a term of imprisonment of at least one year.

Finally, the bill contains a section that amends existing 8 U.S.C. Sec. 1226, having to do with arrest and detention of aliens, by requiring the DHS secretary to maintain custody of an alien during the pendency of removal proceedings if that alien is a criminal alien as defined by certain provisions of the immigration laws (including, as specifically included in this bill, those convicted of driving under the influence of alcohol or drugs); as well as illegal border crossers, and those whose visas have been revoked or who have violated or overstayed the terms of their nonimmigrant admission. This same provision also modifies through limitations the conditions under which the immigration courts (a part of the Justice Department) may review custody and detention decisions made by DHS.

The other bill, H.R. 3004 or "Kate's Law", is named for Kate Steinle, murdered by a multiply-deported illegal alien in San Francisco, who died in her father's arms. This is the House incarnation of a bill introduced previously in the upper chamber by Sen. Ted Cruz (R-Texas) about a year ago, which went nowhere. The bill would amend 8 U.S.C. Sec. 1326, which is the provision of law criminalizing reentry, or attempted reentry, of an alien into the U.S. after having been removed.

Specifically, the bill restructures that part of the statute which deals with recidivists and those whose removal was based on aggravating factors such as criminal histories. Sentencing penalties contained in the existing sections of law are both amplified and enhanced. That's the good news.

The so-so news is this: The enhancements don't constitute mandatory minimum sentences under the proposed structure. What this means is that because the penalties prescribed aren't mandatory, whatever time is actually imposed on convicted reentrants by presiding judges will be governed by U.S. Sentencing Commission guidelines, which were themselves recently amended, as a consequence of which they generally (although not always) tend to lower the amount of time spent in prison by individual aliens convicted of immigration crimes. The harsh reality, though, is that if the proposed restructuring did make the new sentences mandatory, the bill likely wouldn't pass because many Republicans, as well as Democrats, are in favor of "criminal justice reform," which has in the past couple of years resulted in many federal prisoners – including thousands of aliens – not only not receiving long sentences, but also being released significantly earlier than one would think by looking at their sentences. (See here and here.)

In sum, the raising of at-least-theoretically maximum permissible sentences for illegal reentry by alien criminals does no harm, and may do some good – but it most assuredly would be a mistake to think that, as a standalone, this bill cures the ills that resulted in Kate Steinle's murder. It doesn't, because nothing in the bill requires state/local cooperation with federal immigration agents – that's why the "No Sanctuary" bill is the more important of the two. Absent that, even if the most heinous of alien criminals makes his way unlawfully into the United States and is taken into custody by police in a sanctuary jurisdiction, he will likely be released to the street, with potentially horrendous consequences. And it's been my experience after nearly 40 years of enforcing and observing and commenting on immigration matters, that if something bad can happen, it will happen (often, sadly, sooner rather than later).

For whatever it's worth, the Govtrack website gives each of these bills only a 1 percent chance of passage. This discouraging, when one considers that Republicans control both chambers of Congress and the White House. If even half measures can't be taken with that trifecta having been won, then exactly what does it take to pass meaningful immigration enforcement legislation?