Did the 9th Circuit Just Keep Jesus Out of Jail?

The backstory to a provision in the INA

By George Fishman on February 14, 2022

My colleague Art Arthur published an analysis last week of the 9th Circuit’s decision in U.S. v. Hansen, in which, as he writes:

Hansen appealed his criminal conviction on two of 12 counts, which had to do with “encouraging or inducing” aliens to reside in the United States. The circuit court reversed on those counts, finding that the statute was overbroad and unconstitutional. Congress needs to clean up this ... provision[] in the Immigration and Nationality Act ... to avoid interference by the courts.

There is some backstory here. During the 109th Congress (2005-06), Arthur and I worked for F. James Sensenbrenner, Jr., chairman of the House Judiciary Committee. In December 2005, Sensenbrenner introduced, and 10 days later the House of Representatives passed, the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005”. The bill didn’t have a catchy acronym and would come to be denoted on countless placards simply as H.R. 4437 — as in “STOP HR 4437/ALTO HR 4437.” Let me explain.

H.R. 4437 was omnibus immigration enforcement legislation, much of it written by the Department of Justice and much written by Arthur and me at Chairman Sensenbrenner’s direction. Out of the bill’s 128 sections spread over 256 pages, two provisions (we felt to be relatively minor) became notorious. One, written and requested by DOJ, set forth criminal penalties for anyone who “assists ... a person to reside in or remain in the United States ... knowing ... that such person is an [unlawful] alien”. While it represented a modest change from the language that the 9th Circuit just found unconstitutional, DOJ never quite explained why it chose the word “assist”.

The other item, also requested by DOJ, made an alien’s unlawful presence in the United States a federal criminal offense. For over 90 years, it has been a federal crime to enter the U.S. illegally, but unlawful presence itself is simply a ground of removal. An alien who enters on a temporary visa and simply never leaves has not committed a crime. Some 40 percent of the unlawful alien population consists of such “visa overstayers”. Because of the relative paucity of consequences for flouting the terms of admission, and because the level of culpability (in DOJ’s and our view) was no different than that with crossing the border illegally, we proposed to make both equivalent crimes. Our committee report further explained that:

[This penalty] will encourage aliens to depart at the end of their authorized stay [and] increase respect for the immigration system. ... It will also ensure that illegal aliens do not labor under the impression that simply eluding authorities for long enough will provide relief from deportation based on acquired equities.

A first offense for illegal entry has long been a misdemeanor — imprisonment up to six months — and subsequent offenses a felony — imprisonment up to two years. DOJ proposed to make a first offense for both unlawful entry and presence a misdemeanor. I made one alteration to DOJ’s overstay provision. I increased the maximum penalty to a year and a day, converting it into a felony and symbolically denoting it a consequential crime. As we loved to point out, Mexico at the time imposed a criminal penalty for unlawful presence of up to six years. I made this decision, as I remember, at about 3:00 a.m. during a marathon drafting session. Now, what I admittedly was not focused on at that hour was that federal felonies carry with them heightened due process protections — the requirement for a grand jury indictment, a jury trial, and a publicly funded lawyer for indigent defendants.

As I have written:

Mr. Sensenbrenner, later stating that the felony designation was “overkill” and “too harsh”, “neither appropriate nor workable”, offered an amendment to lower it to a misdemeanor. Democrats were almost uniformly opposed, genuinely against any criminal penalty, or, as Mr. Sensenbrenner put it, “playing political games.”

Sensenbrenner argued, as did DOJ, that misdemeanor status would likely result in “more prosecutions ... against those aliens whose cases merit criminal prosecution.” But we believed that actual prosecutions would still be relatively infrequent — Sensenbrenner stated that “authorities would rather quickly deport an alien whose only offense is to be here unlawfully rather than to prosecute and have to detain that alien pending trial.” Sixty-five Republicans opposed Sensenbrenner’s amendment because they believed illegal presence should be a felony. And, as I have written, “[t]he amendment was defeated, the bill passed, and we all went home for the Christmas recess.”

The two provisions became lightning rods, generating an extraordinary amount of invective and melodramatic prose (escalating from “absurd” to “horrendous” to “harsh” to “draconian” to “infamous” to “near-fascist” to “fascist”). Cardinal Roger Mahony, archbishop of Los Angeles, wrote that “[p]roviding humanitarian assistance to those in need should not be made a crime, as the House bill decrees[,] ... criminaliz[ing] even minor acts of mercy like offering a meal or administering first aid.” Others claimed that we would not only turn 11 million aliens into felons with the stroke of a pen (as the placards read: “We Are Workers Not Criminals!”), but would imprison them all. House and Senate Democratic Leaders Nancy Pelosi and Harry Reid alleged that “11 million men, women, and children, with no exceptions, would still go to jail for up to six months under the ... Sensenbrenner amendment.” The rhetorical flourishes reached, well, Clintonian heights, with Sen. Hilary Clinton arguing that the “assists” provision “would literally criminalize the Good Samaritan and probably even Jesus himself."

The controversy even led House Speaker Hastert and Senate Majority Leader Frist to make claims that House Democrats lacked “compassion” because they “voted to make felons out of all of those who remain in our country illegally”, and the Republican National Committee ran Spanish-language radio ads stating that House Democrats had “voted to treat millions of hardworking immigrants as felons”, leading Ronald Brownstein to ask “[d]oes chutzpah translate into Spanish?”

Cardinal Mahony proclaimed that he would “instruct the priests of [his] archdiocese to disobey” the bill should it become law. The editorial board of the New York Times concluded that “[i]t has been a long time since this country heard a call to organized lawbreaking on this big a scale”, that Cardinal Mahony’s was “a startling call to civil disobedience, as courageous as it is timely.” Sensenbrenner and committee chairs Peter King and Henry Hyde (both Roman Catholic) assured the Conference of Catholic Bishops that “religious organizations would not have to ‘card’ people at soup kitchens [and p]rosecutors would no sooner prosecute good Samaritans for ‘assisting’ illegal immigrants to remain in the U.S. under the House bill than they would prosecute such persons for ‘encouraging’ illegal immigrants to remain in the U.S. under current law.”

Then, there were the protest marches. Beginning in February 2006 and culminating a few months later in a nationwide “Day Without an Immigrant” on May 1, some 3.7 to five million people marched in the streets in over 160 cities across the United States protesting H.R. 4437. Besides the incredible number of participants, which startled even the organizers, they were notable for, as Irene Bloemraad, Kim Voss, and Taeku Lee write, being “peaceful and without a major violent incident: there were no demonstrator/police melees, not a single person died, and not a single car was burned”. Regarding Los Angeles’s May Day march, an L.A. Times editorial highlighted “mariachi bands, infectious drum corps and beaming 4 year-old girls sitting on their daddies’ shoulders”. I myself remember leaving my office to mingle with protestors in Washington, D.C., with no sense of foreboding.

Were the marches successful? The first claimed victory was the Senate’s rejection of H.R. 4437, “crushed [in the Senate] by the gigante (giant) of popular mobilization,” in Sasha Costanza-Chock’s words. Well, maybe, maybe not. The second was the coming of age of the Latino electorate — the protests were replete with pronouncements that “The Sleeping Giant Has Awaken” and “Today We March, Tomorrow We Vote” — and, concurrently, alienation from the Republican Party. A coming of age quite possibly, alienation no. Roberto Suro, professor, journalist, and founder of the Pew Hispanic Center, finds that the marches do seem to have been the catalyst for a burgeoning pan-Latino identity. He also contends that “[t]he lack of confrontation and the absence of palpable anger ... suggests that, while most Latinos see discrimination as a problem, this perception has not yet produced a sense of grievance or an attitude of opposition toward American society.”

On the other hand, the protests did not lead to the enactment of mass amnesty. Human Events, in naming Sensenbrenner “Man of the Year” in 2006, argued that his bill “proved to be precisely the immovable object that sank the Senate-[George W. Bush] White House amnesty.” Professor Chris Zepeda-Millan agrees, finding that the protests “guaranteed that no legislation with a legalization program ... would become law.” In fact, the only piece of major immigration legislation enacted in 2006 was the “Secure Fence Act”, supported by future presidents Barack Obama and Joe Biden. And a long bipartisan era of enhanced immigration enforcement (remember President Obama’s sobriquet “Deporter in Chief”?) followed the marches, only coming to a screeching and calamitous halt with the coming of the Biden administration.