A SAFE Ending

By W.D. Reasoner on August 12, 2013

This is my seventh and last blog on the SAFE ("Strengthen and Fortify Enforcement") Act, a bill pending in the House of Representatives as H.R. 2278. In prior blogs, I discussed in some detail the benefits of the SAFE Act and explained why it is vastly superior to the bill passed by the Senate several weeks ago. This blog will put a wrap on the series by highlighting some of the provisions in the last two titles of the bill, and by discussing what this bill doesn't do.

Here is an overview of Title V ("Aid to U.S. Immigration and Customs Enforcement [ICE] Officers"):

  • Section 501 directs the Department of Homeland Security (DHS) Secretary to authorize Immigration Enforcement Agents (IEAs) to exercise all of the powers afforded them by law in the Immigration and Nationality Act, provided they have appropriate training; and amends the pay and grade of these officers to be commensurate with that of Detention Officers (DOs). This section is important because the Secretary has not accorded to officers who are a part of ICE Enforcement & Removal Operations (ERO), the division that daily enforces the immigration laws, the same authorities as special agents who are a part of ICE Homeland Security Investigations.

  • Section 502 establishes a cadre of Detention Enforcement Officers whose sole job is to act as the functional equivalent of jail and transportation officers for alien detention facilities. This section recognizes that the role of a detention officer in a facility is fundamentally different than that of an officer who works the streets to locate and apprehend suspects, and creates job classifications to distinguish them accordingly.

  • Section 503 requires the Secretary to provide reliable body armor and weapons to IEAs and DOs. Again, this section is important because it will rectify the disparity in treatment and equipment between those officers and ICE Special Agents.

  • Section 504 creates an ICE Advisory Council, which includes representatives from Congress and the ICE prosecutor and agent unions, "to advise the Congress and the Secretary" on issues including the status of immigration enforcement, prosecutions and removals, the effectiveness of cooperative efforts between DHS and other law enforcement agencies, improvements that should be made to organizational structure, and the effectiveness of enforcement policies and regulations. This section provides Congress and the Secretary an avenue to hear directly from line prosecutors and officers on those programs and issues that are effective, and those that are ineffective or downright detrimental to enforcement of the nation's immigration laws. It also protects ICE participants against retaliation for voicing their views as council members.

  • Section 505 establishes a pilot program for electronic production of arrest and charging documents by officers operating in the field or at locations remote from ICE offices. Such a capacity is critical to ensuring that field officers work at their most efficient while also ensuring that charging documents are issued and served on arrestees in a timely manner.

  • Section 506 authorizes, subject to appropriations, augmentation of the existing 2013 manpower levels of deportation officers (by 5,000), and support staff (by 700).

  • Section 507 authorizes, subject to appropriations, augmentation of ICE prosecutors (by 60). Collectively, these officer, prosecutor, and support staff enhancements are an acknowledgement that nearly half of the aliens illegally in the United States did not enter as border crossers, and that the overwhelming majority of illegal aliens in the United States, regardless of how they originally entered, work and reside in the interior where ERO officers perform their duties.

Here are some highlights of Title VI ("Miscellaneous Enforcement Provisions"):

  • Section 601 amends existing statutes relating to the grant of voluntary departure in lieu of formal removal, both before and after the initiation of immigration hearings, by:

    • Limiting grants of this privilege to no more than 120 days pre-hearing and 60 days after commencement;

    • Authorizing the government to require the posting of a voluntary departure bond by the alien to ensure that he or she actually departs;

    • Requiring the alien to affirmatively agree to voluntary departure in writing, with the stipulation that in so doing he/she waives further appeals, motions, requests for relief, etc.;

    • Providing civil penalties for aliens who renege on their voluntary departure agreements or fail to depart, preclude them from seeking reopening of their cases, and bar them from a variety of forms of relief from removal;

    • Precluding the repeated grant of voluntary departure to an alien; and

    • Authorizing the Secretary (for DHS officers) or the Attorney General (for immigration judges) to establish regulations imposing additional reasonable limitations on use of voluntary departure.

    These are welcome amendments because voluntary departure, originally envisioned as a method of streamlining the expulsion of aliens charged with less-serious, non-criminal offenses, has become the subject of much abuse, both by government (which has been overly generous in its grants of voluntary departure — increasingly even to aliens with criminal histories), and by aliens (who accept the offer and then, instead of departing, abscond or file repeated frivolous motions to reopen their case with the immigration courts in order to buy more time to remain in the U.S.).

  • Section 602 restructures the bars for reentry of inadmissible aliens who fail to depart after being ordered removed, and provides that they are ineligible for relief. The language of the section is intended to deter aliens from fleeing instead of obeying lawful removal orders, by strengthening and extending the "shelf-life" of penalties for failing to depart, and making clear that aliens who become fugitives will be entitled to no future consideration or benefits under the law.

  • Section 603 expands the conditions under which prior orders of removal may be reinstated (in lieu of new/additional proceedings) when aliens are found to have subsequently illegally reentered the United States; prohibits any grant of relief to such aliens; and limits the use of judicial review and habeas corpus proceedings to contest reinstated orders. Reinstating previously issued orders of removal, against aliens who reenter the United States illegally, results in a tremendous savings of officer, prosecutor, and court resources. It is also a prudent means of preserving limited taxpayer funds while deporting recidivist alien offenders. This section augments the existing authority for its use, and ensures that there are few, if any, loopholes for aliens to exploit in avoiding expulsion through reinstatement of prior orders, when caught in the United States again.

  • Section 604 clarifies that an adjustment of status to permanent residence under the INA constitutes an admission to the United States — the functional equivalent of a lawful physical entry. This is a technical but highly desirable amendment because it ensures that if an alien violates his resident alien status after adjustment (for instance, through criminal conviction), the "date of entry" will be calculated only back as far as his adjustment, not his original entry. This will prevent many undeserving aliens from claiming that they have accrued enough time after "entry" to merit relief from deportation even in the face of unlawful conduct.

  • Section 605 requires reports to Congress on the use — and abuse — of discretion by executive branch officials. (This provision was discussed at some length in my fourth SAFE Act blog, and is a direct response to administration activities curtailing immigration law enforcement and granting the equivalent of an administrative free pass to thousands of aliens who are in the country illegally.)

  • Section 606 precludes the Secretaries of Interior or Agriculture from establishing rules or policies that prevent patrolling within 100 miles of the borders on federal lands, and waives certain rules relating to creating roadways, fences, dragstrips and the like, which are used by federal officers in their border patrol efforts.

Now let's talk about what the SAFE Act doesn't do:

First, the bill doesn't maunder, it doesn't double-talk, it doesn't pander to special interests, and it doesn't compromise on the security of the nation or the safety of American communities. It doesn't excuse all manner of unpardonable behavior in a kind of "lowest common denominator" attempt to extend the umbrella of amnesty to the broadest swath of illegal aliens, even when they patently don't deserve consideration because they are recidivists who have flouted the law repeatedly, and victimized others in the process.

The bill makes no attempt to mandate what multiple prior pieces of legislation have failed to accomplish: a comprehensive, and comprehensible, entry-exit recordation system. There is no doubt that this needs to be done; there is also no reason to believe that simply writing a law to require it once again will have any effect. Unless and until Congress is ready to take draconian steps (such as withholding massive chunks of money to force the administration to complete the system), such legislative activities are a waste of time.

With important and complex issues such as immigration, it is important, and much more far-sighted, to legislate a few quality portions of law at a time, in digestible chunks, than to create a chameleon-like bill that is the thickness of a telephone directory, has the kind of small print you would expect in a used-car ad, and that purports, falsely, to be all things to all people, all at the same time.

This bill stands head-and-shoulders above the Senate bill, in terms of honesty, substance, and accountability to the American people. As I said at the beginning of this series, "better SAFE than sorry".