Enforcement Alone Will Not Solve Immigration Issues
Karen-Lee was featured in Law360's Expert Analysis Section writing about President Trump's deportation plan.
As part of President Trump’s massive deportation plan, several anti-immigration bills have recently come before the U.S. House of Representatives that focus on immigration enforcement. On May 24, 2017, the House Judiciary Committee passed three bills — the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act” (the Davis Act), H.R. 2406, and H.R. 2407. And on the evening of June 7, 2017, the House passed The Anti-Border Corruption Reauthorization Act (H.R. 2213). These four bills create an unprecedented expansion of immigration enforcement.
The first bill, known as the Davis-Oliver Act, H.R. 2431 cracks down on sanctuary cities, and strengthens the authority of U.S. Immigration and Customs Enforcement to arrest and deport unauthorized immigrants by granting states and localities the authority to enforce federal immigration laws. "Sanctuary city" is a broad term applied to jurisdictions with policies in place to limit cooperation or involvement with federal immigration actions. Many U.S. cities, counties and some states have a myriad of informal policies and laws that qualify as "sanctuary" positions.
This bill gives additional authority to and encourages local police and sheriffs to engage in immigration enforcement like Arizona’s SB1070 “show me your papers law” — key provisions of which were held unconstitutional by the U.S. Supreme Court. Not only does the bill authorizes police to arrest and detain anyone based solely on suspicion of being unlawfully present in the U.S., it also prevents local government from restricting its personnel from engaging in immigration enforcement in concert with ICE. This bill passed the House Judiciary Committee even though federal courts have held that local governments violate the Fourth Amendment when they jail individuals without probable cause.
To ensure local law enforcement cooperates in immigration enforcement, the Davis Act calls for the withholding of federal funds from state and local governments notwithstanding Fourth Amendment concerns or the goal of ensuring that victims and witnesses cooperate with law enforcement and report crimes. The bill also creates a private right of action allowing crime victims or their family members to sue localities if the crime was committed by someone who was released by the locality that did not honor an ICE detainer request.
This is particularly disturbing since in April 2017, federal Judge William H. Orrick, blocked the Trump administration from enforcing its threat to take away funds from sanctuary cities. Judge Orrick, in his ruling, sided with jurisdictions such as Santa Clara County in California and the city of San Francisco, who argued that a threat to take away federal funds from cities that do not cooperate with some federal immigration enforcement could be unconstitutional.
In addition, under the Davis Act, if people overstay their visas even by a single day, they could be liable for a six-month prison term. The Davis Act criminalizes unlawful presence and permits the prosecution and incarceration of every unauthorized individual at immense cost to the American people. According to Homeland Security, 628,799 people overstayed their visas in 2016. Furthermore, children who have been afforded protection under the Deferred Adjudication for Childhood Arrival Act (DACA) would no longer be exempt from deportation if they knew they were brought here illegally.
The Davis Act includes many provisions that would heighten visa screening procedures and clearly violates due process for individuals who have already been screened and admitted to the United States. Under this act, a lawfully admitted individual whose visa has been revoked could be removed from the United States without any administrative or judicial review of the decision. The Davis Act would also significantly restrict the ability of consular posts to waive the visa interview process, and imposes burdensome and unnecessary requirements on individuals seeking immigration benefits such as a thorough review of all social media and genetic testing of those seeking immigrant visas through a family relationship.
The House Judiciary Committee also passed H.R. 2406, which, together with the Davis Act, authorizes 12,500 more ICE detention or deportation officers, and both bills require officers to be armed with M-4 assault rifles and other weapons. H.R. 2407 would also make E-Verify permanent without implementing any of the important due process protections to ensure authorized workers are not mistakenly identified as being unauthorized. These are common errors in the E-Verify pilot system which have erroneously harmed U.S. workers seeking employment.
There is still a long way to go before these bills become law but they are concerning. These bills would require at least eight Democratic votes in the Senate to pass there, assuming all Republicans support the bills.
More likely to become law is the Anti-Border Corruption Reauthorization Act (H.R. 2213) passed by the House on the evening of June 7, 2017, by a 282 to 137 vote — largely on party lines. H.R. 2213 now moves to the Senate, where the Homeland Security and Government Affairs Committee passed a similar bill S. 595 out of committee last month known as the "Boots on the Border Act."
Both bills would weaken the U.S. Customs and Border Protection hiring process by waiving the polygraph examination requirements for certain law enforcement and military applicants. Two-thirds of applicants fail the polygraph. Criticizing these bills, James Tomsheck, former head of the Office of Internal Affairs for CBP stated “I know from first-hand experience that the bills moving in Congress, backed by current CBP leadership desperate to hire more agents, would exacerbate corruption and abusive misconduct by adding unsuitable personnel who conceal criminal pasts …”
The Davis Act would also be extremely expensive. An earlier version of the Davis Act, reported out of the House Judiciary Committee in 2014, received an estimated cost of $23 billion over five years from the Congressional Budget Office. While these bills increase enforcement, of ICE officers and immigration prosecutors, these bills do not address our overburdened immigration courts and the shortage of immigration judges.
Although immigration enforcement is necessary to keep our nation safe, we need comprehensive immigration reform to address both unauthorized and authorized immigration. Enforcement alone will not solve the problems present in our outdated immigration system which has not been revised in 25 years.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration