May 17, 2017

Two Immigration Bills Headed for Markup Tomorrow Need Some Work



Tomorrow, the House Judiciary Committee plans to markup a number of bills, including the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 2431) and the United States Citizenship and Immigration Services Authorization Act (H.R. 2407).

Each of the bills is meant to add to the tools available to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) enforcement personnel. But our federal law enforcement already have the tools they need to enforce the laws on the books; they just need to actually enforce them.

The attempt to bolster power in the enforcement sphere will only serve to open the door to extensive and costly litigation, and continue to erode the relationships between federal and local law enforcement, and the communities they police.

Here’s a quick overview of a few pieces of the laws that need revision.  

Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act

Yesterday, Immigration and Border Security Subcommittee Vice Chairman Raúl Labrador (R-ID) and House Judiciary Committee Chairman Bob Goodlatte (R-VA) introduced the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, but this is not the first iteration of the bill, which was previously known as the Strengthen and Fortify Enforcement (SAFE) Act.

The problems with this bill in its many forms is that the enforcement provisions are overly broad, probably violate the law, and are woefully short-sighted.

For example, the expansive enforcement provisions that give state and local law enforcement authority to “investigate, identify, apprehend, arrest, detain, or transfer” aliens likely violates their constitutional rights by bypassing the probable cause requirement for detention.

When ICE issues a detainer request asking local law enforcement agencies to hold individuals after they are eligible for release, law enforcement is likely violating the Fourth Amendment, primarily because ICE detainers and warrants have wildly different procedural requirements, and confer fundamentally different rights.

Often, when local law enforcement tries to blur the lines between detainers and warrants, they pay for it. For example, in 2014, the Third Circuit found that a U.S. citizen stated a valid Fourth Amendment claim against ICE and local law enforcement officials when he was held on an ICE detainer for three days after posting bail. Lehigh County, PA, settled for $95,000 in damages and attorney’s fees, and agreed to adopt a policy of no longer honoring ICE detainers without a court order. One year later, the Fifth Circuit held it was clear that ICE detainers cause seizure that must comply with the Fourth Amendment.

The Davis and Oliver Act also criminalizes immigrants who are unlawfully present. Although punishable by deportation, undocumented presence is not a crime under federal law. Providing for criminal prosecution and incarceration is not only unwarranted, it will tax our already backlogged immigration courts and state and local resources who much incarcerate individuals.

United States Citizenship and Immigration Services Authorization Act

Chairman Goodlatte’s second bill provides for extensive growth of the federal government, an ironic twist given the Republican Party’s goal to decrease the bureaucratic footprint in Washington.

Although facially fairly benign, the issue with the creation of many of the new directorate positions in the U.S. Citizenship and Immigration Services (USCIS) departments is that they are not accompanied by the oversight and privacy mechanisms that normally accompany these types of new positions and responsibilities, and absurdly, a number of them are duplicative.

For example, the “Immigration Records and Identity Services Directorate,” which would manage employment verification, benefits, biometrics, and immigrant records, includes no information about how that information will be collected, where it will be stored, how it will be shared, and with whom. Further, there is significant overlap with other current departments in the Departments of Homeland Security and State.

Similarly underdeveloped is a provision providing for a permanent E-verify system. Certainly, E-verify is a necessary component of interior enforcement, but it must be accompanied by laws that correct long-standing issues with the current system.

It must be made more cost-effective for employers, improvements need to be made to ensure accuracy of results and a more efficient verification mechanisms, and finally, it must better combat identity theft. None of these issues are addressed whatsoever in the one sentence of text permanently authorizing E-verify in the bill.

Ultimately, we must avoid legislating enforcement mechanisms simply to demonstrate a show of force. They must be warranted, thoughtful, pragmatic, and comprehensive. Neither of these bills, in their currents forms, pass muster.