Protecting Due Process and Civil & Human Rights in S.744
Advocacy Letter - 06/11/13
Source: The Leadership Conference on Civil and Human Rights
Recipient: U.S. Senate
On behalf of the undersigned organizations, we write to urge you to support provisions that protect due process and civil and human rights in S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” as it moves to the Senate floor this month for further consideration.
Our organizations have a strong interest in the wide range of immigration policies that are addressed by S. 744 – including the roadmap to citizenship for unauthorized immigrants, family-based immigration, sensible enforcement practices that respect communities and uphold our values, workable visas for high- and low-skilled workers, robust labor protections, support for integration of new citizens, and many other areas. Yet the purpose of this letter is more narrowly focused. As currently written, S. 744 includes many procedural changes that will have a significant impact specifically on the fundamental rights of noncitizens as they navigate a highly-complicated and already-punitive immigration system.
The introduction of – and progress to date on – S. 744 represents a tremendous accomplishment, and the best chance that we have had in years to overhaul our broken immigration system. We congratulate the “Gang of Eight” and the Committee on the Judiciary for shepherding S. 744 in a bipartisan fashion. As S. 744 moves to the Senate floor, the upcoming debate will present opportunities to improve the bill – as well as the risk that the already extremely-tough enforcement provisions will be compounded, threatening the balance struck in the bipartisan compromise and undermining crucial protections for noncitizens navigating through our legalization and legal immigration processes. As the debate moves forward, we urge you to keep the following priorities in mind:
1. Judicial and Agency Discretion
The ability of immigration judges and agency officials to consider the individual facts, and to grant relief in appropriate cases, is vital to reforming the immigration system and is a core purpose of S. 744. Without it, many people that Congress intends to bring out of the shadows will be wrongly excluded from legalization and many people in future deportation proceedings will be wrongly separated from their families, businesses, and communities. Judges and agency officials must be empowered to do their jobs properly, with the discretion to weigh on an individual basis difficult decisions that will have serious consequences for immigrants and their U.S. citizen relatives. The limited judicial and agency discretion currently in S. 744 is neither common nor automatic, but it is essential to the success of comprehensive reform.
2. Detention and Alternatives
S. 744 should limit the costly, unnecessary, and unfair detention of people who are in immigration proceedings. The federal government currently expends huge sums each year unnecessarily holding people in custody because of mandatory detention laws, even if they pose no flight risk or risk to public safety – including asylum seekers and longtime green-card holders convicted of minor offenses. S. 744 contains provisions that improve detention practices, saving taxpayer dollars and protecting due process, by enabling DHS and the courts to make greater use of highly cost-effective secure alternatives to detention. The Senate should retain these provisions, and resist any effort to subject broad groups of people to prolonged – or in some cases indefinite – detention without meaningful bond hearings. Any amendment authorizing such detention, or measures like excessive minimum bond amounts, is unnecessary to protect communities and would put the liberty of thousands of noncitizens posing no public safety concern in jeopardy, taking them away from families and community support.
3. Racial Profiling
The Gang of Eight, when drafting S.744, recognized the need to address racial profiling in immigration reform by including a provision that bans some limited forms of racial profiling. This racial profiling provision, in Section 3305, should be strengthened to include a ban on religious and national origin profiling as well as close loopholes that would allow for profiling under the guise of border or national security. Unfortunately, the bill that came out of the Judiciary Committee also includes a provision that systemizes racial profiling by imposing additional security screenings for legalization applicants from certain countries or regions determined to pose national security threats. In the past, we have seen that initiatives that target large groups of people based on unspecified national security concerns result in discriminatory and counterproductive profiling; as former INS Commissioner Jim Ziglar said of the last program, it leads to “disruption in our relationships with immigrant communities and countries that we [need] help from" and "use[s] resources in the field that could [be] much better deployed." Congress should not sanction any form of racial profiling; it is inefficient and fundamentally un-American.
While E-Verify is a central part of the legislation, we believe the system is irredeemably flawed, although reasonable amendments can mitigate some of its negative effects. There is no disputing that the system still has a significant error rate, one that will force hundreds of thousands of legal workers to visit federal offices in order to exercise their right to work. Worse, these errors disproportionately impact minority groups such as married women, naturalized citizens, legal immigrants, and individuals with multiple surnames. E-Verify’s deployment should be contingent on due process for workers, a low error rate, and a strict limit on wait times for employers and employees to resolve database errors. Finally, E-Verify creates a de facto national ID system, in which there will be strong incentives for every state to add their drivers’ license photos to a DHS E-Verify database. The result is an internet-accessible photo database of every American. While this may begin as a work verification system, it could easily be extended to any identification check, allowing for far more extensive government tracking and control in everyday life.
5. Barriers to Registered Provisional Immigrant (RPI) Status
The Senate bill and current law are already extremely tough on those with even minor criminal backgrounds. S. 744 establishes stringent criteria that will bar many people from obtaining RPI status or a green card, including those convicted of felonies, aggravated felonies, other serious offenses, or those who pose a threat to national security or public safety. It also adds inadmissibility grounds including for gang participation, habitual drunk driving, domestic violence, and child abuse, as well as enhanced penalties for passport fraud and document fraud. Adding even more exclusionary provisions is unnecessary and would jeopardize the success of the entire bill.
6. Common-Sense Border Enforcement
For years, opponents of reforms such as S. 744 have kept moving the goalposts on what a secure border should look like. The fact is that unlawful crossings in all nine southern border sectors have fallen to near historic lows – levels not seen since the Nixon administration – yet we continue to spend more on interior and border enforcement ($18 billion last year) than we do on all other federal enforcement agencies combined. Even without S. 744, border enforcement alone costs $12 billion, and there are over 61,000 personnel, concentrated mostly along the southern border. S. 744 would add $8 billion more in border spending. Yet significant problems would remain. First, there is widespread evidence of repeated abuses by border agents – including the deaths of at least 20 border residents since 2010 – pointing to a need for greater oversight, accountability, and training. Second, our ports of entry have been neglected, creating choke points for the more than 215 million people and 13 million containers entering legally through our northern and southern ports every year. Common-sense border policy would invest in our ports of entry and recognize that border enforcement spending must be rational while at the same time ensuring stronger oversight and accountability measures are put in place.
7. Protecting Checks and Balances
The federal courts play a key role in our constitutional system of checks and balances. The Senate bill currently has provisions that authorize prompt judicial review of final administrative decisions under the long-established standards of the Administrative Procedure Act. It is critical that such provisions be included in any legalization program, providing clear and express judicial review procedures which authorize prompt review of policies, practices, rules, regulations, decisions, and actual implementation. Such review will prevent manifest injustice in cases where a single agency employee misinterprets the law. Moreover, the Senate should reject any amendments to restrict judicial review of immigration proceedings, as it is a hallmark of American due process to ensure access to court for all who are subject to government action that jeopardizes fundamental liberties such as the opportunity to remain in the United States.
8. Avoiding Excessively Punitive Penalties for Visa Overstays
Some policymakers have proposed expensive and punitive responses to visa overstays, including the denial of any due process or hearing for visa overstays prior to deportation, and even the imposition of mandatory imprisonment on visa overstays. Such harsh penalties would hurt family members visiting their relatives, tourists, and business travelers who overstay their visas inadvertently or have an explanation for overstaying. For example, military spouses regularly enter and overstay their visas in order to adjust status, often because well-meaning but wrongly-informed U.S. government Judge Advocate General lawyers advise them to do so. S.744 proposes several measures that will alleviate the causes of visa overstays, including the expansion of the integrated exit data system and reforms to the legal immigration system. The Senate should oppose more punitive and less constructive measures.
9. Ensuring Uniform Federal Immigration Laws
The Senate bill should ensure that immigration is governed by uniform federal law throughout the country. Following the passage of S. 744, it will be vital to protect the integrity of the reforms from interference, by preventing the improper state & local targeting of individuals for harassment and punishment. Immigrants who are in the legalization process, or are newly legalized, must not face state and local impediments to their roadmap to citizenship, including public disclosure of their status, onerous and intimidating verification requirements, restricted access to housing and other necessities, or state prosecution for past immigration violations. Such interferences hurt businesses and local economies, and are contrary to the goal of reforming the immigration system and ending the vulnerability of those now living in the shadows without equal civil rights protections.
10. Right to Counsel
The Senate should reject any effort to weaken or limit appointed counsel for people with significant mental disabilities, unaccompanied minors, or other vulnerable populations – who are often forced to navigate the immigration system without the assistance of a lawyer, no matter how complex the case or severe the consequences. In many cases, such people may not be able to understand the charges against them or provide courts with basic information regarding their cases. Appointed counsel is more than an issue of basic fairness – it also saves taxpayers money. Provisions in S. 744 that provide for vulnerable populations to be represented by appointed counsel would result in significant savings, by reducing the prolonged detention of immigrants. Detention currently costs $166/day per person, or about $60,000/year. Appointing counsel prevents the government from needlessly locking vulnerable people up while judges, social workers, and others look (often in vain) for lawyers to represent them.
11. Protecting Asylum Seekers and Refugees
As currently written, S. 744 makes vital improvements to refugee protection and asylum systems, consistent with our nation’s historic commitment to protecting vulnerable people and the values of human rights and fundamental fairness. These include the elimination of the wasteful and unfair asylum filing deadline that has clogged up the immigration court system. The Senate should reject any effort to reinstate arbitrary filing deadlines, or to punish asylum seekers and refugees by delaying important reforms. The Senate should also protect vital improvements added in Committee – including Sen. Blumenthal’s amendment to restrict the use of solitary confinement in immigration detention, which is especially dangerous when used against asylum seekers, refugees, and other vulnerable people.
Thank you for your consideration of our views. If you have any questions or would like to discuss any potential amendments, please contact Rob Randhava or Nancy Zirkin at The Leadership Conference on Civil and Human Rights, at (202) 466-3311, or any of the organizations listed below.
American Association for Affirmative Action
American Civil Liberties Union
American Federation of State, County and Municipal Employees (AFSCME)
American Friends Service Committee
American Immigration Lawyers Association
American Muslim Voice
Arab American Institute
Asian American Justice Center, member of Asian American Center for Advancing Justice
Asian Pacific American Labor Alliance, AFL-CIO
Blacks in Law Enforcement of America
Council on American-Islamic Relations (CAIR)
Immigrant Defense Project (IDP)
Immigrant Justice Network (IJN)
Immigrant Legal Resource Center (ILRC)
Institute for Asian Pacific American Leadership and Advancement
Japanese American Citizens League
Lawyers' Committee for Civil Rights Under Law
The Leadership Conference on Civil and Human Rights
Lutheran Immigration and Refugee Service
Mexican American Legal Defense and Educational Fund
Mexican American Legal Defense and Educational Fund (MALDEF)
Muslim American Society (MAS) Immigration Justice Center
National Advocacy Center of the Sisters of the Good Shepherd
National Council of La Raza (NCLR)
National Employment Law Project
National Fair Housing Alliance
National Gay and Lesbian Task Force Action Fund
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project of the National Lawyers Guild
Rights Working Group
Service Employees International Union (SEIU)
South Asian Americans Leading Together (SAALT)
The Immigrant Legal Resource Center
United Methodist Church, General Board of Church and Society
United States Student Association
Women’s Refugee Commission