Immigration Law Associates, PC

Deciphering the SAFE Act: A Continuation of Unproven Methods

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Board of Immigration Appeals (BIA)

By: James Sellars

The “Strengthen and Fortify Enforcement” (SAFE) Act is one of several bills that the House leadership has proposed as part of its incremental approach to immigration reform. The bill, introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Immigration Subcommittee Chairman Trey Gowdy (R-SC), was the subject of a contentious committee markup, ending in its passage out of committee on a straight party line vote of 20-15. The SAFE Act is an expansive immigration enforcement bill that would greatly expand the detention of immigrants, make unlawful presence in the United States a criminal act punishable with jail time, and would authorize individual states and local governments to create their own immigration enforcement laws. This article explores the central facets of various SAFE Act provisions before arguing that the SAFE Act’s attrition-through-enforcement approach to immigration is ineffective and runs contrary to the main objectives of immigration reform.

Key Provisions of the SAFE Act

The Safe Act seeks to redefine the federal enforcement landscape by shifting prosecutions of immigration cases from the civil, to the criminal arena. While illegal entry into the United States has already been criminalized, this rule generally only applies if an individual is apprehended at the time of an illegal border crossing. Currently, unlawful presence is a civil, not a criminal violation and is not punishable by incarceration. However, the SAFE Act would change that by making every unauthorized immigrant subject to arrest, fines, and/or six months of jail time. Additionally, subsequent offenders would be classified as felons and subject to two years in prison. These provisions would also apply to legal visa holders who overstay their visas by one day, such as a foreign executive whose flight home is delayed. They would also apply to visa holders who violate the terms of their visa for technical reasons, such as a student who fails to maintain a full course load due to a medical complication.

The SAFE Act also seeks to redefine certain aspects of federalism by resurrecting certain state immigration statutes that have previously been held unconstitutional by the Supreme Court. The most controversial provisions of the SAFE Act are those that give state and local jurisdictions the power to create and enforce immigration law. Under the SAFE act, state and local governments would not only be allowed to enforce federal immigration laws, but they would also be empowered to create their own immigration laws that penalize the same behavior as federal law. Historically, these types of laws, such as Arizona’s SB 1070, have been frequently struck down by courts as conflicting with the federal government’s exclusive jurisdiction over immigration. Just last year, in Arizona v. U.S., the United States Supreme Court held that states have a limited ability to enact their own immigration laws because immigration is in the sole domain of the federal government. Moreover, states that have attempted to implement their own local immigration statutes have encountered a whole host of problems. For example, when Arizona began implementing SB 1070, there were numerous reports that law enforcement officials engaged in widespread campaign of racial profiling and prolonged arbitrary detention. Most immigration experts agree that the majority the previously mentioned incidents do not reflect malice or ill-will, but are the result of under-trained and inexperienced law enforcement officials. Under the SAFE Act, the federal government would be required to provide training materials to local law enforcement agencies. However, state and local law enforcement agencies would not be required to complete the training which opens the door for potential violations of due process and abuse of discretion. These provisions of the SAFE Act present intriguing constitutional law questions that legislators have failed to adequately address.

Some other controversial provisions of the SAFE Act include permitting the unlimited detention of immigrants who have been ordered removed, but cannot be repatriated. In Zadvydas v. Davis, the United States Supreme Court held this practice to be unconstitutional. Furthermore, the SAFE Act would broaden the range of behaviors that are subject to immigration penalties and would reduce the standard of evidence necessary to find someone inadmissible, removable, or ineligible for a benefit. Some situations would allow removal based on mere suspicion of criminal behavior instead of actual convictions. For example, a reasonable belief that someone may be or may have been a member of a gang that perpetrated a crime would be sufficient to constitute grounds for removal. While only a few of the provisions have been mentioned here, the spirit of the SAFE Act has been properly encapsulated.

The Continuation of Unproven Methods

The SAFE Act is representative of an attrition-through-enforcement approach to unauthorized immigration that is contrary to many of the objectives of immigration reform and employs methods that have proven largely ineffective. The bill is premised on the notion that punitive enforcement measures alone can address the inadequacies of our deeply flawed immigration system. However, the federal government has been pursuing an enforcement-only approach for decades. These methods have yet to yield any concrete results in achieving its objectives and have proven extremely costly.

Contrary to the impression created by proponents of the SAFE Act, federal spending on immigration enforcement has grown exponentially in recent years and is currently at an all-time high. Since the creation of the Department of Homeland Security in 2003, the annual budget of the U.S. Customs and border Protection (CBP) has increased from $5.9 billion to more than $12 billion and the budget of Immigration and Customs Enforcement (ICE) has risen from $3.3 billion to $5.6 billion. The significant rise in the budgets of immigration enforcement agencies has been accompanied by an even more remarkable rise in the number of enforcement personnel. Since 2003, the number of border patrol agents has more than doubled and today, the number of border and interior enforcement personnel totals more than 49,000.

However, this dramatic increase in agency resource allocations and personnel has seemingly failed to bring about any definitive results. Numerous empirical studies suggest that the creation of a sensible, coherent, forward-looking immigration system is incompatible with measures that eliminate the ability to make sensible individualized decisions on immigration cases, expand expensive and arbitrary mandatory detention and deportation, create a burdensome patchwork of potentially conflicting and unconstitutional state and local immigration laws, and criminalize the entire unauthorized population which consists of approximately 12 million individuals. To put that last number into perspective, the current population of our Nation’s overcrowded prison system stands at approximately two million inmates. Instead of continuing on the attrition-through-enforcement path, empirical data supports expanding legal immigration, legalizing the unauthorized population, and the smart use of immigration enforcement measures. Therefore, the House Judiciary’s endorsement of an outdated philosophy that touts more enforcement, more detention, more penalties, and a more complicated, expensive, and decentralized immigration enforcement system flies in the face of the House leadership’s repeated pledge to fix that very system.

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