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Radical Bill Would Criminalize All Aid To Undocumented Persons

by Bruce A. Hake

This month the U.S. Senate is expected to debate legislation that may have dire consequences for all persons who give assistance to foreigners. Now is the time to contact the Senate to express opposition.

On December 16, 2005, the U.S. House of Representatives passed "The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005," H.R. 4437, sponsored by F. James Sensenbrenner, Jr. (R-WI). The bill passed by a margin of 239-182. 17 Republicans were opposed, but 36 Democrats voted for it.

Among other horrors, Section 202(a) of the bill amends Section 274(a)(1)(C) of the Immigration and Nationality Act (8 U.S. Code Sec. 1324) to make it a felony to: "assist . . . a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States." The bill also provides for forfeiture of all assets of a person who does that.

That language is so broad that it appears to criminalize all the work of everybody, including church groups, charities, lawyers, and private citizens, who act in any way to help a person who is technically out of immigration status for whatever reason. This measure has incredibly broad scope, because every year millions of people go technically out of immigration status due to incompetence, errors, and delays of the U.S. government in processing applications or petitions for change or extension of status, even though they were lawfully admitted, have never broken the law, have American families and friends and neighbors, and so forth.

Office-based business immigration lawyers, who rarely if ever toil in immigration court on messy asylum and deportation cases, may assume they would be untouched by such legislation. They would be wrong. There is not a single business immigration practice that will not run into potential criminal liability several times a year. Examples are legion, and they do not require any professional misconduct by the lawyers or their employees.

Imagine, for example, a routine H-1B extension for a husband and his H-4 wife. The law firm does everything properly. The couple misplaces the papers and is one day late getting the I-539 extension of status form back to the law firm to file. The wife goes out of status. Under the letter of H.R. 4437, she thereby becomes an aggravated felon. By continuing to reside with his wife, the husband also becomes an aggravated felon. By discussing this situation with the couple, the lawyers and their employees become felons, with all their assets subject to forfeiture.

That is the plain meaning language of the law. If the Sensenbrenner bill passes, it is likely that at least a few such cases will be brought by grandstanding prosecutors. The very existence of the law will terrorize the entire bar and have a chilling effect on all who try to help immigrants.

The Catholic News Service reported on January 6, 2005 that Cardinal Theodore E. McCarrick, the Archbishop of Washington, told reporters that the U.S. bishops are "very concerned about this." One particular worry is that provisions to criminalize immigration violations would be applied to church workers who help needy people without regard for immigration status. Under current law, being in the country illegally violates only civil law, not criminal codes. By making immigration violations a crime, those who even unknowingly assist people who are in the country illegally could be subject to prosecution. "People who are trying to help immigrants will be finding themselves turned into criminals," Cardinal McCarrick said. "That's going to include people at churches." For such church programs to screen out needy people based on their immigration status is not an option, he said, "if you want to do what the Lord told you to do." Cardinal Roger M. Mahoney of the Archdiocese of Los Angeles, the largest Catholic archdiocese in the United States, has called on parishioners to devote the Lenten season (which began March 1, 2006 and lasts for 40 days) to speaking out against Congress's current immigration reform plans. He has called on priests to ignore the law if passed.

The legislation has many other radical provisions. For example, it would provide that "unlawful presence" would now be considered a crime and an "aggravated felony," meaning that undocumented immigrants may have to serve jail time and would be permanently barred from future legal status and from re-entry into the country. That is true, even though thousands of law-abiding foreigners, who were lawfully admitted to the United States and have always obeyed the law, go into unlawful presence every day due to errors and delays by the U.S. government in processing lawful and proper applications for extension of status.

If passed, I predict that this legislation will provoke an even deeper division between business immigration lawyers, who will increasingly sacrifice client interests in order to stay safe, and other immigration lawyers, especially those who handle asylum and deportation cases, who will be driven further towards civil disobedience.

H.R. 4437 is the most evil immigration legislation in the United States for 150 years. The nation is so preoccupied by other issues that I think it has a good chance to pass. I urge everyone to write the U.S. Senate in opposition.

2006 by Bruce Hake. Reprinted with permission.

About The Author

Bruce Hake is a lawyer in private practice in Maryland. With his partners, he founded the ILW.COM website and operated it from 1995 to 1999.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.