From: Timothy H. Edgar, National Security Policy Council

Re: Chairman Specter’s Mark – “Comprehensive Immigration Reform Act of 2006”

While measures are needed to reform the immigration system, secure the borders and enforce the immigration laws, the Chairman’s Mark offers a flawed approach that will harm civil liberties.  The ACLU opposes this legislation in its current form.

While Senator Arlen Specter (R-PA) takes a broad approach to the issue of immigration reform that deserves some credit for recognizing that “enforcement-only” approaches simply do not work, many provisions of the Chairman’s Mark would expand on deeply flawed policies that have seriously eroded civil liberties.  While the bill does include a number of enforcement provisions that are not problematic, it also includes provisions that would seriously harm civil liberties.  Sacrificing the constitutional rights and civil liberties of both citizens and non-citizens alike has not proven an effective or fair substitute for adequate enforcement of immigration laws in a manner consistent with the Constitution.

Most seriously, the Chairman’s Mark would erode even further the basic rights of immigrants to judicial review, even by the constitutionally-guaranteed writ of habeas corpus.  It does so by proposing a radical change in the federal court system, directing all immigration appeals into the United States Court of Appeals for the Federal Circuit.  This ill-advised proposal has not received any adequate study and has not been the subject of any Congressional hearings.  The Federal Circuit is a specialized federal appeals court in Washington, DC that currently hears patent, copyright and a few other cases and has no experience whatsoever with immigration, civil rights, criminal law or other related fields. 
The bill then creates a barrier to real review by requiring the appellant to obtain a “certificate of reviewability” from a single judge of that court within 60 days or the case is automatically dismissed.  These provisions will create a massive crisis in the Federal Circuit and deprive thousands of immigrants of any realistic chance for a meaningful day in court.

The Chairman’s Mark also includes other deeply flawed provisions, including provisions that would criminalize all violations of immigration law, with very serious consequences for genuine refugees and others who qualify for humanitarian relief.  Finally, the Chairman’s Mark gives extraordinary powers to detain non-citizens indefinitely without meaningful review, potentially placing many non-citizens in a legal black hole that subjects them to a life sentence after having served a criminal sentence, or, in some cases, without ever having been convicted of a crime.

The Chairman’s Mark would also, over time, make universal a database tracking system for all employees in the United States who will be required to obtain what amounts to permission from the Department of Homeland Security (DHS), certifying the validity of their documents, to begin working.  Given the current rate of error of DHS databases, expanding this “employer verification” system from the current pilot system to cover any sizeable portion of the workforce will be completely unworkable.  Privacy considerations in the creation of such a massive government tracking system have not been adequately considered.

The Chairman’s Mark includes many other provisions with potentially adverse civil liberties consequences, including provisions that would further militarize the border and deploy – again without adequate consideration for privacy – high technology surveillance systems, and that would impose mandatory minimums and new death penalties which are no substitute for real resources to combat smuggling and trafficking.

Immigration reform is a complex topic fraught with a severe potential for unintended consequences.  The Chairman’s Mark also includes a number of positive reforms, including provisions to make the administrative review process for immigration decisions more independent and provisions to provide more resources for immigration enforcement that do not sacrifice due process. 

The Judiciary Committee should not adopt the Chairman’s Mark without first striking provisions that shut the courthouse to immigrants, authorize indefinite detention, create a massive government database that will track every worker in America (citizen and non-citizen alike), and otherwise harming civil liberties.

More Court-Stripping: Slamming Shut the Courthouse Door

Removal from the United States is a severe deprivation of liberty and as such, requires due process protections such as judicial review.  However, because of court-stripping legislation passed in 1996 and as a result of the REAL ID Act of 2005, current law severely restricts access to the courts for many kinds of immigration claims, including class actions and even ordinary review for many individual claims.  As a result, immigrants who allege the government acted illegally in the removal process have only one shot at review directly in the circuit courts of appeals, many under a very narrow scope of review.

In 2002, then-Attorney General Ashcroft worsened this problem by severely limiting administrative review by the Board of Immigration Appeals (BIA), the only internal check on immigration hearings, leading to truncated review by a single board member for most appeals that does not satisfy due process and has effectively placed the burden of error-correction on the federal courts, leading to a substantial increase in federal immigration appeals.

The Chairman’s Mark would severely worsen that trend, by bringing second-class review into the last avenue of relief and by manipulating the system to ensure no review at all for many immigrants.  Worst of all, the Chairman’s Mark would provide that only a single court of appeals – which is entirely unequipped to handle every immigration appeal in the country – would hear these cases, making it far less likely for immigrants to receive meaningful review.

Placing all immigration appeals in the U.S. Court of Appeals for the Federal Circuit.  Title VII of the Chairman’s Mark would dump all or virtually all immigration appeals to the federal courts in a small, specialized circuit court (the U.S. Court of Appeals for the Federal Circuit) that has no expertise or experience in immigration cases.  Even with the addition of 3 more judges, the Federal Circuit is wholly unequipped to handle the tripling of its caseload that would result.  The bill essentially transforms the Federal Circuit into an immigration appeals court that also hears some patent, copyright and other cases.

Consolidating immigration appeals into one federal court of appeals is a very bad idea that would create a massive crisis in the Federal Circuit.  In addition, the bill imposes a single-judge “certificate of reviewability” as an additional step that the courts must adjudicate before a case is decided.  The bill also creates barriers to having a court hear the merits of cases involving so-called “reinstatement of removal,” and makes other changes that would deny immigrants meaningful federal court review. 

Section 701 amends section 242 of the INA to divest the federal circuits courts of appeals of jurisdiction over immigration appeals and places exclusive jurisdiction in the Court of Appeals for the Federal Circuit. The new provision would apply to any final agency order or district court decision entered on or after the date of enactment.  The provision explicitly amends provisions governing all final orders of removal covered by 242, cases transferred to district court for citizenship claims, dismissals of indictments under 243(a), and appeals of both individual habeas and systemic district court challenges to expedited removal.  The provision also amends 242(g) in ways that will inject further confusion into the scope and effect of 242(g). 

The provision increases the number of judges of the Federal Circuit by three (from 12 to 15) and amends the jurisdiction of that Circuit cover “an appeal to review a final administrative order or district court decision arising from any action taken, or proceeding brought, to remove or exclude and alien from the United States.”

The Federal Circuit is completely incapable of handling all immigration appeals now spread throughout the entire federal appellate system.  The  Federal Circuit currently has a caseload of approximately 5000 cases per year.  Placing all immigration cases into the Federal Circuit would add at least 11,000 new cases annually.  Such a dramatic shift in federal court jurisdiction will have major consequences for the Federal Circuit that that should be very carefully studied before any action is taken.    The impact of jurisdictional changes enacted by REAL ID as well as the Chairman’s Mark’s proposed reforms of the administrative review process should be allowed to be fully implemented before such dramatic changes are enacted.  The administrative review reforms require improved decision-making and more reasoned decisions from the Board.  Only after those have gone into effect can the need for federal court changes be assessed. It may well be that the number of cases drops significantly and that the quality of the decisions coming out of the new administrative review process makes federal court disposition less burdensome. 

In addition, the Federal Circuit would be faced with an immediate logistical and jurisprudential crisis. It would be compelled to manage thousands of additional filings, administrative records and related matters.  It would also be confronted with the need to adopt circuit “precedent” governing disposition of countless cases as well as grapple with many issues of state criminal law.  Whereas the current courts have arrangements to manage their immigration caseload, the Federal Circuit would have to erect new systems and procedures.  The likely unintended consequence would be greater cost, delay and confusion than in the current system. 

Putting review of all immigration decisions in the hands of a single federal court, isolated from the rest of the federal judiciary, would marginalize immigration and marginalize immigrants.  Immigration cases are unlike other categories of cases heard by the Federal Circuit.  Immigration law involves issues of constitutional law, administrative law, criminal law, personal liberty and habeas corpus.  Those are issues that should be considered and decided by federal appellate judges who consider the wide range of such issues in other contexts. 

Imposing “Certificate of Reviewability” Barrier to Access to the Federal Courts.  Section 707 of the Chairman’s Mark establishes “certificate of reviewability” (COR) system that would lead to the summary dismissal by a single judge of many, perhaps most, immigration appeals without a hearing and, if the 60-day time limit is not met, without any consideration at all. After a noncitizen files a brief, a single judge must decide within 60 days whether the petitioner has “establishe[d] a prime facie case that the petition for review should be granted.”  If the judge does not make the finding, the case is dismissed, any stay is dissolved and the noncitizen may be removed.  The decision of the single judge not to issue a certificate cannot be reconsidered, reviewed or reversed by the court “through any mechanism or procedure.” 

The COR procedure is unclear and unduly constrains the internal workings of the courts of appeals.  This imposes a one-judge screen on all petitions for review.  The standard of “prime facie case that petition should be granted” is unduly high as a standard to obtain review at all.  Importantly, the language of this provision does not make clear that if the prima facie standard is met, a COR must issue so that case proceeds to adjudication.   Similarly, the provision appears to allow automatic dismissal after 60 days if a single simply fails to act.  The provision must be clarified to require a decision to grant or deny the COR within the designated timeframe.  

Other problematic court-stripping provisions.   The right to judicial review is also curtailed by a number of other problematic provisions within the Chairman’s Mark.  For example, the Chairman’s Mark would strip away court review of the revocation of a visa for temporary residents (section 704), and would also overrule court precedent holding invalid the practice of “reinstating” a removal order without a hearing (section 705). 

Alternatives to court stripping.  The proposal to consolidate all immigration appeals in a single federal appellate court is the wrong solution to the wrong problem.  While the number of immigration decisions has certainly increased, the primary reason for the increase in federal appeals has not been an increase in immigration decisions.  Rather, it has been the far greater increase in the rate of appeals of immigration decisions, from just 5% to 25% in just a few years.  The increased appeals rate appears directly linked to a sharp decline in the quality of review provided by the Board of Immigration Appeals (BIA), the administrative body within the Department of Justice that reviews the hearings conducted before Immigration Judges. 

This decrease in quality is simply one facet of serious problems within the Executive Office of Immigration Review – problems that have led Attorney General Gonzales express his “concern” about “immigration judges who fail to treat aliens . . . with appropriate respect and consideration and who fail to produce the quality of work that I expect from employees of the Department of Justice.”[1]  The Attorney General, alarmed about judges who have been “intemperate or even abusive” and whose “work must improve,” recently ordered a comprehensive review of both immigration judges and the BIA.[2]

The Chairman’s Mark includes a number of positive proposals in part B of Title VII (such as increasing the number of BIA members and enhancing the BIA’s independence).  These reforms, if given a chance to work, might serve to reduce, or even eliminate, any perceived need for dramatic and radical curtailing of the constitutionally-guaranteed right of review by a federal court.  In addition, the federal judiciary certainly could use more assistance from Congress in handling the additional caseload.  In busier circuit courts of appeals, such as the Ninth and Second Circuits, many decisions are issued without oral argument, often in per curiam opinions that are initially drafted by staff attorneys rather than judges or law clerks. 

Additional resources for staff attorneys could undoubtedly offer considerable relief from the increase in immigration appeals.  Likewise, the creation of more senior staff attorney positions could aid judges in other ways, for example by providing advice on grouping similar immigration appeals so that a typical case could be considered in one argument that would obviate the need for arguments in the others.  Congress could provide very substantial resources that would provide immediate relief to the appeals courts at less cost that that required for the establishment of an entirely new court.

Indefinite Detention: Inability to Remove Leads to “Life Sentence” of Legal Limbo

Section 202 of the Chairman’s Mark would specifically authorize indefinite detention of many non-citizens – providing a life sentence for persons who have either served their criminal sentences or, in some cases, have never been convicted of a crime.

Indefinite detention applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless. DHS officials often refer to these individuals as “lifers.” “Lifers” often come from countries without good relations with the United States, such as Cuba.  While some government officials have labeled indefinite detainees as “vicious criminals” and worse, those detainees with criminal convictions are have already served their criminal sentences and would have been released if they were citizens and would have been released and sent back home if they were non-citizens from most of the countries in the world.  Nevertheless, the government asserts the power to indefinitely detain a non-citizen it has failed to remove from the United States if it decides that person may be dangerous (whether or not the person was ever convicted of a crime).

Indefinite detention is a feature we expect of repressive regimes, not of our own. The government’s authority to detain a non-citizen ordered removed derives from its purpose: effectuating removal. It is grossly unfair to detain a person forever just because the INS has been unable to remove them.  The Supreme Court agreed in Zadvydas v. Davis, 121 S. Ct. 2491 (2001), saying that a law allowing indefinite detention of immigrants who could not be deported would pose a "serious constitutional problem." Id. at 2498. The Court made clear in its analysis that preventive detention would not be allowed in the absence of "strong procedural protections." It explicitly indicated that indefinite detention would not be allowed "broadly [for] aliens ordered removed for many and various reasons, including tourist visa violations." Id at 2499.

However, that is just what the Chairman’s Mark does.  Section 202 does not even come close to satisfying the standard laid down by the Supreme Court.  It would permit indefinite detention of broad classes of non-citizens who cannot be removed, including 1) those with a contagious disease, 2) any non-citizen convicted of one a very long list of “aggravated felonies,” which is something of a misnomer and includes many less serious and non-violent crimes, as well as non-citizens who committed other crimes but whose “mental condition” creates a danger 3) non-citizens whose release would pose foreign policy problems, and 4) non-citizens charged even with very minor immigration violations who, based on secret evidence, are deemed a national security risk. 

In addition, the provision would apply to broad categories of non-citizens who have not been officially “admitted,” although they may have been paroled into the country and lived here for many years (such as many Cubans who arrived during the large migration known as the Mariel boatlift).  Finally, it extends to 6 months the period for which any non-citizen could be languish in detention after being ordered removed – even if the non-citizen has no objection to being removed – for any “immigration purpose.”

The list of persons that may be kept locked up forever under section 202 is far broader than the very narrow group of “suspected terrorists” that the Supreme Court suggested might be permitted to be detained indefinitely if Congress crafted a narrow statute addressing that situation.  Id. at 2499.  Section 202 is unnecessary because Congress already accepted the Supreme Court’s invitation to provide statutory authority for the indefinite detention of suspected terrorists.  The USA PATRIOT Act’s amendments to the Immigration and Nationality Act (at INA § 236A) already provides for potentially indefinite detention of non-citizens whose conduct either fits the very broad terrorism definitions in the INA or who are engaged in “any other activity that endangers the national security of the United States.”   INA § 236A contains significantly stronger procedural protections (including an explicit guarantee of federal habeas corpus review at least once every six months) than is contained in section 202 of the Chairmna’s mark for a far broader class of non-citizens.

Persons who have served their sentences (or never convicted of a crime at all) should be released under conditions of supervision designed to ensure their ultimate removal should removal become possible in the future.  Life-long detention in a state of legal limbo offends not only the Constitution, but basic American values.

“Employer Verification” Database Would Track Every American and Require a DHS Permission Slip to Work

The Chairman’s Mark would establish a nationwide, electronic, employee work-eligibility verification system that requires any worker to obtain government pre-clearance to start a new job.  Building such a system will cost the nation far more – in dollars, lost privacy and increased discrimination against lawful workers – than it will achieve in controlling undocumented immigrants.  And this kind of system would, for the first time in American history, give the government the power to deny any willing worker, citizen or not, the ability to obtain a job.  No willing worker should be forced to obtain the Department of Homeland Security’s permission to work, especially when that system will cause millions of work-eligible American citizens and lawful residents to be wrongly delayed or prevented from working and earning a living. 

Proponents of such a system promise that this system will be easy and convenient, and will make the problem of undocumented immigrants simply disappear.  However, building a government-run employment pre-clearance system will be complex, painful, and expensive, and will raise significant privacy issues at every step:

• Such a system will necessitate the issuance of redesigned high-tech ID cards -- likely including both Social Security cards and visa cards with biometric features -- at a cost of at least $4 billion.  Those would be linked to a massive government database containing sensitive, personally identifiable information about every resident in the United States, whatever their citizenship or visa status, posing a substantial threat to U.S. residents’ personal privacy and civil liberties. 

• Data errors and technological snafus will cause delays or denials of work opportunities for millions of citizens, hurting incomes, business productivity, and tax revenue at all levels of government. 

• All told, the system will cost the country (according to the GAO) an estimated $11.7 billion per year. 

• Additionally, the billions of tax dollars will be wasted trying to build, maintain, manage and improve a national database system in the face of what government reports have found will be enormous technological and logistical difficulties. 

This legislation will – for the first time – give the United States government the power to deny willing Americans and lawful permanent residents the ability to obtain a job.  This is an unprecedented change in policy and an unprecedented expansion in the government’s power and its relationship to the individual in our system.  All willing citizens and lawful residents have a right to work in this country, yet if these proposals are enacted, each employee will be forced to prove his or her work eligibility.  Such a system would reverse the appropriate burden – it is the government, not the employee, that should be forced to bear the burden of proving that a willing would-be worker is not eligible for employment because the documents presented are fraudulent.  Expanding the Basic Pilot or similar work-eligibility system nationwide, however, would for the first time put innocent citizens and legal residents at the mercy of databases maintained by the Department of Homeland Security and the Social Security Administration, and forces the worker into the bureaucratic nightmare of having to affirmatively prove the adequacy of their documents, or disprove inaccurate data housed in government databases.  Congress should resist this radical step.

Employers will be heavily burdened by the creation of this system. 

• Every employer will need to train employees to comply with the law’s requirements and devote substantial human resources staff time to verifying work eligibility and resolving data errors or wrongful denials of eligibility. 
• Data errors and technological problems will lead to significant delays for many employees beginning work as would-be employees are thrown into a legal limbo while errors are resolved.  This will substantially decrease productivity, particularly where the work to be performed is time-sensitive or seasonal. 
• Every employer will need to dedicate phones or computers for interconnectivity. 
• Some employers will certainly continue to flout the law’s mandates as long as no reasonable threat of worksite enforcement by ICE exists – giving unscrupulous employers a substantial competitive advantage from continuing to hire undocumented workers at depressed wages, and putting pressure on their rivals to follow suit.
  
• In the future, all employers may be forced to purchase card readers to scan high-tech driver’s licenses, Social Security and/or visa cards.

• Where delays in verifying eligibility of workers who “appear foreign” occur once, the employer may hesitate to hire those individuals, fueling immigration-related employment discrimination. 

Finally, the Chairman’s Mark does not contain adequate safeguards to protect personal privacy of peoples’ data in the database.   These safeguards should include, at a minimum,

• An explicit prohibition, in the legislation, that forbids an employer from reviewing a job applicant's eligibility status until an offer has been made and accepted by the applicant.  Failure to including this prohibition this invites employers to discriminate against those who appear "foreign," speak with an accent, etc. 
  
• Extensive privacy protections must be written into any statute creating any employer verification database that will delineate (i) who should have access to the data in a database; (ii) what data should be collected, if any; (iii) what data should be stored, if any; (iv) what data will employers need to obtain from a job applicant to verify their eligibility; and (v) how will the data be secured to prevent unauthorized access by hackers, identity thieves, immigrants seeking to evade legal requirements, immigrant smugglers, organized criminals and terrorists.  Congress cannot afford to leave decisions about any of these questions to a regulatory agency such as the Department of Homeland Security ("DHS") or the Social Security Administration ("SSA").
  
• Penalties, such as those provided in the Internal Revenue Service (IRS) database and the Census database, for violations of database security. 
  
• Language stating that the verification database “cannot be used for any other purpose other than to verify eligibility for work.” 
• Limit the data that is stored in either database to only those data elements necessary to perform verification.
• Limit the data requested from the database system to a full name and social security number or visa number.
• Where the database yields a denial, Congress should establish a fully-staffed, 24-hour hotline that allows an employee who believes they have wrongly been deemed ineligible to instantly determine what data explicitly suggests they are not work eligible and provides them with access to a process to fix any data errors. Require the government agencies maintaining the database to utilize state-of-the-art systems to secure the data and the database system, including the use of encryption and password protections.  Require that these systems be continuously updated, and that the Government Accountability Office certify that this requirement has been met before any system is phased-in.
  
• Provide for an explicit statutory sunset for the system so that Congress and the President must reevaluate the system within a reasonable period. We recommend a sunset period no greater than 4 years after the date any law is signed.  

• Additionally, we recommend that you draft statutory language requiring certification prior to implementation of any database that the system designed is (i) not likely to lead to discrimination in hiring, and (ii) protects the personal privacy of all would-be workers.  We recommend that Congress require a report from the Government Accountability Office regarding this point coupled with a trigger that the database shall not be implemented until the GAO certifies that both of these requirements are met.

Most importantly, Congress should provide a statutory trigger preventing any database from going into operation until the Social Security Administration and DHS provide enough trained staffers to resolve all inaccuracies in virtually real time.  Failure to properly staff and fund such an office will render any system impossible to maintain as errors in data lead to the wrongful denial of eligibility for many workers.  No willing, work-eligible individual should be forced to suffer even a short denial of his or her eligibility to work.  The consequences for families caught up in data errors might be disastrous.

Other Serious Problems with the Chairman’s Mark

Criminalizing Immigrants: Overbroad “Illegal Presence” Makes Criminals Out of Non-Citizens Whose Claims for Asylum or Other Relief Languish at DHS. The Chairman’s Mark would create a new federal crime of “illegal presence” – defined broadly, as any violation, even technical, of an immigration law or regulation, even without any intent to violate the immigration laws.  In essence, the bill makes every immigration violation, however minor, into a federal crime.

Immigration laws and regulations include both civil and criminal penalties.  Removal is a civil process that both determines whether a non-citizen is present legally and whether any relief (such as asylum or humanitarian relief) is available.   Some knowing violations of immigration law (e.g., immigrant smuggling, entering without inspection, failure to register when required by law) are criminal.

Criminalizing all immigration violations would have a number of serious collateral consequences.  It would:

• Potentially result in broad involvement of state and local police in immigration laws.  Many state and local police departments reject involvement in arresting undocumented immigrants for purely civil immigration-related violations because such involvement would drive a wedge between local police and immigrant communities and their legal authority to engage in civil immigration enforcement is not clear.  Some police departments have entered into legal agreements with DHS to engage in civil immigration enforcement using specially-trained officers.  If civil immigration violations are criminalized, state and local officers may become involved in civil enforcement and deportation through the back door of enforcing the new crime of “illegal presence.”
  
• Penalize immigrants with valid asylum claims or other valid claims for relief.  The bill would turn into criminals non-citizens whose claims for immigration benefits have not yet been adjudicated.  Persons fleeing persecution who are on a temporary visa may have their visa expire before their asylum claim is adjudicated.  Under the bill, they would become criminals subject to imprisonment even if they are subsequently granted asylum.  Other forms of relief – like temporary protected status (TPS), granted by the President to countries that suffer natural disaster – give temporary relief from deportation.  The government’s decision to grant asylum, TPS or another form of relief would not necessarily wipe away the consequences of even a technical period of “illegal presence,” despite the fact that the immigrant never intended to violate any law and applied for relief in the correct manner.

Finally, the overbroad definition of “smuggling” at section 202 could criminalize the work of churches or refugee organizations acting in good faith.  Harboring anyone who is illegally present is made a crime, even with no intent of financial gain.  An asylum-seeker with a valid claim may be illegally present for some period, which would make it criminal for churches or refugee organizations to try to help them – treating such organizations the same as smuggling organizations.

Militarization of the Border Hasn’t Worked.  The Chairman’s Mark (at Title I) mandates  more use of high-tech and military equipment for border enforcement.  Since 1996, the government has consistently used ever more sophisticated military-style surveillance equipment, physical barriers (including walls, fences, and highways doubling as border barriers), and has dramatically increased the number of Border Patrol agents  However, more money and agents hasn’t led to fewer undocumented immigrants.  From 1993 to 2004, the number of Border Patrol agents tripled (from about 4000 to about 11,000) and the amount of spending has gone up five times (from $740 million to $3.8 billion), yet the number of undocumented immigrants doubled (from 4.5 million to 9.3 million).

Militarization of the border has only led to terrible numbers of migrant deaths.  Barriers, more agents, and more militarization of the border has not stopped illegal immigration on the Southwest border, but has instead shifted such immigration to ever more remote and dangerous areas of the border.  Migrants crossing at “non-traditional” sectors increased from 29% in 1988 to 64% in 2002.  Nearly 2000 have died during that same period (1988 to 2002).

Footnotes

[1] Memorandum of the Attorney General to Members of the Board of Immigration Appeals, January 9, 2006 (on file with author).
[2] Id.