Criminalizing unlawful presence

It’s been more than a decade since the massive immigrants’ rights marches of 2006, but the images remain palpable. Millions of immigrants and their allies took to the streets in the country’s major urban centers and small towns alike. Had it been enacted, Representative James Sensenbrenner’s infamous bill, H.R. 4437, would have criminalized presence in the United States in violation of immigration law.

Today, the House Judiciary Committee takes up a bill that revives Sensenbrenner’s failed attempt. The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, H.R. 2431, threatens to ratchet up the severity of immigration law by tapping the federal criminal justice system. Among its most pernicious components is language criminalizing illegal presence in the United States. The act would amend section 275 of the Immigration and Nationality Act, the provision which currently punishes entering the country without the federal government’s permission. H.R. 2431 would add “knowingly violat[ing] the terms or conditions of the alien’s admission or parole” or “knowingly [being] unlawfully present in the United States” with up to six months imprisonment. Section 314. The first provision would criminalize knowingly staying in the United States after temporary permission has expired. The second provision would criminalize knowingly entering clandestinely.

This is no minor adjustment. It represents a radical transformation of United States immigration law. For over a century, unlawful presence in the United States has been a civil infraction of immigration law meriting, at most, removal. If enacted, the act would turn that civil infraction into a crime punishable by as much as twenty years imprisonment. It is impossible to know how many of the 11 million or so people currently in the United States without the federal government’s permission could be prosecuted under H.R. 2431’s new crime, but it is safe to assume that the act’s sweeping language is meant to include a substantial percentage.

Already immigration crimes are, by far, the most frequently prosecuted type of federal crime. In fiscal year 2016, for example, 68,314 people were prosecuted for illegal entry and illegal reentry. Not surprisingly, immigration crime prosecutions also lead many people to time behind bars. In FY 2013, almost 100,000 people were held in pretrial detention pending prosecution for a federal immigration crime.

H.R. 2431 would throw this trend into overdrive. Federal law enforcement officers, prosecutors, and courts would be likely to see a substantial increase in the number of immigration criminal prosecutions. Without a major funding increase from Congress, the federal law enforcement agencies and courts would be hard-pressed to keep up. They would either have to deprioritize the other types of crime that they currently focus on or simply put these new immigration crimes on the backburner. The fiery speech that Attorney General Sessions delivered in Arizona last month suggests that the Justice Department would prefer to see federal law enforcement officers, prosecutors, and courts go after immigration offenders—the “filth” as Sessions put it.