Expanding The Harsh Penalties For Immigration Related Offenses

BACKGROUND: Our immigration laws already impose civil and criminal penalties for a number of immigration and immigration-related offenses, including illegal entry and reentry, alien smuggling and immigration document fraud.  The Senate immigration bill increases the criminal penalties for these status offenses. Some of the bill’s statutes essentially re-define status related offenses; others target conduct that relates to immigration or nationality. Maximum penalties for all these crimes are radically expanded under the Senate bill.

THE PROBLEM: The Senate bill increases the criminal penalties for what are little more than status offenses, which further criminalizes the immigrant population and metes out harsh consequences that are wasteful, unjust, and unnecessary. Many of the amendments introduced will make it easier for people to get convicted for using fake documents in order to work or enter the country, and make the mandatory minimums for these crimes even harsher.

THE SOLUTION: People sacrifice so much to come to the United States to make a better life, sometimes to escape desperate poverty and violence. Many are families with children. They work hard, pay their taxes, and volunteer in their communities. Penalties for illegal reentry are already severe; the law should not be expanded or made harsher. Instead, these laws should be changed to reflect the underlying goals of bringing aspiring Americans out of the shadows and providing a pathway to citizenship. Punishing people with long prison sentences for trying to reunite with their families or work in the United States undermines these goals.

TALKING POINTS

  • Penalties for illegal reentry are already severe; the law should not be expanded or made harsher. Instead, these laws should be changed to reflect the underlying goals of bringing aspiring Americans out of the shadows and providing a pathway to citizenship. Punishing people with long prison sentences for trying to reunite with their families or work in the United States undermines these goals.  .
  • The federal criminal prosecution of immigration offenses is at an all-time high, already overwhelming federal courts and taking up valuable resources.
  • Increased criminalization of status offenses and penalties is unnecessary and wasteful. At a time when the federal criminal justice system is already diverting extraordinary resources to immigration status-related offenses, such policies misdirect precious federal resources.
  • Among those who would be punished by these enhanced penalties are asylum seekers who have fled prosecution and are attempting to find refuge in the United States.  Victims of human trafficking would also potentially be prosecuted under these proposals.
  • Individuals that are simply trying to work, and make up a social security number in order to do so, would be prosecuted under the new crime of social security fraud and potentially imprisoned for up to 5 years.
  • The Department of Justice testified to Congress that increased penalties for border crossing were not needed and that district attorneys should be given more discretion when considering these cases.

RELEVANT AMENDMENTS

BACKGROUND: A series of amendments were introduced that sought to worsen the Senate bill’s provisions. Many of these amendments make it easier for people to get convicted for using fake documents in order to work or enter the country, and make the mandatory minimums for these crimes even harsher.

Several amendments expand the federal crimes for identity theft: Grassley Amendment #34 and Hatch Amendment #1.

6/18/2013 update: These amendments were re-filed as Grassley 1300 and Sessions 1334.

These amendments will punish people for using fictitious documents, even when no one’s identity is stolen.  Under these amendments, a person who uses a document that is not their own will be found guilty, even if the document was fictitious because it used fake numbers that never belonged to anyone else.

Congress already provides for significant civil and criminal sanctions for knowing possession and use of false documents. For example, it is a crime to (1) unlawfully use a Social Security number (42 U.S.C. § 408(a)); or to (2) possess or use of a false identification document (18 U.S.C. § 1546(a)).  People who present false identification documents are already subject to serious immigration consequences.  For example, a person with a conviction under 18 U.S.C. § 1546(a) who receives a prison sentence of a year or more imprisonment can be charged with an aggravated felony under 8 U.S.C. 1101(a)(43)(P) and, accordingly, be barred from nearly all forms of immigration relief.

These amendments create a new definition of identity theft contrary to the definition of “identity theft” widely accepted by and implicit in the statutory provision. The legislative history of this statute suggests that penalties were supposed to apply where the offender would know that the identity taken belongs to a real person. This amendment also threatens to impose aggravated identity theft penalties on individuals who present inaccurate credentials in an effort to protect their privacy through pseudonyms or anonymous activities.

This amendment will overturn the Supreme Court’s 7-2 decision in Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009).  The punishment is wildly disproportionate to the offense. Individuals who know that the documents they are using are fictitious face the same punishment as people who have intended to steal another’s identity, contravening the bedrock principle that punishment should be calibrated to culpability.  This amendment will not punish people who steal someone else’s documents, but will sweep in people who use made-up documents.

Flores-Figueroa stands for the proposition that individuals who use a fictitious identity document – rather than another person’s document – are not guilty of a crime. This amendment would drastically expand this federal criminal statute to imprison people who use an entirely made-up identity.  This not only wastes law enforcement resources on situations where no one’s identity has been stolen, but will also ensnare large numbers of people who were simply trying to work to support their families.

These provisions could impact:

1) Members of a fraternity in Florida who use a fake I.D to purchase liquor for a party;

2) An employer’s use of a fake document to hire an unauthorized worker, leading to hefty penalties;

3) An asylum applicant who uses a fake passport

4) An undocumented immigrant who pays federal income taxes under a made-up identity.

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Download PDF of Immigration-Related Offenses Talking Points or  IJN’s Criminal Bars to Legalization Packet