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Via @NILC_org : Summary of H.R. 2278, the “Strengthen and Fortify Enforcement Act”

June 17, 2013


Summary of H.R. 2278, the “Strengthen and Fortify Enforcement Act”

(The SAFE Act)

 The SAFE Act was introduced in June 2013 by the House of Representatives’ Immigration Subcommittee Chairman Trey Gowdy (R-SC) with the support of the House Judiciary Committee Chairman Bob Goodlatte (R-VA).  If enacted, the SAFE Act’s single-minded focus on immigration enforcement will increase in detentions and deportations, and create an environment of rampant racial profiling and unconstitutional detentions without fixing the immigration system’s problems.  Below is a summary of key sections of the SAFE Act.

 Grants states and localities full authority to create, implement, and enforce their own criminal and civil penalties for federal immigration violations so long as the penalties applied do not exceed those under federal law.  This provision would directly overturn the Supreme Court’s decision last year in Arizona v. United States, 132 S. Ct. 2492 (2012, which reaffirmed that states cannot enact their own criminal penalties for violations of federal immigration law, even when the state law mirrors the federal provision.  Allowing all 50 states and countless localities to enact their own immigration enforcement laws is unworkable and will decrease public safety and adversely impact our nation’s foreign relations.

 Allows state and local law enforcement to investigate, identify, apprehend, arrest, and detain people in violation of immigration laws and to transfer them to federal immigration authorities.  This is an unfettered delegation of immigration enforcement authority to localities, allowing them to arrest and detain people based on nothing more than more than mere suspicion that a person has committed a civil immigration violation.  Local officers with minimal training in the complexities of immigration law cannot be expected to implement federal immigration law appropriately or uniformly. 

 Requires the federal government to assume custody over every person identified by a state or local government as inadmissible or deportable upon request by such agency.  Such persons must be held in detention in a federal, contract, state, or local prison, jail, detention center, or other facility.  This section takes away the ability of the Secretary of Homeland Security to exercise discretion in deciding whether a person should be released on bond, under an order or supervision, or on their own recognizance rather than continuing to detain a person. 

Allows state or localities to detain people who are inadmissible or deportable for 14 days after the completion of their jail or prison sentences in order to transfer the person to ICE custody.   This unprecedented and unconstitutional expansion of detention authority hinges on an untrained local officer’s determination of whether a person is inadmissible or deportable.

This section also allows state and local law enforcement officers, untrained in federal immigration law, to issue an immigration hold (detainer) and to detain the individual indefinitely until the Department of Homeland Security (DHS) assumes custody.  This completely unchecked authority to detain individuals in prison for 14 days or longer will result in the prolonged detention of U.S. citizens and lawfully present immigrants.

 Makes changes that would expand the failed 287(g) program. This provision strips away federal control by requiring that DHS accede to any state or local jurisdiction’s request to participate in the program, except where a “compelling reason” exists to refuse participation.  Under current law, either DHS or the state or local party to the 287(g) agreement may terminate for any reason, however this provision restricts DHS’ ability to terminate.  This is particularly problematic given the many documented abuses by deputized state and local officers that have occurred under the program. 

 Requires state and local law enforcement agencies to provide extensive information regarding every noncitizen “apprehended” who is “believed to be inadmissible or deportable.”  This provision represents a dramatic expansion of existing law (8 U.S.C. §§ 1373 and 1644) by requiring extensive information sharing, which will tax local law enforcement resources and drive a wedge between communities and the police.

 Requires that the National Crime Information Center (NCIC) database be filled with millions of noncriminal records pertaining to non-citizens who have overstayed visas, received voluntary departure or final orders of removal, or have had their visas revoked.  This would clutter up the NCIC, a critical tool for law enforcement, and local law enforcement officers using the system would have to waste precious time deciding whether a “hit” in the system merited action.  Law enforcement chiefs and associations oppose such changes. 

 Prohibits states and localities from limiting compliance with ICE detainer requests and from issuing policies, resolutions, or ordinances that restrict local cooperation with federal law enforcement.  This section is a direct response to a number of jurisdictions—most prominently Cook County, Illinois—that have adopted policies or ordinances setting guidelines for when local law enforcement will extend the detention of a person based on an ICE detainer request.  This undermines the ability of state and local agencies to direct their policing resources based upon the public safety needs of the communities they serve.

 Expands the crime of illegal entry, and criminalizes overstaying a visa.  This section removes the traditional limit on the crime of illegal entry, which only criminalized individuals apprehended while entering the United States and instead makes it a continuing offense until the time an individual is discovered by federal officials.  The section also criminalizes overstaying a visa, even if by a single day, and regardless of any compelling circumstances.

 Attempts to authorize the indefinite detention of persons who have been ordered removed.  In Zadvydas v. Davis, 33 U.S. 678 (2001), the Supreme Court held that indefinite detention of a non-citizen who has been ordered removed, but whose removal is not significantly likely to occur in the reasonably foreseeable future, would raise serious constitutional concerns.  This section attempts to overturn the Zadvydas decision except for a narrow category of cases.  Worse the provision also appears to restrict court review of indefinite detention for individuals who cannot be removed and limits the decision to continue to detain to the sole discretion of DHS. 

 Creates new grounds of inadmissibility and deportability for persons whom DHS knows or “has reason to believe” are current or former members of a criminal gang.  Such persons would be subject to mandatory detention and barred from receiving asylum and Temporary Protected Status.  This would sweep in people who have never been convicted of a crime and are merely suspected of being in a gang, as well as people who are erroneously listed on gang databases due to living in neighborhoods with gang activities.

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