Amnesty Dead But Won't Lie Down – Sneaks Into Sensenbrenner's Immigration Bill

Don't blink. The next major immigration bill in Congress may pass the House of Representatives before you know it.

The "Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005"—H.R. 4437 [PDF]—was introduced on December 6 by Rep. James Sensenbrenner, Jr. (R-Wisconsin), Chairman of the House Committee on the Judiciary. The committee promptly approved the bill two days later on December 8.

H.R. 4437 is expected to be considered by the full House this week—specifically on Thursday, according to the immigration reform group Numbers USA. The bill currently has 22 cosponsors.

First of all, H.R. 4437 is amnesty-free. No new "guest workers" or "temporary workers" are in sight.

But that does not necessarily prevent the Senate from adding an illegal alien amnesty plan to their version of the bill, and forcing the issue behind closed doors at a House-Senate conference committee where dangerous compromises come with the territory.

H.R. 4437 has some excellent immigration law enforcement provisions, including some of the offerings from the TRUE Enforcement bill (H.R. 4313)—the amnesty-free "border fence bill" introduced by Congressmen Duncan Hunter (R-CA) and Virgil Goode (R-VA).

In fact, certain sections of H.R. 4437 incorporate some but not all of the much-needed amendments to the Immigration and Nationality that I've been writing about in my ongoing wish-list on VDARE.com:



Unfortunately, the news is not all good:

  • Section 407—Section 235(b) Expedited Removal—H.R. 4437 undercuts the laws already on the books by scaling back the expedited removal authority granted (but never implemented) by Congress in 1996. The bill allows the summary removal of illegal aliens found within 100 miles of a land border within 14 days of entry. But in 1996 Congress previously authorized the removal of any alien found anywhere in the U.S. within 2 years of entry!

And there's one part of the bill that really caught my attention—"Title VII, Employment Eligibility Verification."

Sections 701 through 707 of H.R. 4437 set up a curious plan which appears to revive the shamelessly-unenforced employer sanctions provisions of Immigration Act Section 247.

But there's a catch. The employers don't actually have to fire the illegal aliens!

Section 702 states:

(v) CONSEQUENCES OF NONVERIFICATION—(I) TERMINATION OR NOTIFICATION OF CONTINUED EMPLOYMENT—If the person or other entity has received a final nonverification regarding an individual, the person or entity may terminate employment of the individual (or decline to recruit or refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the verification system or in such other manner as the Secretary may specify.

So there you have it—may terminate employment of the individual . . . the smoking gun of non-enforcement.

As currently written, the employer-friendly H.R. 4437 doesn't say "shall terminate" the illegal alien's employment. There's also no mention about what is going to happen to the illegal aliens who attempt to seek employment and are discovered by the verification system. Nothing saying that the employer "shall immediately alert the nearest Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) office about the illegal alien's presence." That would be too good to be true.

In fact, when employers use the new employment verification system, they can do so virtually risk-free. Section 701 of the bill, which amends Immigration Act Section 274A(b)(7)(J), states that "[n]o person or entity shall be civilly or criminally liable for any action taken in good faith reliance on information provided through the employment eligibility verification mechanism . . ."

So H.R. 4437 sees to it that employers are immunized from any criminal or immigration law liability, including Immigration Act Section 274 felony prosecutions, civil RICO violations, immigration-related discrimination against U.S. workers.

A VDARE.COM reader who tipped me off to the lurking danger of the bill's toothless employer sanctions enforcement had this to say via e-mail:

"Remember that the amnesty lobby's main argument is that if we know who the illegals are, there is no need to remove them, very bad criminals and terrorists excepted. Under Sensenbrenners' system, if employers register their employees with DHS, they are not required to terminate workers without lawful status.

"The bottom line: illegals continue working, without legal protections and experiencing exploitation, and the employers continue to hire illegal aliens, with almost no risk. With the status quo maintained, Congress would likely find an amnesty guestworker bill that legalizes the status of all workers registered with the system very attractive. This is a devilishly clever move."

So with the DHS having no employer sanctions enforcement program to speak of in effect now, what makes us believe that the federal government will enforce any of the new requirements in H.R. 4437 either?

When a non-verified illegal alien is recorded in the system, the DHS will know which companies they are coming from (through the data trail of requests in the system itself).

But there's also an assumption with the bill here that employers will actually use the H.R. 4437 verification system! Why wouldn't unscrupulous illegal alien-hiring outfits just keep employing the illegals off-the-books without using the verification system at all . . . since they don't give a damn whether the aliens are illegal in the first place? 

The VDARE.COM reader also addressed the employer sanctions aspect of the bill:

"There is still a rebuttable presumption of violation of [Immigration Act section] 274A, but given the current non-existent enforcement regime, what Sensenbrenner is proposing is essentially a giant bureaucratic safe harbor bill that lets employers continue to hire illegals. 

"Thus, the only remaining liability will be an administrative civil penalty action, and everyone knows DHS abandoned the civil penalty process years ago—this year only two companies in the entire U.S. were fined for 274A violations. Thus—effectively, Sensenbrenner sets up a de facto illegal worker parole program. The employers can keep the illegals on the payroll, with only a very theoretical risk of administrative fines. And for 90% of businesses—i.e. for employers will payrolls under 60 workers—the maximum fines are scaled back 40 to 60%. Instead of employer sanctions, we have an intermediate preparatory program to prescreen aliens for a follow-on guestworker amnesty.

"And remember, for all workers except those on federal contracts and sensitive infrastructure, nothing will change for six years!"

From reading the bill myself, I have no reason to dispute the reader's impressions.

Specifically, Section 703 of the bill creates a timeframe where all employers won't be obliged to use the system—to verify whether their employees are illegal or not—until six years after enactment of the bill. Only companies dealing with "critical infrastructure," including government, military, airports and nuclear energy facilities, etc., will be required to use the system…after three years.

So for now, and for the next six years, the status quo of pie-in-the-sky fictionalized employer sanctions "enforcement" will continue.

And if H.R. 4437 becomes the law of the land, the DHS might someday even have a database chock full of future "guest workers"—and a list of "willing workers" and "willing employers"—just waiting for the next amnesty.

ABOUT Juan Mann:

Juan Mann is an attorney and the proprietor of DeportAliens.com. He writes a weekly column for VDARE.com and contributes to Michelle Malkin's Immigration BLOG.