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Reading The Fine Print, Part 3: Title II: Send Lawyers, Clerks, Judges, And Background Checks

Sunday, May 20, 2007  |  posted by Hugh Hewitt

Title II takes us into the tall weeds of immigration law and practice, and I yield the floor to anyone who actually practices in the area, and assume that the changes proposed to various standards and proceedings are sound ones which reflect a consensus among practitioners as to overdue reforms. 

Title II opens up with a substantial hike in trial attorneys for various agencies, adjudicators, judicial clerks and immigration judges etc. Fine.  This assumes a much greater caseload, the result it seems of an anticipated upsurge in prosecutions (though given the enormous regularization that is also going to be unleashed by the bill, it seems counter-intuitive to assume a spike upward in caseload when nearly all of the immigrants in the country illegally will suddenly be immunized from prosecution, but I digress.)

There are useful new crimes detailed, such as Sec. 1541’s criminalization of “Trafficking in passports,” and Section 1543’s “Forgery and unlawful production of passports.”  Sec. 1545’s “Schemes to defraud aliens” stands out as not part of immigration reform per se, but as a very vague and potentially far-reaching new federal crime:

 “Any person who knowingly executes a scheme or artiface, in connection with any matter that is authorized by or arises under Federal immigration laws or any matter the offender claims or represents is authorized by or arises under Federal immigration laws to (1) defraud any person, or (2)obtain or receive money or anything else of value from any person, by means of false or fraudulent pretenses, representations, or promises, shall be fined under this title, imprisoned not more than 15 years, or both.”

Law schools with Immigration Clinics had better take a long look at this one before a 2L gets carried away with his or her advice.

You’ll be pleased to know that Sec. 213 prohibits the sale or possession of firearms by  “certain aliens.”

You will be alarmed, perhaps, that elsewhere the Secretary is ordered to study “alternatives to detention,” which is odd since the end of catch and release is so prominently advertised as a selling point of the new law.


I brought up in my interview with Tony Snow Friday the fact that everyone knows the federal governmnt simply lacks the ability to conduct millions of background checks on the illegal aliens who will be regularized by the law.  The law provides they get probationary status upon filing their forms, so imagine a stack of 12 to 20 million folders, each full of a variety of documents.  Anyone who has ever processed a loan application or checked references for a job applicant knows what happens next –a long, time-consuming an inexact hunt for confirming information which, more often than not, is abandoned and the paper pushed on.

Sec. 216 wonderfully looks ahead into the future of the background check program, and declares that

(1)IN GENERAL –The Secretary of Homeland Security and the Attorney General shall establish an interagency task force to resolve cases in which an application or petition for an immigration benefit conferred under this Act has been delayed due too an outstanding background check investigation for more than 2 years after the date on which such application was initially filed.”

The section also authorizes the FBI to receive “such sums as are necessary for fiscal years 2008 to 2012 for enhancements to existing systems for conducting background and security checks necessary to support immigration security and orderly processing of applications,” but does not begin to quantify what those sums are, or how the FBI –in a time of real terror threats such as the Fort Dix Six– is supposed to staff up for the deluge.

The section also wants a report six months after the convening of the task force which will provide (A) a description of the background and security program; (B) a statistical breakdown of the background and security check delays associated with different types of immigration applications; (C) a statistical breakdown of the background and security check delays by applicant country of origin and (D) the steps that the Director of the Federal Bureau of Investigation is taking to expedite background and security checks that have been pending for more than 180 days.

This section tells us that the bill’s drafters are anticipated system breakdown and perhaps even paralysis.  They are convening the scapegoat search two years before the first application is due because there is simply no way that the proposed application process can work.

We are about to swamp the FBI with a tidal wave of paperwork.  Not only is this foolish in the extreme, the hint that “country of origin” might be a marker worth examining in the future suggests that we know going in that we won’t be able to verify much of the data on criminal backgrounds from some countries where justice systems either don’t exist or aren’t credible –say Afghanistan and Somalia.

But what happens with such applications?  The applicants receive probationary benefits, and their applications get pushed further and further into corners of offices overwhelmed with folders until, eventually, they are thrown out.

Perhaps the draft law has some provisions deeper in about managing this obvious impossibility, but it seems that this would have been the place to put the answers –if there were any.


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