CLEAR Act (H.R. 3137)

Homeland Security Enhancement Act (S. 1362)

• State and local police are badly needed to help overwhelmed federal im
migration authorities apprehend and detain illegal aliens in the interior of our country.

• Bills have been introduced in Congress to encourage and facilitate such collaberation between federal and state/local law enforcement (and improve interior enforcement by other means too).

Here is why the bills are so badly needed:

• Illegal aliens outnumber federal immigration agents by 5,000 to one. Only 2,000 are active in enforcing the immigration laws in the interior of our country. This number is too small to apprehend more than a fraction of the illegal alien population now here (estimated by most experts to be at least 10 million [that's at least 5,000 per agent], with hundreds of thousands more arriving every year). The depressing fact is that an illegal alien who successfully crosses the border and enters the interior faces little risk now of apprehension — whether the alien is a terrorist, a drug runner, or just one more worker eager to join the millions already here driving down the wages of Americans and adding to so many other problems the nation faces. And there doesn't appear to be much chance in the near future that the number of federal agents assigned to interior enforcement will reach anywhere near the level that would be required for the feds to do the job by themselves.

• More than 600,000 state and local law enforcement officers already come into contact with illegal aliens every day. Many of them, in the course of their normal duties on their regular beat, routinely observe and even stop illegal aliens — for example for traffic violations. And the vast majority of these officers believe deeply in the rule of law and want to help protect the security of their country. Yet many are unsure of their authority and hence do nothing. The officers who do arrest such aliens, and then contact federal immigration officials, are frequently told to release the aliens unless a nonimmigration offense is involved (because of a lack of federal personnel to process them or facilities to detain them). Some officers are even prohibited from cooperating with federal officials by state or local laws or policies, adopted for parochial political purposes or a concern for the well-being of illegal aliens rather than the American people.

• Legislation such as the CLEAR Act (H.R. 3137) and the Homeland Security Enhancement Act (S. 1362) would require the federal government to respond to state and local requests to pick up illegal aliens who have been detained. H.R. 3137 was introduced in the House of Representatives on June 30, 2005 by former Rep. Charlie Norwood (R-Ga.) and 44 co-sponsors. S. 1362 was introduced on the same day in the Senate by Sen. Jeff Sessions (R-Ala.) and 3 co-sponsors.

Summary of the CLEAR Act (H.R. 3137)

1. Clarifies that states have the authority to enforce immigration law. The bill clarifies the inherent authority of states to arrest and detain, and also to transport to federal custody, aliens who are suspected of having violated federal immigration law — and declares that this authority has never been preempted by a federal law.

2. Requires that the federal government take custody of illegal aliens arrested by state or local law enforcement officials — and provide reimbursement for the costs of detaining and transporting the aliens. If a state or local law enforcement agency arrests an alien suspected of being illegal and asks the Department of Homeland Security (DHS) to take custody, the federal agency must either (A) take the alien into federal custody and incarceration within 48 hours [Senate bill: 72 hours], or (B) request that the state temporarily incarcerate the alien or transport the alien to federal custody. DHS must reimburse the state or local government for its reasonable expenses in detaining or transporting the alien. The bill authorizes $500 million a year for that purpose.

3. Requires that all aliens who violate immigration law be entered into the National Crime Information Center (NCIC) database, greatly increasing the ability of state and local police to apprehend them. NCIC is an FBI-run computer database used millions of times a day by federal, state, and local authorities when they stop or arrest someone. It contains information about individuals who have a criminal record, or fit into a few other categories, including a limited group of immigration-law violators (felons convicted and deported for drug trafficking, firearms trafficking, or serious violent crimes; aliens who have violated the requirements of the National Security Entry Exit Registration System [NSEERS]; and aliens who have unlawfully remained in the country after being ordered removed) . Adding to NCIC all immigration law violators — including all those who have been ordered removed or agreed to voluntarily depart, and all those who have overstayed their visa or had their visas revoked — would enable state and local law enforcement personnel to determine quickly and easily whether an individual they confront may be an illegal alien.

4. Creates a new criminal offense and new civil penalties for unlawful presence in this country. Also increases the criminal and civil penalties for unlawful entry. These changes will provide additional incentives for aliens to obey immigration laws, and the new criminal offense will provide an additional ground on which to apprehend and detain aliens who do not obey. The new offense is a felony in the House bill, punishable by imprisonment for a minimum of one year and a day, a fine, or both (with a defense for certain visa overstayers based on hardship or illness). In the Senate bill it's a misdemeanor, with a maximum prison term of one year, but in addition the alien's assets will be subject to forfeiture. The bills also increase the maximum prison term for a first offense of illegal entry to one year (it's now 6 months). In addition, the House bill increases the civil monetary penalties on aliens apprehended while entering at an unauthorized time or place; and provides the same penalties for aliens who enter the country without inspection, or fail to depart within 30 days after the expiration date of their visa or voluntary departure agreement or the date of a final order of removal.

5. Increases the number of federal detention facilities. DHS is required to build or acquire 20 more detention facilities in the United States, with a total of at least 10,000 beds, so that more aliens can be detained pending their removal or a decision on their removal.

6. Additional provisions —

• encourage state and local governments to provide DHS with information on suspected illegal aliens (and reimburse them for the costs of doing so); to otherwise assist in the enforcement of immigration law (and provide grants to facilitate this assistance); and to change laws or policies that prohibit their police from cooperating with federal agents in immigration law enforcement (the House bill requires a cut-off of funds under the State Criminal Alien Assistance Program [SCAAP] for a state that has such a law or policy. SCAAP provides assistance to states for the incarceration of illegal aliens who commit crimes);

• provide that state and local police, acting within the scope of their official duties, shall be immune, to the same extent as federal officers, from personal liability for enforcing the immigration laws;

• require DHS to train state and local police in immigration law enforcement;

• extend the institutional removal program to all states, and authorize funding through 2011. (Under this program, DHS takes custody of criminal aliens when their prison terms are completed, and removes them from the United States.)

For additional details, see the NumbersUSA Proposed Immigration Bills in the current Congress page, which links to the bill itself, and to other relevant information.

B. Summary of the Homeland Security Enhancement Act (S. 1362)

[Note: Except as stated, the details of S. 1362 are the same as in H.R. 3137, the CLEAR Act.]

1. Clarifies that states have the authority to enforce immigration law.

2. Requires that the federal government take custody of illegal aliens arrested by state or local law enforcement officials — and provide reimbursement for the costs of detaining and transporting the aliens. The time limit for DHS to take custody is 72 hours in S. 1362, rather than the 48 hours specified in the House bill.

3. Requires that all aliens who violate immigration law be entered into the National Crime Information Center (NCIC) database, greatly increasing the ability of state and local police to apprehend them.

4. Creates a new criminal offense for unlawful presence in this country. Also increases the criminal penalty for unlawful entry. The new offense is a misdemeanor in the Senate bill, with a maximum prison term of one year. [In H.R. 3137, the minimum term of imprisonment for the offense, a felony, is one year and a day.] S. 1362 also provides that the alien's assets will be subject to forfeiture. Unlike the House bill, S. 1362 does not provide for any change in civil penalties.

5. Increases the number of federal detention facilities.

6. Additional provisions —

• encourage state and local governments to provide DHS with information on suspected illegal aliens (and reimburse them for the costs of doing so); to otherwise assist in the enforcement of immigration law (and provide grants to facilitate this assistance); and to change laws or policies that prohibit their police from cooperating with federal agents in immigration law enforcement [unlike the House bill, S. 1362 does not require a cut-off of funds under the State Criminal Alien Assistance Program [SCAAP] for a state that has such a law or policy.);

• provide that state and local police, acting within the scope of their official duties, shall be immune, to the same extent as federal officers, from personal liability for enforcing the immigration laws;

• require DHS to train state and local police in immigration law enforcement;

• extend the institutional removal program to all states, and authorize funding through 2011.

http://www.numbersusa.com/hottopic/clearact.html