Proposal Expands Harsh, Wasteful Criminalization of Border Crossers
April 16, 2013
The Senate proposal could prove a watershed moment in the history of US immigration by bringing millions of people out of the shadows. But the proposal still threatens the rights of migrants to family unity and due process.
Alison Parker, US Program director

(Washington, DC) – The United States Senate is set to take an important step toward establishing landmark protections for unauthorized immigrants. The plan could grant eventual legal status to millions of people and reduce their vulnerability to human rights abuses.

A summary of the proposed Senate Border Security, Economic Opportunity and Immigration Modernization Act was made public on April 16, 2013, outlining significant changes to the complex array of immigration laws in the United States. The bill is set to be considered by the full Senate starting on April 17.

“The Senate proposal could prove a watershed moment in the history of US immigration by bringing millions of people out of the shadows,” said Alison Parker, US program director at Human Rights Watch. “But the proposal still threatens the rights of migrants to family unity and due process.”

Unfortunately, the Senate proposal would fund a major expansion of criminal prosecutions for crossing the country’s southern border. Even more illegal crossers may end up serving prison time, even though existing laws already allow deportation for illegal crossers. These prosecutions fail to target genuine threats to public safety or national security and impose tremendous human and financial costs, as Human Rights Watch will detail in an upcoming report. Prosecutions should not be expanded without careful consideration of whether they meet their purported goals.

“Prosecutions of migrant crossers are unnecessary and wasteful when deportation is already permitted,” Parker said. “The US government should not misdirect its energies and resources to prosecute and imprison people seeking to reunite with family, flee violence, or seek work.”

While the proposal would establish a method by which unauthorized immigrants could regularize their status, it denies people with felony convictions or three misdemeanors even the possibility of legal status. The proposal is unclear whether disqualification would allow for exceptions depending, for example, on whether the felony was nonviolent, the conviction occurred long ago, or the immigrant has since demonstrated rehabilitation or maintains strong nuclear family relationships in the US.

The proposal calls for strengthening prohibitions against racial profiling in enforcing immigration laws, which would help curtail discrimination against immigrants and the broader public. It would also beef up training of immigration agents to address the growing problem of their misuse of force.

The proposal also extends an opportunity for legalization to those who have been deported without criminal convictions and youth who would have qualified under the proposed DREAM Act.

Important details that could determine the overall fairness of the proposal remain unclear. The specifics of who will be allowed or disallowed access to legal status are key factors. Also, the proposal requires that the US border be considered secure, but it remains unclear by what standard the government is to determine that. Critical issues such as extending legalization opportunities to same-sex partners of US citizens are not addressed in the proposal.

Human Rights Watch has been analyzing US immigration policy for over 20 years, establishing extensive research on issues relevant to the current immigration reform discussion. This work includes important critiques of US treatment of immigration detainees, child immigrants, and victims of workplace violations and sexual assault, and of ad hoc attempts by state and local governments to limit immigrants’ rights.

The new Senate bill was agreed to by a bipartisan group of senators informally called the “Gang of Eight.”

“Senators should take the coming weeks to ensure this bill better protects everyone’s rights,” Parker said. “Reform of this magnitude needs to be comprehensive and cannot exclude whole groups of immigrants whose rights today are being violated.”