Rule of Law

How Senate Immigration Bill Helps Terrorists, Criminals Stay in America

The inches-thick Senate immigration bill has so many flaws, it would take a book to list them all. The flaws provide ample reason for House members to refuse to pass immigration reform, as otherwise, a flaw removed may reappear in a conference report.

The biggest flaw: the bill would help terrorists and criminals call America home. This truth hasn’t stopped those supporting “comprehensive immigration reform” from pushing the falsehood that the Senate bill will increase American safety and security by encouraging people who are here illegally to come “out of the shadows.” The claim is nonsense. Here’s how the Senate bill aids criminals and even those who might aid terrorists, like those involved in Boston.


The Senate bill, while spending massive sums to station more bodies and equipment at the southern border, does nothing to help interior enforcement track down immigrant criminals “living in the shadows.” Nothing is done to remove those in the United States who have already been denied the right to stay due to their criminal record.

As an example, let’s analyze what would happen with the two students from Kazakhstan who were friends with the Boston Marathon bombers: Dias Kadyrbayev and Azamat Tazhayakov. They were both in court recently facing obstruction of justice charges for allegedly helping to cover up the bombings. They are both also being held on immigration violations for remaining in the United States on expired student visas. (In fact, the federal government even allowed one of them back into the United States after his visa had expired.)


Assume for a moment that prosecutors could not gather enough evidence to convince a jury they were guilty of aiding the bombers, but were otherwise sure they did based on the evidence. Or, assume the obstruction of justice charges are thrown out on a legal technicality. What would happen to them?

Under current law, the government still has the power to deport them quickly based on their immigration violations. But if the Senate bill becomes law? That may no longer be the case.

Without being criminally charged, they both would have been fully eligible to be granted legalization under the Senate’s legalization program (called the RPI program) because they came to the United States before December 31, 2011, and apparently had no disqualifying criminal record. Under the Senate bill, DHS would be barred from arresting them because they would “appear” to be eligible for the legalization program, even if they expressed no interest in applying.

DHS would even have to advertise the RPI program to them, and essentially encourage them to apply for it.

Assuming they applied for RPI under the Senate bill, DHS could not deport them or even arrest them as long as their applications were pending with DHS. Also, the bill provides a clear avenue for them to appeal DHS’s denial to the federal courts — both the District Court and still another appeal to the Circuit Court of Appeals — which often would stay their deportation while their appeals were pending, and further delay their deportation for many more years.

The bill also expressly provides for class action lawsuits, which would tie up legalization decisions for decades.

It would not even help if DHS put the men into proceedings to be deported by an immigration judge. The bill does not allow an immigration judge to rule on their cases as long as anyone has an application for legalization pending. The judge is forced to just put the case on hold.

This is what Senate Republicans supported, including Senator Marco Rubio?

Keep in mind, this is true even if DHS had some suspicion that the men may have helped the bombers, but did not have enough information to charge them with a crime. If DHS denied their applications without them having been convicted of a felony (one misdemeanor crime would not be enough), DHS would be acting in violation of the law, and could have violated the aliens’ “rights.” This is because the bill treats access to the legalization process as a legal right, and does not give DHS discretionary authority to deny applications for reasons other than the narrow reasons the statute lays out.

Even if the legalization application were eventually denied, even by the federal courts, DHS would be prohibited from using any evidence the men put in their application against them. The bill makes the application forever secret and protected by privacy laws. If DHS placed the alien in deportation proceedings, the immigration judge would be prohibited from seeing the legalization application, even if it contained fraudulent or other information that would be important to ordering the alien deported.

Even if their legalization applications were denied and DHS put them into proceedings to be deported, they could apply for asylum (and if granted, they would be on a quick path to citizenship).

Current law only allows immigrants to apply for asylum within their first year in the United States, but the Senate bill would do away with that.

Again, Senate Republicans supported this?

If these young men were successful in getting their legalization application granted, then they would qualify as DREAMers (young illegal immigrants without criminal records) and they would be on a very quick path to citizenship.

DHS agents would not have been permitted by their political leadership from removing the young men, immigrants who overstayed student visas and had no criminal record, before they were connected to the bombings — even though they had expired student visas and had no legal status.

In fact, the men apparently would be eligible for the administration’s DACA (Deferred Action for Childhood Arrivals) program and thus would have been formally immune from deportation and eligible for work authorization. Even more, the administration recently announced that parents of those who meet the DACA program also should not be removed, which is clearly in violation of current immigration laws.

The Senate bill is much worse than current law, so tilted in favor of illegal immigrants and Washington special interests and away from national security and personal responsibility that there is no way the House will be able to reach a reasonable compromise in conference.

The House should continue to work on immigration reform that is reasonable and balanced, and show the American people that there is a better way.

If the House goes to conference with the Senate bill, the result will be the Senate bill. The Senate conferees would include Judiciary Committee member Senator Orrin Hatch, and maybe even Senate sponsor Lindsey Graham (who supported the Senate bill as is). House Speaker Boehner will not have the political will to stop an immigration bill that gets out of conference, even if most House Republicans oppose it. An immigration conference in this Congress is a recipe for disaster.