Blame Builds More Barriers in Immigration Debate

Does chutzpah translate into Spanish?

It’s a reasonable question after the joint statement House Speaker J. Dennis Hastert (R-Ill.) and Senate Majority Leader Bill Frist (R-Tenn.) issued last week about the impasse blocking congressional action on legislation to overhaul the immigration laws.

Frist and Hastert blamed Democrats for one of the most controversial ideas in the debate: the provision in the legislation the House of Representatives passed in December designating the estimated 11 million to 12 million illegal immigrants in America as felons. The Republican National Committee plans to run Spanish-language radio ads echoing that charge.

The proposal to designate illegal immigrants as criminals, more than anything else, has ignited the nationwide wave of protests against the House bill. To attribute the idea to Democrats, Frist, Hastert and the RNC have to join the story on the last page -- and then misrepresent the evidence to boot. In fact, from the start of the recent debate, Republicans have driven the notion of imposing criminal penalties on illegal immigrants. Although President Bush has never acknowledged paternity, the idea’s fathers include his administration.


Let’s start with the law as it stands today. It is a crime to cross the border without authorization. But “unlawful presence” in the United States isn’t a crime; it’s a civil violation of immigration laws. In practice, when illegal immigrants are found in the U.S., the government almost always deports them through civil proceedings rather than attempting an expensive criminal prosecution for the border crossing, which is often difficult to prove.

There’s a glitch in the law, though, that affects immigrants who initially arrive through valid visas rather than a dash across the desert. Remember: Unlawful presence is a civil, not criminal, violation. That means it is not a crime to stay in the U.S. after your visa expires. If people overstay their visa, all the government can do is send them home.

That strikes some administration officials and GOP lawmakers as unfair. Because it is a crime to enter the U.S. without authorization, some believe people who overstay a visa should face a criminal penalty.

So as House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) prepared his border security bill last year, the Justice Department asked him to include a provision making unlawful presence in the U.S. a crime. Sensenbrenner, on the House floor in December, said the idea came from the Bush administration, and an administration official last week, speaking anonymously, confirmed his account.

Both parties agree the administration did not tell Sensenbrenner what sort of crime it believed unlawful presence should be. So Sensenbrenner proposed to make it a felony, subject to a year and a day in prison.

Contrary to the description from Hastert and Frist, Democrats and immigrant groups opposed this proposal from the start. In particular, they charged that the idea advanced a hidden agenda distinct from the argument about equalizing the penalties for overstaying a visa and sneaking across the border.

During the Judiciary Committee debate, Rep. Linda T. Sanchez (D-Lakewood) pinpointed one of those concerns: By designating all illegal immigrants as criminals, she said, the bill would increase pressure on local law enforcement officials to apprehend them -- a top priority for many conservatives. “This bill could lead to an open season on anyone in this country who appears to be foreign,” she said.

Democrats identified another concern in their dissent to the committee report that accompanied the bill. Proposals, such as those most senators support, to allow illegal immigrants to work legally in the U.S. and move toward citizenship exclude those with a serious criminal record. If all existing illegal immigrants were branded as felons, the Democrats noted, they would be ineligible for any future legalization program.

After the panel approved the bill, the administration asked Sensenbrenner to change the proposed penalty from a felony to a misdemeanor. Sensenbrenner agreed and said on the House floor that he concluded the felony designation was unworkable because it would require a grand jury indictment, a jury trial and a public defender for the illegal immigrant.

But Sensenbrenner’s amendment to change the crime to a misdemeanor failed when most Democrats and some conservatives voted against it. That’s the vote Hastert and Frist cited to blame Democrats for the provision that would brand illegal immigrants as felons.

Hastert and Frist are right that political posturing contributed to the Democratic vote: They had little interest in helping Republicans sand off the sharpest edge in the GOP bill.

But Democratic opposition rested on a deeper objection that Hastert and Frist ignore. If House Democrats supported the Sensenbrenner amendment, they would have been voting to make unlawful presence a misdemeanor. But almost all Democrats believe it should not be a crime. The House Democrats’ bill retains unlawful presence as a civil, not criminal, violation.

Hastert and Frist charged that House Democrats voted to oppose “efforts to reduce the crime of unlawful presence ... from a felony to a misdemeanor.” In fact, House Democrats opposed an effort to increase the penalty for unlawful presence from a civil violation to a criminal misdemeanor.

Everyone, including the White House and Senate leaders in both parties, shares culpability for the impasse on immigration. But rewriting the past only makes it tougher to move forward. With this misleading statement, Hastert and Frist seem worried less about resolving the stalemate than trying to ensure that Republicans won’t be blamed if it persists.


Ronald Brownstein’s column appears every Sunday. See current and past Brownstein columns on The Times’ website at