The CLEAR Act – HR 2671

The National Immigration Forum of Washington D.C. has alerted immigration reform advo- cates that the Department of Justice is pushing for HR 2671. Short- hand for Clear Law Enforcement for Criminal Alien Removal Act, CLEAR was introduced by Rep. Norwood (R-GA) in July. Joined by Reps. Hart (R-PA), Boyd (D-FL), and Deal (R-GA) as co-sponsors, the bill is designed to bring more direct involvement of local police into the enforcement of immigration laws.

In effect, local police would become an arm of the new Department of Homeland Security (DHS). Section 104 of the bill calls for a listing of immigration violators in the National Crime Information Center (NCIC) database. HR 2671 states that “[W]ithin 180 days after the date of the enactment of this section, the Director of Border and Transportation Security of the Department of Homeland Security shall provide the National Crime Information Center of the Department of Justice with such information as the Commissioner may have on any person who has violated any immigration law of the United States.” In addition to the usual recordkeeping on criminals and criminal activity, local law officials would be asked to “acquire, collect, classify, and preserve records of violations of the immigration laws of the United States.”

Section 105 of CLEAR directs state and local law enforcement to provide information on anyone who may have been apprehended in the commission of a crime and is found to be an illegal alien. “In general, every state or locality must have a policy that requires the State or entity to provide to the Department of Justice and the Department of Homeland Security the informa- tion…on each alien in violation of the immigration laws of the United States apprehended in the jurisdiction. Information required…shall be provided not later than 10 days after the alien was encountered within such jurisdiction and shall be provided in such form and in such manner as the Attorney General may by regulation or guideline require. Failure to have such a policy and practice by any State or locality shall result in ineligibility for funds under section 241(i) of the Immigration and Nationality Act until such a policy is implemented.”

CLEAR requires local officials to obtain the following information:

1. The alien’s name.
2. The alien’s address or place of residence.
3. A physical description of the alien.
4. The date, time, and location of the encounter with the alien and reason for stopping, detaining, apprehending, or arresting the alien.
5. If applicable, the alien’s driver’s license number and the State of issuance of such license.
6. If applicable, the type of any other identification document issued to the alien, any designation number contained on the identification document, and the issuing entity for the identification document.
7. If applicable, the license plate number, make and model of any automobile registered to, or driven by, the alien.
8. A photo of the alien if available or readily obtainable.
9. The alien’s fingerprints, if available or readily obtainable.
   Some local officials have expressed concern about the added cost of this responsibility. Though it is not a new responsibility that local officials turn violators over to the immigration officials as they encounter them, it is new about the CLEAR Act that local officials could be in danger of losing federal funds if they were found in non-compliance for any reason. The Attorney General would provide grants for special equipment for the housing and processing of illegal aliens or improperly documented persons. Grants would cover local agencies’ costs for procurement of technology, as well as other products directly related to housing and processing illegal aliens in custody for immigration law violations.

The Act would also cover other administrative costs. Sponsors are asking that $1,000,000,000 be authorized by Congress and appropriated for grants for each fiscal year.

Some costs would be covered by current immigration processing fees. One-third of immigrant and nonimmigrant visa fees and adjustment of status fees (as designated by the Attorney General or the Secretary of DHS) will be deposited as offsetting receipts into a separate account entitled ‘State and Local Immigration Law Enforcement Fee Account’ in the U.S. Treasury. The Attorney General or the Secretary of DHS “shall set all such fees at a level that will ensure receipt of amounts sufficient to pay the full costs of carrying out the provisions of this section, the full costs of processing visas, and a significant portion of the costs of Federal enforcement of immigration violations. Amounts deposited into the fee account shall be available to the Attorney General or the Secretary of the Department of Homeland Security to carry out the provisions...” This could mean an increase in the cost to enter or remain in the U.S.

The CLEAR Act defines an ‘illegal alien’ as one whom—

1. entered the U.S. without inspection or at any time or place other than as designated by the Attorney General or the Secretary of DHS;
2. was admitted as a nonimmigrant and at the time he or she was taken into custody by the State or a political subdivision of the State has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248, or to comply with the conditions of any such status; or
3. failed to depart the U. S. under a voluntary departure agreement or under a final order of removal.

Federal Responsibility

The Federal government is expected to uphold its part of this arrangement. A State or a political subdivision of a State adversely affected may file a claim against any Federal agency for failure to cooperate with a State or a political subdivision of a State to enforce or comply in a reasonable manner with certain enforcement provisions of the immigration laws relating to the identification, apprehension, arrest, detention, and removal of aliens who are in violation of immigration laws.

The appropriate Federal agency shall be fined $1,000 for each instance of nonenforcement determined to be valid in a decision by the judge. In addition to fines, if the judge determines that a Federal agency has entered into a pattern or practice of nonenforcement, or non-compliance with a State or local law enforcement agency’s enforcement , that Federal Agency shall be fined $10,000.

There is currently no Senate counterpart bill to the CLEAR Act. In the past, the Senate has been known to simply debate a House version and to pass it as their own.

The primary concern about HR 2671 is its impact on community policing and public health. Immigrants (documented and undocumented) may be reluctant to come forward to aid in the investigation of a crime if there is a fear that they or their family members would risk deportation. The same could be said regarding medical care for those who have communicable diseases. As social service providers encourage immigrants to seek key services—but the local authorities are seen as instruments of federal deportation—fewer immigrants will come forward.

The CLEAR Act was opposed by state and local law enforcement, who have argued that such authority would undermine their ability to gain the trust of immigrant residents, would discourage immigrants from reporting crimes or serving as witnesses, and would dismantle gains made in reducing crime since the advent of “community policing.” The wave of opposition from police, local governments, immigrant advocates, domestic violence prevention advocates, and scores of others led the Department of Justice to back off of its first proposal.

By turning police into immigration agents, the CLEAR Act ensures that more immigrants avoid contact with local law enforcement, putting entire communities at risk. Word will spread among newcomers that if they—as victims, witnesses, or concerned residents—have any contact with police, they or their family members will risk deportation. They will remain silent and our streets less safe as a result. Experience shows that this fear will extend not only to contact with local police, but also to the fire department, hospitals, and the public school system.

Protecting the Rights of Individuals Act – S 1552

The Senate has another bill that has received a better reception by the justice community. Sens. Murkowski (R-AK ) and Wyden (D-OR) have introduced S 1552. It is designed to offset some parts of the Patriots Act and to protect privacy rights.

Some sections would:

• Enhance protection of business records and materials protected by the first amendment from access for foreign intelligence surveillance of medical records, purchase of books, videos or music accessed legally through the internet;
• Eliminate ‘John Doe’ roving wiretaps (under The Foreign Intelligence Surveillance Act of 1978) when the identity of a person is unknown. The identity of the target shall be specified; and
• Clarify use of pen registers and trap and trace devices for criminal investigative purposes. It must be shown that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime.
  S 1552 would also provide:
• A moratorium on data-mining to protect the privacy rights of individuals; and ensure that only accurate, complete, and timely information is collected. The term ‘data-mining’ means a query or search of one or more electronic databases by or at the behest of a department or agency of the Federal

Government in which —
(A) at least one of the databases is obtained from or remains under the control of a non-Federal entity, or the information in at least one database was acquired initially by another department or agency of the Federal Government for purposes other than intelligence or law enforcement;
(B) the search does not use the personal identifiers of a particular individual to acquire information concerning that individual; and
(C) the department or agency is conducting the search in an effort to find evidence of a pattern indicating possible terrorist or other criminal activity.
(The term ‘database’ means a collection or grouping of information about individuals that is held in electronic form and that contains personally identifiable information about individuals, such as names, or identifying numbers, symbols or other identifying particulars assigned to individuals, such as fingerprints, voice prints, or photographs. The term does not include telephone directories or information publicly available over the Internet without payment of a fee.)

• Application of discovery procedures to evidence used in court proceedings. The court shall, if otherwise discoverable, disclose to the aggrieved person, portions of the application, order, or other materials relating to the surveillance unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case. This would be extended to personal searches and to any information or other materials relating to the use of pen register or trap and trace device.
• Disclosure of certain business records and items governed by the Classified Information Procedures Act.
• Disclosure of education records of the General Education Provisions Act of the National Education Statistics Act of 1994 that ‘there are specific and articulable facts giving reason to believe that the education records are likely to contain information’.

Suggested Action

The CLEAR Act has been picking up co-sponsors rapidly, as congressional “Dear Colleague” letters are being circulated at a feverish pace to all members of the House of Representatives. According to Rep. Norwood’s staff, a hearing on the CLEAR Act is set for October 1. Unfortunately, both Immigration Subcommittee Chair John Hostettler (R-IN) and Judiciary Chair James Sensenbrenner (R-WI) have voted for similar proposals in the past, and seem inclined to favor this bill. Unless the House begins to hear arguments against this proposal, HR 2671 could easily pass.

Please contact your Representative and tell her/him how you feel about this bill. You can find contact information at our Presby Legislative Action Center or by calling the Capitol Hill switchboard at (202) 224-3121. Letters to Judiciary Chair James Sensenbrenner (R-WI), Appropriations Committee Chair Bill Young (R-FL), Speaker Dennis Hastert (R-IL), Majority Leader Tom DeLay (R-TX), and Majority Whip Roy Blunt (R-MO) would also be helpful. (U.S. House of Representatives, Washington, D.C. 20515)

Please also contact President Bush and let him know your concerns. The phone number for the White House is (202) 456-1414, or you can mail your letter to 1600 Pennsylvania Avenue in Washington, D.C.

Oppose clear: While a companion bill to HR 2671has not yet been introduced in the Senate, we also encourage you to let your Senators know how you feel about this issue. Senator Jeff Sessions (R-AL) previously indicated at a Center for Immigration Studies press briefing that he intends to file legislation similar to what Rep. Norwood has written. To reach your Senators, visit http://capwiz.com/pcusa/home/ or call the Capitol Hill switchboard at 202.224.3121.

SUPPORT “PROTECTING THE RIGHTS OF INDIVIDUALS ACT S 1552. You may want to encourage your elected officials to support the protective principles in this bill.

General Assembly
The 211th (1999) General Assembly approved the Resolution on “Transformation of Churches and Society Through Encounter with New Neighbors,” and approved the following actions:

• Christians should engage in pastoral, compassionate, educational and prophetic ministries with refugees, asylum seekers, and immigrants.
  Christians should seek the elimination of discrimination and racism from government policies and community responses.
• The United States government should ensure that the constitutional rights of refugees, asylum seekers, and immigrants to due process of law are protected.
• Advocate for use of the credible fear standard for releasing asylum seekers from detention, and assuring a more speedy adjudication to reduce unreasonably lengthy stays in detention, urging presbyteries and sessions to do similar advocacy. The Immigration and Naturalization Service (INS) should ensure asylum seekers are not held in local jails, nor detained with local criminals, and that they are provided humane conditions including adequate and appropriate food, personal treatment, medical care, prompt access to legal help, family and friends. (Minutes, 1999, Part I, p.353)

Resource: The Advisory Committee On Social Witness Policy has produced a 36-minute VHS video, called “Connecting Diversity in Community: Race, Class, Gender, Religion," which can be used in social action committees, adult Sunday school or for youth groups. It costs $9.95 and can be purchased from the Presbyterian Distribution Service (PDS 68-600-03-002).