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House Passes Bill Re-Writing the Nation's
Alien Smuggling Law
By Micheal E. Hill
Monday, October 26, 2009 - 7:00 am EDT
The full House of Representatives last week passed  a measure that would dramatically increase penalties for alien smuggling, including providing for up to one year imprisonment for someone who is convicted of "transiting" close family members. Last Week's House floor action occurred in connection with H.R. 3619, the Coast Guard Authorization Act of 2010. The House took up the measure on Thursday, October 22, 2009, passing it one day later by a vote of 385-11.
The alien smuggling provisions in H.R. 3619 are found in Title XII of the measure. That title is comprised of the text of the House-passed version of H.R. 1029, the “Alien Smuggling and Terrorism Prevention Act of 2009.”
In addition to the alien smuggling provisions found in Title XII of the measure, the full House agreed to two amendments to the measure that have immigration implications: an amendment by Representative Alcee Hastings (D-FL) relating to U.S. immigration policy toward Haiti and an amendment by Representative a Glenn C. Nye (D-VA) aimed at ensuring that provisions in the bill relating to safety do not negatively impact the Coast Guard's mission to prevent maritime illegal immigration and alien smuggling. The House agreed to both amendments by a voice vote.
Legislative History
H.R. 3619 was introduced in the House of Representatives on September 22, 2009, by House Committee on Transportation and Infrastructure Chairman Jim Oberstar (D-MN). The Committee marked up the measure on September 24, 2009, ordering that it be reported to the full House of Representatives. The measure was formally reported to House on October 16, 2009.
During the markup, the Committee agreed to an amendment that was offered by Representative Pete Olson (R-TX) that added a new alien smuggling title to the bill. The text of the Olson amendment is almost identical to the text of H.R. 1029, the “Alien Smuggling and Terrorism Prevention Act of 2009”, which the House of Representatives passed on March 31, 2009, by a voice vote.
The Olson Amendment is now Title XII of H.R. 3619.
Background
Current law prohibits knowingly bringing aliens into the United States through any method that avoids official ports of entry, regardless of whether the individuals are permitted to enter the United States. It also bars knowingly transporting illegal aliens within the country in order to escape detection, harboring or concealing illegal immigrants from detection, encouraging illegal immigration into the United States, or conspiring or assisting others to transport or harbor illegal aliens. It sets penalties of between five and 20 years of imprisonment for these crimes, depending on the severity of the crime and whether it was committed for commercial purposes, and up to life imprisonment for immigration crimes that result in a death.
Current law also requires vessels within U.S. jurisdiction to comply with federal law enforcement officers' orders, with penalties of up to five years in prison for violations.
Summary of Immigration- and Refugee-Related Provisions
As reported by the House Committee on Transportation and Infrastructure, Title XII of H.R. 3619 would increase penalties for knowingly bringing illegal aliens into, or harboring illegal aliens within, the United States; create new penalties for vessels in U.S. jurisdiction that do not comply with law enforcement; require interdicted persons to be checked against terrorist watchlists; and establish extraterritorial jurisdiction over certain smuggling offenses.
More specifically --
- Congressional Findings. Sec. 1202 would enunciate a number of Congressional findings with respect to alien smuggling.
- Checks Against Terrorist Watchlist. Section 1203 would direct the Secretary of Homeland Security to check against all available terrorist watch lists those alien smugglers and smuggled individuals who are interdicted at U.S. land, air, and sea borders;
- Increased Penalties and Extraterritorial Jurisdiction. Sections. 1204 and 1205 would revise alien smuggling and related criminal offense and penalty provisions and provide extraterritorial jurisdiction over such offenses.
Increased Penalties. It would increase criminal penalties for knowingly bringing illegal aliens into the United States (including U.S. territories), transporting illegal aliens within the United States, harboring illegal aliens, or encouraging illegal aliens to enter the country, setting a prison sentence of up to five years for any such offenses. For paid smugglers, the measure would set a prison sentence of between three and 10 years for a first or second offense of bringing illegal aliens into the country, and a sentence of five to 15 years for subsequent offenses. For such crimes that result in serious bodily injury, the bill would set a prison term of up to 20 years.
New Penalties for Smuggling, Harboring, and Inducing. The measure would create three new penalties for cases not addressed in current law. For individuals who illegally bring their spouses, children, siblings, parents, grandparents, nieces, or nephews into the United States, it would set a prison term of up to one year in prison. The bill would set penalties of up to 30 years of imprisonment for aiding illegal aliens who are engaged, or intend to engage, in terrorism. The measure, like current law, would allow terms of up to life in prison cases that result in a death, but also would allow life imprisonment for cases that involve kidnapping, attempted kidnapping, aggravated sexual assault, or attempted murder.
New Maritime Penalties. The bill would create three new categories of criminal penalties for vessel operators who do not comply with federal law enforcement agents. Violations involving illegal alien smuggling, human trafficking, transportation for illegal sexual activity, stolen property, or illegal drugs, would be subject to penalties of up to 10 years of imprisonment. For violations that result in serious bodily injury, it sets a prison term of up to 15 years. For violations that involve kidnapping, attempted kidnapping, aggravated sexual assault, or attempted murder, it would establish a penalty of up to life imprisonment. The measure would stipulate that vessel operators could not claim necessity as a defense in court for violations related to transporting illegal aliens, unless they released them to emergency medical or law enforcement personnel and reported such incidents to the Coast Guard.
Exemptions for Persons Facing Life-Threatening Situations. For individuals traveling by water and face life-threatening circumstances that require them to bring illegal aliens into the United States, the bill would set certain conditions under which they could claim "necessity" as a defense if they later face prosecution for helping illegal aliens enter the country. It would mandate that the circumstance of "necessity" could be a defense only if illegal aliens were unintentionally brought into the United States because of dire conditions on the vessel, if the illegal aliens were taken to appropriate medical or law enforcement personnel upon entry into the country, and if the operators of the vessel contacted the Coast Guard as soon as possible to file a report.
Religious Exemptions. The measure would retain a narrow exemption in current law, written originally to protect the Mormon Church, that exempts from certain violations (transporting or harboring in the United States) a bona fide nonprofit, religious organization in the United States (or its agents or officers), if the organization recruits, encourages, or induces an alien to come to or enter the United States, that encourages, invites, or enables an alien who is present in the United States to serve as a volunteer minister or missionary for such organization in the United States, provided the minister or missionary has been a member of the denomination for at least one year and is not compensated as an employee.
- Sentencing Guidelines. Sec. 1206 would direct the United States Sentencing Commission to review and amend as appropriate sentencing guidelines and policy statements applicable to persons convicted of alien smuggling offenses and criminal failure to heave to or obstruction of boarding. The measure would direct the Commission to consider enhanced sentences for smuggling offenses that are part of ongoing criminal enterprises, involve groups of 10 or more illegal aliens, endanger the lives of smuggled individuals, or involve the facilitation of terrorist activities.
Views of the Advocacy Community While there was no organized opposition to H.R. 1029 when the House considered the measure last March, several pro-immigrant and pro-refugee advocacy organizations expressed concerns about the potential impact that the measure would have on good Samaritans and refugees. Among the organizations expressing concern at that time was the American Civil Liberties Union (ACLU) and the Friends Committee on National Legislation (FCNL).
The ACLU and FCNL were critical of the bill on three counts. First, they contend that he provision in the bill that would penalize a person for "transiting" an immediate family member who is an illegal immigrant with up to a year in prison per person brought into the country. Second, they believe that the measure fails to protect humanitarian organizations working on the border or in the desert from being criminally prosecuted for smuggling and harboring. And third, they are critical of the provision in the bill that would statutorily require checks of some individuals' identification against Terrorist Watch Lists, which they contend are error-ridden and filled with the names of innocent U.S. citizens, many of whom were placed on these lists for participation in peace and anti-war movements.
Next Steps
Now that the House of Representatives has passed H.R. 3619, the next step in the legislative process is for the Senate to consider either that measure or a companion measure, S. 1194, the Coast Guard Authorization Act for Fiscal Years 2010 and 2011, which the Senate Committee on Commerce, Science, and Transportation approved on July 8, 2009. S. 1194 does not contain any immigration-related provisions.
RELATED DOCUMENTS:
Click Here to see the text of H. Rept. 111-301, Part 1, the committee report accompanying H.R. 3619
Click Here to see the text of the Hastings and Nye amendments
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