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the Border Protection, Anti-terrorism, and Illegal Immigration Control Act (H.R. 4437) of 2005 Frequently Asked Questions Guide ***Update***- On March 2, 2006 the Senate Judiciary Committee Chairman, Senator Specter (R-PA) circulated his immigration reform proposal which will be the starting point for Senate debate on comprehensive immigration reform. While the bill includes a guest worker proposal, the bill incorporates many of the extreme anti-immigrant measures of H.R. 4437 which we oppose. Contact your Senators and urge them to oppose these extreme provisions in favor of fair and humane immigration reform. Lesbian, gay, bisexual, transgender, and HIV-positive (LGBT/H) immigrants and asylum-seekers are under attack in a bill recently passed by the United States House of Representatives. The Border Protection, Antiterrorism, and Illegal Immigration Control Act (H.R. 4437), if enacted into law, would criminalize bi-national relationships where the foreign national is undocumented, endanger the lives of asylum-seekers, and permit indefinite detention of immigrants. This document was prepared by Immigration Equality, the Human Rights Campaign, the National Center for Lesbian Rights, and the National Center for Transgender Equality and is intended to provide answers to commonly asked questions. For more information, contact Immigration Equality at 212-714-2904 or via email at info@immigrationequality.org 1. Now that the bill has passed the House of Representatives, does it beome law? 2. Is this bill and its language likely to become law? 4. If I am undocumented, what does this bill mean for me? 8. I'm in the U.S. and thinking of applying for asylum, how would this bill affect my decision making process? 1. Now that the bill has passed the House of Representatives, does it become law? No. In fact, this bill represents one of many immigration “reform” proposals that have been promoted by both Democrats and Republicans in Congress. Also, there is no companion to this bill introduced in the United States Senate. This does not mean that the bill does not pose a threat. Members of the Senate could easily introduce and vote on a companion bill, or they could include some of the bill’s provisions in separate legislation. Because the issue of immigration is on the top of the political agenda of both parties, it is very important to remain vigilant and watchful when any immigration-related legislation is introduced or considered in Congress. This bill penalizes vulnerable LGBT and HIV-positive immigrants and asylum-seekers and potentially criminalizes the U.S. citizens who love and care for them. All LGBT Americans should be concerned when an already discriminatory immigration system creates more hardship for LGBT and HIV-positive individuals. 4. If I am undocumented, what does this bill mean for me? This bill makes unlawful presence in the U.S. a federal felony. Previously, unlawful presence was a civil violation carrying only immigration-related penalties. By making unlawful presence a federal crime, this bill would subject undocumented persons and those with minor visa violations to criminal prosecution and imprisonment. In addition, because this bill makes unlawful presence an aggravated felony, these individuals would be ineligible for most forms of immigration relief, including asylum, and would be subject to detention and deportation. Further provisions in the bill add new criminal as well as immigration-related penalties for convictions involving the use of false identity documents, such as a driver’s license or social security card. 5. My partner is undocumented, if we are living together, could I be subject to criminal prosecution? Technically, yes. The bill vastly expands the definition of “alien smuggling” to include nearly any form of aid or assistance to persons who are unlawfully present. It would even include helping an unlawfully present person find a place to live. Therefore, if passed into law, a U.S. citizen who lives with his or her undocumented partner could be subject to criminal prosecution and imprisonment and the couple’s home and assets could be seized. Under this incredibly broad language, family members, legal service providers, churches, and social workers would also be at risk of prosecution. 6. I’m abroad and thinking of applying for asylum, what should I know about this bill? H.R. 4437 greatly expands the expedited removal program, which permits immigration officials to quickly deport a person without a hearing. Under this bill, non-citizens other than Mexicans or Canadians who were not admitted or paroled into the U.S. and who are seized within 100 miles of an international land border within 14 days of entry would be subject to expedited removal. If the bill were enacted, it is likely that many genuine refugees and asylum seekers will be improperly deported to a country where they face likely persecution, without ever having a day in court. The bill would also increase the detention of asylum seekers. Held under harsh jail-like conditions, LGBT and HIV-positive asylum seekers are particularly vulnerable to abuse, discrimination and medical neglect inside detention facilities. All non-citizens subject to expedited removal would be mandatorily detained. Even asylum seekers who are not subject to expedited removal and who are eligible for parole could be detained for long periods of time. H.R. 4437 would permit local officials to keep an asylum seeker in detention even if she proves that she is not a flight risk or danger to the community, simply because there are available detention beds. The bill would also overturn existing Supreme Court rulings and allow for the indefinite and potentially permanent detention of certain non-citizens. 7. If I’ve already gotten asylum or am a refugee, would this bill affect me? Yes. The bill expands the definition of aggravated felony to include anyone who has entered the U.S. without proper inspection. It does not create an exception for asylum seekers, asylees, and refugees. This means that even if you have been granted asylum, if you entered the U.S. without proper documentation, if this legislation becomes law, you may be an aggravated felon for the purposes of immigration. As an asylee or refugee you cannot be removed from the United States but you may be ineligible for future benefits such as adjustment of status to that of a green card holder. This provision is retroactive so if you have ever been convicted of an aggravated felony in the past, or entered the U.S. without inspection (even for the purposes of obtaining asylum), you will not be exempted from this bar to residency. 8. I’m in the U.S. and thinking of applying for asylum, how would this bill affect my decision making process? It depends. If you are in the U.S. on a valid and current visa and thinking about applying for asylum you should contact an immigration attorney. There is a one-year bar for all individuals who apply for asylum in the U.S. This means that if you have been present in the U.S. for more than one-year and have not filed for asylum you are barred from applying. There are a few exceptions that may allow you to overcome this bar. If you are in the U.S. without a valid and current visa and thinking of applying for asylum you should contact an immigration attorney and consider your current options before any provisions contained in this bill are enacted into law. If enacted, this bill would place many limitations on your ability to file for asylum including barring you from applying because of your undocumented status. While you may still be eligible for withholding of removal or another form of relief, there is a higher standard for obtaining these forms of relief. Further, this bill would require all relief applicants to prove that their membership in a particular social group (or another applicable asylum ground) is one central reason for the applicant’s persecution. This standard was enacted as part of the Real ID act and would be extended to withholding of removal and Convention Against Torture claims if this bill becomes law. 9. I’m just visiting my U.S. based partner, could this bill impact me too? Yes. If passed this bill would prohibit the issuance of a non-immigrant visa (such as a visitor’s visa) unless the applicant first waives his or her right to any review or appeal of an immigration officer’s decision concerning the removal of an applicant. This would effectively mean that any person seeking to enter the U.S. as a visitor would give up the right to a hearing if later charged with some immigration violation. This provision would also jeopardize any future opportunity an applicant may have for obtaining a green card or any form of status other than asylum including future entry to the U.S. This bill, if passed, would erase any effective judicial oversight of non-immigrant visa holders as well as eviscerate the due process of individuals who seek to challenge visa revocations. 10. How would this bill affect HIV-positive people applying for green cards, either in the U.S. or abroad? All HIV-positive immigrants are banned from entering the United States and from becoming residents of the United States. Waivers to the HIV-ban are available to individuals who have U.S. citizen parents, spouses, or children, but same-sex spouses are not recognized for waiver purposes. A transgender individual may be eligible for a waiver if the relationship is recognized by Citizenship and Immigration Services (CIS) but such assessments are made on a case-by-case basis so you should contact Immigration Equality’s offices at 212-714-2904 to learn if you are eligible. If you attempt to enter the United States and your status is known, or becomes known to immigration authorities you will be detained and held or removed from the U.S. (deported). 11. What does “good moral character” mean and how does this directly impact the LGBT/H community? Good moral character is not ever clearly defined in the Immigration and Nationality Act. Currently, criminal acts such as rape, murder, grand theft and other crimes of a violent and or harmful nature are considered crimes of moral turpitude. Less severe crimes including misdemeanors such as petty theft and civil violations such as traffic violations are not considered crimes of moral torpitude. This bill seeks to expand the definition of crimes of moral turpitude including drunk driving offenses, and other crimes (retroactively) even if they are not aggravated felonies at the time the offense was committed. H.R. 4437 seeks to bar naturalization for all applicants convicted of aggravated felonies. This is misleading because many crimes that are not “aggravated” in the criminal sense of the word would be punished as aggravated felonies for immigration purposes and thus bar the applicant from naturalization. This bill further strips judicial review, for the purposes of an application for naturalization, determinations on the moral character of an applicant. This means that immigration officers would have broad authority to create and determine decisions on good moral character and they could not be challenged even if the determination prevented an applicant from obtaining citizenship in the United States. Finally, it should be noted that throughout the history of U.S. immigration policy, gay and lesbian immigrants have been controlled within and excluded from U.S. immigration policy through moral character determinations. Gay and lesbian immigrants have been labeled sexual deviants, persons of psychopathic inferiority, possessing a mental defect, and charged with many other moral derisions because they were considered undesirable. Because of this sordid history it is incumbent upon all who care about LGBT immigration rights to challenge the exclusion of immigrants based on the basis of moral deficiency particularly where there is no judicial review of such claims. Back to top |
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