National Conference of State Legislatures

December 14, 2005

The Honorable Dennis Hastert
Speaker of the House
H-230 Capitol Building
Washington, D.C. 20515 The Honorable Nancy Pelosi
House Minority Leader
H-204 Capitol Building
Washington, D.C. 20515

RE: H.R. 4437, “Border Protection, Antiterrorism and Illegal Immigration Control Act”

Dear Speaker Hastert and Minority Leader Pelosi:

Strengthening enforcement of our nation’s borders is a key component of legislation that will comprehensively reform national immigration policy. Enforcement must be clear, balanced, predictable, non-discriminatory, fully funded and consistent. It must rely on an appropriate division of responsibilities based on historical enforcement activities and workloads. H.R. 4437 misses the mark on most of these, creates unfunded federal mandates on states, compromises state law enforcement activity and ignores state costs for incarcerating and detaining criminal aliens. The National Conference of State Legislatures (NCSL) strongly urges a “no” vote on H.R. 4437. The legislation should be recommitted to committee for further scrutiny and reworking.

Section 203 of H.R. 4437 as reported from the House Judiciary Committee indirectly shifts the federal responsibility of immigration enforcement to state and local law enforcement by criminalizing violations of federal immigration law. State and local government law enforcement and public safety personnel are already asked, without the benefit of adequate federal assistance, to incarcerate, detain and transport illegal immigrants who have committed crimes. Some states have opted to test enforcement of civil immigration laws through memoranda of understanding – an exercise still in its fledgling stages and not in search of a federal mandate. Enforcement of civil immigration laws has been a federal responsibility and should remain so while other cooperative arrangements are tested and evaluated.

H.R. 4437 fails to provide training to state and local officers regarding the complexities of immigration law. Improperly trained officers would only fan the cries of racial profiling, compromise successful community policing efforts and expose governments to increased liability from the very communities that they serve. Furthermore, many police departments and state National Guard units are experiencing personnel shortages due to overseas military operations, thereby stretching capacity for states’ primary responsibility for public safety.

Section 703 (b)(8)(B)(ii) of H.R. 4437 contains an intergovernmental mandate as determined by the Congressional Budget Office. Even if a manager’s amendment spreads out employment verification costs to keep the mandate under the threshold of the Unfunded Mandate Reform Act, it is another irresponsible addition to a burgeoning list of cost shifts to state and local governments. The aforementioned section requires state and local government agencies to verify employment eligibility of all previously hired individuals within three years. State and local governments have sizeable workforces in both permanent and contract employment. The short verification time frame will lead to inaccuracies and impose yet further costs on state and local governments. H.R. 4437 also treats private sector employment verification employment differently, giving this sector twice the time than that set aside for public sector compliance. NCSL recommends that state and local governments be given six years to comply or at least three years following promulgation of related rules, whichever is later. Furthermore, the federal government must minimize the costs of compliance with this mandate by providing funds to support the necessary communication with federal agencies that the mandate imposes.

H.R. 4437 “allows” states to use various Homeland Security grant funds to cover imposed costs. This is disingenuous and unacceptable. Those funds, reduced substantially for FY2006, are committed to other critical security purposes. This “allowance” should be stricken from the legislation and replaced with an authorization and commitment to live up to the funding responsibilities the legislation creates.

Finally, the legislation misses a golden opportunity to address the experiences states have had with the State Criminal Alien Assistance Program (SCAAP). As you know, SCAAP is a reimbursement program to states for the costs associated with incarcerating undocumented aliens. It is puzzling that, despite the legislation’s emphasis on border and interior enforcement, that the costs to states for incarcerating criminal aliens are ignored. Shifting these costs to states weakens the state/federal partnership to combat crime. No immigration reform legislation will be complete without due attention to both the programmatic and fiscal aspects of SCAAP.

Thank you for considering our concerns. Despite the intentions behind H.R. 4437, this legislation deserves a negative vote and further committee scrutiny. Please have your staff contact Sheri Steisel (202-624-8693, sheri.steisel@ncsl.org), Susan Parnas Frederick (202-624-3566, susan.frederick@ncsl.org) or Michael Bird (202-624-8686, michael.bird@ncsl.org) for additional information.

Sincerely,

William T. Pound
Executive Director, NCSL

Cc: Members of the United States House of Representatives

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