Several bills introduced in the 109th Congress would
make the unauthorized presence of aliens in the U.S. a criminal offense, including H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, introduced
by Representative James Sensenbrenner on December 6, 2005 and passed by the House as amended
on December 16, 2005, and S. 2454, the Securing America's Borders Act, introduced
by Senator Bill Frist on March 16, 2006. The version of Chairman Arlen Specter's mark reported out
of the Senate Judiciary Committee on March 27, 2006, (S.Amdt. 3192) does not contain
a provision criminalizing unlawful presence, though the bill had initially contained such a provision.
Neither version of the Comprehensive Immigration Reform Act of 2006 introduced in the Senate
on April 24, 2006, as S. 2611 and S. 2612, which are commonly referred
to as the Hagel/Martinez compromise, criminalize unlawful presence. Although unlawful entry into
the United States is both a criminal offense and a ground for removal, unlawful presence is only a
ground for deportation and is not subject to criminal penalty, except when an alien is present in the
United States after having been removed. This report briefly discusses some of the issues raised by
criminalizing unlawful presence.