Criminalizing Unlawful Presence: Selected Issues

RS22413 -- Criminalizing Unlawful Presence: Selected Issues

Updated May 3, 2006


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.