WASHINGTON — Under immigration legislation being considered in the House, living illegally in the United States would no longer be a violation of civil immigration law. It would be a federal crime.
But making the nation's estimated 11 million illegal immigrants into felons could deal a fatal blow to the proposed guest-worker program that is a cornerstone of President Bush's immigration overhaul, because immigrants who have committed crimes are not eligible for legal status in the United States.
The move, spearheaded by the chairman of the House Judiciary Committee, Rep. F. James Sensenbrenner Jr. (R-Wis.), is part of a push by House Republicans to set the tone for the debate over revising immigration laws that will continue into 2006. The measure could come up as soon as today.
House Republicans want tough border security and enforcement provisions in place before discussion of a guest-worker program. Their clash with pro-business Republicans has created tensions within the party and with the administration that the House bill could intensify.
"How does the provision fit in with the president's proposal for creating temporary workers?" said Harry J. Joe, an immigration lawyer and partner with Jenkens & Gilchrist, a Dallas law firm. "Or is the House really saying we never intend to take up Bush's proposal to give them some form of legal status? It would appear so."
Jeff Lungren, Sensenbrenner's spokesman, said the bill was intended to hold people accountable.
"A guest-worker program encourages people to come out of the shadows, but in general we're trying to encourage people who are here illegally to respect the laws and leave," he said. "The bill makes illegal presence in the U.S. a crime, no matter how you happened to come."
He said that Sensenbrenner had added an amendment that would reduce unlawful presence to a misdemeanor instead of a felony because "you can detain them without having to go through a jury trial, then their case goes through the immigration system."
Whether the amendment will be adopted is uncertain.
"Normally it would be, but immigration is a difficult subject," Lungren said.
Reducing unlawful presence to a misdemeanor would still make illegal immigrants ineligible for legalization, legal experts said. They said the risk of prosecution would drive illegal immigrants further underground.
"It's an extraordinarily hostile anti-immigrant measure," said Joan Friedland, immigration policy attorney for the National Immigration Law Center. "It indicates that their talk about dealing with temporary workers in the future was hollow, because if you do something that makes people ineligible for the program in the future, it means you were never serious about it in the first place."
The American Immigration Lawyers Assn. said the bill would also affect many legal residents because it "would render every violation of immigration law, however minor ... a federal crime."
The measure would apply to legal permanent residents who failed to inform the Department of Homeland Security of an address change within 10 days or foreign students who fell below a full course load.
The provision would allow state and local officials to enforce federal immigration law, said Timothy Edgar, policy counsel on national security and immigration for the American Civil Liberties Union.
Although state and local police can apply to the Department of Homeland Security for training on enforcing immigration law, outside that framework the idea is controversial because state and local police don't have the power to enforce civil law.
"But they do have the power to enforce federal criminal laws," Edgar said. "So if you make unlawful presence a crime, they'll be able to enforce civil immigration law. They could charge immigrants or just transfer them to DHS, who could deport them."
Enforcement advocates said concerns about the measure were overblown because prosecutors would use their discretion when applying it.
"This isn't something that would happen all that often," said Mark Krikorian of the Center for Immigration Studies. "Almost all illegals are criminals anyway, in that about 70% jumped the border and the remaining ones work illegally, which is a federal offense. This would just give prosecutors another tool. It's a helpful advance, but a modest one."