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Senate Approves CIR of 2006

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MAY 30, 2006

Senate Approves Sweeping but Flawed Immigration Reform Bill: The Comprehensive Immigration Reform Act of 2006

As the Comprehensive Immigration Reform Act of 2006 (S 2611) was debated on the Senate floor and among the public at large over the past two weeks, attention focused on one issue more than any other:  Should undocumented immigrants who live and work in the United States be granted a path to citizenship?  To the Senate's credit, on Thursday, May 25, when it voted 62 to 36 to approve the bill, it answered this particular question in the affirmative.  But the heavily amended bill that the Senate finally approved -- one of the most sweeping and comprehensive immigration reform proposals ever to be passed by either house of Congress -- is a multi-headed monster, composed of a myriad complex and poorly integrated provisions.  While some of these measures would enact desperately needed reforms, others would substantially undermine the goals of those reforms or run contrary to core American values.

FEATURES OF S. 2611 AS PASSED BY THE SENATE

The main features of S 2611 include:

Path to legal status:  Provide various paths to legal status with differing requirements for an uncertain number of the estimated 11-12 million undocumented immigrants who live, work and pay taxes in the U.S.

Each legalization mechanism provided for in the bill would provide temporary status or temporary worker status for a substantial number of years to certain non-U.S. citizens, followed by permanent residence for those who qualify.  The mechanisms would include: (1) "earned adjustment" for those who have lived and worked in the U.S. since April 5, 2001; (2) "deferred mandatory departure" (DMD) for those who entered between April 5, 2001, and January 7, 2004 (who must leave the U.S. within 3 years but could return under the new guest worker program, with the possibility of ultimately obtaining permanent status); (3) AgJOBS, for those who have worked in agriculture for at least 2 years; and (4) the DREAM Act, for individuals brought to the U.S. at the age of 15 or younger at least 5 years before the date S 2611 is enacted.

Unfortunately, it is certain that many currently undocumented immigrants would not be able legalize under these provisions -- even if they meet the residence and work requirements -- because of the complications and barriers that are discussed below.

Backlog reduction:  Greatly reduce the immigration backlogs that currently cause family separation and business frustration.

Among the changes:  (1) Immediate relatives (spouses, children and parents) of U.S. citizens would no longer be counted against the worldwide limit of available visas, and those visas would be made available for other family categories; (2) the number of employment-based visas would be more than doubled; and (3) a U.S. citizen's child or spouse who has applied for an immigrant visa would be allowed to continue with his or her application if the citizen dies before the visa is issued.

An amendment added on the Senate floor would restrict future immigration by persons from certain countries by reducing the number of "diversity visas" to 18,333 from the current level of 55,000 and replacing these with a like number of new visas for persons with advanced degrees.  Diversity visas, also known as lottery visas, are made available to individuals from countries with historically low levels of immigration to the U.S.  In recent years, a high proportion of these visas have gone to people from Africa.

More guest workers:  Expand and reform the existing H-2A guest worker program for agricultural workers (part of AgJOBS) and create a new H-2C program granting up to 200,000 annual visas for low-skilled workers and others whose job types are not covered by current guest worker provisions.

H-2C visas would be valid for three years and could be renewed once for a total of six years.  Workers would be able to switch from one approved employer to another and would be able to adjust to lawful permanent resident status at any time via an employment-based immigrant visa petition by the employer or, after four years, via a self-petition that would require a U.S. Dept. of Labor certification that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill their job.

Employment eligibility verification:  Expand the problematic "Basic Pilot" electronic employment eligibility verification system -- currently being used on a voluntary basis by a few thousand employers -- to a mandatory program that must be applied to all 50 million annual new hires in the U.S.

The expansion would be phased in over an 18-month period.  An amendment added during floor debate would make the system somewhat more workable and would provide protections against erroneous disapprovals, privacy lapses, discrimination, and other abuses.  Despite the improvement, the new program would not address the core flaws inherent in any such system.  It would bring us closer to implementation of a national ID, and unless the underlying problems are addressed it would push large numbers of employers and workers alike into the burgeoning underground cash economy, devoid of regulations.

"Border enforcement."

Numerous provisions of S 2611 are intended to reduce illegal border crossings.  But experience suggests that these provisions will further militarize the border without providing the protections needed to hold the government accountable for civil and human rights violations and without reducing the undocumented population.  These measures include:

  • Construction of 370 miles of triple-barrier fencing and 500 miles of vehicle barriers;

  • Increasing the number of Border Patrol officers from 11,300 currently to more than 25,000 by 2011;

  • Authorizing use of the National Guard to patrol the border with Mexico until 2009;

  • Making expedited removal (removal from the U.S. of a noncitizen without the person being afforded a chance to have an immigration judge hear his/her case) mandatory for individuals (except for Mexicans and Cubans) detained within 100 miles of the border and within two weeks after entry;

  • Requiring mandatory detention of individuals (except for Mexicans and Cubans) caught at a port of entry or land or international land or maritime borders.

"Interior enforcement":  Increase penalties and reduce due process protections for those charged with immigration violations, while increasing state and local enforcement of immigration laws.

For example, S 2611 would:

  • Overrule Supreme Court decisions on indefinite detention by allowing the Dept. of Homeland Security (DHS) to detain immigrants indefinitely, even when they have not committed a criminal offense and there is no reasonable chance that they can be removed to their home country (e.g., because that country will not accept them);

  • Make detention more likely by increasing detention space;

  • Limit courts' ability to halt (enjoin) government violation of immigrants' constitutional and statutory rights;

  • Bar persons from adjusting status if they admit (conviction not required) a document fraud offense (Even a person who has U.S. citizen or lawful permanent resident family members will be inadmissible -- if the person admits completing an I-9 form with a false Social Security number to get a job.);

  • Greatly expand the definition of passport, visa, and immigration fraud crimes, including the criminalization of omission of information (rather than provision of false information) on immigration-related documents;

  • Unreasonably expand the definition of "aggravated felony," which will make even more immigrants deportable and permanently ineligible for legal status;

  •  Broaden the definition of "smuggling" and include in the definition actions taken outside the U.S., and expand the "smuggling" forfeiture provision to apply to any property (Under this provision, a person who invited an undocumented relative into his or her house might lose the house.);

  • Expand state and local enforcement of immigration laws by:  (1) authorizing state and local police to enforce federal criminal immigration laws; (2) authorizing reimbursement for training, transportation, and other expenses; (3) mandating that DHS reach out to states to enter into memorandums of understanding to enforce federal immigration law (but without requiring states to enter into such agreements); (4) authorizing the entry of a wide range of civil immigration records into the federal National Criminal Information Center database; and (5) changing the definition of the crime of "entry without inspection" (committed by 60-75 percent of undocumented immigrants) to a "continuing offense," which would have the effect of authorizing state and local police to enforce this immigration offense;

  • Impose immigration penalties on U.S. citizens and lawful permanent residents by limiting their rights to petition for their relatives, if the citizens or lawful permanent residents have committed certain crimes;

  • Increase the penalties for failing to file notice of changes of address; and

  • Make voluntary departure rules harsher.

English as the national language.

S. 2611 would declare English to be the "national language" of the U.S. and would provide that, unless otherwise provided by law, individuals do not have a legal entitlement to services or materials in any other language.  It also would provide that if there is a discrepancy between a form provided in English and in another language, only the English version governs.  Finally, it would provide new guidelines that could make the English and civics tests that naturalization applicants are required to take more difficult to pass.

BARRIERS TO LEGALIZATION

The actual number who would be able to legalize under the various provisions listed above is difficult to determine because of complications and barriers built into the bill that would prevent many from qualifying.  For example, among the approximately two million undocumented immigrants who have entered the U.S. since January 7, 2004, only those who are the children or spouses of others who legalize will be able to adjust their status.  Other barriers include:

Cost. 

For most noncitizens who qualify, the minimum cost of legalizing under the earned adjustment program, in fines and fees, would likely exceed $4,000.  For many, this expense would be compounded by a tax increase that would solely apply to legalizing immigrants.  Provisions added during Senate floor debate would substantially increase the tax liability of legalizing immigrants for past tax years by: (1) extending the number of years for which back taxes are required; (2) tacking on interest and penalties; (3) prohibiting immigrants from calculating their taxes using the credits available to all other taxpayers; and even (4) precluding refunds of overpayments in those years.  These tax provisions, described by some during the Senate debate as vengeful and unfair, appear to apply even to immigrants who have already paid their taxes in full.  They would substantially increase the cost of legalizing and therefore the ability to do so for many individuals.  Requiring so large an expenditure from such a predominantly low-income population would border on extortion.

English-language ability. 

As passed by the Senate, S 2611 would requires all applicants for earned adjustment to pass the naturalization test for English and civics, although the bill provides for age and disability exceptions to this requirement.  The same floor amendment that would make English the national language of the U.S. also would eliminate the option of meeting the English and civics requirements by satisfactorily pursuing a course of study in English of civics.

Minor past crimes. 

Provisions of S 2611 would preclude individuals who have committed minor crimes years ago from obtaining legal status.

Uncertainty and confusion.

The overlapping paths to legal status, each with its own set of requirements and exclusions, would likely confuse immigrants, social service agencies, and government employees alike, resulting in missed deadlines and opportunities.  Of particular concern is the process for deferred mandatory departure available to those who entered the U.S. between April 5, 2001, and January 7, 2004.  These individuals would be required to sign away all rights to judicial review of future decisions by immigration authorities, and then they would be required to leave the U.S. within three years and return under one of the existing immigrant or nonimmigrant categories.  The assumption is that almost all would return under the new guest worker classification, but it is doubtful that this process would work as intended.

NEXT STEPS

Immigration reform now will be taken up by a House-Senate conference committee that will attempt to bridge the wide divide between S 2611 and HR 4437, popularly known as the Sensenbrenner bill, which the House passed in December.  Unlike the Senate bill, HR 4437 would not provide a path to legal status for undocumented immigrants.  It would not address family backlogs or make any other helpful changes to our broken immigration system.  The House bill also contains many harsh provisions not included in the Senate version, such as a drastic reduction in immigrants' access to federal courts.

The conference committee will negotiate over each detail of difference between the House and Senate versions in an effort to synthesize a single compromise bill.  A majority of the House conferees and a majority of the Senate conferees must agree to the compromise version before it will be reported back to the floor of each chamber for a final vote.  The Senate Republican and Democratic leadership agreed in advance on the composition of the Senate's contingent of conferees for the immigration bill, which will include a majority of senators who have consistently supported a comprehensive solution to our immigration problems, including a path to citizenship for undocumented immigrants.

In contrast, the House conferees will be appointed by Speaker Dennis Hastert (R-IL), and their decisions will be controlled entirely by the House leadership, which has pledged not to permit a conference report to emerge unless supported by a majority of Republican House members.  This erects a very high bar for any proposal that includes positive features, given that nearly half of those representatives are members of the House's "Immigration Reform Caucus," headed by Rep. Tom Tancredo (R-CO).

Because of the healthy Senate vote in favor of a comprehensive (though flawed) approach, the Senate conferees will have a strong mandate to retain the core concept of a path to citizenship in S 2611 and to fight against provisions in the House bill that would make the punitive aspects of the bill even harsher.  Despite expressions of optimism by some senators in the past week or so, it will be very difficult for them to find common ground with the House conferees, who are likely to be intransigent.  There is speculation that Speaker Hastert may decide not to appoint any conferees as a way of preventing uncontrolled negotiations on the bill.

In any case, it is unlikely that a resolution will be forthcoming soon.  It is even possible that the conference committee will not come to agreement until after the election, when Congress is expected to meet in a lame-duck session to complete work on the budget.

CONCLUSION

It is a shame that the complex and ambitious Senate bill fails to live up to the noble aspirations of its authors.  But in the current anti-immigrant environment, passage by the full Senate of legislation that at least aspires to provide a path to legal status for most undocumented immigrants in the U.S. and to address family- and employment-based legal immigration backlogs is a remarkable accomplishment, one that is best explained by the emergence of a burgeoning national immigrant rights movement from sea to sea, border to border, and nearly all points in between.

Our goal at NILC is to ensure that the bill that ultimately becomes law is a significant improvement over the current version of S 2611.  We recognize that the needed improvements are unlikely to happen in this conference, but at a minimum it is critically important that the Senate conferees remain resolute rather than give in to House demands for a bill that would more closely resemble the one that the House passed in December.  Our job as advocates is to press the conferees to retain the positive provisions of the Senate bill and to improve those that are problematic.  If immigrant communities remain active and involved -- if the movement for real reform grows -- then our supporters in Congress may well come back after the election with the wind at their backs and with a mandate for the kind of change that will be good for immigrants, and good for the nation as a whole.