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BACKGROUND
On Monday, March 27, 2006, the Senate
Judiciary Committee completed the markup of Chairman Arlen Specter’s
(R-PA) proposed immigration legislation (the chairman’s mark) entitled
the “Comprehensive Immigration Reform Act of 2006.”
The bill’s highlights include: a pathway to
legalization for the millions of undocumented immigrants in the U.S.;
reduction of the family immigration backlog, a temporary worker program;
the DREAM Act which would allow undocumented students who have grown up
in this country a pathway to legal status so that they can complete
their education and get on with their lives; and a modified version of
the AgJOBS bill which would provide legal status for certain
agricultural workers. Significantly, the Judiciary Committee bill
eliminated a provision in the chairman’s mark that would make being in
unlawful status a crime, and it provided a humanitarian exception for
provisions that would penalize some assistance to undocumented
immigrants.
However, the Judiciary Committee bill
includes many harsh enforcement provisions that are of great concern to
immigrants. Some were part of the original Specter bill. Others were
added by amendments offered in committee.
The legalization and temporary worker
provisions in the Judiciary Committee bill were elements of the Secure
America and Orderly Immigration Act (SAOIA) (S. 1033) introduced in 2005
by Senators John McCain (R-AZ) and Ted Kennedy (D-MA). These
provisions, while a step forward in comprehensive immigration reform,
retain flaws we described when the bill was first introduced. See
An Analysis of the Secure America and Orderly
Immigration Act of 2005.
Approval of the Judiciary Committee bill
came on the heels of massive public demonstrations across the country
calling for legalization of undocumented immigrants and denouncing
punitive enforcement-only bills such as H.R. 4437, passed by the House
of Representatives in December 2005. In the past few weeks, almost a
million immigrants and their allies have held marches in Milwaukee,
Tennessee, Chicago, Denver, Los Angeles and elsewhere. In Los Angeles
alone, at least 500,000 people marched through the streets of
downtown. These expressions of community sentiment appear to have
played a pivotal role in shifting the Senate debate.
The Judiciary Committee’s swift completion
of a bill followed a threat by Senate Majority Leader Bill Frist (R-TN)
that he would invoke a rarely used parliamentary procedure to bypass the
committee and bring his own punitive enforcement-only bill to the Senate
floor if the committee was unable to complete its work by Monday, March
27th. Although the deadline had not yet expired, Sen. Frist
took pre-emptive action and introduced his enforcement-only bill on
March 16. The Frist bill, “Securing
America’s Borders Act” (S. 2454), contains many punitive
provisions from the chairman’s mark, as well as some added sections
addressing highly skilled immigrants and limitations on judicial
review. However, the bill does not provide any legal immigration
reforms, such as a path to legal status, reductions of the family
immigration backlog, or any kind of a temporary worker program.
Debate on immigration reform has now begun
in the Senate. By agreement with the Senate leadership, the Judiciary
Committee bill has been offered as a substitute for the Frist bill.
Motions to limit debate on both bills will be filed next week, as well
as amendments to improve the bills or make them even more punitive. At
least 60 senators must vote to limit debate. If neither bill achieves
this vote, then Senate action on immigration reform will be at a
stalemate.
LEGALIZATION PROVISIONS
The bill passed by the Senate Judiciary
Committee included the earned legalization provisions within Title VII
of the Secure America and Orderly Immigration Act. Under SAOIA,
undocumented immigrants who were working in the U.S. on January 7, 2004
could qualify for temporary lawful status for 6 years if they pay a
$1,000 fine and fees, have complied with tax filing requirements, have
not committed certain crimes, and understand or are studying English,
U.S. civics and history. After the 6-year period, applicants who have
worked or studied continuously and meet the other requirements of the
bill would be able to adjust to lawful permanent resident (LPR) status
after payment of a second $1,000 fine and additional application fees.
TEMPORARY WORKER PROVISIONS
The Committee’s bill
also includes a temporary worker program that is based on Title III of
the Secure America and Orderly Immigration Act. Foreign workers would
be allowed to enter the U.S. and fill available jobs that require few or
no skills so long as the applicant demonstrates that he/she has a job
waiting in the U.S., pays a $500 fee and application fees and meets
security, medical and other conditions. The guest worker visa would be
valid for three (3) years, the visa can be renewed for an additional
three years, and after four years the worker could apply to adjust
his/her status to LPR status.
ADJUSTMENT OF STATUS FOR AGRICULTURAL WORKERS
The Comprehensive
Immigration Reform Act of 2006 would also create a pilot program to
allow some undocumented farmworkers to earn adjustment to LPR status.
The program was created out of a compromise between advocates for
farmworkers and the agriculture industry that resulted in the AgJOBS
bill. It would allow undocumented farmworkers who worked in agriculture
at least 150 days within the previous two years before December 31, 2005
to apply for a “blue card.” If they work an additional 150 work days
per year for 3 years, or 100 work days per year for five years, they can
apply for lawful permanent resident status. They must pay a fine of
$500, show they are current on their taxes, and that they have not been
convicted of certain crimes. They can also do non-agricultural work
during this period.
BACKLOG REDUCTION
The bill includes
measures to reduce immigration backlogs. 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. The number of visas for
employment-based visas would be more than doubled. The children and
spouse of a U.S. citizen who have applied for an immigrant visa would be
allowed to continue with their application if the citizen dies before
the visa is issued.
DREAM ACT
Also included in the
bill is the DREAM Act (S. 2075), which would allow immigrant students
who have grown up in the U.S., graduated from high school here, and can
demonstrate good moral character to initially qualify for “conditional
lawful permanent resident” status, which normally would last for six
years. During the conditional period, the immigrant would be required to
graduate from a 2-year college, attend 2 years towards a 4-year degree,
or serve for 2 years in the military. At the end of the conditional
period, those who meet at least one of these requirements would be
eligible to adjust to LPR status and could apply for citizenship without
any further delay. The bill would also eliminate a federal provision
that discourages states from providing in-state tuition without regard
to immigration status.
PUNITIVE ENFORCEMENT PROVISIONS
The bill reported out
of the Judiciary Committee contains many harsh and punitive enforcement
provisions, including provisions that would:
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Make expedited
removal (removal without a chance to have an immigration judge hear the
case) mandatory for individuals (except for Mexicans and Cubans)
detained within 100 miles of the border and within two weeks after
entry;
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Require mandatory
detention of individuals (except for Mexicans and Cubans) caught at a
port of entry or land or international land or maritime borders;
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Make detention more
likely by increasing detention space;
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Vastly expand the
number of border patrol agents and further militarize the border without
providing the protections needed to hold the government accountable for
civil and human rights violations;
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Overrule Supreme
Court decisions on indefinite detention and allow the Department of
Homeland Security (DHS) to detain immigrants indefinitely, even when
they have not committed a criminal offense and there is no reasonable
chance of removal to their home country;
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Limit courts’ ability to halt (enjoin) government
violation of immigrants’ constitutional and statutory rights;
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Make voluntary
departure rules harsher;
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Greatly expand the
definition of passport, visa and immigration fraud crimes in order to
criminalize acts such as the omission of information (rather than
provision of false information) on immigration-related documents;
-
Bar persons from
adjusting status if they admit (conviction not required) a document
fraud offense; even a person who has US citizen or lawful permanent
resident family members will be inadmissible, if she admits completing
an I-9 form with a false Social Security Number to get a job;
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Increase the
penalties for failing to file notice of change of address;
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Assert that states
have “inherent authority” to enforce federal criminal immigration laws;
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Authorize the entry
of a wide range of civil immigration records into the federal National
Criminal Information Center criminal database;
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Expand local agency
enforcement of federal immigration law by mandating that DHS reach out
to states to enter into a memorandum of understanding to enforce federal
immigration law (but without requiring states to enter into those
agreements);
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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.;
-
Expand the
“smuggling” forfeiture provision to apply to any property; a person who
invited an undocumented relative to her house might lose her house
-
Impose immigration
penalties on US citizens and LPRs by limiting their rights to petition
for their relatives, if the citizens or LPRs have committed certain
crimes;
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Make the Basic
Pilot employment eligibility verification program mandatory for all
employers despite longstanding problems with inaccuracy of records, lack
of privacy protections, and misuse by employers;
-
Greatly restrict
the documents that individuals may use to prove identity and work
authorization when applying for work; as a result, many citizens and
immigrants will be unable to prove their eligibility to work;
- Use Social
Security Administration no-match letters to enforce immigration laws,
despite the fact that such letters are often inaccurate, affect work
authorized individuals, and lead to wrongful firing and retaliation by
employers.
IMPROVEMENTS MADE DURING JUDICIARY
COMMITTEE CONSIDERATION OF THE CHAIRMAN’S MARK
During Judiciary
Committee consideration, some important improvements were made to the
Specter mark by amendments or other action:
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The provision making unlawful presence a
misdemeanor was removed.
-
The humanitarian exception to the
provisions making assistance to immigrants a crime of smuggling was
broadened to cover non-emergency medical care, counseling, victim
services and housing.
-
Refugees, asylees, and certain
vulnerable populations would have limited protection from prosecution
for the wide range of document fraud provisions.
-
Some of the retroactive application of
punitive provisions was eliminated.
-
Limited judicial review
of naturalization decisions and delays under current law was retained
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Title VII of the Specter
mark, which would limit all immigration appeals to the Federal Circuit
Court of Appeals, and permit such appeals to proceed only in cases where
a judge issues a certificate of reviewability within 60 days, in effect
preventing most immigrants from appealing adverse immigration
decisions. This title was pulled from the bill by Sen. Specter. A
hearing on the issue will be held in the Judiciary Committee on April 3,
and some version of the provision is expected to be offered as an
amendment on the Senate floor.
CONCLUSION
The future course of this legislation
remains utterly unpredictable. It could be improved or significantly
weakened over the next week, changing the significance of procedural
votes and even of the vote about final passage. Although we recognize
that the Comprehensive Immigration Reform Act represents a serious
effort to make needed reforms in our immigration system, the National
Immigration Law Center cannot support this legislation in its current
form because of its punitive provisions.
But regardless of how the debate unfolds,
it is imperative for all Senators to hear from the pro-immigrant side of
the debate to balance the messages that they are receiving. Please
contact your Senators each day while the debate continues to express
your strong support for a path to legalization and reductions in the
family immigration backlog, and your opposition to punitive
anti-immigrant “enforcement” provisions.
—Joan
Friedland, Immigration Policy Attorney
Monica Guizar, Employment Policy Attorney
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