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THE ISSUES

Originally Published: 5/24/2006

FIXING ILLEGAL IMMIGRATION

By The Issue Wonk

 

Background

 

The recent flurry of activity over immigration reform has brought forth myriad proposals, most of which apply to all immigration populations, with some exceptions for Mexicans and Cubans.  However, most of the enforcement provisions pertain only to the U.S.-Mexican border.  Why?  According to a Pew Hispanic Center Research Report,1 as of March 2005 Mexican nationals made up “56% of the unauthorized population.”  However, migrants from Mexico, Central and South America all together, all of whom are presumably crossing the U.S.-Mexican border, make up about 74.13% of the “unauthorized population.”  The Research Report also describes the migrants as 49% adult males, 35% females, and 16% children.  “As of 2005, there were 6.6 million families in which either the head of the family or the spouse was unauthorized.  These unauthorized families contained 14.6 million persons.  Nearly two-thirds (64%) of the children living in unauthorized families are U.S. citizens by birth, an estimated 3.1 million children in 2005.”  As to the U.S. labor force, “unauthorized migrants accounted for about 4.9% of the civilian labor force . . . or about 7.2 million workers out of a labor force of 148 million.”  (For more information, please see the entire report.)

 

Proposed Legislation

 

In December, 2005 Representative F. James Sensenbrenner (R, WI) introduced House Bill 4437, the Border Security Bill.  It addresses nothing but enforcement, with no guest-worker program or provision for undocumented immigrants to become citizens, as requested by President George W. Bush.  The House bill “was adamantly opposed by an unusual coalition of business lobbies; ethnic groups, such as the National Council of La Raza; religious organizations; and labor unions that contend the measure is too harsh on illegal immigrants and imposes unworkable requirements on employers.”2   The bill passed 239 to 182 and was sent to the Senate.  [See text of bill as engrossed in the House.]  The Senate has its own bill, the Comprehensive Immigration Reform Act of 2006 (S. 2611), which has been amended and debated for weeks.  It combines enforcement with a guest-worker program and a legalization program.  “But a large number of House conservatives say they will never accept such a measure.”2  In May President Bush made his wishes known and he has been working with the Senate to get his proposals included.  A bill is expected to come out of the Senate soon, but it will have to go to a conference committee to iron out its differences with the House bill.  The most contentious portions of the Senate bill center on a guest-worker program and legalization provisions for undocumented immigrants currently in the U.S.

 

I found no Congressional Budget Office (CBO) estimate of the costs for the House bill.  However, CBO did complete a cost estimate for the Senate bill, and estimated that bill, as originally proposed, would “increase direct spending by $13 billion over the 2007-2011 period and by $54 billion over the 2007-2016 period. . . Assuming appropriation of the amounts authorized in the bill, discretionary spending would increase by $25 billion over the 2007-2011 period.”3  On May 24, 2006, CBO issued an estimate of the number of individuals who will be affected by Senate Bill 2611, as introduced.  For “Individuals who are or will be in the United States under current law and would change their immigration status,” they estimate there would be a total of 2.3 million in 2007, increasing to 11.0 million in 2016.  For “Individuals who would newly enter the United States” under the proposed legislation, they estimate there would be .3 million in 2007, increasing to 7.8 million in 2016.

 

The main components of the House and Senate bills, as well as the amendments being bandied about, along with the President’s proposals, are set forth below.  This list is by no means comprehensive, and changes are being made almost daily.  It will, however, provide an outline of the issues being discussed.

 

Protecting the Border

 

Fences:  The House bill allots more than $2.2 billion to build 5 double-layer border fences in California and Arizona, totaling 698 miles at $3.2 million a mile.  The Senate proposed at least 370 miles of double- and triple-layered fencing and allows for replacing and/or extending the fence along parts of the Arizona border.  It also provides for fence construction in all areas most used by smugglers.

 

Technology:  In addition to the proposed fencing, the Senate bill calls for a “virtual fence” comprised of surveillance cameras, sensors, and other technology.  Military contractors Lockheed Martin, Raytheon, Northrop Grumman, Boeing, and Ericsson have already said that they would submit bids for the multibillion-dollar federal contract.4  The president’s proposal calls for the use of 6,000 National Guard troops for at least a year.  Border states would be reimbursed for costs.5  The president has “already deployed sensors and unmanned aerial vehicles (UAVs) on the border.”6  The technological proposals, combined with out-sourcing, are being met with much skepticism.  Bush’s “Secure Border Initiative” isn’t just an “amalgam of high-tech equipment to help it patrol the borders – a tactic it has also already tried, at a cost of hundreds of millions of dollars, with extremely limited success.  It is also asking the contractors to devise and build a whole new border strategy that ties together the personnel, technology and physical barriers. . . The government’s track record in the last decade in trying to buy cutting-edge technology to monitor the border . . . is dismal.  Because of poor contract oversight, nearly half of video cameras ordered in the late 1990’s did not work or were not installed.  The ground sensors installed along the border frequently sounded alarms.  But in 92% of the cases, they were sending out agents to respond to what turned out to be a passing wild animal, a train or other nuisances, according to a report late last year by the homeland security inspector general.”4  (For more information on the problems with UAVs, please see the Congressional Research Service report Homeland Security:  Unmanned Aerial Vehicles and Border Surveillance.)  In April, 2006 a UAV, unveiled in September 2005, crashed and was extensively damaged.  It was reported to be worth $10 million.7

 

Law Enforcement

 

Undocumented Immigrants:  The House bill called for punitive measures that could criminalize not only undocumented workers but also their families.  Only Mexican migrants caught while entering the country would still come under the “catch and release” policy.  Others caught at the border “would have to be detained and the deportation process would be streamlined. . . Mandatory minimum sentences would be established for those who re-enter after deportation, and local sheriffs in the 29 counties along the Mexican border would be reimbursed for detaining illegal immigrants and turning them over to federal custody.”2  The Senate bill also creates more detention space and expands local agency enforcement of federal immigration law by mandating that the Department of Homeland Security (DHS) enter into “memorandums of understanding” with states to enforce federal immigration law.  States are not required to enter into such agreements.  Neither the House nor the Senate bill provides for protections “to hold the government accountable for civil and human rights violations.” 8 

 

Punitive Measures:  The Senate bill contains punitive enforcement provisions, including:8

 

Expedites removal (with no chance to have an immigration judge hear the case) for individuals (except Mexicans and Cubans) detained within 100 miles of the border and within 2 weeks after entry.

 

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

 

Contradicts the Supreme Court decisions on indefinite detention and allows DHS to detain immigrants indefinitely, even if they have not committed a criminal offense and there is no reasonable chance of removal to their home country.

 

Makes voluntary departure rules more difficult.

 

Expands the definitions of passport, visa, and immigration fraud crimes in order to criminalize acts, such as the omission of information on immigration-related documents.  This would include a range of acts, such as “using, forging, falsely making, submitting with false statements, possessing, distributing, or transferring.”  It would also “prohibit the use of a false or fictitious name to evade immigration laws” and would broadly define “any immigration document” to include “other evidentiary documents, arising under or authorized by the immigration laws of the United States,” as well as “any document, photograph, or other piece of evidence attached to or submitted in support of an immigration document.”  It would define “falsely makes” to include preparing or making documents that are false, have no basis in fact or law, or fail to state material facts.  It also would define “false statement” to include “personation” (claiming to be another person) as well as “omission.”  NILC9 says the these provisions could put legalization out of the reach of millions of undocumented immigrants.

 

Bars people from adjusting their status if they admit a document fraud offense, including completing an I-9 form with a false Social Security number to get a job, even for a person who is a family member of a  U.S. citizen or someone who has legal permanent resident (LPR) status.  Exceptions are made for refugees, asylees, and certain vulnerable populations.

 

Increases penalties for failing to file notice of change of address.

 

Authorizes the entry of a wide range of civil immigration records into the federal National Criminal Information Center (NCIC) criminal database.

 

Expands the definition of aggravated felony, which will make more immigrants deportable and permanently ineligible for legal status.

 

Imposes immigration penalties on U.S. citizens and LPRs by limiting their rights to petition for their relatives, if the citizens or LPRs have committed certain crimes.

 

Uses Social Security Administration “no-match” letters to enforce immigration law.

 

Smugglers:  The House bill sets out new mandatory minimum sentences for smuggling immigrants.2  The Senate bill broadens the definition of smuggling to include actions taken outside the U.S. and expands the smuggling forfeiture provision to apply to any property.  (For example, a person who invites an undocumented relative into his/her home could lose his/her house.8)  Exceptions are made for humanitarian assistance.

 

Employers:  Under the House bill employers would “have to confirm the authenticity of employees’ Social Security numbers against a national database of legitimate numbers or face stiff new fines of as much as $25,000 per violation.”2  The Senate bill also incorporates requirements for employers by making an employment eligibility verification program mandatory for all employers and restricting the documents that individuals may use to prove identity and work authorization when applying for work.8

 

Getting Legal

 

Pathway to Legalization:  The Senate bill includes provisions for millions of undocumented immigrants to become legal by separating illegal immigrants currently in the United States into 3 categories and proposing differential laws for each group:

 

Those here more than 5 years (before April 5, 2006) “could work for 6 years and apply for legal permanent residency without having to leave the country.”

 

Those here between 2 and 5 years, (since January 7, 2004) “would have to go to border entry points sometime in the next 3 years, but could immediately return as temporary workers.”

 

Those here less than 2 years (since January 6, 2004 or a more recent date) would have to leave and wait in line for visas to return.

 

          Fines and fees are imposed and language and education requirements assessed.8  The Senate bill prohibits immigrants convicted of a felony or 3 misdemeanors from citizenship.  The president has supported an opportunity for illegal immigrants who meet certain standards to gain legal status.6  “Senators rejected an amendment by Johnny Isakson (R, GA) that would have bent the bill toward the enforcement emphasis favored by the House.  The amendment would have required U.S. officials to certify that the nation’s borders were secure and that new detention facilities for illegal immigrants were operating before guest worker and legalization programs would take effect.” 6  Gang members would forever be inadmissible under any circumstances.  An amendment to the Senate bill decreases “by an estimated 500,000 the number of illegal immigrants who could pursue citizenship.”10

 

Temporary Worker Program:  The Senate bill allows for a guest-worker program, which has been adamantly supported by the president.  The House measure made no such provision.  The Senate’s plan would issue a “guest worker visa” to foreign workers to 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 3 years, can be renewed for an additional 3 years, and after 4 years the worker could apply to adjust his/her status to LPR status.8  Senators rejected an amendment by Johnny Isakson (R, GA) that would have required U.S. officials “to certify that the nation’s borders were secure and that new detention facilities for illegal immigrants were operating before guest worker and legalization programs would take effect.”6  A Senate amendment was defeated that would have excluded the guest-worker program.6  Another amendment to the Senate bill, which narrowly passed 50 to 48, requires “the Department of Labor to certify that there was not a U.S. worker who was able, willing, qualified and available to fill the job that was offered to a foreign worker.”10

 

Agricultural Workers:  The Senate bill includes a pilot program to allow some undocumented farmworkers to earn adjustment to LPR status.  Farmworkers who have worked in agriculture at least 150 days within the previous 2 years before December 31, 2005 could 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 5 years, they can apply for LPR 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.8  This program would provide for approximately 1.5 million temporary agriculture industry workers over 5 years.11 

 

Other Provisions

 

Reduction of Backlog:  The Senate 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 employment-based visas would be more than doubled.  The children and spouse of a U.S. citizen who have applied for an immigration visa would be allowed to continue with their application if the citizen dies before the visa is issued.”8

 

The DREAM Act:  The Senate has proposed the DREAM Act12 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.”  Immigrant students would qualify who have “graduated from high school here, and can demonstrate good moral character to initially qualify for ‘conditional lawful permanent resident’ status, such status to normally last for 6 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.”8

 

_______________

 

1  Passel, Jeffrey S.  March 7, 2006.  Executive Summary.  The Size and Characteristics of the Unauthorized Migrant Population in the U.S.  Estimates Based on the March 2005 Current Population Survey.  Pew Hispanic Center.

 

2   Weisman, Jonathan.  House Votes to Toughen Laws on Immigration.  One Setback for Bush:  No Guest-Worker Plan.  Washington Post, December 17, 2005.

 

3   Congressional Budget Office.  May 16, 2006.  Cost Estimate S. 2611 Comprehensive Immigration Reform Act of 2006, as introduced on April 7, 2006.

 

4  Lipton, Eric.  May 18, 2006.  Bush Turns to Big Military Contractors for Border Control.  The New York Times.

 

5  In December, 2005 Fox’s Bill O'Reilly interviewed Michael Chertoff, head of the Department of Homeland Security, and proposed sending in the National Guard.  Chertoff said, "Well, the National Guard is really, first of all, not trained for that mission.  I mean, the fact of the matter is the border is a special place.  There are special challenges that are faced there."  (Congressional Quarterly)  Also, in 2005 Congress passed, and Bush signed, a bill to add 2,000 border patrol agents over the next 5 years for a total of 10,000 new agents with about 80% of them being along the U.S.-Mexico border. as recommended by the 9/11 Commission.  (See National Intelligence Reform Act.)  However, a 2005 supplemental budget request by the president only called for funding 210 new agent positions.  (See The U.S. Border Patrol: Failure of the Administration to Deliver a Comprehensive Land Border Strategy Leaves our Nation’s Borders Vulnerable.  House of Representatives, May 2005.)  On May 18, 2006, Bush revised this request to ask for resources to hire 1,000 new agents.

 

6  Gaouette, Nicole & Simon, Richard.  May 17, 2006.  House GOP Fails to Warm to Bush Border Proposal.  Los Angeles Times.

 

7  KVOA-4.  April 25, 2006.  Border Patrol’s Unmanned Aerial Vehicle Crashes.  Tucson, AZ

 

8  National Immigration Law Center. March 30, 2006.  Senate Judiciary Committee Approves Sweeping Immigration Bill.  Immigration Law & Policy.

 

9  National Immigration Law Center.  May 15, 2006.  Document fraud provisions in Senate Immigration Bills Could Put Legalization Out of Reach for Millions.  Immigration Law & Policy. 

 

10 Gaouette, Nicole.  May 18, 2006.  Senate Toughens Border Stand, Approves Miles of New Fence.  Los Angeles Times.

 

11 Senate Vote Sidetracks Immigration Legislation.  April 7, 2006.  The Associated Press.

 

12 National Immigration Law Center.  April, 2006.  Dream Act Summary.

 

 

© The Issue Wonk, 2006

 

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