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immigration-reform

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Copyright (c) 2007 Nexus, A Journal of Opinion
Nexus, A Journal of Opinion

2007 / 2008

13 Nexus J. Op. 29

LENGTH: 8645 words

A NEW YEAR AND THE OLD DEBATE: HAS IMMIGRATION REFORM REFORMED ANYTHING?: ARTICLE: The "Comprehensive" Immigration Reform: Only as Good as the Bureaucracy it is Built Upon

NAME: Meriam N. Alrashid*

BIO:
 
* Meriam N. Alrashid would like to dedicate a special thanks to Michael J. Provost for his help with the background research and editing.

SUMMARY:
... The Comprehensive Immigration Reform Act of 2007 (Senate Bill 1639, "S. 1639"), also known as the "Secure Borders, Economic Opportunity and Immigration Reform Act of 2007," was introduced to the United States Senate by Senators Kennedy (D-MA) and Specter (R-PA) on June 18, 2007. ... Thereafter, S. 1639 was introduced as the grand compromise between the Senate's earlier immigration reform attempts and the House of Representatives' immigration reform attempts. ... Generally, S. 1639 addresses seven topics for reform: border enforcement, interior enforcement, worksite enforcement, a new temporary worker program, immigration benefits, nonimmigrants in the US previously in unlawful status, and miscellaneous immigration issues. ... In Title II, the interior enforcement title, section 201 describes additional immigration personnel who will be hired for the Department of Homeland Security, the Department of Justice, the Administrative Office of the U.S. ... As part of the system, the Act calls for the EEVS to access information compiled and managed in Social Security Administration (SSA) records, Department of State passport and visa records, States' vital statistics agencies, and States' driver's license and identity card databases. ... These measures will illustrate why the bill fell short by providing no real, sound and practical structure for execution, an impractical, tediously bureaucratic system that lacked sufficient capacity on the part of concerned agencies and employers, and evasion of the Byzantine steps it would take to comply with such programs embodied in the bill. ... Subject to regulations to be promulgated, the new bureaucracy would sift impacted agencies' databases, and, relying upon the controversial REAL ID Act-compliant identification documents, confirm identity and employment eligibility assertions submitted for every employee hired by every employer in the nation.

TEXT:
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I. Introduction
  The United States of America was founded by and upon the backs of diverse immigrant groups. To this day, a wealth of American jobs, from corporate executives to agricultural workers, are filled by immigrants. In the midst of the War on Terror and concerns about looming health care costs, immigration reform is at the forefront of issues for Americans. Phrases such as "broken borders" and "red tape" are commonly used when describing the problems with the current immigration system. In the past two years especially, there have been several legislative attempts to revamp the current immigration system and methodically "fix" each problem. This article examines the most recent attempt at comprehensive immigration reform as introduced in Senate Bill 1639 this past June. 1

First, this article provides a broad background to the issues involved in immigration reform along with insight into the thoughts of many prominent politicians. Second, this article examines the overarching principles of the bill and analyzes how each proposed change would be put into effect. Finally, this article explains why the bill is inadequate to "fix" all of the problems with current immigration law and policy, as the crucial element to any brand of reform-the bureaucratic system-is yet again ignored.

 [*30] 

II. Background
  Immigration in the United States has significantly affected the U.S. economy. Such effects figured in the 2005 Economic Report of the President, in which President Bush stated: "immigration has touched every facet of the U.S. economy and ... America is a stronger and better Nation for it." 2 Furthermore, the U.S. labor market demands and will continue to demand in increasing progression, immigrant labor. 3 Notwithstanding the significant "contributions of immigrants to the American culture, economy and population, there is an emotional debate about immigration," 4 and a great deal of the tension and dissatisfaction is directed at the "immigration bureaucracy." 5 The most recent attempt to address the concerns of those on both sides of the immigration debate occurred in May and June of 2007.

The Comprehensive Immigration Reform Act of 2007 (Senate Bill 1639, "S. 1639"), also known as the "Secure Borders, Economic Opportunity and Immigration Reform Act of 2007," 6 was introduced to the United States Senate by Senators Kennedy (D-MA) and Specter (R-PA) on June 18, 2007. It was a revised version of Senate Bill 1348 ("S. 1348"), a bill unable to garner broad enough support to pass the Senate. 7 Similarly, S. 1639 reached the point of cloture on June 28, 2006 after a series of votes on amendments and modifications failed to pass. This point of cloture effectively ceases the bill's chances for congressional approval, at least until the next administration's tenure.

S. 1639 is based in large part on previous attempts at immigration reform. In 2006, Senate Bill 2611 ("S. 2611") 8 was introduced and passed the Senate with amendments by a 62 to 36 vote. 9 Although S. 2611 passed the Senate, it was never reconciled with the House of Representatives' version of the bill, House of Representatives Bill 4437. 10 On May 9, 2007, Senator Reid introduced S. 1348 11 and then made a motion to invoke cloture. By a 34 to 61 vote, however, cloture was not invoked. 12 Thereafter, S. 1639 was introduced as the grand compromise  [*31]  between the Senate's earlier immigration reform attempts and the House of Representatives' immigration reform attempts.

Although S. 1639 is currently stalled, the text would establish several key programs, such as the implementation of a Z visa. 13 Such programs, while they may not be enacted precisely as set out in S. 1639, do at least provide a framework for future immigration debate. The importance of immigration reform must not be limited to focusing on the current undocumented immigrants. Rather Congress must examine the bureaucratic agencies involved in immigration and attempt to streamline operations and ensure operational capacity of these agencies before further burdening them with extensive mandates.

Generally, S. 1639 addresses seven topics for reform: border enforcement, interior enforcement, worksite enforcement, a new temporary worker program, immigration benefits, nonimmigrants in the US previously in unlawful status, and miscellaneous immigration issues. 14 Of particular interest to proponents of immigration reform is the language found in section 1 of the bill, "Effective Date Triggers." 15 This section directs that as of the date this bill becomes effective, there shall be 20,000 additional full-time agents for border control. 16 Further, the section provides for at least "300 miles of vehicle barriers, 370 miles of fencing, and 105 ground-based radar and camera towers..." 17 The bill then continues to set out further specific numbers for various programs.

Title I "Establishes specified benchmarks which must be met before the guest worker and legalization programs... may be initiated ..." 18 These benchmarks include increasing U.S. Customs and Border Protection officers, Border Patrol agents, investigation personnel, and Deputy United States Marshals, with active recruitment of military service members "who have elected to separate from active duty." 19 Additionally, Title I introduces a national strategy for border security emphasizing "assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States ..." 20

In Title II, the interior enforcement title, section 201 describes additional immigration personnel who will be hired for the Department of Homeland Security, the Department of Justice, the Administrative Office of the U.S. Courts, and the Legal Orientation Program. 21 Title II also addresses detention and removal  [*32]  procedures, 22 fines, and criminal proceedings for those who enter or reenter illegally. 23 It funds and directs increased training and involvement of state and local authorities in immigration enforcement, 24 and calls for an interagency task force to scrutinize and streamline U.S. Federal Bureau of Investigations processes for immigration applicant and petitioner background checks. 25

Worksite enforcement is addressed in Title III, which replaces section 274A of the Immigration and Naturalization Act, clarifying with emphasis the illegality of employing aliens unauthorized to work in the United States. Section 302 describes the documents an employer must examine to determine employment eligibility for each new hire, and sets out record-keeping requirements for employment verification forms. 26 Further, section 302 creates an Employment Eligibility Verification System (EEVS) that would be mandatory upon enactment for employers who work in fields critical to national security, immigration enforcement, or homeland security and required for all other employers three years from that date. 27 As part of the system, the Act calls for the EEVS to access information compiled and managed in Social Security Administration (SSA) records, Department of State passport and visa records, States' vital statistics agencies, and States' driver's license and identity card databases. 28

Section 304 calls for disclosure to the Department of Homeland Security (DHS) of certain Social Security Administration maintained taxpayer records, while section 308 calls for the Commissioner of Social Security to establish a secure method to compare EEVS queries with SSA records. Finally, section 309 directs the Internal Revenue Service to investigate employers failing to correct Social Security number disparities on W-2 and I-9 forms.

Title IV describes the new temporary worker program and its application procedures. 29 For a nonimmigrant worker to enter the U.S., that worker's employer must provide both a labor certification and a petition to the Secretary of Homeland Security. 30 The nonimmigrant must then apply for a Y nonimmigrant Visa. 31 The section then provides grounds for denial, as well as eligibility criteria the nonimmigrant  [*33]  must meet before the Y visa is granted. 32 Title V revises the current system of visa distribution and sets out a merit based eligibility system meant to make the U.S. more competitive with other countries. 33 This merit system is also applied, under Title VI, to current nonimmigrants in the U.S. illegally.

Title VI creates the Z visa and a detailed application process that a current unauthorized nonimmigrant must follow to be accorded legal status in the U.S. 34 This process includes paying numerous fines and fees, 35 providing evidence of employment and immigration history, submitting fingerprints for a background check, undergoing an interview by USCIS, and providing evidence of continuous physical presence, employment, or education. 36 The background check is to be completed in one day following acceptance of the application, after which the applicant shall be issued interim work authorization, discretionary advance parole, interim protection from deportation, and temporary suspension of classification as an unauthorized alien. 37 An individual with a Z visa may then apply to adjust his or her status to that of lawful permanent resident by paying an additional fee and qualifying under a merit-based point system laid out in section 502. 38

The final title, Title VII, contains miscellaneous provisions such as declaring English the national language, 39 establishing Citizenship and Immigration Councils, 40 and developing an English learning program for immigrants. 41 The bill, totaling 762 pages, was a valiant effort to address the concerns of both immigration opponents and proponents. Despite the fact that the bill was advocated by the Bush Administration, the largest number of proponents of the bill were not Republicans, but liberal Democrats, referred to as "immigration advocates". This bill would have ended what lawmakers call "chain migration," where a legal immigrant helps to bring his or her extended family to the U.S. 42 Had the bill proceeded, only the immediate family of the new citizen would be eligible  [*34]  for green cards, i.e., the spouse and children of the citizen who are not adults. 43

Despite its proponents' grandiose declarations and plans, the bill lacks the breadth of planning and will to truly effectuate its proposed reforms. Drafters and proponents failed to indicate how, and by what means, these reforms would be accomplished. For example, the EEVS, would centralize a database to hold immigrant-status information on all workers living in the U.S. 44 This would legally obligate all employers to create a system to update all of their employees' status. 45 Allegedly, no further part of the bill would move forward until and unless this program was implemented.

The proposed bill sought to reduce illegal immigration through enforcement measures, but even if the bill passed, it would fail because the solutions it proposed are incomplete. A sincere attempt at immigration reform must first and foremost focus on repairing the immigration bureaucracy. Without this crucial step, any programs implemented will be contingent upon the already suffering bureaucracy's ability to respond accordingly.

III. Analysis
  Border security is one thing, a finite and more or less discrete problem with enforcement questions of how to control entry (and egress), how to screen security threats among candidates for admission at ports of entry, and the pursuit and apprehension of those security threats. This law enforcement function of border security is fundamentally different from functions of the classification and direction of the vast majority of candidates for admission who present no national security threat.

The continued intermingling of law enforcement and immigration benefits administration functions may be, to some degree, inevitable. Yet an effort to revise the mandate of the diverse agencies, each with a mission covering some aspect of immigration administration and enforcement, together with reciprocal agencies among each of the states, territories, Maritime Provinces and Tribal Lands, with one broad and general mandate, will be only as successful and reliable as its least reliable constituent bureau or agency information source. This alphabet soup of federal agencies includes the Departments of Homeland Security, Labor, State, Housing and Human Services, and Justice; the Social Security Administration; the Administrative Office of the United States Courts; the Internal Revenue Service; the Federal Bureau of Investigation; the Customs and Border Protection Service; the Immigration and Customs Enforcement Agency; the Citizenship and Immigration Service; and the Foreign Service.

A sincere overhaul of the diverse agencies' functions must begin with the  [*35]  assurance that each constituent agency has sufficient organizational integrity, the capacity to handle queries, and the capability to verify, and securely share the information under its stewardship. Only with that assurance, bought through diligent and deliberate scrutiny and regulation, will the panacea of a broad system drawing on and relying upon such diverse agencies' functions, capabilities, and information be credible.

Although it is clear that the bill reflects high standards of ambition, unfortunately, practicality is, at best, the bill's shortfall. The following sections will present three programs proposed within the bill and the bureaucratic measures it would have taken to fulfill their purpose had the bill gained Senate approval.

These measures will illustrate why the bill fell short by providing no real, sound and practical structure for execution, an impractical, tediously bureaucratic system that lacked sufficient capacity on the part of concerned agencies and employers, and evasion of the Byzantine steps it would take to comply with such programs embodied in the bill.

A. Employment Eligibility Verification (EEVS)
  Title III of S. 1639 would rewrite the current law banning unauthorized employment of aliens, 46 articulating some new crimes and their penalties, both criminal and civil. It also seeks to establish elaborate mechanisms for interagency information sharing among the Department of Homeland Security, the Social Security Administration, the Internal Revenue Service, and the Departments of Labor and Justice, as well as employer and employee registration.

The Employment Eligibility Verification System, as contemplated in Title III, treats the problem of inefficient, leaky, insecure, uncertain, and dubiously-authorized interagency information sharing among a diversity of bureaus with more bureaucracy. Each of these bureaus mired in its own discrete mass of data, rules and duties with respect to the collection and handling of same, as well as every employer in the country (who files tax returns), would become a node in the vast network contemplated by the EEVS.

Subject to regulations to be promulgated, the new bureaucracy would sift impacted agencies' databases, and, relying upon the controversial REAL ID Act-compliant identification documents, confirm identity and employment eligibility assertions submitted for every employee hired by every employer in the nation. 47 For each hire, the bill would direct employers to examine documents establishing  [*36]  identity and eligibility to work, and submit an attestation to that effect, as well as additional information as directed, 48 while retaining a record of those documents. 49 The system itself would be accessible for employer registration, queries, and submissions over the Internet, subject to procedures to be promulgated; 50 it would draw records from databases of the Department of Homeland Security, and from those of the Department of State, the Social Security Administration, and the States' (territories' and Maritime Provinces') vital statistics agencies and motor vehicle licensing bureaus. 51

An employer must examine a document establishing both a potential employee's identity and eligibility to work: a U.S. passport, a permanent resident card, or other approved authorization to work, 52 or a "temporary interim benefits card" to be issued to Z visa applicants. 53 In the alternative, an employer may confirm identity through one document and work authorization through another. 54 Documents establishing identity include drivers licenses or identification cards issued by States that are compliant with REAL ID Act mandates. 55 Those issued by States out of compliance, so long as they feature a photograph and sufficient identifying information and are presented "in combination with a U.S. birth certificate, or a Certificate of Naturalization, or a Certificate of Citizenship, or such other documents as may be prescribed by the Secretary," or any other  [*37]  documents approved by the Secretary for the purpose of establishing identity, may be utilized. 56 "Documents evidencing employment authorization" include a Social Security account number card, or "any other documentation evidencing authorization... which the Secretary declares... to be acceptable... ." 57

By 2013, under Title III, State-issued identification documents that do not comply with the REAL ID Act, "may not be used to verify identity" for purposes of employment eligibility verification "except under conditions approved by the Secretary." 58 The Act would authorize incentive grants to encourage and accelerate state compliance with REAL ID standards. 59

At the same time, however, in the guise of apparent statutory efficiency, the Act would import, whole, not merely the intragovernmental bureaucratic complexity of a uniform and unobstructed implementation of REAL ID requirements envisioned by its proponents, 60 but the morass of actual State reactions to that law, (ranging from embrace 61 to outright rejection), 62 into the streamlined and secure immigration bureaucracy. That the bureaucracy's access to, and confidence in, information depends on the successful implementation of this earlier troublesome law, which itself is in grave doubt, 63 is a disconcerting thought.

As hearings in the Judiciary Committee and the Homeland Security and Government Affairs Committee have shown, REAL ID is far from being ready for prime time... . Moreover, REAL ID raises multiple constitutional issues whose legal challenges could delay final implementation for years. 64

 [*38]  While Secretary Chertoff 65 has opined that comparison of "Social Security records to the records of the EEVS" would be "the best way to catch unscrupulous employers who do not verify their employees," 66 the effectiveness of such a system depends on compliance by the statistically significant majority of employers, the integrity not only of the data of the diverse agencies' records but also of the information system set up for the storage and retrieval of said data, while generating an immense amount of new data for, eventually, all authorized workers in the United States.

Further, for all but the most sophisticated of United States employers, the EEVS would present an onerous new set of paperwork and recordkeeping burdens with significant costs of compliance that are likely to stifle hiring 67 and discourage efforts to comply.

B. The New Z Visa Program for Unauthorized Non-immigrants
  The Z visa program introduced in Title VI has been a controversial effort to address the estimated 12 million undocumented immigrants present in the United States, 68 while balancing the values of both the rule of law and human rights with realistic recognition of the U.S. economic magnet attracting foreign workers and the significant contribution those workers make to the U.S. economy. 69 Approximately forty-five percent (5.4 million) of these 12 million have stayed longer than authorized following a valid entry, while the balance have entered illegally. 70 Approximately 72 percent are from North America (57 percent  [*39]  are from Mexico), 71 and two-thirds are employed. 72

Opponents of the bill's extension of legal residency status to some fraction of the 12 million decry the sacrifice of the rule of law to political expediency, 73 and cries of "Amnesty" 74 rail against rewarding up to 12 million non-legal immigrants with the "gift" of citizenship. 75

Advocates of the Z visa program describe the current system, "broken" beyond enforcement, as a "silent amnesty," 76 while the program would provide the 12 million working among us the opportunity "to come out of the shadows." 77

Realistically, because one criterion of eligibility for the Z visa is employment, 78 some number closer to 8 million people than 12 million will, on this requirement alone, be eligible for the program. To be eligible, 79 the program also requires that applicants be neither ineligible 80 nor inadmissible, 81 have been present in the United States continuously since before January 1, 2007 and remaining present and not in lawful status at the time of application, 82 and have paid processing fees 83 and penalties. 84 These criteria would shave more percentage points off the proportion of the estimated 12 million unauthorized nonimmigrants that would be eligible for the program.

While discourse on these issues calls for more precise and accurate assertions of the effect of a proposed law at the Congressional level, actually considering the  [*40]  available numbers 85 cuts both ways, as each of the human individuals not granted something that resembles amnesty, due to statutory ineligibility for the program, is a human individual who must remain "in the shadows." So, 7 - rather than 12 - million people may be eligible: there remain 5 million "in the shadows". 86 Further, with successful deployment of the EEVS, those 5 million who remain ineligible will find employment opportunities increasingly scarce.

The alternative, barring all 12 million people from the labor pool through tools such as the EEVS, is to leave them no path to status, but channel them directly into the expanded facilities for detention of persons subject to orders for removal but not yet removed. This would be unrealistic, 87 tremendously costly, 88 and would leave "jobs Americans won't do" 89 undone: 90


  I want to address the 12 million... It is a problem America has to deal with, and we want someone else to do it because we ... are afraid that the people who don't want to deal with the 12 million will come and take our jobs away... . This is bigger than my job... They are not going to be ignored. They will be dealt with firmly and fairly eventually. They are not going to be deported. They are not going to jail. They can't be wished away. 91


 

C. Enforcement Measures
  In pursuit of its joint border security and law enforcement objectives, the Act would call for an immense additional amount of information collection and sharing, and the development and deployment of further technological resources and systems for the same. Title I significantly raises headcounts for Border Patrol, CBP, ICE personnel and Deputy Marshals, 92 while Title II increases staffing at the Department of Homeland Security (DHS), the Department of Justice,  [*41]  the Administrative Office of the U.S. Courts, and the Legal Orientation Program. 93

Under section 129, the Secretary is directed to enhance data searching and sharing capabilities between the DHS Automated Biometric Fingerprint Identification System (IDENT) and the Federal Bureau of Investigation Integrated Automated Fingerprint Identification System. In addition, the Secretary is to "collect all fingerprints from each alien required to provide fingerprints ... in the integrated entry and exit data system." 94

Immigration and Naturalization Act section 215, as rewritten by section 111 of S. 1639, authorizes the collection of biometric data from "any applicant for admission or any alien who is paroled ... seeking to or permitted to land temporarily as an alien crewman, or seeking to or permitted to transit through the United States" 95 and "any lawful permanent resident who is entering the United States... ." 96

Finally, section 130 calls for deployment of the U.S.-Visitor and Immigrant Status Indicator Technology (US-VISIT) system at all land border ports of entry, 97 and directs that "all immigration screening systems operated by the Secretary" be made "interoperable." 98

The Act would direct agents of the Department of State to investigate "illegal passport or visa issuance or use," identity theft and document fraud. 99 Further, it would rewrite substantial sections of the U.S. Code pertaining to passports and visa fraud, creating new crimes related to immigration fraud and immigration document counterfeiting, trafficking and use. 100 The U.S. Sentencing Commission is requested to promulgate guidelines addressing these new crimes. 101

Apart from reiterating the REAL ID Act mandates as against States, 102 and providing grant programs 103 and reimbursement for State expenses incurred enforcing federal immigration laws, 104 the Act is relatively quiet with respect to State sovereignty. However, because "current DHS documents and policies include all state, local, and tribal governments as part of critical infra- structure," 105 they would be required to register employees immediately with the Employment Eligibility Verification System  [*42]  upon system deployment. 106 While compliance may be burdensome, the Congressional Budget Office did not project the cost, subject to regulations to be issued by the DHS, to rise to the level of an impermissible unfunded mandate. 107 Likewise, the personnel of those agencies charged with administering the various systems contemplated by the Act would certainly be within the designated critical infrastructure, and, accordingly, required immediately to register.

The Act's proposed enforcement mechanisms are indeed comprehensive in scope: "Never before in the history of the country is more being done to fix our broken borders, to fix interior enforcement, to fix employer sanctions." 108 So much is being sought in this bill, with much of the implementation subject to broad and seamless deployment of secure technological systems; to document security standards to which States have strenuously objected, and to regulations yet to be issued; that the operation of the individual interdependent programs can hardly be contemplated, much less all those programs linked into one comprehensive system.

The Council of Economic Advisors, in assessing the proposed programs, projected collection of $ 55 billion "in fees and in fines that will be paid and that will be used to strengthen the border, to enforce worksite enforcement, to make ... a tamperproof card." 109 Senator Specter noted that surplus thus generated would cover "a significant portion of the costs of better securing our borders and improving interior enforcement... ." 110

Senator Kennedy (D-MA) observed that, as a result of Senate inaction on immigration, the "Situation is going to get worse." 111 Eventually, the Senate "will do something down on the border. But you are never going to have the kind of workforce enforcement, [nor] the kind of absolutely essential identification system that any responsible immigration system is absolutely required to have," 112 as was attempted in this Act. Senator Graham (R-SC) admonished the Congress to "Remember this day ... . You will never, ever have this deal again... . A temporary worker program and a merit-based immigration system is a good deal for this country. If we say no today, good luck ... ever getting it again." 113

IV. Conclusion
  S. 1639 sought to enact comprehensive immigration reform. The Act is comprehensive in scope and ambition,  [*43]  touching on and retouching nearly all aspects of immigration policy, and impacting a broad array of federal agencies as well as State governments. It comprehends the border defense component of a national security strategy preoccupied with asymmetrical threats, the breadth of American enterprise comprising employers and employees, the federal taxation and benefits administration agencies, several intertwined, securely linked, national databases with shared accountability, and the humanity of the 12 million unauthorized nonimmigrants.

In trying to address and comprehend each and every issue, the Act understood too little. The current illegal immigrant population is comprised largely of diligent, hardworking, and conscientious people who are dedicated to their immediate and extended families. The Act tried to address these people and tackle the other looming issues with immigration policy. It aimed high to include numerous programs, covering what are believed to be the most vital immigration issues concerning the American population today. The Act, however ambitious or inclusive, was far too broad, and failed to exercise comparable ambition in crafting a precise and efficient implementation plan for the myriad of far reaching programs it proposed. In fact, had the bill passed through the Senate, it would have produced additional levels of bureaucracy and red tape that inevitably would have clogged to the point of non-adherence and/or malfunction of a system that all parties agree is already broken.

Future immigration bills would be better served by tackling a few issues at a time instead of proposing a comprehensive immigration policy that can neither garner true bipartisan support, nor realistically be implemented.

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