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Immigration Policy Update for July 27, 2011

July 27, 2011 - Posted by Maurice Belanger

Lamar Smith Introduces Bill to Prevent Administration From Offering Humanitarian Relief
If it’s broke, fix it.  That would not be the philosophy of Representative Lamar Smith (R-TX) when it comes to our immigration system.  As Chair of the committee with jurisdiction over immigration policy, Mr. Smith is in a good position to offer serious solutions to fix our broken immigration system.  He doesn’t.  Instead, he has introduced a series of bills that, taken together, aim to fulfill the restrictionist fantasy of mass deportation of the five percent of America’s workforce that is undocumented. 

In his latest offering, Rep. Smith proposes to suspend authorities in immigration law that the Obama Administration might use to mitigate the chaos created by Mr. Smith and his Congressional colleagues’ failure to fix the immigration system. 

On July 12, Rep. Smith introduced the “Hinder the Administration’s Legalization Temptation” Act (HALT Act), H.R. 2497.  The bill would take the unprecedented step of suspending several immigration law provisions relating to humanitarian relief for the remainder of President Obama’s first term.  In essence, the philosophy of the bill is, “If it’s broke, take away the tools that might be used to fix it.”

If enacted, Smith’s bill would:

  • Suspend a provision of immigration law that provides for the cancellation of removal and adjustment of status for immigrants who can show that a family member would suffer great harm if the deportation went through. 

  • Suspend the ability of the Administration to grant Temporary Protected Status.

  • Prohibit the Administration from granting a waiver to an immigrant who is found to be inadmissible to the U.S.

  • Prohibit the Administration from deferring someone’s deportation (except in very limited circumstances) or from granting extended voluntary departure.

  • Prohibit the Administration from “paroling” a non-citizen into the U.S. except in narrow circumstances pertaining to criminal prosecution or national security, or in cases where the non-citizen’s life is immediately threatened.

In addition, the bill would apply all of this retroactively to the date of introduction of the bill (July 12).

Here is how the bill might be applied:

  • The Administration would be prohibited from deferring the deportation of an immigrant student who might benefit from the DREAM Act—no matter the merits of allowing the student to stay and contribute to this country.

  • Temporary Protected Status is offered to nationals from countries that have experienced a major natural disaster or are in the midst of civil unrest that puts lives in jeopardy.  For example, in January 2010, Haiti was hit by a devastating earthquake that killed thousands and left millions without shelter.  Sending people back to that destruction would have been unconscionable, and the Administration granted Haitians in the U.S. temporary protection from deportation.  However, Representative Smith would prohibit the U.S. from protecting people in this circumstance.

  • Deferred Enforced Departure (DED) is a similar humanitarian program to Temporary Protected Status, offered to nationals of countries that are in turmoil.  Currently, only nationals of Liberia have Deferred Enforced Departure, but after September 30 of this year, when DED expires for Liberians, the Administration would be required, under Smith’s bill, to begin deporting them.

  • The bill would prohibit the administration from cancelling deportation for someone (or to waive bars to re-entry) whose deportation would cause “extreme hardship” or “exceptional and extremely unusual hardship” to a family member who is a U.S. citizen or Legal Permanent Resident.  For example, the bill would prohibit the administration from cancelling the deportation of an undocumented immigrant who is taking care of a U.S. citizen child with a medical condition that would not be treatable in the immigrant’s home country.

With his bill to prohibit prosecutorial discretion, Rep. Smith takes the opposite position he took in 1999, when he signed a letter to then-Attorney General Janet Reno urging her to use her prosecutorial discretion.  This plea came in the wake of bad press generated from a law that Smith wrote in 1996, which retroactively punished Legal Permanent Residents by turning minor crimes they committed in the past into major crimes for which they could be deported.  After that law passed, immigrants who committed crimes when they were young, but had no further trouble with the law—some even being business owners—were deported because of the retroactivity of the Smith law.

Along with other legislation he proposes, Rep. Smith seems to be re-creating the controversial Sensenbrenner bill, which passed the House in 2005 and ultimately caused some of the largest demonstrations in U.S. history.

On July 26, the House Immigration Subcommittee held a hearing on the HALT Act.  Senator David Vitter (R-LA) was slated to testify at this hearing, as he is the sponsor of the Senate version of the HALT Act.  (Because the hearing was delayed, only Vitter’s written testimony made it in to the record.)  It is somewhat ironic that Senator Vitter would sponsor a bill to prohibit prosecutorial discretion, as a few years back he was the beneficiary of prosecutorial discretion when he was caught up in a scandal involving a DC “escort” service.  This is a case where one’s view of prosecutorial discretion apparently depends on who is the target of prosecution.

Smith Bill to Permit Indefinite Detention Approved by House Judiciary Committee
Another bill in Rep. Smith’s Sensenbrenner-like package is a bill that would allow the Department of Homeland Security to hold in detention indefinitely immigrants who have a final order of removal but who cannot be returned to their home country (for example, because there is no agreement between the U.S. and that country to accept deportees) or because a judge has stayed the deportation of the individual pending appeal of the deportation case.  That bill was approved by the Judiciary Committee by a vote of 17 to 14. 

For more information on the bill, see our Policy Update of May 27.

House Judiciary Committee Votes to Eliminate Diversity Visa Program
On July 20, the House Judiciary Committee voted 19-11 for a bill that would eliminate the Diversity Visa Lottery program.  The bill, H.R. 704 and misleadingly named the “Security and Fairness Enhancement for America Act,” was sponsored by Rep. Bob Goodlatte (R-VA). 

The Diversity Visa was created in 1990, and its intent is to hold open the door to immigration for individuals from countries that do not send a lot of immigrants to the U.S.  For example, the Irish, because their family ties to U.S. citizens are too remote in the past, had little opportunity to immigrate legally.  The Diversity Visa program makes immigrant visas available to Irish nationals and others who meet certain educational and/or work experience requirements, but who don’t need a family or employer sponsor.  There currently are 50,000 Diversity Visas allotted annually.

The Goodlatte bill does not re-allocate the visas to any other category of immigration, so this bill can be seen as chiefly a bill to reduce legal immigration.  With lack of opportunity to immigrate legally already being a major driver of illegal immigration, the Goodlatte bill, by reducing opportunities to immigrate legally, can be expected to increase incentive to immigrate illegally.

Department of Homeland Security Appropriations
As noted in our last update, the House passed an appropriations bill that, in its allocation for U.S. Citizenship and Immigration Services, would gut the Administration’s fee reform and immigrant integration efforts while giving a considerable boost to immigration enforcement. 

Senate appropriators do not yet have the guidance that might come from the larger budget deal that, as of this writing, is very uncertain despite the looming August deadline.  Nor has the Senate passed a budget bill, which lays out the spending caps to guide appropriators. Given that the Senate is scheduled to go out for an August recess, it is increasingly likely that the Senate will not act before September.

Comprehensive Reform Bill Introduced in the Senate
On June 22, Senator Robert Menendez (D-NJ) introduced, the “Comprehensive Immigration Reform Act of 2011,” S. 1251, the latest iteration of comprehensive reform legislation.  Among other things, the bill would: create a process by which undocumented immigrants now in the U.S. could gain legal status, incorporate the DREAM Act and AgJOBS; and reform the legal immigration system by creating more family unity opportunities and by creating a commission that would adjust the number of visas available in the employment immigration system.  Regarding enforcement, the bill would among other things require employers to use an electronic employment verification system.

Joining Senator Menendez as an original co-sponsor of the bill were: Majority Leader Harry Reid (D-NV), Assistant Majority Leader Richard Durbin (D-IL), Democratic Policy Committee Chair Charles Schumer (D-NY, also Chair of the Immigration Subcommittee), Democratic Conference Secretary Patty Murray (D-WA), Patrick Leahy (D-VT), Chair of the Judiciary Committee, and Senators John Kerry (D-MA), and Kirsten Gillibrand (D-NY).  (In other words, the bill has the support of all of the Democratic leadership in the Senate.)

The Forum applauded the introduction of the Senate bill in this press release

On July 26, the Senate Immigration Subcommittee held a hearing on the “Economic Imperative for Enacting Immigration Reform.”  Testifying at this hearing were, among others, Robert Greifeld, Chief Executive Officer of NASDAQ, David J. Skorton, President of Cornell University, and Brad Smith of Microsoft Corporation.  These witnesses gave examples of how our broken immigration creates obstacles for skilled immigrants that American companies want to employ, and each recommended an overhaul of the employment-based immigration system and also recommended making it easier for foreign students educated in the U.S. in Sciences, Technology, Engineering and Math to stay in the U.S.

Also testifying were mayors from Utica, New York, and Lewiston, Maine, who gave example of how refugees and other immigrants have revitalized their towns.  The mayor of Uvalda, Georgia, talked to the Committee about the damage that is already being seen resulting from the recently-passed law in Georgia, styled after Arizona’s SB 1070 that, according to the mayor, has resulted in crop losses of $300 million in his area due to workers having left the state.  (The law is on hold pending the resolution of a lawsuit.)

Bill to Strengthen Protections for Children Introduced
On July 21, Senator Al Franken (D-MN) and Representative Lynn Woolsey (D-CA) introduced the HELP for Separated Children Act (S.1399/H.R. 2607). The bill would establish nationwide protocols to ensure that parents and caregivers apprehended during immigration enforcement actions are identified by ICE and treated with special concern for the well-being of their minor children. The bill would also prevent children from unnecessary placement in foster care while their parent’s or caregiver’s immigration case is pending.  In the Senate, the bill was co-sponsored by Richard Durbin (D-IL), Kirsten Gillibrand (D-NY), and Amy Klobuchar (D-MN).

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Cosmetic Changes are not Enough: Secure Communities Program Needs Sweeping Reform

July 19, 2011 - Posted by Mario Moreno

Last month, the National Immigration Forum was invited by the U.S. Department of Homeland Security to participate in a new advisory committee created in response to growing criticism and concern about the so-called “Secure Communities” program.  The committee is tasked with advising Immigration and Customs Enforcement (ICE) Director John Morton on “ways to improve Secure Communities.”  Specifically, the committee is asked to deliver recommendations regarding the treatment of individuals identified through Secure Communities as a result of being charged with minor traffic offenses.

The Forum has been a vocal and vehement critic of the Secure Communities program since its inception.  DHS launched the program clumsily and hastily without thinking through the consequences.  We are deeply troubled by the Secure Communities program for a number of reasons.  The program lacks accountability in how it is being operated and in terms of the consequences for misuse of the program.  Despite the program’s stated goals and seductive-sounding name, it unfairly ensnares immigrants who are not threats to public safety and forces them into the bog of our broken immigration system.  It also erodes the trust that communities place in their local law enforcement agencies and disrupts community policing efforts, making our communities less safe.  Scant safeguards for civil rights and weak oversight have created the potential for unlawful detentions under the auspices of immigration “holds” or detainers, abuse and profiling.   

Elected leaders across the country agree. In Massachusetts and New York, Governors Deval Patrick and Andrew Cuomo decided that their states would no longer participate in the program. Governor Pat Quinn from Illinois terminated his state’s participation in the program shortly before the Illinois House of Representatives passed legislation sharply critical of the Secure Communities program.  In addition, several municipalities and counties voted to opt out, only to be told later by DHS that they didn’t have a choice in the matter.   

Despite concern and confusion about how the Secure Communities program is operating, turmoil in a growing number states and localities, and resistance from law enforcement, DHS had announced the program will be national in scope by 2013. Fortunately, after months of missteps, DHS has made some effort to address problems with Secure Communities. That’s where the advisory committee comes in.  

While we have repeatedly criticized the Secure Communities program, we welcome the opportunity to discuss and inform the Department on problems in this deeply flawed program whose design and implementation are cause for deep concern. It is crucial that the advisory committee consider and address the program’s myriad failures beyond the question of responding to individuals who are ensnared by Secure Communities due to low level offenses or infractions.  We are not interested in surface “fixes” that leave structural flaws intact.  We are also wary of continuing to send broken enforcement programs for repairs while those programs continue to operate.  We’ve been down this unpleasant and unproductive road with the widely panned 287(g) program. 

The Forum believes that the Secure Communities program must be halted until several key issues are addressed. DHS must meaningfully address the erosion of public trust in law enforcement created by Secure Communities.  Immigrants as well as U.S. citizens are much more hesitant to contact the police either for protection or to report a crime when doing so may put them or their family at risk of immigration consequences.  Secure Communities has led to the initiation of deportation proceedings for numerous victims of crime, particularly of domestic violence, who have called for police protection.  ICE must ensure that victims or witnesses who seek police protection do not find themselves the target of deportation as a result.   

Because Secure Communities lacks the internal safeguards to prevent profiling, DHS must address bias and discriminatory policy practices that are feeding people into the program.  ICE operates its Secure Communities program at the point of arrest, rather than after a conviction, meaning that individuals arrested on fabricated or pretextual arrests are nonetheless swept into the immigration enforcement machinery.  Anecdotes about racial profiling in active Secure Communities jurisdictions, combined with high numbers of arrests for minor traffic offenses, present a real concern that Secure Communities is serving as a conduit for discriminatory arrests.  ICE must acknowledge and eliminate the incentive created by Secure Communities for police to arrest individuals for the inappropriate purpose of checking their immigration status.  Further, ICE must monitor for, and deliver consequences to, jurisdictions that misuse Secure Communities.  

Meanwhile, the rapid and widespread expansion of the Secure Communities program into local law enforcement jurisdictions has caused pervasive confusion and misunderstanding as to the roles and responsibilities of local, state, and federal agents.

DHS should amend the rules so that states and localities, and not the federal government, can decide if Secure Communities is appropriate for them.  The Federal Government can’t have it both ways.  They can’t tell states that only federal officials are responsible for immigration matters on the one hand, and then try to make federal immigration agents out of state and local law enforcement on the other.  

As a participant on the advisory committee, the Forum will urge resolution of our concerns.  And in terms of process, a final point, we strongly believe it is imperative that the advisory committee hears from the public- including immigrant communities, domestic violence advocates, and local leaders- who are being impacted by Secure Communities now and who may feel its impact in the future.   


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