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Immigration Policy Update: Talk of Visa Reform; House Hearing Focuses on Deferred Action

July 20, 2012 - Posted by Maurice Belanger


Bills Would Ease Visa Shortages for Some Immigrants

On July 12, Rep. Lamar Smith (R-Texas) released a letter signed by a coalition of 130 national, state, and local employer organizations and large technology companies urging Congress to act on reforms of the immigration visa system that would make it easier for employers to hire foreign-born students in the Science, Technology, Engineering and Math (STEM) fields who graduate from American colleges and universities.
Rep. Smith, according to press reports, is working on legislation that would re-allocate 55,000 visas currently awarded to Diversity Visa Lottery winners and reserve them for STEM graduates.

In the Senate, Senator John Cornyn (R-Texas) has introduced a bill (S. 3185) that is similar. It would also re-allocate Diversity Visas and give them to STEM graduates.

The Diversity Visa Program, established in 1990, allocates visas to persons from countries that send relatively few immigrants to the U.S. The effect of the program has been to prevent the monopolization of immigrant visas by immigrants from a relatively few countries. Persons entering the Diversity Visa Lottery must have at least a high school education or equivalent or, within the past five years, have two years of work experience in an occupation that requires at least two years of training or experience.

By eliminating Diversity Visas, instead of expanding the number of visas available to eliminate backlogs in the immigration system, these bills will likely generate some controversy.

A separate bill being considered in the Senate would also ease somewhat the backlog of visas for certain immigrants. H.R. 3012 (passed in the House and now being considered in the Senate) would eliminate the per-country ceiling for immigrants coming to the U.S. through employer sponsorship. It would also raise the per-country ceiling for immigrants in the family immigration preference system from 7% to 15% of the visas available each year in the family preference system. Currently, immigrants from any one country cannot take more than approximately 25,600 (7%) of the immigrant visas available in the employment-preference and family-preference immigration categories combined. This has resulted in immigrants from countries such as India and China to have to wait longer for a visa than immigrants from elsewhere.

The bill in the Senate had been held up by Senator Charles Grassley (R-Iowa). He lifted his hold on the bill on July 11 after reaching agreement to include language in the bill that would strengthen enforcement against fraud in the H-1B temporary non-immigrant visa program. It has been reported, however, that other Senators now have holds on the bill, so it will not proceed in the Senate until the Senators that have concerns release their holds.

House DHS Oversight Hearing Focuses on Prosecutorial Discretion

On July 19, the House Judiciary Committee held an oversight hearing on the Department of Homeland Security. Much of the hearing focused on the issue of prosecutorial discretion and its implementation by the Administration in the immigration context. The Committee Chairman, Lamar Smith (R-Texas), has been a persistent critic of the Administration’s focus on public safety and national security threats. Smith and other immigration hardliners on the Committee make the claim that the Administration is not enforcing immigration laws. Indeed, in his opening statement, Smith said that “DHS is responsible for the enforcement of America's immigration laws. But under the current Administration, the Department has instead worked to undermine those laws.”

For her part, DHS Secretary Janet Napolitano (the only witness for this hearing) recounted the progress the Administration has made in enforcement. On the border, she noted that the number of apprehensions of those attempting to cross illegally (an indicator of the total number of people trying to cross illegally) is at the lowest point since 1971. According to Secretary Napolitano, the Administration’s focus on public safety threats has paid off in a record number of removals of convicted criminals.

Despite these facts, several Republican hardliners on the panel continued to insist the Administration was not interested in enforcing the law. They insisted that the Administration did not have the authority to set priorities in the way it has. In particular, Republicans challenged the Administration’s policy of deferred enforcement action for certain young people brought to the U.S. as children (several of whom were in the room), and Rep. Steve King of Iowa even promised Secretary Napolitano that he would sue the Administration over the issue.

Democrats on the panel praised the Secretary for the deferred action policy, and Rep. Zoe Lofgren entered into the record numerous documents supporting the view that the Administration indeed has the authority to set prosecutorial priorities and was following long-established precedent.
Although the Department handles many issues, much of this hearing was devoted to ping-ponging between the two parallel universes: one occupied by the immigration hardliners who asserted that the deferred action policy only reinforced their view that the Administration was shirking its enforcement duties, and the other consisting of supporters of the Administration’s focus on public safety and security threats, who seemed well prepared with supporting facts.

The back and forth was perhaps best symbolized when Rep. Randy Forbes (R-Va.) held up a poster board with a quote from the President purporting to show that he did not have the authority to use deferred action to de-prioritize enforcement toward any group: “With respect to the notion that I could suspend deportations through executive order, that's just not the case….” The quote, aired on Fox news, cut the President off before he went on to say (as Rep. Lofgren pointed out in responding to Forbes): “What we can do is to prioritize enforcement … and say, we’re not going to go chasing after this young man or anybody else who … otherwise qualify for legal status if the DREAM Act passed.” (You can see the Daily Show’s humorous treatment of the Fox News report here.)

You can obtain materials from the hearing, including a video recording, here.

A comprehensive history and assessment of the legal basis of prosecutorial discretion can be found in this Congressional Research Service report, which includes an appendix listing “Past Administrative Directives on Blanket or Categorical Deferrals of Deportation” going back to 1974.

Sheriff Joe Hauled into Court (Again)

On July 19, a class action lawsuit began against the Maricopa County (Arizona) Sheriff’s Office and Sheriff Joe Arpaio, alleging that the Sheriff’s Office violated the civil rights of U.S. citizens and lawful permanent residents caught up in the Office’s illegal immigration sweeps. Plaintiffs allege they were stopped by Sheriff Deputies based on their race. Plaintiffs are being represented by the American Civil Liberties Union.

Over the years, MCSO has been sued dozens of times while the Sheriff made a name for himself for his sweeps of immigrant neighborhoods and for his treatment of Latino immigrants that were arrested and jailed. In its search for undocumented immigrants, the Sheriff’s Office has swept up many citizens and legal residents. A lawsuit filed by the Department of Justice is pending. That suit makes some of the same claims made in the case before the Court today.

You can read more about the case, including profiles of some of the lead plaintiffs and some of the evidence that will be presented, on the Web site of the ACLU.

Follow-up: Advocates Back in Court to Block Arizona SB 1070

July 20 is the first day that the United States Court of Appeals for the 9th Circuit may decide what to do about the injunction now in place against implementation of Section 2(B) of Arizona’s SB 1070, known as the “show me your papers” provision. This was the provision that the U.S. Supreme Court declined to say was pre-empted by federal law. As of this writing, a decision has not been released by the Appeals Court, which may decide to keep the injunction in place while other challenges are heard against that provision.

On July 18, the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund filed a motion for preliminary injunction against Section 2(B) and another provision of SB 1070 in federal District Court in Arizona. Plaintiffs are alleging that Section 2(B) will result in unconstitutional detention of individuals while law enforcement officers determine their immigration status. Plaintiffs also claim Section 2(B) will be implemented in a discriminatory manner, violating 14th Amendment rights. (These issues were not before the Supreme Court, which ruled only on federal preemption issues.)

Plaintiffs are also arguing that Section 5 of SB 1070, making a state crime of “harboring” undocumented immigrants, is preempted by federal law. That section of the law was not one considered by the Supreme Court.

You can read the motion for preliminary injunction here.

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