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Policy Update - Ups and Downs: Republican Leaders Backing Off from Immigration Reform

February 24, 2014 - Posted by Josh Breisblatt

If the immigration reform debate was an amusement ride, it would be a roller coaster. At the end of last month, House Republican leaders released a set of “standards” that, they said, would guide their work on immigration reform in this Congress. A few days later, on February 6, House Speaker John Boehner went before the press to say that,

    “…there’s widespread doubt about whether [the Obama administration] can be trusted to enforce our laws, and it’s going to be difficult to move any immigration legislation until that changes.”

Mr. Boehner appeared to be dampening hopes he had raised the week before that the House would act on immigration reform. This latest news won’t be the end of the immigration reform ride in this Congress.

Fire from the Right: Mr. Boehner’s public rationalization for tamping down expectations was that it was the president’s fault—Mr. Obama can’t be trusted to enforce the law, should immigration reform be passed. That idea is quite a stretch to those who have watched this administration deport approximately two million immigrants in less than six years, about as many as the previous administration did in eight years. In any event, Senator Charles Schumer, one of the authors of immigration reform in the Senate, suggested that immigration reform could be passed now and implementation delayed until 2017, after President Obama leaves office. The idea was rejected by Republican leaders.

In reality, as has been widely reported, the Speaker’s latest pronouncements on immigration reform have much more to do with longstanding internal divisions within the House Republican Conference. They were a reaction to strong pushback against the leadership’s immigration standards from the most conservative elements of the Conference and from outside tea party-aligned groups.

Messaging to the Wrong Electorate: It is unlikely that many beyond the Republican Party's conservative base will accept Republican distrust of the Obama administration as a valid excuse the House's inaction on immigration reform. Republicans need to attract more voters from the fastest-growing segment of the electorate—Latinos and immigrants—and continued inaction on immigration reform will only make that job more difficult. Instead of re-branding themselves as the party of inclusion and the party of the future, lack of action on immigration reform for that group of voters reinforces the idea that the Republican Party is not interested in inclusion, and is the party of the past. (See, for example, this February 8th editorial from the nation’s largest Spanish-language newspaper, La Opinion.)

For their part, Democrats will be happy to reinforce that message. On February 13, Senator Schumer suggested that House Democrats file a discharge petition on the Senate bill in the House. (Earlier this month, Minority Leader Pelosi floated the same idea.) The procedural maneuver would require a majority of the House—including more than a dozen Republicans—to sign-on to the effort. While a number of House Republicans favor reform and have expressed openness to the Senate bill’s approach, a discharge petition is not expected to succeed. Republican members willing to vote for an immigration overhaul may not be willing to back a Democratic-sponsored petition to circumvent their leadership and move a bill to the floor. That said, even if a discharge petition has little chance of success, if pursued it will further shine a spotlight on the failure of Republicans in the House to act on immigration reform.

As we reported last time, absent congressional action, there will be tremendous pressure on the president to use his executive authority to protect immigrants who would otherwise be eligible for a legalization process. Action by the President prior to November’s election would further reinforce the message that Democrats are acting while House Republicans are not.

Lame Duck for the Rest of the Year? One school of thought within the House Republican Conference is that, with Republican fortunes boosted by administration blunders in the rollout of the Affordable Care Act, Republicans in Congress should stay away from significant legislation that may highlight internal divisions. If this reasoning is followed, the 113th Congress is essentially over—not only will immigration not be addressed, but there will be no significant legislation to address any number of the country’s pressing problems until the next Congress.

It Doesn’t Get Easier: A counter-argument says that if Republicans put off immigration reform until the next Congress, presidential politics will make it even more difficult to address the issue. Republican primary candidates will feel pressure early on to appeal to the anti-immigrant segment of their base, creating incentive to further delay immigration reform. The resulting lack of progress on reform will, once again, drive Latino and immigrant voters into the Democratic camp, making it nearly impossible for Republicans to capture the presidency.

Waiting for the Right Moment? Republican leaders surely know all of this, so this latest reversal of fortune for immigration reform may reverse yet again. As Charlie Cook notes in the National Journal,
    “While it could be that Boehner really has had a change of heart about bringing immigration up this year, it could also be that his backing off is a strategic retreat, or a feign, to defuse at least some of the opposition until the optimal time comes.”

That optimal time may be after the majority of filing deadlines have passed for Republican primaries. (Or it could be later, in a post-election "lame duck" session, for example.)

Rules Eased for Certain Refugees

On February 5, the Departments of State and Homeland Security published a “Notice of Determination” in the Federal Register that will remove a roadblock to refugee status for certain refugees who have been barred by provisions of immigration law known as Terrorism Related Inadmissibility Bars. Since harsh and inflexible rules were adopted after the September 11, 2001 terrorist attacks, persons fleeing persecution have been barred from refugee status for even very minor and inadvertent acts defined as “material support” for terrorists or terrorist groups.

According to the Notice, refugees would no longer be barred for “limited or insignificant material support” if such support involves “certain routine commercial transactions or certain routine social transactions,” “certain humanitarian assistance,” or “substantial pressure that does not rise to the level of duress.” Individuals applying for refugee status must still pass all the relevant screening and must prove to the government’s satisfaction that any material support they may have provided to groups or individuals deemed to be connected to terrorist activities did not contradict any of a list of specifications included in the Notice.

Refugee advocates have been trying to have the rules changed for years, as many would-be refugees have been barred based on very minor or unintentional interactions with individuals or groups deemed to be connected to terrorist activities. The Notice was praised by refugee resettlement groups as a partial solution for individuals who have been unfairly barred from refugee status. (See, for example, this release from the Hebrew Immigrant Aid Society.)

Senator Patrick Leahy, Chair of the Senate’s Judiciary Committee, noted in a press release that the current interpretation of existing rules “resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities.” The changes announced by the administration, Leahy said, are an “important step” in returning our nation “to its historic role as a welcoming sanctuary to the world’s most vulnerable populations.”

ICE Acting Director Resigns

The Acting Director of U.S. Immigration and Customs Enforcement (ICE), John Sandweg, resigned as of February 21, according to press reports. Sandweg was named Acting Director after the departure of Director John Morton in July of 2013. The President has yet to nominate a new director for the agency.

The Naturalization Application Just Got Longer

On February 4, U.S. Citizenship and Immigration Services released a revised Form N-400, Application for Naturalization. Revisions to the form have been in the works since December 2012, when a draft was published in the Federal Register for public comment. The new form is longer, containing several new questions. In brief, the questions attempt to determine whether applicants for citizenship may have run afoul of two laws enacted in the last decade—the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008.

A few formatting changes have added to the length of the form. These changes make it easier for officers to read the applications and assist the applicant in accurately answering those questions. Additionally, there is a new feature on the form adding to its length—a 2D barcode at the bottom of each page that will enable USCIS to scan data entered in to the forms when filled out on a computer. USCIS has also attempted to make the instructions clearer, which has made them longer as well. The old form will still be accepted by USCIS until May 5, after which time the new Form N-400 must be used.

Recent Release: Farm Bureau Study Projects Impact of Immigration Policies on Agriculture

On February 11, the American Farm Bureau Federation released a report it had commissioned on the impact of immigration policy on the American agricultural sector under various scenarios. According to the report, immigration reform that includes only enforcement would result in a decline in U.S. fruit production of 30 to 61 percent. Vegetable production would decline by 15 to 31 percent, and livestock production by 13 to 27 percent.

In a news release, Bob Stallman, President of the American Farm Bureau Federation, noted,

    “Over five years, an enforcement-only approach would lead to losses in farm income large enough to trigger large scale restructuring of the sector, higher food prices, and greater dependence on imported products. … The bottom line of this study is that we either import our labor or we import our food.”

The agricultural sector has been very engaged in the immigration reform debate for years, and with each passing year that Congress does not act, life gets more difficult for farmers dependent on immigrant labor. The report can be obtained here.

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