Golub on Immigration Reform Options

We re-post the following Forecast on Immigration Reform from the San-Francisco-based Immigration Legal Resource Center because John Wheat Gibson recommends it as a “clear analysis of options for immigration reform.”–gm

The ILRC Forecast on Immigration Reform

January 2007

by Judith Golub, Executive Director

With the November mid-term elections behind us and the 110th Congress convened, what is the prognosis for immigration reform?

While it would be an uphill fight, reform could be enacted this year, given both the public’s demand that Congress fix our nation’s problems (and our broken immigration system being one of the primary problems needing attention) and some momentum remaining from last year’s Congressional debate.
Both Democratic and Republican Senate leaders have prioritized immigration reform. Senate Majority Leader Harry Reid (D-NV) introduced the Comprehensive Immigration Reform Act of 2007 (S. 9) on the very first day of the 110th Congress and has reserved floor time to consider the issue. This “placeholder” bill will be replaced most likely with a reform package negotiated by Senators Edward Kennedy (D-MA) and John McCain (R-AZ). Republican Senate Minority Leader Mitch McConnell has acknowledged that immigration is a pressing concern needing to be addressed.

On the House side, Representative Zoe Lofgren (D-CA), who is poised to become Chair of the House Immigration Subcommittee, wants to produce “a practical and bipartisan bill that gets broad support” and believes that “if everybody can lower their voice, just stop yelling and go through the issues one by one, that we can come to consensus.” However, a determined opposition led by Senate and House Republicans are expected to put roadblocks in the way of reform.

In contrast, President Bush in his State of the Uni*n address underscored the fact that “convictions run deep in this Capitol when it comes to immigration. Let us have a serious, civil, and conclusive debate – so that you can pass, and I can sign, comprehensive immigration reform into law.”

But what kind of reform remains the question, as does whether there will be reform at all – given the “convictions that run deep.” While the following does not exhaust the possibilities, below are four scenarios:

• The “good enough” scenario in which a measure passes that includes both hard pills to swallow and significant positives and can be implemented. This will be a very uphill fight;

• The “get done what we can” scenario in which, due to time constraints and other roadblocks, a smaller scale package passes (that includes AgJobs and DREAM Act and other measures along with some enforcement provisions) that has sufficient Congressional support and will provide the foundation for future reform;

• The “not good enough” scenario in which a measure passes that does not depart significantly from last year’s Senate-passed bill, S. 2611, should be opposed on its merits and cannot be implemented; and

• The “crash” scenario in which too many constraints, conflicts, and roadblocks stand in the way so that Congress fails to address reform this year.
Several factors will help determine which scenario might become reality and include:

• The Composition of Congress: While Democrats
narrowly control both Houses of Congress, some newly elected Democrats ran on enforcement- only platforms and opposed positive reform of our immigration system. They cannot be counted on to support a pro-immigration package. Also, some pro-immigration Republicans (such as former Senators Lincoln Chafee (R-RI) and Mike DeWine (R-OH) and Representative Jim Leach (R-IA)) lost their seats in the last election.

Their defeats will make it harder for reform proponents to find bipartisan allies and the numbers they need to pass a bill. And the more proponents want reform in this challenging environment, the more leverage they give to those who want to restrict reform. Hill observers also note that 60 votes are needed for cloture in the Senate, and that most likely 15 Senate Republicans and 50 to 60 House moderate Republicans and conservative Democrats are needed to support the passage of major reform.

• The 2008 election: Members of Congress already have focused on the November 2008 election and will want to resolve controversial issues (like immigration reform) by this October, well before that election. Because Democrats want to stay in the majority and Republicans want to recapture it, both will seek to protect their Members from difficult votes – a concern that probably will be reflected in the content of reform legislation and votes taken on amendments. Leadership also has indicated that they will delay considering reform until 2009 if the do not pass a bill by the October deadline. Presidential electoral politics also will play a role, with many who intend to run looking at the issue in terms of how it will impact their candidacies and play to their base. And the fact that both parties want to capture the Latino vote will impact on how they deal with the issue.
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• The Role of the President: President Bush has made immigration one of his four domestic policy priorities and during his State of the Uni*n address acknowledged both that our current immigration system is not “worthy of America” and that our laws and our borders are routinely violated. His solutions to fully securing our border are a temporary worker program, worksite enforcement of our immigration laws, an employer verification system, and a resolution of the status of those already in our country –“without animosity and without amnesty.”

He also emphasized that “all elements of this problem must be addressed together,” and urged Congress to pass a measure so that he could sign a bill into law. A document issued just before he delivered his address would allow undocumented workers to be considered for legalized status if they pay a “meaningful penalty,” “learn English, pay their taxes, pass a background check, and hold a job for a number of years.”

However, the President’s proposal is very ambiguous, focuses on a temporary worker program and a mandate that immigrants return home, and is unclear what the legalized status for the undocumented really is. Questions also remain about the amount of political capital (and if he has any left is a question) he is willing to expend on this issue and if his dismal standing in the polls will lead him to sign into law any measure sent to him.

• Lack of Consensus on Core Issues: Last year’s reform debate exposed major challenges and disagreements on several issues and what would be acceptable bottom lines and trade-offs.

1. Legalization: The three-tiered legalization program in S. 2611 would have made ineligible millions of people and is unworkable. Congressional leaders have yet to agree on the kind of legalization to be included in legislation or the number of people covered. If too many are left uncovered, they fear the program will not work. If too many are covered, they fear attacks that the program is an “amnesty.” The field also differs on what constitutes “good enough” legalization. In addition, even in the best case, many likely would not be covered because of documentation, eligibility, and other problems, and there is no consensus on how to deal with this population including whether to bring them to the head of the line of the worker program.

2. A future flow program: One of the main flaws in our current system is the absence of legal pathways for many to enter the U.S. The major flaw of the 1986 reform was that it addressed only the symptom of our broken system by legalizing a significant number of undocumented people, but not the cause: the lack of a program that creates future legal flows.

We cannot afford to make that same mistake tw

ice because without a program that legalizes a future flow, any reform measure would be obsolete the day after it becomes law because there would be no means for significant numbers to come legally in the future. Many Members of Congress support fixing the system by creating a new kind of temporary worker program and understand the details of such a program matter. The field is badly divided on the issue, with those who oppose a worker program (given experiences with the bracero program) as part of reform failing to provide alternatives to address future flows.

Advocates who accept that a worker program is an inevitable part of reform believe that it is better for workers to be temporary than undocumented and that such a program must include portability (the right of an immigrant to change jobs), worker protections, and the rights to bring one’s family and at the end of the program adjust to permanent residency if U.S. workers would not be displaced.

3. How to meet US labor needs: The debate about how best to meet future U.S. labor needs is central to the immigration reform debate generally and worker programs specifically. While there is disagreement about these programs, the field agrees on the need to increase permanent immigration and the number of green cards. However, Congress does not have the political will or sufficient support to make available a sufficient number of green cards to meet the need and there is little discussion about how best to use both approaches. Finally, this debate usually ignores the contribution of family-based immigration and the fact that many needed workers enter our country through that flow.

4. Mandated Return: Several bills introduced in past Congresses, including S. 2611, included a mandate that some (if not all) undocumented had to return to their counties of origin. This return is controversial and a key demand of conservatives, While some believe it may be the necessary price for legalization, others believe it is unacceptable because it will cause hardship, dramatically reduce program participation because people will fear they will be unable to return, disrupt the labor force and separate families. Some also note that “touch base,” the phrase that has been used in the debate for this mandated return, belittles the disruption such a return would cause.

5. Enforcement: Especially after the 9/11 terrorist attacks, enforcement and security measures have been embedded in the immigration reform debate, notwithstanding the fact that these measures have little to do with either enforcement or security. This debate has manifested itself in several ways:

Enforcement- Only: Republican leaders last year advanced an “enforcement- only” agenda and others insisted on “enforcement first,” that border security must precede reform. However, both approaches will neither resolve the problems in our immigration system nor advance enforcement or security. And notwithstanding the fact that Republican leadership last year derailed immigration reform and failed to move their enforcement agenda, we can expect that they again will use this tactic to defeat a positive agenda or, failing that, extract a very high price. In contrast, others may work across the aisle to pass reform.

The Field and Enforcement: The issue of enforcement has split the pro-immigration advocacy field, with some opposing all enforcement measures, while others focus on the measures they would support in the context of immigration reform.

What Constitutes Enforcement: There appears to be consensus in Congress that any reform package that Congress addresses will include enforcement measures.

The issue is what these measures should be. Many proposed thus far have nothing to do with enforcement, such as provisions in S. 2611 and the House-passed H.R. 4437 that would have made many ineligible for legalization. These measures, under the guise of enforcement, also would have eviscerated the due process and civil liberty protections of the legal permanent residents, the “other twelve million,” a fact that was obscured in last year’s debate.

The field disagrees on border enforcement measures (security experts call for a “virtual” border, not the “hardened” border that Congress is moving toward) and how to create an effective and fair employer verification system with due process and privacy protections – with some opposing any and all enforcement and worker verification systems. The field and many state and local police oppose empowering law enforcement to enforce civil violations of immigration law (a favorite of reform opponents) because it would destroy community policing.

Enforcing the Status Quo: While there is consensus that our immigration system is broken, the Administration and many Members of Congress support measures that would enforce this dysfunctional system. In contrast, the field condemns raids and other egregious enforcement measures and urges Congress to focus instead on fixing a broken system. Employers are now faced with stepped-up enforcement and want a system that establishes guidelines to verify work authorization to protect them from immigration raids.

• The state of the field: The 109th Congress left scars that must be healed among advocates both within the beltway and between both the beltway and the field because of reactions to the differing positions groups took on S. 2611. Many immigrant-based groups have been established since the 1986 law and have grown in sophistication and capacity. Established groups need to partner more with these groups and work together to establish and advance shared goals.

• How we best talk about our issues and know the opposition: Advocates must talk about issues in ways that connect with the public and elected officials. Polling data and other research have found that the public understands that the U.S. will not deport millions of people, and values fairness, commonsense, family reunification, and the “American” way of doing things.

The opposition comes from inside and outside of Congress. Senators Saxby Chambliss (R-GA) and Jeff Sessions (R-AL) already have started attacking reform by taking pot shots during Senate debates in January on AgJobs and increasing the minimum wage. Along with Senator Jon Kyl (R-AZ) and the current Republican Senate leadership, they voted against last year’s Senate-passed bill, S. 2611, and are expected this year to use delay and conflict to oppose reform. Representative Lamar Smith (R-TX) is expected to play that role in the House. He is a determined and master strategist with experienced staff who will work to counter a less experienced Democratic staff.

Representative Tom Tancredo (R-CO) also will take a leading role opposing reform and has indicated that he might run for President in 2008 to highlight his views on immigration. Extremist groups like the Federation for Immigration Reform (the so-called FAIR) and its allies will use fear and distortion to try to defeat reform in the public realm.

• Congressional Attention to Other Issues: The Congressional October 2007 deadline to address reform, along with the complexity of the issue, the passions it generates, and an already crowded legislative agenda that includes must-pass appropriations bills create a very complex environment. Add to that Congressional focus on other pressing issues – especially any emergencies that could arise from the war in Iraq – and reform could be stopped in its tracks.

Three other issues merit attention as the debate progresses:

• Implementation – The Criteria of Workability: Immigration is a complicated issue and whatever measure is passed must meet the test that it can be implemented.

How these provisions work on the ground makes all of the difference because even the most well-intentioned and crafted provisions could be harmful if they cannot be implemented or are difficult to implement. For instance, the t

hree-tier legalization program in S. 2611 is too complicated and would have had perverse impacts including people not registering because they fear returning to their country of origin and others going further underground because they are ineligible for any benefits.

• Fraud: The complexity of immigration law, its inflexibility, and the insufficient number of service providers for large numbers of immigrants are factors that encourage fraud. Many thousands of immigrants each year fall victim to people who take money without providing services and/or tell them they are eligible for programs for which they are not, and then, to make matters worse, submit to the government applications or petitions which leave them exposed to charges of fraud. Such fraud is a national problem and becomes even more so when Congress even debates immigration, much less passes a new law.

• Lessons learned from the past: We all have much to learn from laws Congress debated and passed in the past. For instance, the 1986 IRCA debate reminds us of the difficulties associated with passing workable reform when the House, in a much less politically charged environment with Democrats strongly in control, fell just twelve votes short of eliminating the legalization program. And the 1996 IIRAIRA/AEDPA debate reminds us that it is very difficult to repeal bad laws.

The ILRC will continue to focus in this challenging environment to advance reform that works for this country and for immigrants. We will take every opportunity to create and support an environment that supports needed change. Such reform must bring out of the shadows the people who are here and allow them a path to eventual citizenship, ensure labor protections, reunite families, create a legal flow for future new workers to enter our country, secure our borders, and help immigrants join our society.

Please contact Judy Golub at JGolub@ilrc. org with any questions or comments.

Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco, California 94103
www.ilrc.org