Tuesday, November 23, 2010

Thoughts on the Comprehensive Immigration Reform Act of 2010

In September, Senators Bill Menendez (NJ) and Patrick Leahy (VT) introduced the Comprehensive Immigration Reform (CIR) Act of 2010 (S. 3932). As the word “comprehensive” implies, the bill proposes changing many aspects of the immigration system; it’s a complicated bill. It is important to carefully scrutinize each provision of a bill so large in order to be sure it has the rights and safety of immigrants at heart. The "enforcement-only" approach, which often comprises major parts of CIR bills, is often touted as true reform, though it does not does not stem the flow of undocumented immigrants, does not provide a solution for the millions of undocumented people already here, and has induced human and civil rights abuses. Although FCNL firmly believes that comprehensive reform is needed immediately, there are often provisions that don’t comply with our statement of principles for just and humane immigration reform, and these must be not be overlooked.

Many parts of the more-than-800 page bill are positive reforms that enable immigrants to live and work with dignity. Some of these include:

- The inclusion of important stand-alone bills such as the AgJOBS bill, the DREAM Act, and the Uniting American Families Act (UAFA).

- Creating a Lawful Prospective Immigrant status for undocumented immigrants already living in the United States.

- Improving detention conditions and implementing secure alternatives to detention.

- Expanding labor protections under many work visa programs.

- Improving access to interpreters in state courts.

- Ending the waiting period for refugees and asylees to obtain green cards.

- Improving training and accountability for Department of Homeland Security border and immigration officers

- Coordinating local law enforcement agencies, border security and crime fighting with Canada and Mexico.

Some stipulations of the bill, however, have us deeply concerned. There are a lot of “enforcement-first” provisions that impose steep penalties instead of addressing root causes. Most significantly, the bill calls for many new border enforcement requirements that must be met before any undocumented immigrant is eligible for legal status. This includes, but is not limited to, the following:

  • A total force of 6,410 Immigration and Customs Enforcement (ICE) agents investigating criminal law violations,
  • 21,000 Border Patrol agents,
  • 7 unmanned aircraft systems,
  • Remote video surveillance systems at 300 sites,
  • 200 scope trucks,
  • 56 mobile surveillance systems

Some “trigger” requirements are positive, such as implementing civil detention standards, dramatically increasing enrollment in alternatives to detention, and utilizing worksite auditors to develop cases against employers suspected of serious violations. The militarization of the border, however, is not an effective way to address the flow of undocumented immigrants.

Department of Homeland Security Secretary Janet Napolitano testified to a Senate Appropriations Committee in May of this year:

“Every marker and every milepost that has been laid down by the Congress in terms of number of agents, deployment of technology, construction of fencing and the like, has already either been completed or is within a hair’s breadth of being completed … One of the questions I think we need to talk about is whether securing the border is ever going to be reached, or whether that goalpost is going to keep moving.”

When is enough enough? Check out FCNL’s resources on enforcement to find out more about this flawed approached to immigration reform. Other provisions of the bill that are particularly worrisome are:

Heightened penalties for document fraud and illegal entry

Increased penalties result in a larger number of people in prisons. The prison system is already too large, and this is an expensive policy that does not actually solve the problem, and will not serve as an adequate disincentive.

Mandating the use of an employment verification system and biometric identifiers.

The proposed employment verification system depends on the Social Security database, which has an extremely high error rate, especially for individuals with foreign-sounding last names. For example, Asian names and surnames are sometimes mistakenly interchanged, and Latin American names, which are often two first names and two last names, can be improperly categorized. As a result, an employer could run the name of a potential employee through the database and result in “no match,” though this does not necessarily mean the individual is not in the system.

When analyzing a bill, it is important to consider what’s left out of it. At FCNL, we are disappointed not to see any stipulations that mandate the enforcement of wage, hour, health and safety laws in the workplace for all employees. This is essential to the fair treatment not just of immigrant workers, but of U.S.-born workers as well. Broad enforcement of these laws would make it more difficult for a U.S. employer to undercut U.S. born workers by bringing in “cheap” undocumented workers to work without protections of U.S. labor laws. Evening the playing field would allow the Labor Commission (provided for in the bill) to make a realistic and accurate assessment of the number of additional workers needed in the U.S. for various industries.

In all, this CIR bill is a mixed bag. It proposes essential reforms that are urgently needed, such as alternatives to detention and reformation of the legal system, but the enforcement provisions have us very worried. A more detailed summary on the bill can be found on our website. What are your thoughts?