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October 1996, Volume 3, Number 10

Immigration Overhaul

On September 25, 1996, by a vote of 305 to 123, the House approved a bill aimed at reducing illegal immigration and reducing access of legal immigrants to welfare.

In the Senate, the immigration bill was included in a spending proposal needed to fund government operations, and the Clinton administration and Democratic Senators were thus able to remove several provisions of the House-passed bill that would have tightened the access of legal immigrants to welfare services.

The House on September 28, 1996 approved the final version of the immigration and budget bill by a vote of 370-37. The Senate approved the bill on September 30, 1996 by a vote of 84 to 15.

President Clinton signed the bill into law immediately.

Between the first and second House votes, there were intense negotiations between the White House and Congress over provisions in the bill that would have made legal immigrants deportable if they received more than 12 months of welfare benefits, and raised the income needed for US citizens to sponsor their immediate relatives for admission. The deportation-for-use-of-benefits provision was dropped, and the sponsor-income requirement was reduced.

In a separate vote on September 25, 1996, the House also passed the Gallegly amendment, which would permit states to deny newly-enrolled K-12 children free public education, by a vote of 254 to 175. The Senate did not consider the Gallegly amendment.

Some commentators saw the new immigration bill as an echo of Proposition 187, the California initiative approved by a 59-41 percent vote in November 1994 that would have created a state-run system to prevent illegal immigrants from gaining access to social services, including K-12 education.

Others stressed that the 1996 legislation originated in the budget and law enforcement committees rather than the immigration committee. The welfare overhaul law came from budget committees, and the anti-terrorism law from enforcement committees.

Provisions. The immigration bill includes three major sets of measures to reduce illegal immigration and reduce the access of legal immigrants to welfare.

First, it provides for stronger border enforcement, adding 1,000 Border Patrol agents per year for five years, bringing the total from 5,175 in 1996 to almost 10,000 by the year 2000. The new immigration law also requires INS to build a 14-mile triple fence on the US-Mexican border south of San Diego, and increases penalties for smuggling aliens into the US and for using false documents to obtain US jobs or welfare assistance.

The new law adds 1,200 INS investigators, the agents who inspect US work places for unauthorized workers, and apprehend and deport criminal aliens.

Second, it introduces a pilot telephone verification program to enable employers to verify the status of newly-hired workers, and social service agencies to determine the legal status of applicants for benefits. However, employer participation in the verification program is voluntary, and no national worker eligibility verification system that mandates employer participation could be established without new legislation.

The Commission on Immigration Reform in 1995 called a mandatory national verification system "the linchpin" of efforts to reduce illegal immigration.

The new law includes incentives for states to develop counterfeit-resistant driver's licenses and birth certificates.

The conference committee deleted a provision in the bill that would have added 350 labor inspectors, and set higher penalties for companies that repeatedly violate employer sanctions laws.

The new legislation makes it easier for employers to defend themselves against suits from job applicants who believe that they were discriminated against by employers checking their legal status. Job applicants who believe that employers checking their legal status discriminated against them must now prove that the employer intended to discriminate.

Third, the immigration bill expands and reinforces restrictions on the access of LEGAL immigrants to welfare benefits. Non-US citizens were barred from Food Stamp assistance and Supplemental Security Income by the welfare law enacted in August 1996, but that law left it to states to decide whether to permit legal immigrants to participate in Medicaid, medical assistance for the poor.

President Clinton's last minute negotiations preserved the right of states to offer Medicaid to non-US citizens, including for the treatment of AIDS. Persons with AIDS are not allowed to immigrate but, once in the US, Medicaid can pay for their treatment.

Clinton also got a provision dropped that would have subjected to deportation immigrants who received means-tested federal welfare assistance, including AFDC and Medicaid, for more than 12 months during their first seven years in the US.

Under the House-approved bill, legal immigrants would have been ineligible for Medicaid benefits during their first five years in the US. If they applied in year six, their applications could be rejected if the immigrant's income and assets together with those of his/her sponsor exceeded certain limits, an application of "deeming" that the immigrant has access to her sponsor's income and assets. Deeming is meant to shift the cost of maintaining needy immigrants from the taxpayers to the sponsors who agreed to support them in the US.

To make it less likely that immigrants will request welfare assistance after their arrival, US sponsors will have to have higher incomes.

Sponsors of immigrants now have to have an income at least equal to the poverty line, $15,569 for a family of four in 1995. Under the new immigration law, US citizens who want to bring spouses and minor children into the US will have to have incomes that are 125 percent of the poverty line, $19,461, down from 140 percent in the House-approved bill. Sponsors are allowed to include the partial value of assets such as cars and homes to reach this level.

In 1994, about 36 percent of the sponsors of immediate relatives had incomes that were less than 140 percent of the poverty line, and 44 percent of those who sponsored parents and adult siblings had incomes less than 200 percent of the poverty line.

New systems will be put in place to deal with foreigners convicted of committing crimes in the US, including the establishment of a national database of such persons. Foreigners convicted of entering the US illegally, or overstaying a previous visa, will be denied new visas to enter the US for 10 years.

An INS officer will decide whether a person seeking asylum at the US border is granted asylum. A negative decision would have to be appealed within seven days to an immigration judge, and then further appeals are possible.

The chairman of the House immigration subcommittee, Lamar Smith (R-TX), said that the new immigration bill "secures America's borders, penalizes alien smugglers, streamlines removal of criminal and illegal aliens and ends non-citizens' abuse of the welfare system."

The 13 Democratic legislators on the conference committee were excluded from the negotiations that settled differences between the House and Senate bills, and many attacked the conference bill as "fatally flawed." Among the provisions subject to such criticism: under the new immigration law, an INS decision would be reviewed only if the US Supreme Court agreed to consider it, and the INS would be exempt from environmental laws when building roads and barriers along the border.

According to many Democrats, the new immigration law sends the message that, if a foreigner can get into the US, it will still be easy to find a job, but it will be more difficult to obtain welfare benefits.

Gallegly amendment. A 5-4 US Supreme Court decision in 1982, Plyler v Doe, requires states to provide K-12 education to illegal alien children.

California's Proposition 187, if implemented, would end free public education for illegal alien children, and the Gallegly amendment would have overturned the Supreme Court decision thus allowing it to happen.

President Clinton in August 1996 threatened to veto any immigration bill that would "kick children out of school and onto the streets." Republican Presidential candidate Bob Dole, with the urging of California Governor Pete Wilson, strongly supported the Gallegly amendment, asserting that "the wonderful California quality of life is being threatened by the flood of illegal immigration."

In an attempt to make the amendment acceptable, several modifications were offered. Rep Elton Gallegly (R-CA) in August proposed that illegal aliens currently in K-12 schools could remain in classes, but states would have been allowed to charge them tuition if they continued from elementary to secondary school.

Rep. Brian P. Bilbray (R-CA) offered a compromise on September 12 that would have left in place the obligation of states to educate illegal alien children, but would have shifted the cost to the federal government. The cost of educating the estimated 700,000 illegal alien children in K-12 US schools--almost 400,000 in California-- is thought to be about $4 billion per year.

On September 24, the Gallegly amendment was modified again to permit illegal alien children enrolled in US schools on July 1, 1997 to graduate, and was set for a separate vote.

Road to Reform. The Immigration Control and Financial Responsibility Act of 1996 began in the House and Senate in 1995 as comprehensive bills aimed at reducing illegal and legal immigration, as recommended by the Commission on Immigration Reform in June, 1995.

However, the Clinton administration, most Democrats, and interest groups that ranged from high-tech companies to church groups to ethnic lobbies opposed reductions in legal immigration, and changes in the legal immigration system were therefore removed from both bills in Spring 1996.

On September 11, 1996 the House appointed its 19 members to the House/Senate conference committee responsible for working out the differences between the House and Senate immigration bills. The Senate appointed 11 members in August.

The conference committee was scheduled to meet on September 17, but the meeting was canceled because of disagreements between Republicans over the Gallegly amendment.

After the conference committee reported the bill, and the House approved it, the Clinton Administration demanded and secured modifications of the provisions affecting the access of legal immigrants to welfare benefits in the Senate.

What Next? Most commentaries on the new immigration law were variations on one of three themes. First was the party political interpretation--Republicans closely linked to businesses that benefit from immigration do not want to really stop the influx, but they do want to prevent immigrants from gaining access to welfare benefits and schools.

In Spring 1996, a coalition of immigration admissionists, civil libertarians, high-tech companies, and libertarian think tanks successfully opposed proposals originally made by the Commission on Immigration Reform, and endorsed by the Clinton administration, that would have reduced legal immigration and imposed new fees on US employers who wanted to bring immigrants into the US to fill vacant jobs.

Second were accounts that said 1996 marked a tougher attitude on illegal immigration, and a new skepticism of legal immigration, as exemplified by Senator Diane Feinstein (D-CA), who says that "people want a slowdown" in immigration.

President Clinton and Republican candidate Dole have been sparring in states such as California and Florida about who is tougher on illegal immigration. Clinton touts his administration's addition of Border Patrol agents, and the streamlining of deportations of criminal aliens. Dole agrees, and goes further, arguing states should be allowed to keep illegal alien children from attending K-12 schools, and favors restricting family unification to immediate family members.

Dole does not favor ending the current practice of birthright citizenship, under which babies born in the US are US citizens, even though ending birthright citizenship is a plank in the Republican platform.

Some observers credit Republicans Pete Wilson and Pat Buchanan for laying the groundwork for stepped up measures against illegal immigration, and for reduced legal immigration. These politicians, the argument runs, have broadened a narrow focus on the economic impacts of immigration to a concern about broader effects on welfare, language and identity.

Third are commentaries that say that 1996 showed that the US was getting tougher on both illegal and legal immigration. Indeed, many immigrant admissionists predicted that the next target of restrictionists would be naturalization, following stories that unqualified immigrants are allowed to naturalize.

Finally, some speculate that future immigration policy-making may start with tough legislation, followed by softer corrective legislation.

For example, pressure is building to modify a provision of the anti-terrorism bill signed into law by President Clinton in April 1996--that which calls for the deportation of any immigrant who has been convicted of a felony--"one strike and you're out." Stories of immigrants who committed crimes 20 or 40 years earlier, served their sentences, and then became subject to deportation when they returned from a trip abroad, or otherwise came to the attention of INS, convinced many people of the need for some flexibility.

The anti-terrorism law provides no judicial discretion--there is no appeal from deportation for convicted immigrant criminals detained by INS. When signing the law, President Clinton said that he would send Congress corrective legislation to permit relief from deportation in some cases.

Marc Lacey, " Toned Down Bill on Immigration Passes in House," Los Angles Times, September 29, 1996. Gerald Seib, "Backlash over immigration has entered mainstream this year," Wall Street Journal, September 27, 1996. Marc Lacey, "Immigration Bill Logjam Broken, Sources Say," Los Angles Times, September 24, 1996. Eric Schmitt, " Immigration Bill Poses a Dilemma for GOP," New York Times, September 21, 1996. Michael Doyle, "Presidential Politics Shape Immigration Bill Debate," Sacramento Bee, September 18, 1996. Eric Schmitt, "Dole's Immigration Stance Splits GOP in Congress," New York Times, September 13, 1996. Adam Clymer, "Dole's Moves Sidetrack a Treaty and a Bill," New York Times, September 13, 1996. Herbert Sample, "Gingrich sees immigration reform victory," Sacramento Bee, September 11, 1996.