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April 2010, Volume 17, Number 2

Congress: Immigration Reform?

President Obama mentioned immigration reform in his January 27, 2010 State of the Union speech, saying: "we should continue the work of fixing our broken immigration system - to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation."

Advocates for legalization were disappointed at the passing reference. The Reform Immigration for America coalition, which includes 600 groups, demanded that Obama push Congress to enact immigration reform. On March 11, 2010, Obama met with Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) to encourage them to complete a bipartisan bill that includes three core components, that is, a more effective enforcement system, legalization for many of the unauthorized, and new guest worker programs.

On March 18, 2010, Schumer and Graham released an outline of their proposed immigration reform bill, which would require that, to be hired, applicants for jobs present secure Social Security cards that include biometric information. Unauthorized foreigners could become legalized by admitting that they had broken US immigration laws, paying fines and back taxes, and performing community service. The Schumer-Graham proposal would also expedite the issuance of immigrant visas to foreigners who earned advanced degrees in science and technology from US universities and would establish a new guest worker program for low-skilled migrants.

Obama, perhaps reflecting experience with enacting health care reform, said that he would not push for immigration reform without significant Republican support.

The Schumer-Graham "framework" includes many elements of the Comprehensive Immigration Reform Act that was supported by Obama and approved by the Senate in 2006 but not in 2007. Both Schumer and Graham acknowledged difficulties reaching agreement on new guest worker programs. Employers and most Republicans want programs that give employers easy access to large numbers of foreign workers at all rungs of the job ladder, from low-skilled to professionals. Unions and most Democrats want the government to retain significant control over the number of foreign workers to be admitted. They favor the creation of an independent commission to study labor market indicators and set a maximum cap or ceiling on guest worker admissions.

Few expect a bipartisan breakthrough that could lead to immigration reform in 2010. In addition to disputes over earned legalization and new guest worker programs, there is likely to be controversy over a new work authorization card. For example, the Schumer-Graham proposal for biometric IDs means that workers would have to present employers with a more secure form of ID to get a job than passengers would have to present to board an airplane.

On March 21, 2010, advocates brought over 100,000 people to Washington's National Mall to press Obama and Congress to enact immigration reforms. Speakers decried the problems associated with enforcement efforts, including families separated when a member is deported, employers unsure of the legal status of their workers, and strains on community police, schools and health care systems in cities and towns with large numbers of migrants.

Senator Harry Reid (D-NV), who faces an uphill fight for re-election in November 2010, promised a crowd in Las Vegas April 9, 2010 that "we're going to have comprehensive immigration reform now? We need to do this this year. We cannot let excuses, like a Supreme Court nomination, get in the way." Nevada has the highest foreclosure rate in the US and a high unemployment rate.

Numbers. DHS estimated that there were 10.8 million unauthorized foreigners in January 2009, down a million after peaking at 11.8 million in January 2007 and falling slightly to 11.6 million in January 2008. About 62 percent of unauthorized foreigners, 6.7 million, are from Mexico. California had an estimated 2.6 million unauthorized foreigners, a quarter of the total; California's share of the unauthorized was much higher in the past, for instance, 42 percent in 1990.

The declining stock of unauthorized foreigners was due to fewer new arrivals and more departures, including more formal removals; formal removals (deportations) rose from 291,000 in FY07 to 388,000 in FY09. DHS arrested about 380,000 foreigners in 2008 and removed 358,000.

There were 3.5 million unauthorized foreigners in 1990, meaning that the stock increased by over 500,000 a year to peak at 12 million in 2007. Almost half of the unauthorized are couples with children, and almost three-fourths of their children were born in the US and are thus US citizens. The four million US citizen children in households headed by unauthorized foreigners complicate both the delivery of social services and immigration reforms.

Restrictionists argue that the declining number of unauthorized foreigners demonstrates that legalization is not necessary. Admissionist groups such as America's Voice believe that legalization is in the interest of Democrats. A February 2010 report emphasized that 10 million Latinos voted in 2008, up from six million in 2000. Two-thirds of Latino voters selected Democratic candidates in 2008, but the Democratic margin was much smaller for foreign-born Latinos who became naturalized US citizens, 52-48 percent. In opinion polls, jobs and the economy top the list of concerns of Latino voters, but immigration is among their top three concerns.

A March 2010 poll suggested that two-thirds of California residents support comprehensive immigration reform that strengthens border enforcement and provides a path to earned legalization for unauthorized foreigners who admit that they broke the law, perform community service, learn English and pay fines and back taxes. ( However, the Republican contenders for California governor, Meg Whitman and Steve Poizner, have staked out tough positions on illegal migration. Whitman said that she would crack down on employers who hire unauthorized foreigners and clarified her support for a "path to legalization" by saying she would allow unauthorized foreigners to become guest workers. Though such action would contravene existing law, Poizner wants to eliminate all services to the unauthorized, including children, saying "we should end all taxpayer benefits for people here illegally."

In 1994, California voters approved Proposition 187 by a 59-41 percent margin. Proposition 187, which would have eliminated state-funded services for unauthorized foreigners, including K-12 schooling for unauthorized children, was never implemented because it was declared unconstitutional. However, some of its provisions were incorporated into 1996 federal welfare reforms.

California spends an estimated $970 million incarcerating 19,000 unauthorized foreigners (and receives about $100 million in reimbursement from the federal government), $650 million treating 823,000 unauthorized foreigners under Medi-Cal (the federal government pays another $650 million), and $75 million to provide cash and food stamps to poor US-born children of unauthorized foreigners (the federal government pays another $75 million).

Courts/Padilla. The American Bar Association in February 2010 called for a new system of independent immigration courts. The 231 immigration judges are employees of the Department of Justice, and they handled 300,000 cases in 2009, an average 1,200 each, or three times the average for a federal district judge.

Immigration judges deal with foreigners that DHS seeks to deport or remove. One of the reasons for the growing backlog of cases facing immigration judges is the rising complexity of asylum cases involving foreigners in the US who ask to be recognized as refugees because they face persecution in their country of citizenship. The definition of refugee has been expanding, and many foreigners not recognized as refugees appeal, so that a third of the cases filed with federal appeals courts in California and New York involve immigration matters (Immigration judges' decisions that are appealed go to US Courts of Appeal).

The US Supreme Court ruled 7-2 in March 2010 that the Sixth Amendment guarantee of effective counsel to those accused of crimes requires that lawyers for foreigners considering pleading guilty to a US crime advise their clients that a guilty plea could lead to deportation.

Honduran Jos‚ Padilla had been a legal immigrant in the US for decades when he pleaded guilty to trafficking in marijuana after his attorney advised him that a guilty plea would not affect his immigration status. His lawyer was wrong--trafficking in marijuana is an aggravated felony that leads to automatic deportation. In Kentucky, where truck driver Padilla was arrested, the state Supreme Court ruled that bad advice from his attorney was not enough to re-open Padilla's case. The US Supreme Court reversed this decision.

Senator John McCain (R-AZ) is facing a challenge in the August 24, 2010 Republican primary from J.D. Hayworth, a former Representative from Arizona who has made tougher enforcement of immigration laws a central theme of his challenge to McCain. McCain in a March 24, 2010 interview said that immigration reform is unlikely in 2010 because of "decreasing border security, and we've got to get our borders secure" before enacting reforms.

Visas. In November 2009, some 3.4 million foreigners were on waiting lists for family-unification immigration visas and 130,500 were on waiting lists for employment-based immigration visas. There was no wait for those seeking first-preference employment visas (multinational executives), but applicants for second-preference employment visas (advanced degrees) from China and India had to have applied in 2005 to receive visas in 2010. BA-degree holders seeking third-preference employment based visas had to have applied in 2003 to receive immigrant visas in 2010, and low-skilled workers had to have applied in 2001 to receive visas in 2010

Second- and third-preference visa applicants are sponsored by US employers who seek US Department of Labor certification that the foreigner is uniquely qualified to fill a particular job, that is, employer recruitment efforts did not find suitable US candidates. Over 90 percent of foreigners receiving employment-based immigration visas are already in the US when they receive immigrant visas; in most cases, the foreigner seeking the visa is already filling the job.

The EB-5 employment visa allows up to 10,000 foreigners a year to obtain immigrant visas for themselves and their families if they invest at least $500,000 in a regional center or a business in an economically disadvantaged area that creates or preserves at least 10 jobs. Some 4,200 EB-5 visas were issued in FY09, most to Chinese and Koreans, and more are expected to be issued as US intermediaries spread word of the now 74 regional centers eligible for investment. Investments in these regional centers are often made by real estate investment trusts (REITs) that pool investor funds. Most REITs charge foreign investors at least $50,000 or 10 percent of the $500,000 the foreigners must invest in the fund for five years, and offer low returns. There is a push to make regional centers, which are now operating as pilots, permanent.

The Startup Visa Act of 2010 would create new EB-6 immigrant visas for foreigners who raise at least $250,000 from US investors and create five new jobs within five years; the visas would be drawn from unused EB-5 visas.

Since 2000, up to 10,000 U-immigrant visas a year have been available to victims of US crimes who cooperate with law enforcement officials. DHS was slow to implement the U-visa program, issuing regulations in September 2007. Some 5,825 U-visas were issued in FY09; 10,000 applications were pending. About three-fourths of U-visas go to unauthorized victims of domestic violence, which some divorce lawyers say gives spouses incentives to exaggerate marital problems.

Jack Chang, "GOP candidates take tough positions on illegal immigration," Sacramento Bee, April 7, 2010. Julia Preston, "Obama Links Immigration Overhaul in 2010 to G.O.P. Backing," New York Times, March 11, 2010. Andrew Becker, "Informants can greatly aid U.S. authorities but still face deportation," Los Angeles Times, February 12, 2010. Teresa Watanabe, "Illegal immigrant numbers plunge," Los Angeles Times, February 11, 2010. Spencer S. Hsu, "Chances are dim, but advocates will still push for immigration reform," Washington Post, February 1, 2010. DHS. 2010. Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009.