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January 2013, Volume 20, Number 1

Immigration Reform, DACA

President Obama was re-elected in November 2012, winning 332 electoral votes and 51 percent of the 124 million votes cast. The number of votes dropped from 132 million in 2008, as only 51 percent of voting-age residents cast ballots. Minority voters cast 28 percent of the ballots in 2012, up from 26 percent in 2008.

Whites voted 39-59 percent for Obama, Blacks 93-6 percent, Hispanics 71-27 percent, and Asians 73-26 percent; Obama won 80 percent of the nonwhite vote. Whites cast 72 percent of all votes; Blacks, 16 percent; Hispanics, 10 percent; and Asians, three percent.

Obama won the majority of votes from every subgroup of voters except white men and the elderly.

Hispanics were key to Obama wins in the swing states of Colorado, Nevada and Florida; one poll found that most Hispanic voters in these states had a friend, relative, or co-worker who is unauthorized. The 44 percent margin for Obama among Hispanics was larger than the 36 percent margin in 2008, when Obama won 67 percent of the Hispanic vote and McCain 31 percent. George W. Bush won 44 percent of the Hispanic vote in 2004.

The New York Times reported on November 19, 2012 that Mitt Romney was pushed by Republican party activists to be tough on illegal immigration to win the nomination. His promise to encourage unauthorized foreigners to "self deport" won him Republican supporters against primary opponents that included Texas Governor Rick Perry and Senator Rick Santorum (R-PA), but Romney was unable to move toward the center of the political spectrum on immigration for the general election, alienating Hispanic voters.

Immigration reform is expected be a top domestic priority after issues surrounding the debt ceiling and spending cuts are resolved. President Obama in October 2012 called immigration reform his major "long-term" priority for a second term, and House Speaker John Boehner said that a "comprehensive approach [to immigration] is long overdue." One summary of the politics of immigration reform concluded that the Democrats want immigration reform that includes legalization to reward Hispanic voters while the Republicans need immigration reform to increase their appeal to Hispanic voters.

The coalition in support of comprehensive immigration reform includes employers seeking immigrant workers, from agriculture to IT firms, unions that want to represent newly legalized workers, and many other groups, from young people seeking immigrant status to evangelical pastors with Latino parishioners. Eliseo Medina of the Service Employees International Union said: "We expect action and leadership on immigration reform in 2013. No more excuses. No more obstruction or gridlock."

The Republican-controlled House is considered the major obstacle to an immigration reform that includes a path to US citizenship for many of the estimated 11 million unauthorized foreigners in the US. The Republican Party platform adopted in summer 2012 opposed "any form of amnesty'' for people who intentionally violate immigration law, saying amnesty "rewards and encourages more law breaking." Representative Bob Goodlatte (R-VA) will chair the House Judiciary Committee, and Representative Trey Gowdy (R-SC) will chair the Subcommittee on Immigration Policy and Enforcement; both are expected to oppose legalization.

However, former President George W. Bush in December 2012 urged Republicans in Congress to have "a benevolent spirit" as they consider bills that include legalization. Bush asserted that immigrants "help build our economy" and "invigorate our soul." A new group, Republicans for Immigration Reform, aims to "provide some cover for Republicans that vote in support of an immigration reform" that includes legalization.

There are 28 Hispanic Representatives in the 113th Congress, and three Hispanic senators.

There is more likely to be agreement on new enforcement programs to deter the entry and employment of unauthorized workers than on what to do about unauthorized foreigners in the US. Between 2005 and 2007, the House and Senate agreed on new enforcement measures, including a requirement that all employers check the legal status of newly hired workers via E-Verify, an online database. Senate efforts to create a path to "earned legalization," on the other hand, were marked by complexity, with the unauthorized divided into groups based on their time in the US. Those who wanted to become immigrants would have had to learn English, pay taxes and fees, and return to their countries of origin and re-enter the US legally.

A major question is whether President Obama will work with Congress to develop a comprehensive immigration reform proposal or encourage the enactment of incremental reforms. The Obama administration approved 300 pages of draft legislative language in 2010 that was considered by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) but not introduced as a bill. The 2010 draft would have mandated that all employers participate in E-Verify and provided a path for unauthorized foreigners to earn immigrant status and US citizenship.

Some speculate that Democrats eager to reward Hispanic voters will push for an immigration reform that includes an easy path to legalization, while Republicans who are opposed to adding "Democratic voters" by allowing unauthorized foreigners to become US citizens will demand that unauthorized foreigners be legalized as guest workers. In 2007, the opposing forces of legalization and guest workers resulted in a stalemate in the Senate involving Republicans who opposed legalization and Democrats who opposed guest workers.

Most supporters of comprehensive immigration reform want Obama to support a bill that maximizes the number of unauthorized foreigners who can become legal immigrants and eventually US citizens. Robert de Posada of the Latino Coalition speculated that Obama will propose "a very, very liberal plan that most Republicans will not support, that most southern and moderate Democrats will not support? they can announce once again that they tried [and that Latinos] need to rally in the next election."

The 2005-07 Debate. In December 2005, the Republican-dominated House approved the Border Protection, Anti-terrorism, and Illegal Immigration Control Act (HR 4437), which would have made it harder for unauthorized foreigners to find US jobs by requiring all employers to check the legal status of new hires by submitting their data to an E-Verify-type database and raised penalties on employers who hired unauthorized workers. The bill would have added fences and Border Patrol agents on the Mexico-US border, and the so-called Sensenbrenner bill made "illegal presence" in the US a felony, which would have complicated efforts to legalize unauthorized foreigners.

There were strong reactions against HR 4437 that culminated in a May 1, 2006 Day Without Immigrants, when a million or more immigrants and their supporters demonstrated instead of going to work or school. Some meatpacking plants and construction sites closed for the day, and many businesses in immigrant neighborhoods closed.

These demonstrations influenced the debate in the Senate over the Comprehensive Immigration Reform Act (S 2611), which was approved in May 2006. CIRA 2006 included more enforcement, legalization for some unauthorized foreigners, and a new guest worker program. CIRA 2006 would have required all employers to check new hires by submitting their data to an E-Verify-type database, raised penalties on employers who hired unauthorized workers, and added fences and Border Patrol agents.

CIRA 2006 would have created three legalization programs. Unauthorized foreigners in the US at least five years would have become "probationary immigrants" who could earn a regular immigrant status after at least six more years of US work and tax payments. Those in the US two to five years could have received three-years of protection from deportation, during which time they would have had to return to their countries of origin and then re-enter the US legally. Those in the US less than two years would have been expected to leave on their own.

CIRA 2006 included a new H-2C guest worker program that would have allowed US employers to "attest" that they did not lay off US workers 90 days before or after hiring guest workers. Employers who wanted to hire guest workers would have posted vacant jobs that offered at least the minimum or prevailing wage on a new electronic job registry to inform potential US workers. If US workers did not respond, employers could make job offers to foreigners outside the US, who could enter with H-2C visas and report to the employer, but later change to another US employer. H-2C workers could have applied for immigrant visas after working four years in the US.

The Senate took up immigration reform again in 2007, when it considered but did not approve the Comprehensive Immigration Reform Act of 2007 (S 1348) in June 2007. CIRA 2007 had enforcement provisions similar to CIRA 2006, legalization for most unauthorized foreigners, a new guest worker program and a point system to select some US immigrants.

CIRA 2007 was "tougher" than CIRA 2006 in several respects. First, CIRA 2007 included triggers, meaning that more Border Patrol agents would have had to be hired, more border fencing built, and the mandatory new employee verification system deemed to be "working" before legalization and new guest worker programs began. Second, CIRA 2007 required all unauthorized foreigners to return to their countries of origin and re-enter the US legally, not just those in the US two to five years, as in CIRA 2006. Third, CIRA 2007 would have admitted a third of US immigrants on the basis of points granted for their knowledge of English, their education and their US work experience.

Despite the support of President Bush and Senate leaders, CIRA 2007 failed because of the combined opposition of those opposed to more guest workers and of those opposed to amnesty. Then Senator Obama opposed the 2007 bill.

DACA. The Deferred Action for Childhood Arrivals program ordered by President Obama allows unauthorized foreigners who are at least 15 and under 31, arrived in the US before age 16, and have been in the US at least five years to pay $465 for a two-year work permit. Those eligible for DACA must be in school or have graduated from high school or been honorably discharged from the US Armed Forces.

Over 368,000 applications were filed between mid-August and mid-December 2012, an average of over 4,400 a day. During the same period, US Citizenship and Immigration Services reported that over 103,000 unauthorized youth had been granted protection from removal. USCIS said it expected applicants to provide at least one document a year to prove five years residence in the US, but prefers more documentation.

Mexicans filed almost 70 percent of the DACA applications, followed by four percent from Salvadorans and three percent each from Hondurans and Guatemalans. About 27 percent of DACA applications were filed in California, followed by 15 percent in Texas and six percent in New York.

Analysts estimate is that fewer than 10 percent of DACA applicants have college degrees. Less than half of the unauthorized youth who might otherwise qualify for DACA did not graduated from high school, increasing interest in programs that provide "education, literacy, or career training?designed to lead to placement in postsecondary education, job training, or employment." Unauthorized youth in their 20s who did not graduate from high school could qualify for DACA if they enroll in workforce preparation programs.

Dreamers are unauthorized youth who seek legal status and a path to US citizenship, which the DREAM Act would provide. The United We Dream network aims to encourage unauthorized youth, many of whom graduated from high-school and college, to "come out" or identify themselves in order to persuade Congress to move beyond DACA and open a path to regular immigrant status and US citizenship for all 11 million unauthorized foreigners in the US.

The Los Angeles Times profiled a 21-year old Mexican deported from Pasco, Washington after being stopped in 2009 for a broken headlight and then deported when it was discovered he was unauthorized. Luis Luna, who was brought into the US when he was three, does not qualify for DACA because he was arrested twice trying to return to the US. He succeeded in eluding the Border Patrol and returned to Los Angeles, where he found a job in a warehouse where donated clothing is sorted.

Two outgoing Republican senators introduced the Assisting Children and Helping them Improve their Educational Value for Employment (ACHIEVE) Act in November 2012 (S 3639). ACHIEVE would allow unauthorized foreigners brought to the US as children to receive renewable four-year work visas but does not provide a path to US citizenship. ACHIEVE would create new W-1, W-2 and W-3 visas for unauthorized foreigners under 28 (or under 32 if the foreigner had a BS degree).

States. Arizona employers have had to use E-Verify to check new hires since the Legal Arizona Workers Act went into effect January 1, 2008; the US Supreme Court upheld the LAWA. A 2012 survey found that 43 percent of Arizona's employers were enrolled in E-Verify, up from 35 percent in 2010. Employers can lose their business licenses if they are found to be employing unauthorized foreigners.

The Oklahoma Taxpayer and Citizen Protection Act (HB 1804) requires employers with state contracts to use E-Verify to check the legal status of new hires, prohibits employers from firing work-authorized employees while retaining unauthorized workers, and requires businesses to verify the work authorization of the independent contractors they utilize. Oklahoma's state Supreme Court in 2011 upheld a provision of HB 1804 requiring all employers to enroll in E-Verify.

A federal judge in December 2012 upheld the provision that state contractors participate in E-Verify, but struck down the firing work-authorized employees and verifying independent contractors provisions.

Some 8,600 Chinese nationals were a third of those who received asylum in the US in FY11, usually after claiming they were persecuted in China for being Christian or followers of Falun Gong. In December 2012, six lawyers were arrested and charged with helping Chinese asylum seekers in New York City file false asylum applications that claimed persecution that they had not endured. Hunter College Professor Peter Kwong said that most Chinese asylum applications filed in New York City are fraudulent.

California voters approved Proposition 35 in November 2012, which raises the penalty on sex trafficking of a minor with force or fraud from eight years to life term in prison. Proposition 35, largely financed with $2 million from Chris Kelly, Facebook's former privacy chief, expands the definition of human trafficking to include creation and distribution of child pornography and requires convicted traffickers to register as sex offenders. Critics said that Proposition 35 supporters "focused on sex trafficking crimes over labor trafficking." California enacted a state law against trafficking in 2005; Proposition 35 increased state penalties.

Maricopa county Sheriff Joe Arpaio, first elected in 1992, was re-elected in November 2012 elections with 52 percent of the vote. He became nationally controversial with tough policies against unauthorized foreigners. An investigation by the US Department of Justice was closed without charges.

The Los Angeles Times on January 3, 2013 profiled USA Baby Care, a maternity hotel in southern California that charges pregnant women from Chinese-speaking countries up to $20,000 so that the women can have US-citizen babies. No law prevents pregnant women from entering the US to have US-citizen babies.

Brian Bennett, "Obama plans push for immigration reform," Los Angeles Times, December 7, 2012.