In 2006, the Senate passed a comprehensive immigration reform bill that included heightened border security, reform of the legal immigration system, and a program for legalization of unauthorized residents. The House refused to consider the bill.
In 2007, a bipartisan comprehensive immigration reform bill was introduced in the Senate by John McCain and Edward Kennedy. Although it received support from President Bush, the bill died in the Senate.
Later in 2007, Senator Richard Durbin introduced the Development, Relief, and Education for Alien Minors Act (DREAM Act) in the Senate. The bill proposed legalization for immigrants who were brought into the country as children, who graduated from high school, and who had served in the military or attended college. The DREAM Act did not get the necessary 60 votes to overcome a filibuster, and it died in the Senate.
In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act with bipartisan support. The law was intended to combat human trafficking. Along with increased penalties for trafficking, the act included provisions to protect “unaccompanied alien children” entering the country from being quickly sent back to their country of origin. The protection did not apply to children from Mexico or Canada. Children covered under the act are given the opportunity to appear at an immigration hearing and to have access to counsel. If they cannot be placed with family members, they are placed under the care of Department of Health and Human Services for accommodation in the “least restrictive setting that is in the best interest of the child.”
In 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued a memorandum outlining the use of “prosecutorial discretion.” Morton noted that ICE has limited resources and must “prioritize the use of its enforcement personnel, detention space, and removal assets to ensure that the aliens it removes represent, as much as reasonably possible, the agency’s enforcement priorities, namely the promotion of national security, border security, public safety, and the integrity of the immigration system.”
In 2012, with comprehensive immigration reform stalled in Congress, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program. Under DACA, the Department of Homeland Security would use “prosecutorial discretion” to defer the deportation of certain illegal immigrants who entered the country as children. The deferral would not give legal status to immigrants. Among other requirements, a person seeking deferral must be under age 31 as of June 15, 2012, must have come to the U.S. before reaching age 16 and must have continuously lived in the U.S. since June 15, 2007. To be eligible, the individual must currently be in school or must have graduated from high school or have been honorably discharged from service in the U.S. military. Any person who has committed a felony or significant misdemeanor, or who poses a threat to national security or public safety, is not eligible. The deferral is effective for two years but can be renewed. If the deferral is approved, the individual may receive authorization to work in the United States. As of March 2014, more than half a million deferrals had been approved.
In early 2013, a Bipartisan Framework for Comprehensive Immigration Reform was issued by Senators Charles Schumer, John McCain, Richard Durbin, Lindsey Graham, Robert Menendez, Marco Rubio, Michael Bennet and Jeff Flake (the “gang of eight”). The Framework acknowledges the presence of 11 million undocumented immigrants in the U.S. who are currently “living in the shadows” and proposes a “tough but fair” path to citizenship.
Before undocumented immigrants can begin the legalization process, the Framework requires “success” in securing the borders and tracking whether legal immigrants have left the country as required by their visas. In addition, the Framework calls for reform of the immigration system “to better recognize the importance of characteristics that will help build the American economy and strengthen American families.” It calls for an effective employment verification system and “an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.”
The Framework would deploy more border patrol officers and would require better training and border monitoring technology, including the use of drones. The Framework requires an entry-exit tracking system to ensure that people entering the country on temporary visas leave the country as required.
To ensure the success of border security measures, the Framework proposes a commission of governors, attorneys general and community leaders living along the Southwest border. The commission would be responsible for making a recommendation regarding when adequate security measures are “completed.”
The Framework requires undocumented residents to register with the government, to pass a background check, and to pay a fine and back taxes. Undocumented residents who meet these requirements would earn “probationary legal status.” Individuals who have a serious criminal background or who pose a threat to national security are not eligible for legal status and would be subject to deportation.
When the border enforcement measures have been “completed,” individuals with probationary legal status would be required to “go to the back of the line of prospective immigrants,” pass another background check, pay taxes, learn English and civics, demonstrate current employment and a history of work in the U.S., and meet requirements to earn the opportunity to apply for lawful permanent residency.
The Framework calls for the development of a “rational legal immigration system” to replace the current “broken system.” It calls for reducing the backlogs in family and employment visa categories. The Framework proposes to award green cards (authorization to live and work in the U.S. as a permanent resident) to the “best and brightest” (immigrants who have received a PhD or Master’s degree in science, technology, engineering, or math from an American university).
Because “undocumented immigrants come to the United States almost exclusively for jobs,” the Framework proposes “a tough, fair, effective and mandatory employment verification system.” Employers who hire unauthorized workers would face fines and criminal penalties. The employee verification system must be “fast and reliable” but must have procedural safeguards “to protect American workers, prevent identity theft, and provide due process protections.”
The Framework calls for a “humane and effective system” to allow immigrant workers into the country and to find work “without seeking the aid of human traffickers and drug cartels.” The Framework proposes that employers be allowed to hire immigrants “if it can be demonstrated that they were unsuccessful in recruiting an American to fill an open position and the hiring of an immigrant will not displace American workers.” The Framework calls for “strong labor protections” for workers. Workers who have “succeeded in the workplace and contributed to their communities over many years” should be permitted to earn green cards.
The Senate Bill
In 2013, Senator Schumer introduced the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), a bill that incorporated the Framework recommendations as well as provisions of the failed 2007 DREAM Act. The Senate passed the bill in June 2013. A companion bill (H.R. 15) was introduced in the House by Representative Joe Garcia.
House Speaker John Boehner promised to get the bill passed, telling a group of Republican donors in Las Vegas in April 2014 that he was “hell-bent” on moving the legislation forward. Boehner’s bravado quickly evaporated under the heat of hard-line opposition from anti-immigrant Republicans. Boehner, in full retreat, announced in June that the House would not take up the measure in 2014.
Meanwhile, between October 2013 and July 2014, more than 57,000 unaccompanied children had been apprehended after crossing the U.S. border with Mexico. Most of the children were teenagers, but many were children under 12 years old. Most of the children came from Honduras, driven by poverty (in 2013, the poverty rate in Honduras was 64.5 percent), crime (Honduras has the highest homicide rate in the world), and the threat of gang conscription. In addition, more than 22,000 children were apprehended at the border with their parents in the first half of 2014.
The White House requested $3.7 billion in emergency funds to deal with the crisis. The funds would be directed to the Department of Health and Human Services (for shelter and care of the immigrants) and to the Departments of Justice and Homeland Security (for border enforcement). The State Department would receive $300 million to help Guatemala, El Salvador and Honduras repatriate their citizens.
Congress rejected the White House request.
In response to the refusal by the House to vote on a comprehensive immigration bill, President Obama announced that he would consider taking action on immigration reform by executive order. On June 30, he said:
I have also directed Secretary Johnson and Attorney General Holder to identify additional actions my administration can take on our own, within my existing legal authorities, to do what Congress refuses to do and fix as much of our immigration system as we can. If Congress will not do their job, at least we can do ours. I expect their recommendations before the end of summer and I intend to adopt those recommendations without further delay.
Later, two Republican members of the “gang of eight” backed away from the bipartisan comprehensive approach to immigration reform outlined in the Framework. In August 2014, Senator Rubio stated that comprehensive reform would never have the support necessary for it to pass in Congress. He suggested that passing reform in stages would be a better approach. Senator McCain told reporters in August that “border security” would have to come first and that the goal should be “90 percent effective control.”
The Obama administration was reported to be considering an executive action that would temporarily protect 4 to 5 million unauthorized immigrants from deportation. Eligible for this protection would be parents of children who are U.S. citizens or who are eligible for deferrals under the DACA program.
In October, Senator Lindsey Graham joined Rubio and McCain in warning the President not to take executive action:
It is our view, along with many of our colleagues and a majority of the American people, that no action should be taken to legalize undocumented immigrants who are living and working in the United States until we have properly secured our southern border and provided for effective enforcement of immigration laws.
In September, the White House had announced that executive action on immigration would be delayed until after the mid-term elections in November. After vowing in June to act “without further delay,” this further delay was calculated to help Democrats in closely contested elections. It made no difference. On November 4, the Republicans swept the contested races and took over control of the Senate.
During a press conference the day after the election, Obama said that he would use his executive authority on immigration by the end of the year if Congress failed to act, but that it was his “profound preference and interest” that Congress act on a comprehensive immigration reform bill. He described the Senate bill as “a sound, smart piece of legislation that really would greatly improve not just our immigration system but our economy.” He felt that there was a majority of votes in the House to pass the bill but that if the House did not act before the end of the year, he felt obliged to do everything he could lawfully do by executive authority “to make sure that we don’t keep on making the system worse.”
But what I’m not going to do is just wait. I think it’s fair to say that I’ve shown a lot of patience and have tried to work on a bipartisan basis as much as possible, and I’m going to keep on doing so. But in the meantime, let’s figure out what we can do lawfully through executive actions to improve the functioning of the existing system.
The next day, House Speaker John Boehner, mixing his clichés, warned that the president would “poison the well and there will be no chance for immigration reform moving in this Congress” if he “acts unilaterally on his own outside of his authority,” and “when you play with matches, you take the risk of burning yourself.”
Immigration To Be Continued
Readers who want to learn more about the prospects for comprehensive immigration reform may be interested in the following sources, which helped inform this post:
How Immigration Reform Failed, Over and Over – article by Rachel Weiner of the Washington Post.
Bipartisan Framework for Comprehensive Immigration Reform – framework agreement issued by the Senate “gang of eight.”
The Fallacy of “Enforcement First”: Immigration Enforcement Without Immigration Reform Has Been Failing for Decades – Immigration Policy Center.
Summary & Analysis: Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 – National Immigration Law Center.
Some other stuff for later,
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