Immigration reform undoubtedly will be on the Washington agenda in 2014, after a roller coaster of a year that began with significant momentum for legislative action but ended without results.
Entering into 2013, the political stars seemed aligned to achieve sweeping immigration reform of the type the United States accomplishes only every few decades. Prospects peaked when the Senate passed major overhaul legislation in June. But action stalled in the House of Representatives, where the bipartisan Senate bill found little favor in the GOP-led chamber.
While some argue that the clock has run out on immigration reform in the 113th Congress, which runs through 2014, others counter that the finish line remains in sight, even during an election year when all 435 House seats and one-third of U.S. Senate seats will be on the ballot.
2014: Is the Timing Right?
House Republican leadership has stated that immigration will be a priority in the new year, with House Speaker John Boehner (R-OH) stressing in December that immigration reform is "absolutely not" dead. The Speaker and his leadership team are preparing to release their principles for immigration reform during January, according to the New York Times. Bills on border security, interior enforcement, E-Verify, agricultural guest workers, and high-skilled immigration were approved by House committees during 2013 and may be brought to the House floor this year. And House Republicans have been working behind the scenes on other immigration-related legislation. However, the ability to get legislation through Congress and to President Obama's desk will depend on if—and how—House Republicans decide to address the legal status of the estimated 11.7 million unauthorized immigrants in the United States. The comprehensive immigration reform bill passed by the Senate last June includes a path to citizenship for unauthorized immigrants, something that is anathema to a significant number of House Republicans.
While the recently passed budget deal frees the congressional calendar in January, the most likely window for immigration legislation to move forward is from the beginning of May to when Congress adjourns for the summer recess. The bulk of primary election filing deadlines will have passed by the end of April, untying the hands of House Republican members and candidates who fear that support for immigration reform sought by business, faith-based organizations, immigrant-rights advocates, congressional Democrats, the White House, and others could invite a primary challenge. What is clear is that if the House hasn't finalized action on immigration reform during 2014 and negotiated a compromise with the Senate, the legislative clock resets to zero on January 1, 2015 with the start of a new Congress.
If the House does take up immigration this year, it is most likely to vote on a series of bills individually or in clusters rather than taking up an omnibus bill such as the one approved by the Senate. Thus, predicting next steps is elusive. Boehner has ruled out going to conference with the Senate-passed S. 744 and it is unclear how the Senate will respond to the passage of piecemeal House bills.
Conventional wisdom has it that Congress will not pass a major immigration bill in an election year. However, if history is any guide, almost all major immigration bills since 1952 (except the Immigration Act of 1965) passed during election years.
Furthermore, in recent months, immigration reform advocates have pinned their hopes on three developments. First, in November, President Obama indicated that he is open to the House's piecemeal approach. Then in December, Boehner hired Rebecca Tallent, a well-regarded former aide to Sen. John McCain (R-AZ) and veteran of the 2006-07 immigration reform debates in the Senate. The hire has been interpreted as a sign of Boehner's commitment to tackle immigration. Finally, Boehner's strong criticism of tea-party groups that attacked the recent House-Senate budget deal suggest that he may be more willing to buck his party's right flank, where much of the opposition to immigration reform is concentrated.
2013: The Year That Wasn't
Immediately after the 2012 presidential election, in which the growing electoral strength of Hispanic and Asian constituencies was viewed as key to Barack Obama's success, immigration vaulted to prominence—as a deliverable for Democrats to key voting blocs and a concern for establishment Republicans worried that demographics increasingly would work against the GOP absent a change in tone and policy.
Yet as the memory of the 2012 elections faded and the 2014 elections loomed larger, high politics gave way to the retail politics of individual members' own elections and the roadblocks to immigration reform became insurmountable, at least for the year.
The 113th Congress began with a flurry of bipartisan action on immigration that had eluded Congress since 2007. A bipartisan group of senators known as the Gang of Eight released a framework for immigration reform in late January. One day later, President Obama outlined his own vision, consistent with the Gang of Eight plan. Momentum picked up in earnest when Senate negotiators, with White House support, systematically cleared hurdle after hurdle in assembling their compromise, including sticking points that had derailed legislation in 2006 and 2007. Key stakeholders such as the Chamber of Commerce, agricultural interests, and labor groups came on board, further adding to the belief that a new era of action on immigration was at hand.
The Border Security, Economic Opportunity and Immigration Modernization Act (S. 744) was formally introduced on April 16 and cleared the Senate Judiciary Committee on May 21 after days of debate. The legislation was given a boost when the nonpartisan Congressional Budget Office found that the bill would reduce the federal deficit by $197 billion over ten years and by $700 billion over 20 years. It was quickly brought to the Senate floor, where additional changes—including $40 billion in additional border security enhancements—were negotiated to win key Republican votes. On June 27, the Senate passed S. 744 on a bipartisan 68-32 vote.
S. 744 touches nearly every aspect of the U.S. immigration system on a scale not seen since 1965. It would devote vast resources to strengthening border security, implement a mandatory E-Verify system within five years, introduce a new entry-exit system, revamp the legal temporary and permanent immigration system, and offer an eventual pathway to citizenship to the majority of the current unauthorized population.
Many experts believe that the bill's successful and relatively smooth journey through the Senate was owed to the Gang of Eight, which after authoring the bill, remained united in its strategy to keep its product intact and fend off "poison pill" amendments that would have led to the bill's failure.
The Senate success created expectations for quick House action. After all, the Senate bill had won a strong bipartisan majority, polls showed robust public support for the measure, and a growing coalition of nontraditional players—including law enforcement, Silicon Valley, universities, agricultural interests, and small businesses—was seen as sufficient to create pressure on House GOP leaders to bring it to a vote. But House action did not materialize.
Soon after the Senate acted, Speaker Boehner declared that the Senate bill would not be brought to the House floor because it did not have the support of the majority of House Republicans.
The House meanwhile attempted immigration on dual tracks. A bipartisan group of lawmakers began crafting a comprehensive immigration proposal seemingly similar to the Senate's, but the group lost key Republican members and fell apart by early fall. Separately, House Judiciary Committee Chairman Robert Goodlatte (R-VA) led a Republican "piecemeal" effort involving individual reform bills aimed at different aspects of the immigration system. By the time the Senate bill passed, House committees had approved five small-bore immigration bills, only one with bipartisan support. In the months that followed, prognosticators suggested that House passage of these piecemeal bills would lead to negotiations with the Senate and ultimately, comprehensive legislation that both chambers would approve.
With the pivotal August recess coming and going without the kind of anti-reform backlash that lawmakers had faced in 2006, the possibility of enacting immigration legislation seemed ever greater, particularly after approximately two dozen House Republicans declared their support for legalization for unauthorized immigrants.
However, as the year began winding down, pressing issues such as Syria, the budget, and the debt ceiling took precedence and House leaders made no move to bring to the floor the committee-passed bills or articulate another strategy. The 16-day government shutdown in October deepened the rift between Democrats and Republicans, and Congress and the executive branch, and exacerbated tensions within the GOP. Later that month, GOP leaders concluded that there was not enough time left in the year to bring immigration legislation to the floor.
As the prospects for immigration reform darkened in the second half of 2013, the pressure tactics used by pro-reform advocates evolved. During Senate debate, advocates focused their energy on lobbying for passage of the legislation and to fend off unfriendly amendments. But as the picture in the House clouded, immigrant-rights activists began to adopt a more confrontational and sometimes aggressive strategy involving protests, sit-ins, and acts of civil disobedience. In early October, 200 activists — including eight congressmen — were arrested when they engaged in civil disobedience by obstructing an intersection on Capitol Hill. Similar, smaller actions have continued to take place across the country. In November, a number of advocates, including veteran union leader Eliseo Medina, began a 22-day fast for immigration reform. The fasters, who drew significant attention, received visits from President and Mrs. Obama, Vice President Joe Biden, Cabinet members, and prominent lawmakers. Other activists stalked GOP leaders at their homes, favorite restaurants, and offices, to press for movement on immigration reform. In a final push the day before the House left Washington for the year, approximately 1,000 activists descended on more than 100 House offices to protest inaction. In addition to pressuring members of Congress, advocates increasingly frustrated with the lack of congressional action have trained their ire on the White House, demanding that the president halt deportations.
This tense dynamic, pitting advocates against a Democratic administration with which they traditionally have been aligned, is sure to play out further in 2014 the longer that legislative limbo continues. It remains to be seen if 2014 is the year for immigration reform, but what is clear is that reform-minded activists intend to hold political Washington to account, whether Democrat or Republican, until major reform of the nation's immigration laws—particularly as regards treatment of unauthorized immigrants—is accomplished.
Policy Beat in Brief
Poll Finds Deportation Relief More Important than Path to Citizenship. Latinos and Asian Americans believe it is more important for unauthorized immigrants to get relief from the threat of deportation than to be offered a path to citizenship, according to two surveys conducted by Pew Research Center's Hispanic Trends Project. While majorities of both groups support giving a pathway to citizenship to the country's unauthorized population, 55 percent of Hispanics and 49 percent of Asian Americans responded that relief from deportation is more important. The poll also showed that should Congress fail to pass the Senate's immigration reform legislation, 43 percent of Hispanics and 48 percent of Asian Americans say they would mostly blame Republicans, while 34 percent of Hispanics and 29 percent of Asian Americans say they would hold Democrats and/or President Obama mainly responsible.
ICE Releases FY 2013 Removal Numbers. U.S. Immigration and Customs Enforcement (ICE) announced that it carried out 368,644 removals in fiscal year (FY) 2013, down 10 percent from the prior year, when there were 409,849 removals. For 2013, 133,551 removable noncitizens were apprehended in the U.S. interior and 235,093 at the border. According to ICE, 59 percent of the year's removals had been previously convicted of a crime and 98 percent met one or more of ICE's stated civil immigration enforcement priorities. The top countries of removal were Mexico, Guatemala, Honduras, and El Salvador. In recent years, the Obama administration has come under increased scrutiny for record high deportation levels.
Jeh Johnson, Alejandro Mayorkas Confirmed for DHS Top Slots. On December 16, the Senate confirmed Jeh Johnson as Homeland Security Secretary and Alejandro Mayorkas as Deputy Secretary, the second highest ranking position in the department. Johnson was approved by a 78-16 vote and Mayorkas by 54-41 as the Senate wrapped up its work for the year, and following an earlier rule change by Senate Democrats that lowered the number of votes needed to stop a filibuster from 60 to 51 votes. Senate Republicans had protested the scheduling of a vote on the Mayorkas nomination while the Department of Homeland Security inspector general continues investigating whether Mayorkas, who headed U.S. Citizenship and Immigration Services prior to becoming Deputy Secretary, had improperly helped secure foreign investor visas for a company with ties to the brother of former Secretary of State Hillary Clinton. Mr. Mayorkas has strongly affirmed the propriety of his conduct.
Immigration Prosecutions Reach Record High, Jump in NM. According to a new Transactional Records Access Clearinghouse (TRAC) study, federal prosecutions for immigration crimes in FY 2013 reached an all-time high, with new cases being filed against 97,384 defendants, a 5.9 percent increase from FY 2012. The lead charges were illegal entry (55 percent) followed by illegal re-entry (38 percent). A second TRAC study showed that of the country's 94 judicial districts, for the first 11 months of FY 2013, New Mexico saw the greatest growth in criminal immigration prosecutions, experiencing a 45.7 percent jump from FY 2012. Arizona saw the sharpest drop with 21.6 percent fewer prosecutions from FY 2013 to 2012.
Obama Administration Sets Policy for Unauthorized Relatives of Military Personnel. On November 15, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum allowing unauthorized spouses, children, and parents of armed forces personnel and veterans to stay in the country while they pursue permanent residency. It enables them to "parole in place" and remain in the United States to apply for permanent residency, rather than apply from abroad and potentially not be readmitted to the United States for a period of as long as ten years. The memo formalizes an existing policy aimed at relieving military members of anxiety experienced because of the immigration status of their family members. The Pentagon is also reviewing a set of policies used in various military branches that currently bar U.S. citizens from enlisting if they have dependents who are in the country illegally.
Panama Added to Global Entry. In November, U.S. Customs and Border Protection (CBP) announced the inclusion of Panama in its Global Entry program, which allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Global Entry is available to certain citizens of select countries, which include the Netherlands, South Korea, Germany, Qatar, the United Kingdom, and Mexico; Panama is the first Central American country to join the program. Global Entry is also available for U.S. citizens, nationals and lawful permanent residents.
USCIS Approves Maximum U Visa Petitions. On December 11, USCIS approved allocation of 10,000 U nonimmigrant visas for immigrant crime victims during FY 2014, marking the fifth straight year that USCIS has reached the statutory maximum since it began issuing U visas in 2008. The U visa allows victims of designated crimes (including domestic violence, rape, and aggravated assault) to apply for four years of temporary work authorization and protection against deportation. Recipients must prove that they suffered substantial abuse as a result of the crime, have information concerning the criminal activity, and who are helpful to law enforcement in the investigation and/or prosecution of the crime.
Obama Administration Pledges to Renew DACA Program. On December 12, White House Domestic Policy Council Director Cecilia Munoz pledged that the Obama administration would renew deferred action for beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program, which provides protection from deportation and work authorization for two years to certain unauthorized immigrants who came to the United States as children. Benefits for the earliest DACA recipients will expire in late 2014. As of September 2013, a total of 588,725 applications were submitted and 455,455 approved. While applications surged during the first few months of the program, they have largely tapered off to around 15,000 per month for the last several months.
New York High Court Requires Deportation Warnings. On November 19, the New York Court of Appeals by 5-2 ruled that judges in the state must warn noncitizen defendants that they face deportation if they plead guilty to a felony. The majority's opinion stated "that deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness." The ruling overturned a 1995 decision holding that judges are not required to provide deportation warnings, but falls in alignment with a 2010 Supreme Court ruling in Padilla v. Kentucky requiring defense attorneys to advise their clients of the deportation risk to a guilty plea.
First Racial Profiling Action Against SB 1070 Filed in AZ. On November 12, the Arizona ACLU filed a complaint against the city of South Tucson charging that police engaged in racial profiling under the state's "show me your papers" law. According to the complaint, police singled out 23-year-old Alejandro Valenzuela because he is Hispanic and brought him to a local Border Patrol station where he was held for five hours before being released. Valenzuela is unauthorized but has a grant of deferred action under the DACA program. Arizona's "papers" measure, which requires state and local police to determine the immigration status of anyone they stop, arrest, or detain for a state crime or offense and then suspect to be unauthorized, was the sole provision of Arizona's omnibus immigration law SB 1070 to be upheld by the U.S. Supreme Court in June 2012. The impending lawsuit will be the first legal challenge to the law on racial profiling grounds and could reopen debate over the measure's constitutionality.
King County, WA Limits Cooperation with ICE. On December 2, the King County Council passed an ordinance limiting how law enforcement agencies will honor immigration detainer requests from Immigration and Customs Enforcement (ICE). Under the ordinance, King County will limit detainers to only those who have a demonstrable and significant criminal history and therefore might present some risk to public safety. A detainer is a notice that DHS issues to law enforcement authorities requesting that an arrestee be kept in detention so that ICE can take the individual into custody. California and Connecticut, as well localities in 12 states, have policies limiting cooperation with ICE detainers.