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Elections Alter the Political Landscape for Immigration Policy Debate
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Elections Alter the Political Landscape for Immigration Policy Debate

November 15, 2010
Policy Beat
By Muzaffar Chishti, Claire Bergeron

Riding a wave of voter discontent with the state of the U.S. economy, Republicans won many key races in the 2010 midterm elections, dramatically altering the landscape for immigration policy changes at the federal, state, and local levels.

Republicans gained control of the House of Representatives while Democrats narrowly held on to the Senate, a result that seems likely to ensure a standoff on any broad immigration legislation proposed during the 112th Congress.

An equally significant though less noted development, however, is the number of Republican victories in state gubernatorial races, where many candidates ran on platforms to strengthen immigration enforcement. With the immigration stalemate in Congress, an increasing number of states probably will enact their own immigration enforcement measures.

Congress Overview

With the Republican takeover of the House, the new heads of committees and subcommittees with jurisdiction over immigration issues will likely be party members well-known for their tough stances on immigration.

This change will greatly influence the legislative agenda of the next Congress and make it more difficult for any legislation that includes a legalization provision for unauthorized immigrants to garner support. In addition, Republican leadership is likely to emphasize enforcement issues in committee hearings and could spur the introduction of more immigration enforcement bills.

The new chairman of the House Judiciary Committee will probably be Texas Republican Lamar Smith, a long-time proponent of reduced immigration and tougher immigration enforcement.

In 1996, Smith backed a controversial law that greatly expanded the categories of deportable offenses for noncitizens. In recent years, Smith has pushed for bills that would require all U.S. employers to enroll in the federal E-Verify program. He also supports measures to amend the U.S. Constitution to make the children of unauthorized immigrants ineligible for U.S. citizenship.

Also in the House, chairmanship of the subcommittee on immigration and citizenship will probably shift from Zoe Lofgren (D-CA) to Steve King (R-IA). During her four-year tenure, Lofgren held hearings on a variety of issues related to comprehensive immigration reform, including proposals to legalize certain groups of unauthorized immigrants.

King, in contrast, has stated that he believes that Obama administration officials are "not enforcing immigration laws." He has supported legislation to reaffirm the rights of states to pass bills like Arizona's SB 1070, whose most controversial provisions have been temporarily blocked (see the August 2010 Policy Beat).

The shift in power also means Republicans will preside over the all-important House appropriations and oversight committees. The new leadership will likely affect the priorities of immigration agencies because these committees play critical roles in allocating their funding and overseeing their policy initiatives and programs.

Unlike the House, the Senate will remain in Democratic control, which probably means no changes in the leadership of committees that deal with immigration. Senator Charles Schumer (D-NY), who has committed to pushing for comprehensive immigration reform, will likely continue to head the Subcommittee on Immigration, Refugees, and Border Security.

Since the midterm elections reduced the Senate's Democratic majority from 59 to 53 seats, it will be difficult for any immigration legislation lacking significant Republican support to move forward. Democratic senators also will find it much harder to secure the filibuster-proof majorities often needed to pass bills on politically polarizing issues, such as immigration reform.

Individual Congressional Races

As it did in 2006 and 2008, immigration proved to be something of a wildcard in individual House and Senate races. Several Republicans who campaigned heavily on immigration enforcement platforms won victories in closely contested elections.

In Pennsylvania's 11th congressional district, for example, Hazleton Mayor Lou Barletta defeated incumbent Paul Kanjorski. Barletta gained national notoriety in 2006 when he championed an ordinance that made Hazleton the first city in the country to penalize employers for hiring unauthorized immigrants and landlords for renting housing to them.

Also, in Arizona's first congressional district, Republican Paul Gosar defeated Democratic incumbent Ann Kirkpatrick. Throughout his campaign, Gosar emphasized his support for stronger immigration enforcement and touted endorsements from Arizona sheriffs Paul Babeu and Joe Arpaio, both of whom are known for their tough stances on unauthorized immigrants.

On the Senate side, Arkansas Republican candidate John Boozman, who campaigned on promises to combat "out of control illegal immigration," soundly defeated the Democratic incumbent, Blanche Lincoln. Louisiana Republican David Vitter beat challenger Charlie Melancon, whom Vitter accused in a campaign ad of voting for "taxpayer-funded benefits for illegals."

At the same time, however, several Democratic members facing opponents with vocal immigration enforcement stances held on to their seats, in part because of critical support from Hispanic Americans.

The most notable example of this was Senate Majority Leader Harry Reid (D-NV), who survived a bitter challenge from Republican Sharron Angle. In the weeks immediately prior to the election, Angle slammed Reid on his position on immigration, running a series of TV ads that portrayed Reid as "the best friend an illegal alien ever had." Reid, in contrast, highlighted his past support for legislation like comprehensive immigration reform and the DREAM Act, which would legalize certain unauthorized immigrant youth.

According to the Pew Hispanic Center, which analyzed exit poll data in Nevada, Hispanic voters played a decisive role in Reid's victory over Angle, with Hispanics voting for Reid by a greater than two-to-one margin. Polls have also suggested that Hispanic voters helped other incumbent Democrats win, including Senator Barbara Boxer in California and Senator Michael Bennet in Colorado. Hispanic support also proved critical to the election of Democrat Jerry Brown as governor of California.

In Arizona, House Democratic incumbents Raul Grijalva and Gabrielle Giffords hung on to their seats in Arizona's seventh and eighth Congressional districts. Grijalva was scrutinized for calling for an economic boycott of Arizona in response to the passage of Arizona law SB 1070; Giffords's opponent Jesse Kelly ran an ad claiming that she had supported "amnesty" for unauthorized immigrants.

Gubernatorial Races

While national media attention has focused on the Republican takeover of the House, the bigger impact of the 2010 elections on immigration may ultimately be felt at the state level.

An extremely significant development from the midterm elections is the large number of Republican wins in the state gubernatorial races, where many conservative candidates ran on immigration enforcement platforms.

In Oklahoma, Governor-elect Mary Fallin has promised she will pursue immigration laws like Arizona's SB 1070. Iowa Governor-elect Terry Branstad and Florida's newly elected Governor Rick Scott campaigned on similar platforms.

Similarly, in Nevada and New Mexico, both of which have substantial Hispanic American populations, newly elected Republican governors Brian Sandoval and Susana Martinez have also declared their support for tougher immigration enforcement laws.

Last May, Sandoval, Nevada's first Hispanic governor, came under criticism from some Hispanic advocacy groups when he declared his support for SB 1070. Martinez, the first Latina governor in the country, made tougher immigration enforcement and border security a cornerstone of her campaign, promising that if elected she would push for the repeal of a New Mexico law that allows unauthorized immigrants to obtain driver's licenses.

Near-Term Outlook on State and Local Immigration Legislation

While the results of the 2010 elections may ultimately lead to more gridlock on Capitol Hill, the victories of several state and local candidates who ran on immigration enforcement platforms seem likely to spur the introduction and even passage of more "get tough" immigration bills at the state and local levels in 2011.

Whether these laws will ultimately take effect, however, is less certain. Thus far, many state laws and local immigration ordinances have confronted serious legal challenges and cost local jurisdictions millions.

In December 2010, the Supreme Court will hear oral arguments on one of the first lawsuits challenging a state immigration enforcement bill, the 2007 Legal Arizona Workers Act, which requires state employers to use E-Verify. The outcome of that case, not expected until late spring 2011, will probably determine how enduring state and local immigration enforcement measures prove to be.

Policy Beat in Brief

Virtual Fence Contract. The Department of Homeland Security (DHS) will not to extend a contract with Boeing Company to complete the "virtual fence." The project, which DHS launched in 2006 as part of its Secure Borders Initiative (SBInet), included cameras, ground sensors, radars, and video and mobile surveillance along the Southwest border. Last March, after a Government Accountability Office (GAO) report found serious program delays and technology glitches with the fence, Homeland Security Secretary Janet Napolitano diverted $50 million intended for SBInet to other DHS initiatives. DHS has not yet announced how it plans to proceed with SBInet.

TPS Extension for Somali Nationals. DHS will extend Temporary Protected Status (TPS) for qualified Somali nationals until September 17, 2012, and will accept applications for Somali TPS renewal through January 3, 2011. Since 1990, the United States has granted TPS, which includes work authorization and protection against deportation, to certain foreign nationals who are unable to return to their countries of origin because of a war or a natural disaster. In addition to Somalia, which DHS designated for TPS in 2001, five other countries currently hold TPS designations: El Salvador, Nicaragua, Honduras, Haiti, and Sudan.

Job Recovery for Immigrants. A new report from the Pew Hispanic Center (PHC) found that between June 2009 and June 2010, foreign-born workers gained 656,000 jobs in the United States while native-born workers lost 1.2 million jobs. As a result, the unemployment rate for foreign-born workers dropped 0.6 percentage points (from 9.3 percent to 8.7 percent ) while the rate rose 0.5 percentage points for native-born workers (from 9.2 percent to 9.7 percent ). PHC noted a number of factors could have contributed to this trend, including a greater flexibility on the part of immigrant workers to take jobs in different industries, occupations, and regions of the country.

Drop in Asylum Denials. U.S. immigration judges denied asylum in 50 percent of cases during the first nine months of 2010, a record low according to a new report from the Transactional Records Access Clearinghouse. The report notes that the asylum-denial rate peaked in 1986, when roughly 89 percent of asylum requests before immigration judges were rejected. To gain asylum in the United States, an applicant must demonstrate past persecution or a well-founded fear of future persecution based on his or her race, ethnicity, religion, political opinion, or membership in a particular social group.

First Closure of EB-5 Regional Center. U.S. Citizenship and Immigration Services (USCIS) has terminated the participation of the Victorville, California, EB-5 regional center in its EB-5 Regional Center program after finding that the center had not complied with program requirements. The EB-5 visa is available to foreign nationals who invest at least $1 million in the United States and who demonstrate that their investment has resulted in the creation of 10 new jobs for U.S. workers; EB-5 applicants are permitted to pool their investments in USCIS-designated "regional centers." This is the first time USCIS has removed a center from the program. There are more than 100 approved regional centers in 33 U.S. states, the District of Columbia, and Guam.

Proposed New Wage Rule for H-2B Workers. The Department of Labor has proposed a new rule that would allow it to govern the wages of H-2B visa holders. The H-2B program allows U.S. employers to bring foreign-born workers to the United States to perform temporary, nonagricultural work. The new proposed rule clarifies that H-2B workers must be paid a wage that meets or exceeds the state or local prevailing wage, or the federal minimum wage, depending on which is highest. The new rule also proposes a change in the formula used to calculate state and local prevailing wages for H-2B workers. A final rule will be issued following a public comment period.

No Arrests Under SB 1070 in Arizona. Three months after Arizona's controversial new immigration enforcement law, SB 1070, took effect, the Arizona Republic has reported that no individuals have been arrested under SB 1070's terms. Although a federal district court judge prevented several of the law's provisions from taking effect, the rest of SB 1070 went into effect on July 29, 2010. In related news, Governor Jan Brewer's office reported that it has received more than $3.7 million in donations to defend SB 1070 against ongoing legal challenges. Thus far, the governor's office has spent roughly $1 million defending the law.

Role of Private Prisons in Arizona Debate. Amidst the ongoing debate over the constitutionality of SB 1070, National Public Radio (NPR) has reported that the chief author of the Arizona law, Senator Russell Pearce, drafted the legislation in cooperation with the Corrections Corporation of America (CCA), the largest provider of detention facilities for detained immigrants. NPR also reported that the private prison industry donated money to 30 of the 36 cosponsors of SB 1070. Pearce and CCA have adamantly denied the report's claims.

State and Local PB in Brief

Ban on Unauthorized Students in Georgia. Georgia's State Board of Regents voted to prohibit the five most selective colleges within the state's public university system from accepting unauthorized immigrant students if those schools turn away other academically qualified applicants. The vote followed a series of media reports about an unauthorized immigrant student who was referred to Immigration and Customs Enforcement (ICE) after campus police at Kennesaw State University arrested her for driving without a license. The decision, which will take effect next fall, affects admissions to the University of Georgia, Georgia Tech, Georgia State University, Medical College of Georgia, and Georgia College and State University. Georgia is the second state, after South Carolina, to approve such a policy.

GA Lawsuit Challenging 287(g). Three immigrants in Cobb County, Georgia, have filed the first lawsuit challenging the constitutionality of the federal government's 287(g) immigration enforcement program, alleging that the program has violated their due process rights. Created in 1996, the program allows state and local law enforcement agencies to enter into agreements with ICE to enforce some aspects of immigration law. Currently, 71 agencies participate in 287(g), and ICE officials estimate the program has contributed to the removal of more than 172,000 noncitizens.

Voting Proposals for Noncitizens. Voters in Portland, Maine, and San Francisco, California, rejected ballot initiatives that would have made it legal for some noncitizens to vote in local elections. Supporters of the measures had argued that allowing noncitizens to vote would enhance their participation in local communities. In Portland, 52 percent of voters rejected the voting measure; in San Francisco, 54 percent.

No Ruling on Fremont, Nebraska, Immigration Measure. Nebraska's highest court declined to rule on the constitutionality of a recently enacted Fremont, Nebraska ordinance, returning the case to a federal district court. The ordinance prohibits Fremont landlords from renting to unauthorized immigrants and requires all employers in the city to enroll in the federal E-Verify program. A federal district court judge had requested that the state court weigh in on the issue because the lawsuit challenging the Fremont ordinance alleges violations of state and federal law. In declining the district court's "certification request," the Nebraska Supreme Court found that the question presented was too general.

Ninth Circuit Ruling on Arizona Voting Case. The U.S. Court of Appeals for the Ninth Circuit struck down a portion of a 2004 Arizona law requiring all voters to present proof of citizenship at the time of voting. The court found that this portion of Arizona's Proposition 200 conflicted with the federal National Voter Registration Act. A coalition of Hispanic and Native American civil liberties groups challenged the law, arguing that it would prevent minority citizens from being able to vote.

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