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U.S. Election Realigns Stars for Immigration Reform, But Significant Hurdles Remain

U.S. Election Realigns Stars for Immigration Reform, But Significant Hurdles Remain

In one sweep, the re-election of President Barack Obama has transformed immigration reform, an issue that for years has largely been seen as a third rail of American politics, into a first-tier legislative agenda item for the 113th Congress. In perhaps the clearest sign that the calculus on immigration has dramatically shifted, a chorus of Republican Party leaders and conservatives who have traditionally opposed immigration reform efforts voiced support for enacting legislation that would include legalization for some of the country's 11 million unauthorized immigrants.

Backers of such a measure are moving quickly to turn ambitious goals into legislative reality. On November 11th, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) announced that they were re-initiating efforts to draft a broad, bipartisan immigration reform bill. Three days later, President Obama, in his first post-election press conference, told reporters that he expected movement on immigration reform "very soon after [the] inauguration".

President Obama also stated that he envisioned the new immigration reform bill to contain elements similar to those proposed in the 2006 and 2007 comprehensive immigration reform bills that were debated in the Senate. Those measures included strengthened border security, mandatory electronic verification by employers to prevent hiring of unauthorized workers, and a pathway to legal status for unauthorized immigrants who have not committed crimes and who agree to pay a fine, pay back taxes, and learn English.

The contours of what a legalization program would look like remain highly contentious, and it is as yet unclear whether there is sufficient room for compromise between those in Congress who have traditionally favored an enforcement-first approach to immigration reform and those who have long sought to pair heightened enforcement with a solution to the enduring problem of how to deal with the unauthorized population in the United States.

New Momentum for Legislative Action

Immigration reform has remained an elusive legislative goal for over a decade — the result of deep divisions between the political parties as well as ideological differences within them. The idea of immigration reform has been anathema to a cadre of conservative primary voters, causing GOP presidential candidates to tack hard right on the topic. The Republican Party was jolted, however, by the surprisingly low Latino support for presidential nominee Mitt Romney, with exit polls showing he gained just 27 percent Hispanic support (down from John McCain's 31 percent share in 2008 and the 44 percent received by George W. Bush in 2004). And with Hispanic and Asian voters proving ever larger shares of the electorate, the demographic reality is increasingly preoccupying Republican strategists.

Leaders of both political parties also took note of the two polls conducted on and after Election Day showing that, in a significant shift, nearly two-thirds of American voters (65 percent) now support giving most unauthorized immigrant workers a chance to apply for legal status. Meanwhile, as of November 11th, 57 percent of Americans support providing unauthorized immigrants a pathway to citizenship.

A final key factor behind the new momentum for legislative action on immigration is recognition in both political parties that reforming the current legal immigration system is critical to advancing the United States' global economic competitiveness. The Republican 2012 party platform, for example, noted that strategic immigration policies, such as increasing the number of visas allotted to foreign-born holders of advanced science, technology, engineering, and math (STEM) degrees, and allowing foreign-born students educated in the United States to remain in the country after graduation, could play a vital role in speeding the nation's economic recovery. Democratic leaders, including President Obama, and current Senate immigration subcommittee chair Charles Schumer, have backed similar proposals. So have tea party leaders such as Rand Paul, and independents such as New York City Mayor Michael Bloomberg.

Obstacles to Reform in 2013

Yet for all the goodwill, political momentum, and policy arguments pointing toward legislative action, a number of obstacles stand in the way of the passage of a broad, systemic immigration bill in the 113th Congress.

The first obstacle is the lack of consensus on the scope and nature of a legalization program that covers some — or most — of the nation's unauthorized immigrants. Immigrant-rights advocates and most Democrats in Congress will almost certainly push for a broad legalization program that allows most of the nation's unauthorized immigrants to adjust to lawful permanent resident status, and places them on a pathway to citizenship over a period of time. Employers in industries that hire large numbers of immigrant workers may also push for a broad legalization program, particularly if they are required to accept as a compromise mandatory enrollment in the federal E-Verify program, an electronic system that searches immigration and social security databases to determine whether newly hired employees are authorized to work.

On the other hand, some Republican politicians have long labeled any legalization as "amnesty" and vowed to vote against it. Some Republicans might be willing to support a legalization program as long as it does not place newly legalized immigrants on a pathway to citizenship. In a Politico interview, Congressman Raul Labrador (R-ID), for example, stated that the United States' immigration problem could be solved "without amnesty, without a pathway to citizenship."

The second obstacle comes from another electoral reality. Republicans have maintained their House majority, with 233 seats in the 113th Congress. Although House Speaker John Boehner (R-OH) has stated that he is "confident" that the GOP and the Democrats will be able to cut a deal on immigration, enforcement-first House Republicans remain a potent force and may be less willing to forge a compromise. Already, several staunch conservatives have pushed back against Speaker Boehner, noting that he may be further out in front of his caucus on immigration.

On the Senate side, the Democrats and their independent allies now control 55 seats — a majority, but not one that is filibuster-proof. Moreover, many Republicans who might otherwise be willing to endorse a legalization measure might be reluctant to do so if they fear a primary fight. Senator Lindsey Graham, a senior member of the Judiciary Committee, and Senate Minority Leader Mitch McConnell (R-KY), both face re-election in 2014. Senator Graham's own past may serve as an object lesson for some — in 2008, he faced huge criticism in South Carolina for what critics touted as his support for "Grahamnesty."

The third set of obstacles is the narrow window of the legislative calendar. For a bill to stand a chance of passage, it must get through Congress before House members gear up for the 2014 mid-term elections. Most interpret that political reality to mean that a bill's best chance would be in 2013. However, before Congress can turn to immigration reform, it must deal with the "fiscal cliff"— the potentially devastating economic consequences that will occur if a series of automatic tax increases and across-the-board budget cuts take effect as planned on January 1, 2013. In addition, most analysts agree that once Congress has resolved the fiscal cliff issue, other types of economic legislation, especially those that are geared toward tax reform and job creation, will be the next area of focus.

Given these obstacles, some members of Congress may find it tempting to introduce piecemeal immigration reform measures that benefit discrete immigrant populations, such as the Development, Relief, and Education for Alien Minors (DREAM) Act, which would grant permanent legal status to some unauthorized immigrants brought to the country as children. Supporters of broad-based, systemic reform argue that enacting any such stand-alone measures would effectively kill political support for a larger reform bill, leaving unresolved the enduring problem of the nation's 11 million unauthorized immigrants.

Policy Beat in Brief

DHS Delays Review of Potential Racial Profiling in Secure Communities Program. Despite Immigration and Customs Enforcement (ICE) Director John Morton's announcement in June 2011 that his agency would create a "statistical monitoring tool" to screen for possible racial profiling in ICE's Secure Communities program, ICE has yet to create such a tool, according to USA Today. The Secure Communities program, which ICE launched in 2008, screens the fingerprints of all those arrested for state and local criminal offenses in enrolled jurisdictions against federal immigration databases. If such screening reveals that an arrested individual is a removable noncitizen, ICE makes a determination whether to initiate removal proceedings. Critics of the program claim that Secure Communities indirectly leads to racial profiling, because it prompts state and local police officers to arrest more minority individuals under the belief that they may be removable noncitizens.

  • Read the article in USA Today outlining the delay in the creation of a Secure Communities racial-profiling statistical tool.
  • Read more about praise and criticism for Secure Communities in the March 2011 Policy Beat.

USCIS Receives Nearly 300,000 Deferred Action Applications. U.S. Citizenship and Immigration Services (USCIS) has received 298,834 applications for the Obama administration's Deferred Action for Childhood Arrivals (DACA) program, according to statistics released by the agency in mid-November. Under the program, unauthorized immigrant youths and young adults who arrived in the United States as children and who graduated from U.S. high schools or received their general equivalency development (GED) certificates may qualify fortwo-year protection against deportation and work authorization. Thus far, 53,273 individuals have been granted deferred action.

Department of Defense Reopens MAVNI Program. The U.S. Department of Defense (DOD) has revived its Military Accessions Vital to the National Interest (MAVNI) program, which allows asylees, refugees, and temporary visa holders in the United States with medical training or needed language skills to enlist in the military. The program, which DOD first announced in 2009 but suspended in January 2010, will accept up to 1,500 new recruits per year and will run as a two-year pilot program. Outside of MAVNI, enlistment in the U.S. military is generally limited to U.S. citizens and lawful permanent residents.

Supreme Court Hears Arguments on Padilla Retroactivity. In a case that will likely have major consequences for noncitizens facing deportation for criminal offenses, the U.S. Supreme Court heard arguments on November 1 on whether its 2010 landmark decision in the case Padilla v. Kentucky should apply retroactively. In Padilla, the court held that a criminal defense attorney's failure to warn his client of the likely immigration consequences of accepting a guilty plea could constitute ineffective assistance of counsel and violates the Sixth Amendment. The new case, Chaidez v. United States, deals with whether such an ineffective assistance of counsel claim may be brought by a noncitizen whose criminal conviction became final before the Supreme Court ruled in Padilla.

Increase in Mexican Asylum Seekers. The number of Mexican nationals filing applications for asylum in the United States jumped by nearly 36 percent between fiscal year (FY) 2010 and FY 2011, from 4,510 to 6,133, according to the Executive Office for Immigration Review's (EOIR) 2011 Yearbook of Immigration Statistics. In addition, the number of Mexican nationals granted asylum has more than doubled — from just 49 in FY 2010 to 104 in FY 2011. While Mexico has long been the country with the largest total number of nationals appearing before the U.S. immigration courts, the number of Mexican asylum applicants has in recent years been fairly small. To be granted asylum in the United States, a noncitizen must demonstrate past persecution or a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

Temporary Immigration Assistance for Those Affected by Hurricane Sandy. USCIS announced that it would allow noncitizens who could demonstrate that they had been impacted by Hurricane Sandy to apply for a number of temporary immigration benefits. These include temporary extensions in visa status, grants of work authorization to students experiencing severe economic hardship because of the storm, and the allowance of late filings for changes in immigration status. The agency commonly allows individuals impacted by environmental disasters in the United States and abroad to apply for such temporary assistance.

  • Read the USCIS notice informing those affected by the hurricane of the possibility of applying for temporary immigration benefits.
  • Check out the February 2010 Policy Beat to learn about the temporary immigration measures implemented by USCIS in the aftermath of the January 2010 Haitian earthquake.

New Presidential Directive on Refugee Admissions. President Obama released on September 28 the annual presidential directive on refugee admissions, authorizing the admission of up to 70,000 refugees during FY 2013, including 31,000 refugees from the Near East/South Asia region, 17,000 refugees from East Asia, and 12,000 refugees from Africa. In addition, the new directive states that persons residing in Cuba, Iraq, the Eurasia/Baltic region, and those in "exceptional circumstances" who are identified by U.S. embassy personnel, may qualify as refugees despite not being outside their countries of origin, generally a requirement for grants of refugee status. The new directive calls for a slight drop in the number of refugees admitted to the country over the FY 2012 level of 76,000 refugee admissions.

Concerns Over Immigration Court Data in DOJ Inspector General Report. A new report released by the Department of Justice's Office of the Inspector General notes a number of problems with the statistical data compiled by the Executive Office for Immigration Review (EOIR), the branch of DOJ that oversees the country's 58 immigration courts. According to the new report, EOIR's data overstates the courts' workload because it counts as "completions" actions that are taken by the courts that do not result in a grant of relief to a noncitizen or the issuance of a removal order, such as the transfer of a case from one immigration court to another. The report also notes that since FY 2006, despite the hiring of additional immigration judges, the courts' "completion rate" for cases has dropped, leading the inspector general to conclude that "the court system is falling further behind."

State and Local Policy Beat in Brief

Maryland Voters Approve In-State Tuition for Unauthorized Immigrants. Voters in Maryland approved by a broad margin (58 percent to 42 percent) a measure known as the Maryland Dream Act which will allow certain unauthorized immigrants who were brought to the United States as children and who graduated from Maryland high schools to pay in-state tuition at state colleges and universities. Under the measure, students are only eligible for in-state tuition at the state's four-year colleges and universities if they first complete two years of schooling at a community college. Though the Maryland Legislature already passed the Maryland Dream Act, and Governor Martin O'Malley signed it into law in May 2011, opponents of the measure had successfully petitioned to have the law placed on the Maryland ballot for a voter referendum.

Sheriff Arpaio Re-elected in Maricopa County. Maricopa County, AZ Sheriff Joe Arpaio was re-elected on November 6 with 53 percent of the vote, despite a series of campaign ads aimed at persuading voters not to vote for Arpaio because of his tough stance on immigration enforcement. Sheriff Arpaio is widely known for his controversial immigration enforcement efforts, including using local deputies to conduct immigration sweeps and housing suspected immigration violators outside in his "tent city" jails. Last May, the U.S. Department of Justice filed a civil-rights complaint against Sheriff Arpaio, alleging that he and his officers had conducted discriminatory and unconstitutional law enforcement operations targeting Latinos.

New Memo in Alameda County, CA Advises Prosecutors to Consider Immigration. Consequences of Criminal Convictions. Alameda County, CA District Attorney Nancy O'Malley unveiled a new policy in November instructing county prosecutors to consider in the drafting of plea bargains the potential immigration consequences of criminal convictions for noncitizen defendants. The memo advises prosecutors that they may allow those who have been charged with relatively minor offenses to structure plea deals so that they may avoid mandatory deportation. For example, prosecutors may consider allowing defendants agree to serve additional jail time in exchange for pleading guilty to violations that are not considered "aggravated felonies," a class of criminal offenses that render noncitizens — including lawful permanent residents — deportable from the United States and ineligible for almost all forms of relief from removal. The new policy follows on the heels of a similar policy in Santa Clara, CA.

Berkeley, CA City Council Votes to Reject ICE Detainers. The city council in Berkeley, CA, unanimously voted to institute a new policy whereby the Berkeley Police Department will no longer honor ICE "detainers" — requests from the immigration agency to temporarily hold individuals who are suspected of being deportable noncitizens so that ICE can come interview and potentially take custody of them. In passing the new policy, the city council noted concerns over treating arrested noncitizens differently than arrested citizens, as well as concerns over turning individuals over to ICE who had not yet been found guilty of any criminal offense.

Delaware Judge Rules Deported Noncitizen Entitled to Workers' Compensation. A state judge in Delaware ruled that a deported noncitizen who had been working in the state without work authorization in 2011 is still eligible to receive workers' compensation for injuries that he sustained on the job. In his decision, Delaware Superior Court Judge Jerome O. Herlihy reasoned that although deported non-citizen Saul Melgar Ramirez was never authorized to legally work in the United States, he was considered an "employee" under Delaware's workers' compensation statute, and thus qualified for benefits. Judge Herlihy also noted that disallowing unauthorized immigrants from receiving workers' compensation would provide a powerful incentive for employers to hire unauthorized workers over authorized ones.

LA to Issue Municipal Identification Cards Without Regard to Immigration Status. The Los Angeles City Council voted 12-1 in favor of issuing municipal identification cards that will be available to all city residents regardless of their immigration status. The cards will allow holders to open bank accounts and access Los Angeles city services, such as public libraries and work training programs. Supporters are also hopeful that the city will be able to negotiate a deal with a local bank that will allow card holders to use their cards as debit cards.

Immigration Law Prompts Long Waits for Licensing Renewals in Georgia. Thousands of doctors, nurses, pharmacists, and veterinarians in Georgia are facing prolonged delays in applying for and renewing their professional licenses as a result of the state's new immigration enforcement law, according to recent media reports by National Public Radio and ABC News. The 2011 law, known as HB 87, requires all applicants applying for or renewing state-issued professional licenses to provide proof of U.S. citizenship or legal immigration status as part of their applications. Though backers of the law claimed that the licensing provision would prevent unauthorized immigrants from applying for professional licenses, critics note that there is scant evidence that any unauthorized immigrants sought state-issued professional licenses even before the new law took effect.