Administration Announces Harsh New Measures

Courtesy of the National Immigration Forum 

The Administration today announced a new package of harsh immigration measures that it intends to implement unilaterally, without action by Congress (click here to see DHS Fact Sheet). As always with immigration-related proposals, the devil is in the details, and we have yet to see the details of much of this package. But the summary description that has been released is disturbing in the extreme.

Instead of fixing our broken immigration system, the new plan embraces the bumper-sticker enforcement-only philosophy of immigration reform opponents. Its adoption will harm our economy, increase discrimination, and in general make our nation a more hostile place to live for all.

Among its most significant measures, the new Administration plan would:

• Ramp up militarization of the border;

• Expand detention facilities with no suggestion that widespread rights violations in the current facilities will be reviewed;

• Reduce access to court hearings to contest erroneous deportation orders;

• Convert SSA no-match letters into an immigration enforcement tool;

• Rename the flawed Basic Pilot employment verification program and make it mandatory for all federal contractors and vendors;

• Endeavor to incorporate state DMV data into the Basic Pilot program;

• Increase civil fines against employers who knowingly hire undocumented workers, and expand efforts to criminally prosecute employers;

• "Streamline" guestworker programs with no indication that the current abuses of those programs will be addressed; and

• Mandate a study of how to deny lawful residents and U.S. citizens credit for social security contributions they made before obtaining legal status.

These measures are an apparent effort to appease the forces of fear and hatred that have entered the mainstream in the most recent round of the immigration debate. In the course of that debate, President Bush and his spokespeople have repeatedly reiterated their belief that immigration enforcement alone cannot solve our immigration problems so long as the status of millions of undocumented immigrants and the future flow needs of the nation remain unresolved. That basic truth has not changed, but the administration nevertheless now appears poised to move forward with this new get-tough and solve-nothing agenda.

Thanks to the Rights Working Group for allowing us to make liberal use of their work for the summary that follows.

• Publish the government's final rule on Social Security "No-Match" letters: The new rule, which will likely be published on Monday and take effect in 30 days, will apply to situations where an employer receives a letter indicating that an employee's social security number does not match government records. Basing worksite enforcement on a federal database that is notoriously unreliable poses a great danger to workers. If an employer cannot resolve the discrepancy between the worker's documents and the government's records, this rule will encourage employers to fire the worker. Without comprehensive immigration reform, this no-match rule is likely to cause massive layoffs of authorized as well as unauthorized workers and to drive the undocumented population further into the shadows. It also raises concerns about discrimination, given that the social security records of employment authorized immigrants and naturalized citizens are many times more likely to contain a mismatch than are those of persons born in the U.S. The rule will encourage unscrupulous employers to pay their workers under the table to avoid risk of prosecution based on a no-match finding.

• Deny a fair day in court: Immigrants who have a valid claim to stay in the U.S. should be permitted to see a judge and shouldn't be forced to leave the U.S. simply because they previously agreed to voluntarily depart on their own. Today, the administration announced its intention to create a new regulation that would limit an immigrant's access to a hearing if the person previously accepted a form of immigration relief called 'voluntary departure.' Immigrants who have new family relationships such as a recent marriage to a U.S. citizen should be able to ask a judge for relief in their case. By announcing this new regulation, The Department of Homeland Security (DHS) seems intent on doing an end run around several federal court decisions that permit immigrants to have a hearing even though they previously accepted 'voluntary departure.'

• Rename and expand the employment eligibility verification Basic Pilot program: The administration announced that it will "re-brand" the Basic Pilot employment verification program, which currently is mostly voluntary, and will expand the program more than 10-fold by mandating its use by more than 200,000 federal contractors and vendors. The program will now be called "E-Verify" instead of Basic Pilot, but changing its name will do nothing to address the serious flaws that have been well-documented even in its current small and voluntary state. Those problems include rampantly inaccurate information, significant privacy lapses, and employer abuse. The information inaccuracies frequently lead individuals to delay their start dates or to lose their jobs altogether. The administration will also seek to expand the data sources used by the Basic Pilot program include passport and visa information. This not only raises privacy issues but also concerns about the likelihood of more inaccurate information in the databases. Finally, Administration plans to reduce the number of documents that can be used to prove employment eligibility, a change that will prevent many work authorized individuals from proving their status.

• Encourage states to make the Basic Pilot/E-Verify mandatory: The Administration plans to conduct outreach and provide technical assistance to states to help them require all businesses to use the Basic Pilot program. Based on the recent decision by a federal court judge in the Hazelton litigation, such a state or local requirement would be preempted by federal law.

• Expand information-sharing between DHS, The Social Security Administration (SSA), and state DMV's: The new data sources used in the Basic Pilot will include visas and passport information as well as pictures and data from state motor vehicle departments. It is unclear what, if any other sources would be tapped in the increased collection of data that will be widely available to the expanding number of program participants. Such sharing of information between inaccurate DHS databases and SSA raises concerns both about privacy and the potential for proliferation of inaccurate information.

• Increase militarization of the border and the interior: The plan would add 18,300 Border Patrol agents; 370 miles of fencing; 300 miles of vehicle barriers; and 105 camera and radar towers. The strategy also includes plans to increase 'fugitive operation teams' which will lead to more raids in our communities and in immigrant homes. The announcement of these increases comes during one of the deadliest summers on record at the border, including the shooting death by Border Patrol agents of a 23 year old immigrant last Wednesday.

• Add detention bed space without addressing current abuses: The proposal would expand detention capacity from current levels of approximately 27,500 detention beds to 31,500 detention beds. There is no suggestion that there will be an effort to cure the widespread abuses in the current detention system that have been documented in recent months, including imprisonment of children, lack of decent medical care, lack of access to telephones, attorneys, legal materials, and other basic rights violations. (See, Orantes-Hernandez v. Gonzales, Injunction Upheld: Judge Finds Widespread Abuses in Immigrant Detention Troubling Evidence That Asylum Seekers' Rights Are Not Respected, available at http://www.nilc.org/immlawpolicy/arrestdet/ad091.htm)

• Continue efforts at state and local law enforcement of immigration law: The administration announced plans to continue its "287(g)" program that allows states and localities to enter into agreements with the federal government to enforce immigration law. It also announced related taskforces that will expand local enforcement of immigration law, putting more communities in danger. Many communities and local police departments oppose this policy because it interferes with community policing projects that encourage immigrant community members to report crimes.

• Expand the list of 'gangs' that the State Department will use to deny visas to foreign nationals: The announcement is not clear about what criteria or process will be used to determine what constitutes a 'gang.'

• Expand efforts to repatriate to 'recalcitrant' countries: The Administration is seeking to expand a repatriation system that has been widely criticized by foreign governments and advocates within the U.S. for its failure to ensure detainee safety and the safety of local communities. The Administration should improve repatriation assistance so that deportees are transitioned safely into their new communities.

• Increase penalties and criminal prosecution for employers who knowingly hire unauthorized workers: In this new enforcement scheme there is no contemplated increase in criminal or civil enforcement of labor laws, which could actually benefit workers who are employed by exploitative businesses, and which would also reduce the economic windfall that accrues to bad-apple employers when they hire and exploit undocumented workers.

• Study the Social Security system to deny credit for contributions made before obtaining legal status: Undocumented immigrants are already ineligible for social security benefits. By ordering such a study, the Administration appears to be signaling support for taking away the social security credits that lawfully residing immigrants and naturalized citizens earned before obtaining such status. Additionally, the Administration will require all relevant agencies to report to the President a detailed plan for how they will share data to eliminate the "problem" of workers getting credit for such contributions, raising serious privacy and civil liberties concerns.

• "Streamline" existing guestworker programs: The Administration plans to "streamline" several existing guestworker programs, including the H-2A agricultural worker program, the H-2B program for non-agricultural workers, and skilled worker categories. With respect to the H-2B program which has been plagued by abuses that sometimes rise to the level of slavery and trafficking, the plan would move from a government-certified system to an employer-attestation system, allowing abusive and non-abusive employers alike to "attest" that they are complying with all requirements and not displacing US workers.

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On January 11, 2007, Governor Deval Patrick rescinded the Memorandum of Understanding that would have given the Massachusetts State Police the authority to enforce immigration law.  The Governor affirmed that immigration enforcement is the responsibility of the Federal Government, and is best left to the Federal Government. 
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