Immigration Outlook for 2011: Congressional Overhaul Versus Strict Enforcement

Will 2011 finally be the year that Congress and the President fix the broken immigration system? The short answer: probably not. But that doesn’t mean that Congress will stand idly by. The Columbus Ohio Immigration Lawyers of The Law Firm of Shihab & Associates have clients throughout the United States that could be affected by the legislation of the 112th Congress. This article outlines the anticipated Congressional agenda for immigration in 2011, and focuses on several topics relating to employment based immigration where Congress is anticipated to act and highlights the need for comprehensive immigration reform in a slow economic environment.

The American Immigration Lawyers Association (AILA) anticipates that the 112th Congress will enact patchwork legislation with an emphasis on border security and interior enforcement which will not comprehensively fix the broken immigration system. AILA Ohio Chapter Chairperson, Gus Shihab and AILA anticipate these bills would cause severe hardships to immigrants and their families, run up costs to the DHS budget, and slow economic recovery. American businesses, communities and families are all affected by the immigration system, which regulates the flow of foreign labor, foreign exchange students and family members to the U.S.

It is anticipated that Congress will propose bills appropriating additional funding for boarder security (including the southern border fence) as well as funding for mass deportations. By increasing spending for strict enforcement, it is assumed that Congress is taking comprehensive immigration reform off the table. Whether it is time to expend additional funds from the federal budget on strict border enforcement is subject to ongoing debate. Neither side of the isle have proposed a legitimate plan of action. Hence, greater enforcement efforts will likely be the status quo.

In 2011, legislators on Capitol Hill will likely raise proposals to make the electronic employer verification systems – also known as E-Verify – mandatory for all employers. E-Verify, an internet based system operated by the Department of Homeland Security (DHS) in conjunction with the Social Security Administration (SSA), allows an employer to determine whether the employee is legally authorized to work in the U.S. While E-Verify has the potential of streamlining the hiring process, empirical studies have shown that E-Verify is deeply flawed from privacy, civil liberties, budgetary and technological standpoints. Making the program mandatory could potentially harm hundreds of thousands of workers including U.S. citizens. At a time when unemployment rates are high, we need to strengthen workers’ access to jobs and employers’ access to workers, not impose additional roadblocks that hinder economic growth.

Aspects of the REAL ID Act, passed by Congress after the 9/11 terrorist attacks in an effort to create a unified system of state IDs and drivers licenses will become effective in 2011. Implementation of the REAL ID Act has been challenging for the states that must bear the high costs of creating a new driver license system. In addition to the financial burden on the states, the REAL ID Act also has invasion of privacy problems and questionable civil rights burdens. Expect to see legislation proposed that would decrease the types of immigrants eligible for state IDs even further than the REAL ID Act mandates.

Since the controversial Arizona law was enacted, states have been more likely to pass legislation aimed at illegal immigration. Once thought to be an area exclusively under federal jurisdiction, Arizona has taught us that immigration law can be enforced through state legislation (at least for now). Look for an increase in the amount of legislation which will be passed by state and local governments that require local police to enforce immigration laws. With the constitutionality of such legislation in question, it is possible that this issue will eventually be decided by the Supreme Court. Our firm has spoken out publically against these measures and should continue to do so until comprehensive immigration reform has been passed.

The 112th Congress will likely propose stiff new penalties against individuals who violate immigration laws. Efforts to increase the penalty for presence in the United States without a lawful immigrant status, including criminalization of illegal presence, mass deportations, mandatory deportations for lawful permanent residents who commit even minor crimes, expedited deportation for visitors who stay beyond their authorized period of stay, severe punishments for people who use fake passports, are likely to be introduced. These “get-tough” measures are tantamount to using a hatchet where you need a scalpel. There are already laws in the current system that address many of these issues, hence punitive enforcement approaches may do nothing more than establish greater unfairness and inhumanity in our immigration system.

Since 1996, several laws have been passed restricting the rights of immigrants to gain access to the courts. Recent proposals to restrict court access even further have included provisions to prevent people who are applying for citizenship from appealing their case to federal courts. Access to courts is a fundamental American principle meant to protect individual rights and ensure that our laws are fairly and uniformly applied. This sends the wrong message to immigrants who often come to the U.S. to escape totalitarian dictatorships. With no appeal, fair hearing, or due process, have these immigrants actually escaped anything?

The 14th Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside.” The Law Firm of Shihab & Associates has previously written on this subject. Congressional leaders have proposed to eliminate the so-called “birthright” citizenship. The argument is that the U.S. should not grant citizenship to children if both parents are here illegally. The problem is that parents are illegally coming to the U.S. to give birth to an “anchor baby” for the purpose of enabling parents to gain legal immigration status later on. Either way, repealing the 14th Amendment seems like a draconian approach to a problem that could be solved through thoughtful immigration regulations.

In the 112th Congress, AILA expects there will be proposals to reduce or eliminate certain family categories. These proposals go against the fundamental immigration policy of family reunification and stifles economic and societal growth. In addition, Congress will introduce proposals sought to replace the family based and employment based avenues of legal immigration with some sort of points system, whereby the government would choose the attributes and skills that are most desirable for permanent immigration to America. The point system would change the historical foundations of our immigration system. The U.S. needs a system that will recognize the overwhelming economic contribution of family-based entrants and maintain family as the cornerstone of U.S. immigration policy.

Bills will likely be introduced in 2011 that deny legal and unauthorized immigrations federally-funded public benefits. The targeted benefits are social security, the Earned Income Tax Credit (EITC), health care, and housing assistance programs. AILA warns that these proposals are frequently superfluous, symbolic statements that will have little practical impact.

In recent years, bills have been proposed to make English the official language of the U.S. Typical provisions of English-only proposals include: (1) requiring English to be the official language of the United States; (2) requiring all federal government documents to be printed in English-only; and (3) prohibiting the use of funds that creates an entitlement to services provided in a language other than English. Perhaps of all the concerns, the most significant is that Courts have concluded that state and local English-only laws violate the due process clause of the Fourteenth Amendment and the First Amendment on the ground that such laws they make it virtually impossible for persons who do not speak English well–whether they are U.S. citizens, legal immigrants, or undocumented workers–to communicate effectively and to assert their constitutional rights.