The Forked Tongue Express

By Peter Schaeffer, CAPS Member
June 2007


I have examined the proposed new immigration law and have read many critiques and defenses of it. The following notes are an attempt to answer some of the key questions surrounding the new bill. So far, the White House has enjoyed some success in spreading myths about the new bill. Most of these myths are deflated by examining the literal language of the bill or considering how it will actually work in practice. As a quick summary, this is a pure Amnesty bill with nothing else of substance in it. The notes:
 
1. Amnesty - Amazingly there still seems to be some debate about whether this bill is Amnesty bill. Let there be no equivocation. This is Instant Amnesty, pure and simple for every illegal alien in the US and every illegal who gets in for the next year or two. Indeed, the drafters of this legislation make it very clear that Amnesty is the primary (really only) goal of this bill. The very first sentence (I am not kidding) states that the Instant Amnesty is not subject to any "triggers" or other delays. Section 601(h) which defines the Amnesty makes it clear that there are no fines, penalties, etc. associated with the Instant Amnesty. That's right, none at all.
 
To be precise 601(h) gives each and every illegal alien (with fraudulent documentation, that means all of them) immediate and free "probationary status" entitling them to live and work in the US. At some point, "probationary status" expires and the now-legal alien has to convert to "Z-nonimmigrant" status and pay a fine of $1000 (only $500 for illegal family members, see 601(e)(6)(B)). However, does anyone really believe that these fines are going to be collected? Or that illegals who don't convert are going to be deported?
 
After granting Amnesty for free, is Teddy Kennedy, John McCain, or George Bush going to deny the illegals the next step "on the path to citizenship"? Wouldn't that be unfair? Forcing people back into the shadows? Breaking up families? Note that Senator Martinez has already proposed removing the fines. The stark unreality of this (other than the Amnesty) is nicely contained in the following language from the bill
 
"Departure from the United States- Any alien whose period of authorized admission or probationary benefits is terminated under paragraph (1), as well as the alien9s Z-2 or Z-3 nonimmigrant dependents, shall depart the United States immediately"
 
Does anyone believe that after 40 years of virtually no immigration enforcement, future illegal aliens (who were previously legal) are going to pack up and go home because an obscure phrase in a 347 page bill?
 
Whether the rather hypothetical, eventual $1000 (or less) fine makes this bill less of an Amnesty each reader will have to decide. Do we really sell our borders for $1000? Can I steal a car or hold up a liquor store and pay a $1000 fine?  
 
Note that it is not quite clear if the $500/$1000 fines are due immediately when the initial application for "probationary status" is filed (and granted in 24 hours) or later when processing of Z nonimmigrant applications is completed. A recent NYT article asserted the latter, which was my initial understanding. However, I can't verify this from the text of the law. In any case, they can be paid in installments....  

2. More Amnesty - Aside from the Instant Amnesty, there is a deeper point. This bill rewards illegal behavior with "the fruits of the crime". If I steal a car, an Amnesty might keep me out of jail. However, do I get to retain the car? If I kidnap and rape  a woman, an Amnesty might keep me out of prison for life. However, does the law hand her back to me? If I cheat on my taxes, Amnesty might enable me to avoid penalties and interest. However, I still have to pay any amount due. By contrast, this bill rewards each and every illegal alien with permanent US residence.
 
So in some sense, it really isn't Amnesty, but more Amnesty++ or Amnesty with the lottery jackpot thrown in. Other folks have used Amnesty + Christmas to describe the rewards provided to illegal aliens under this bill.
 
3. Even More Amnesty - This bill also grants Amnesty to every corporate exploiter of illegal aliens. The details (and there are plenty) really don't matter. If you profited from breaking our laws and exploiting illegals, your ill-gotten gains are home free. Clearly, this will encourage corporations to fully enforce our immigration laws in the future...
 
4. Gang Membership - This nation is now plagued by extremely violent (they mutilate their victims) illegal alien gangs. How would this bill address this quite serious problem? By giving illegal alien gang members legal US residence and a "path to citizenship". Not exactly a plus, given that all illegal alien gang members are subject to deportation now, and a few are actually deported (most are protected by sanctuary policies). See Rewarding Lawbreakers (http://www.nypost.com/seven/05212007/postopinion/opedcolumnists/rewarding_lawbreakers_opedcolumnists_kris_w__kobach.htm?page=0) by Kris Korbach (John Ashcroft's chief advisor on immigration law)

"Deporting illegal-alien gang members has been a top ICE priority. This bill would end that: Under it, a gang member qualifies for the Z-visa privileges as long as he simply signs a "renunciation of gang affiliation." He can keep his tattoos."
 
Now, under the terms of the bill gang members who have committed serious crimes will not be eligible for Amnesty. Is this helpful? No, under existing law they are already deportable. Indeed, the bill makes the gang problem considerably worse. How? The community networks that support these gang members will only expand via the Amnesty further embedding these criminals in our nation even if they don't get Amnesty. Worse, many will marry (if only on paper) and bear children (even if they contribute nothing to them) and use these marriages and children to avoid deportation.
 
Worse, the bill gives the US government just 24 hours to determine if an illegal alien is eligible or not. This means that most gang members will get a ID card entitling them to remain in the US. The bill does allow these cards to be cancelled if subsequent evidence shows that the illegal alien is ineligible for Amnesty. However, the US government has no way to retrieve the cards handed out to MS-13 members. Worse, vast numbers of gang criminals will fall through the cracks of the system simply because the US government simply has no way to check the 12-20 million Amnesty requests that will flood the system.
 
There is nothing in this bill that will actually prevent illegal alien gang members from applying for Amnesty using fake IDs (massively available via the underground economy). Of course, these applications may be detected via a fingerprint check. However, if the fingerprint check fails or the government doesn't have the fingerprints on file, the gang member is home free. Even if the fingerprint check works, there are no substantive consequences, the gang member simply continues to enjoy the 3 million square mile sanctuary known as the United States.
 
Senator Cornyn has proposed to deny Amnesty to all gang members. While this is a nice idea, it is unlikely to work. If a gang member hasn't been convicted of a serious crime, how exactly is the US government going to prove that an illegal alien is a gang member? Tattoo analysis? Actually, that would work, but isn't very likely. Is the US government really going to even try to detect gang members amidst 12-20 million Amnesty requests. Since the bill provides for many layers of appeal, is it really possible for the government to deny Amnesty to any illegal alien gang member? And again, even if all of the appeals fail, the gang member simply remains here in the US as an illegal alien.

5. Terrorism - Clearly our nation is threatened by illegal alien terrorists as the recent Fort Dix plot showed. Of course, terrorists have been exploiting our absurdly lax immigration laws for years. The Center for Immigration Studies found no fewer than 94 terrorists who exploited our immigration system from the early 1990s onward (see Immigration and Terrorism Moving Beyond the 9/11 Staff report on Terrorist Travel  http://www.cis.org/articles/2005/kephart.html). Since the CIS report was issued in 2005, it missed the latest batch of wannabe killers.
 
Sadly, the immigration bill would reward most (almost all?) illegal alien terrorists with legal US residence and a "path to citizenship". Not exactly a plus for the American people. Indeed, this bill is huge step backwards in the War on Terror. This isn't exactly a hypothetical point. Terrorists have repeatedly benefited from Amnesty programs (see the CIS report above) in the past.
 
Now, under the terms of the bill, illegal alien terrorists will not be eligible for Amnesty. Is this helpful? No, under existing law they are already deportable. However, the real problem is that US government doesn't have a database of every terrorist in the US or worldwide. As a practical matter, the only illegal aliens who will be denied Amnesty will be those for whom the government has their fingerprints on file. Clearly, in some cases a fingerprint match will identify a terrorist. What will happen at that point? The terrorist will most likely resume his life as an illegal alien.
 
Indeed, in one critical respect the Amnesty bill cripple the War on Terror at home. Right now, if the US government detects a illegal alien terrorist, the government is quite free to remove the terrorist by enforcing immigration law (and this is actually done if the illegal is Arab/Muslim). The government doesn't have to prove that bad guy is terrorist, illegal alien status is more than enough to enable deportation. This rather useful power would be lost under the Amnesty bill. Of course, the government can still try to prove that the illegal is a terrorist. However, this is rather hard and leads to endless appeals that amount to "it ain't over until the illegal wins". Worse, the government may have to disclose evidence (wiretaps, informants, etc.) that pertain to ongoing investigations.
 
Will this bill make it easier for an illegal alien terrorists to operate in the US? Yes, the community networks that support illegal alien terrorists will only expand via the Amnesty further embedding these criminals in our nation even if they don't get Amnesty. Note that chain migration from countries involved in terrorism would continue (and indeed accelerate) under this bill.
 
Once again, there is nothing in this bill to prevent illegal alien terrorists from applying for Amnesty using fake IDs... Or exploiting the 24 hour deadline for an ID card...Or falling through the cracks as the government rubber stamps 12-20 million Amnesty requests... Note that the same government bureaucracy that gave Mohamed Atta and Marwan al-Shehhi visa six months after 9-11 will be responsible for making sure that terrorists gain Amnesty under the new law. Sort of gives you a warm and fuzzy feeling. 
 
6. Compromise - This bill has been repeated touted as a "compromise". Is this true? Yes, in the same way that the Molotov-Ribbentrop Pact was a "compromise" for the peoples of Europe. Stated differently, the Cheap Labor, Pro-Amnesty Republicans got together with the Pro-Amnesty, Cheap Labor Democrats to draft their dream immigration bill (and throw a few crumbs to the American people). There is no evidence that any Democrats (Dorgan, Nelson, etc.) or Republicans (Grassley, Sessions, etc.) who oppose Amnesty and cheap labor immigration were even allowed to participate in the discussions. By contrast, Ted Kennedy has stated that race oriented ("La Raza Unida") Hispanic groups were given a veto over the bills provisions...
 
The bill is amazingly weak on border security (much weaker than current law) and contains a questionable plan for verifying employment. Several crucial enforcement issues aren't even mentioned in the bill. These include Visa Entry/Exit matching (mandated by Congress back in 1996 and still not implemented), interior enforcement (dealing with illegals who get past the border), sanctuary policies (still allowed), using local law enforcement (using traffic stops to identify illegals, allowing local police to turn illegals over to the government), etc.

In all fairness, a few provisions do seem to be some type of compromise. For example, the rather modest shift towards a merit oriented immigration system was a concession on the part of the Democrats as was the "guest worker" plan. The "guest worker" plan has now been reduced by the Bingham amendment, although one suspects that this was really part of the original deal (the Bingaman amendment easily passed last year as well).
 
7. Comprehensive - This bill has been repeatedly sold as "comprehensive". Is it? No, and the backers don't believe it for a moment. Indeed, they know better. If they really believed that this bill was comprehensive, they would have delayed the Amnesty until the border was actually secure (say a 90% reduction in illegal entry) and employer sanctions were known to be working. Instead, the bill calls for Instant Amnesty, and a promise that eventually we will have a employment verification system. The bill doesn't even pretend to secure the border and indeed, may well weaken border security. Of course, it also fails to address Visa Entry/Exit matching, interior enforcement, sanctuary policies, local law enforcement support, etc.
 
8. Triggers - The bill contains both border security and Employment Eligibility Verification Systems (EEVS) triggers. The border security provisions include 370 miles of single-layer fence (versus the 854 miles of fence already mandated by law) and hiring more border patrol agents (5000 - 6000 new agents for a total of 18,000). The EEVS will in theory prevent illegal aliens from getting jobs in the US in the future.
 
The proponents of this bill claim that the triggers must be in place before the Amnesty occurs. They are either lying or fundamentally ignorant. The absolute first words of the bill are
 
Secure Borders, Economic Opportunity and Immigration Reform Act of 2007
SEC. 1. EFFECTIVE DATE TRIGGERS.
(a) With the exception of the probationary benefits conferred by Section 601(h)
 
Section 601(h) is the Instant Amnesty. It is specifically exempted from any triggers. I leave it to the reader to decide if Bush is lying or fundamentally ignorant.
 
An even deeper point is that the triggers don't actually do anything. They are bureaucratic fluff, not testable mandates for actual border security and employment verification. If massive illegal immigration continues, that's OK under the terms of the law. If the EEVS fails to stop illegal hiring, that's not a problem either. A serious bill would include triggers based on actual results, not appearances.
 
The triggers do materially impact one aspect of this bill, the "guest worker" plan can not go into effect until the triggers are in place. Indeed, the Washington Post has already denounced the triggers because
 
"In other words, the department's failure to satisfy the legislation's so-called triggers could mean an ongoing influx of illegal immigrants and more deaths in the desert or, if the new fencing is effective, a critical shortage of low-skilled labor in construction, landscaping, hospitality and other industries."
 
This quote should demonstrate the depths of cheap labor thinking in Washington.
 
9. Border Security - Will this bill secure the border? Clearly not, and none of its advocates think it will. Worse, many (most? all?) of them don't want to secure the border. Obviously, 370 miles of fence can not secure a 1,951 mile border. Now will the cameras, vehicle barriers, and 4 UAVs suffice. Indeed, in many respects this bill will materially weaken border security.
 
Existing legislation calls for 854 miles of fence. To date, the Bush administration has dragged its heals on appropriating funds and even with funds in hand (apparently $1 billion), building the fence. Apparently only 2 miles of fence have been completed so far. When Congress mandated the 854 mile fence, the clear intent was to build a double-layer fence. A double-layer fence allows the border patrol to easily apprehend illegals between the fences. A single-layer fence (while still valuable if well built) allows them to escape into the desert.

It should be clear that the Bush administration intends to build 370 miles of fence and stop. Since 370 miles of fence are needed for the "guest worker" plan, some fencing is very likely to be built. However, barring a sea change in the White House, the rest of the fence will be abandoned.
 
A reasonable counterpoint is that without the "guest worker" triggers, essentially no fencing at all would be built. True enough. However, this also demonstrates how little Bush cares about a secure border.
 
The bill requires that 18,000 border patrol agents be in place before the "guest worker" plan starts. As a consequence, these agents will probably be hired. However, the value of these agents can be easily overstated. Say 16,000 agents work on the southern border. That works out to 8 agents per mile. However, no more than 25% of the border patrol is on duty at any time (they sleep too). This means that even with the new agents, we will have 2 agents per mile on our Southern border... And very little fencing to act as a force multiplier.
 
A deeper point is that the Amnesty will inevitably attract legions of new illegals. The "Following the Amnesty Trail" article made it abundantly clear that the promise of Amnesty attracts illegals. The reality should work even better. Any country that wants secure borders must make it clear by word and deed that there is no reward for violating its laws. The Amnesty bill is the exact opposite.
 
To secure the border we do need more border patrol agents. Indeed, the Amnesty bill provides for 14,000 new agents ("subject to the availability of appropriations"). However, we also need a "comprehensive" fence and other measures. The keys are interior enforcement, employer sanctions, and actual penalties for illegal entry.
 
Right now the border patrol operates works on a "it ain't over until the illegal gets in" basis. In other words, illegal aliens are allowed to try to get past the border any number of times. Once they do, they are home free because the border patrol is forbidden to detain illegals away from the border (they aren't allowed to chase them either) and the rest of the US acts as a 3 million square mile sanctuary.
 
This doesn't work. We must have a system where illegals are identified and removed from anywhere and everywhere in the US. Notably, La Migra (the INS) used to deport illegals anywhere in the US. This policy was phased out in favor of tighter border enforcement.
 
Of course, we need employer sanctions. However, actual penalties for illegals are needed as well. In theory, illegals can be criminally prosecuted for multiple attempted entries into the US. In practice, they are not. Some have been arrested 20 times. Some have been arrested and deported several times in one day. However, they are de facto never punished for violating our laws and borders. One reasonable approach would be to impose a lifetime ban from the US for the first offence, and jail time for subsequent offences. Actually, I favor jail time for all non-Western Hemisphere illegals for even the first offence. Far too many are coming from "countries supporting terrorism".  

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