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After The Fall: Making Sense Out Of Sensenbrenner

by Gary Endelman

Now we know how Tom Paine felt at Valley Forge. It has been a cold December for those who think immigration is good for America. On December 16th, the House of Representatives approved the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005(H.R.4437), perhaps the most draconian bill of recent memory, and, a mere three days later, the House approved an agreement with the Senate on a comprehensive budget reconciliation package stripped bare of any pro-immigration provisions. While there is some satisfaction in the fact that the House did not get the higher L fees that it sought, this is cold comfort. Truth be told, it was a tough week, the worst in a long time, and the shock among pro-immigration circles, both on Capitol Hill and beyond, is palpable.

For the first time in a long time, the Republican House defied the US Chamber of Commerce, the National Association of Manufacturers and other corporate lobbying groups who sought to block adoption of a mandatory electronic employment eligibility verification system that would link Social Security Administration and Homeland Security databases. Such business opposition is not hard to figure out. Electronic verification would be on top of, not as a substitute for, the current I-9 compliance regime. Not only would new hires be subject to electronic verification, but all private sector employers would be compelled to reverify existing employees within six years; federal, state and local governments, not to mention non-governmental employers at critical infrastructure facilities, such as airports and nuclear power plants, would only have three years. All private sector employers must electronically check their entire workforce by 2012.

The political clout of their natural allies could not carry the day against the popular appeal of the proposal by House Judiciary Committee Chair James Sensenbrenner ( R-WI) who benefited from the absence of House Majority Leader Tom DeLay, busy with his own legal troubles back in Texas. With DeLay not there to whip the GOP House Caucus into line, the Republican House Leadership removed Senate language that would have revolutionized employment-based immigration from the budget conference report as the price of pacifying anti-immigrant House members who had sent a letter to Speaker Hastert and Acting Majority Leader Roy Blunt(R-Mo) threatening to vote against the budget if the good stuff stayed in. Whether they would have acted on their threat will never be known, but the possibility of their doing so was enough to make House budget conferees beat a hasty retreat. While there was a deal to be made, one in which pro-immigration provisions were sold as a potent enhancement to House Republican leaders desperate for new sources of revenue, the need to pass a federal budget, particularly with no Democratic votes, trumped everything else. Hastert and Blunt simply did not have the margin within their own Caucus to call Tancredo's bluff. Originally in the draft Conference Report, Section 8001 was taken out before a final vote. Other pro-immigration lobbying efforts by the immigration bar and its traditional comrades in arms were too little, too late.. But, this is sadly no longer news.

Pro-immigration lobbyists were most effective in the good old days when immigration was an inside the Beltway game. You met with a few friendly legislators who depended on your technical expertise and usually something could be quietly and quickly worked out. Three things have made this impossible. First, the Immigration Reform and Control Act made all US employers junior immigration agents by mandating completion of the I-9 employment verification form as a condition of hire. No longer would it be acceptable for American companies to hire those illegal aliens who had made their way through the maze. Now, immigration became a daily fact of business life. As was predicted, IRCA did not solve the problem of illegal migration, so much as defer the day of reckoning for a future time. The marker for IRCA has now come due. Second, the Immigration Act of 1990 tripled the number of employment visas, but fatefully, at the last minute, chose not to reform the labor certification system that, even then, had broken down as the inevitable contradiction of mass migration and micromanagement became too heavy to bear. . Moreover, IRCA introduced the concept of amnesty as a way to cope with rising illegal migration without doing anything to restore the structural imbalance between family and employment-based options that had made it necessary to come in under the shadows in the first place. That was what IMMACT 90 was supposed to do- serve as the second act to IRCA’s overture. Yet, the number of immigrant visas for the other worker category- a paltry 10,000 (originally only 5,000)- was, and always has been, wholly inadequate to the task and the demand, thus leaving both desperate aliens and equally anxious employers little incentive but to act in an extra-legal fashion. What the law did not make provision for , the economy did. Third, 9/11 changed the world and everything in it would never be the same. Immigration was now synonymous with terrorism and those who hated both immigration and the immigrants now had a powerful new club to swing. They set about wielding it with gusto. Lou Dobbs meet Mohammed Atta.

As bad as HR 4437 is, the real loss is the removal of the pro-immigration provisions that had been enshrined in section 8001 of the Senate budget package. It is impossible to overstate the stimulus that Senate Budget Bill section 8001 would have injected into an employment immigration system that is on life support. Even its authors do not realize what has been lost. Restoration of up to 90,000 unused immigrant visa numbers that had been gathering dust is only the least of it. Much more was at stake. The additional unused H-1B numbers that Section 8001 would have made available would have been a shot in the arm for desperate US employers with openings where these foreign nationals are sorely needed. Section 8001 would have tripled the number of employment-based immigrant visas simply by not counting family members against the 140,000 cap. Just by backing out dependents , the EB quotas would have been utterly transformed. Good bye backlogs! But wait, I rejoice too soon. Not counting family members would erase much of the current EB backlog, but does nothing to guard against its re-emergence, phoenix-like from the ashes. The day for immigration reform on the cheap is long since gone never to return. Section 8001 did not enlarge the EB quota nor give employment based migration priority over family migration, something that must happen if the same, or even longer, backlogs, are not to come back with a vengeance . There was one other fly in the ointment, namely that the architects of Section 8001 did not realize the need to amend the Child Status Protection Act so that, while Mom and Dad waited for their day of green card deliverance to arrive, their kids would have aged out. The CSPA only freezes a dependent's age if there is a current priority date. How many parents are going to wait patiently for final adjustment approval if their kids have to go home?

Removal of Section 8001 from the Budget Reconciliation Conference Report can be a temporary setback if we play our cards right. Congressman Sensenbrenner has long and loudly proclaimed that he is not against all immigration, just the illegal variety. Fine. Let’s take him at his word. He is, after all, the architect of the new E-3 visa that enables 10,500 Australians to get around the H-1B cap. Congressman Sensenbrenner has his enforcement-only bill now so he should be prepared to support us when we seek to attach Section 8001 to broadly bipartisan legislation in the upcoming session of Congress. If Congressman Sensenbrenner means what he says, and he usually does, this might be a golden opportunity to bring Section 8001 back to life.

Having said that, in the long term, Section 8001 meant a lot more than HR 4437 does not mean that the number of poison pills in Sensenbrenner's bill do not make it exceedingly painful to swallow. Purely from a $ standpoint, the bill does not work, particularly at a time when the Administration wants to rein in federal spending, eliminate the estate tax, scrap the alternative minimum tax, rebuild the Gulf Coast, keep defense spending at record levels, pay for a new prescription drug benefit under Medicare and make the President's tax cuts permanent. Did I forget Iraq?. The Congressional Budget Office estimates that initial implementation will cost $1.9 billion with more in later years as additional restrictions come on stream. Just do the math. Providing DHS with secure access to a reliable database of Social Security numbers will not come cheap. When you factor in the need for the Social Security Agency to answer phone inquiries, handle personal visits and produce replacement SSN cards for people whose employers get a nonverified electronic response, you begin to get some idea of why the Social Security folks are less than wild about this new toy. Take off the price tag, and HR 4437 still does not look too good. Here are some holiday treats that you probably will not stuff into your stocking over the fireplace:

  1. All visitors processed in the US VISIT system will now offer up ten fingerprints to enhance the reliability of biometric data collection. Think that is going to shorten the lines at your friendly airport?
  2. Illegal presence in the USA goes from a civil offense to a crime punishable by a year in the pokey. This covers anyone who overstays or violates the terms of their visa. Advising such aliens on their legal options, or helping them to become legal, could easily be prosecuted as harboring. How's that for chilling the attorney-client relationship? It is hard to imagine that the feds will arrest millions of people, but it is not beyond imagining to speculate that they might move against high profile lawyers, corporate employers, and non-profit advocates, if only to make an example out of them, and scare the hell out of everyone else. Nothing succeeds like intimidation. The criminalizing of immigration misconduct, often innocent and frequently the direct product or inevitable result of government inefficiency, recalcitrance or sheer refusal to abide by law or logic, is a blatant attempt to convert understandable public concern into overt xenophobia . It is grandstanding masquerading for public policy and must be denounced as such.
  3. Jack Kemp, former Secretary of Housing and Urban Development and the Republican Vice-Presidential Candidate in 1996, has done just that:

    H.R. 4437 is so overreaching that it would effectively transform any relative, employer, co-worker, co- congregant or friend of an undocumented immigrant into an “alien smuggler” and a criminal. The legislation’s far-reaching “smuggling” provisions go far beyond any common-sense definition of a “smuggler” and include average Americans going about their business. It also inappropriately conscripts the American business community into the U.S. government’s immigration police force by requiring burdensome investigative and reporting activities where prospective employees are concerned:
  4. The maximum period for voluntary departure shrinks from 120 to 60 days. You might not get even that if you cannot pay to post a bond nor prove up hardship to excuse you from such obligation.
  5. There is a new ten year statute of limitations for immigration-related crimes.
  6. State and local law enforcement can now investigate, arrest and detain, or even transfer to federal custody, any alien in violation of immigration laws. The very population that is most vulnerable to crime, that is most in need of protection, and has the most reason to distrust the police, now has one more reason to keep quiet. Will this make our cities safer?
  7. Expedited removal moves inland to lasso any alien arrested within 100 miles of the border up to 14 days after entering the USA and any nonimmigrant visa holder must give up the right to challenge a refusal to admit, regardless of how arbitrary or capricious, save for asylee or refugee claims. Due process is simply too much trouble.
  8. The time you must wait after a naturalization interview to take your case to federal court has just been extended from 120 to 180 days. Even then, if you do manage to get to the courthouse, all the judge can do is send your case back down to the CIS with instructions to behave; no longer can the court order an outright grant.
  9. The border with Mexico is to be militarized. HR 4437 authorizes two layers of fencing and the installation of additional barriers with priority given to certain high entry sections. One wonders what will happen to our northern border with Canada and how effective any attempt to seal off thousands of miles will be. Beyond that, the moral position of the USA in the rest of an already suspicious world will be seriously compromised. What are we to tell other countries when they seek to build their walls? What will be the consequences be for our foreign relations with our neighbors, the same neighbors that we are pressing for trade concessions and security cooperation? At a time when the reaction against globalism is in full swing throughout the Western Hemisphere, is this really the time to retreat behind a Fortress America?
Yet, one wonders if there are sections in HR 4437 that may not serve as common ground, small beachheads that can enlarged with hard work and much good will. At a certain stage of one's life, following small victories and big defeats, you arrive at a place where a decent respect for the opinions of others forces you to admit that some things are true even if James Sensenbrenner believes them to be true. Try these on for size:

  1. Congressman JD Hayworth, Republican from Arizona, proposed the elimination of the Family Fourth Preference with all the numbers shifted over to the employment side of the ledger. Predictably, our crowd went nuts. Why? With due appreciation for cultural lifestyle and ethnic diversity, most Americans love their adult siblings, but we do not live with them. The brothers and sisters of US citizens are coming here to work and they should enter on work visas with proper labor market protection. In fact, they would get here much faster this way, thus demonstrating yet again, if this still needed proving, that rhetoric is not reality nor good intentions a satisfactory substitute for sound public policy. The same argument can and must be advanced to support Section 1102 of HR 4437 that, at long last, eliminates the Diversity Lottery, a flawed experiment in social engineering that has no apparent rationale to sustain it.
  2. Section 207 of HR 4437 provides that a false claim to US nationality, not just to US citizenship, is a bar to admission. This is yet another example of Congress' dislike for the Ninth Circuit, here a reaction against U.S. v. Karanoui , 379 F. 3d 1139, 1140 ( 9th. Cir. 2004) in which the Court held that a noncitizen defendant who had checked off the box on the I-9 form claiming to be a "citizen or national of the United States" had not violated 18 U.S.C. Section 911 ( "whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned more than three years, or both") on the theory that a claim to US nationality was not a claim to US citizenship. While this is certainly true, it is virtually inconceivable that someone who answers this question in such a manner knows the difference. The concept of owing permanent allegiance to the United States without being a citizen, precisely the definition of "US National", belongs to America's distant imperial past when Cuba, the Philippines, and Puerto Rico fell to Uncle Sam as the spoils of a short but sweetly victorious war with Spain. With such singular exceptions as Micronesia and American Samoa, it is hard to find a US national today, nor did the Ninth Circuit find one. This is a wonderful example of why reliance on a legal technicality defies common sense, so much so that the very integrity of those who hold fast to it cannot help but suffer in the public's perception.
  3. Section 219 of HR 4437 directs USCIS to establish a pilot program for backlog reduction within six months. What's not to like?
  4. Section 604 of HR 4437 makes it a deportable offense to unlawfully procure citizenship, commit domestic violence, engage in stalking, neglect a child and child abandonment. Unless I have been educated beyond my intelligence, which is certainly possible, it is hard to figure out what is so terrible here.
  5. Section 606 of HR 4437 makes the commission of three drunk driving offenses grounds for a one way ticket out of town. For all those who have lost close friends or family to this terrible crime, I fail to understand why Sensenbrenner is wrong. Canada bars anyone with even one DUI and few think of that country as a bastion of reaction. The same can be said for Section 613 which adds sexual abuse of a minor as an aggravated felony. Is defense of antisocial behavior our new badge of intellectual sophistication or civic virtue?
  6. Section 1201 would require DHS to notify a foreign government when their citizens naturalize in the United States. Under Section 349 of the Immigration and Nationality Act, and even under HR 4437, continued use of a foreign passport after naturalization is not a basis for loss of US citizenship. It should be. Such conduct is manifestly inconsistent with the oath of citizenship in which one renounces all other allegiances. Either change the oath or change the law. Doing neither tolerates the kind of hypocrisy that breeds cynicism and undermines respect for law.
Those who condemn Sensenbrenner, even with good reason, must look in the mirror and ask themselves why such harsh measures could have been enacted by Congress in so short a time, while neither the President nor Senators McCain and Kennedy have anything but a big goose egg to show for their efforts over a much longer period. Partly this reflects Sensenbrenner's power in the House itself and his mastery as a parliamentarian, or more aptly stated, the behind the scenes wizardry of Representative Lamar Smith ( R-TX). Yet, there is more to it that this. What is most striking is the extent to which the pro-immigration forces lack reliable and effective lines of communication with the Republican Congressional leadership, particularly in the House of Representatives. Had such entree existed, the hunger for new revenue streams would have been linked much earlier and much more securely to the need for passage of Section 8001. We will all pay for a failure by the pro-immigration forces, our forces , to adjust to the impact of 9/11 and the fact that the Democrats no longer control Congress. Much of the information we are told by those we think are in the know comes from friendly Democrats who simply are excluded from the meetings and the decisions that count. This must change if the law is to be changed, if HR 4437 is to be blocked in the Senate and future bills like it are to be strangled in their cradle.

So, this leaves us with a choice. We can become reconciled to more and deeper defeats, finding solace in resignation and healing our wounds in the balm of self-righteousness. We can denounce the 'Culture of No" at conferences and dinner parties, secure in the false belief that intellectual superiority is a fair exchange for political impotence. As each new law comes along, we can talk to our natural allies and confer with those who share our values. We can have another emergency campaign and put forward reasons to oppose the latest blow that are both legally justified and morally sound. And we can lose again.

There is another way, a better way. We can do something new, we can enter the arena, we can be more concerned with practical results than ideological purity. We can roll up our sleeves and make painful, dirty, slow progress by compromising with those whom we neither agree with nor respect on non-immigration matters. We can stop treating all opponents as if they were the same, as if their concerns, which are not ours, lack any legitimacy or are not honestly felt or strongly embraced. There are many in the Tancredo camp that we will never reach. They do not want any immigration, legal or illegal. There is no way to reach them nor should we try. They belong in the muck of privilege and prejudice into which we should never descend and from which we can never emerge. Yet, there are others who opposed Section 8001 and voted for HR 4437 who can be reached. Our task is to find out how, to speak to their hearts and to learn a common language whose most honest expression can unite us all . That is the way forward.

There is a price, however, to be paid for coming to terms with reality. Those who favor more immigration must cease and desist from their reflexive opposition to any enforcement measure. There is nothing wrong with enforcement if it is tied to a wider social purpose, if it seeks to facilitate, rather than prevent, immigration that is manifestly in the national interest. That is the true objection to HR 4437, not that it hurts, because enforcement often hurts and frequently should, if it has any teeth. The real problem with Sensenbrenner is that his vision consists of enforcement not to aid policy, but as a substitute for it, not to promote immigration, but to discourage it. More than the aliens themselves, America is the real loser. To change their approach on enforcement, pro-immigration supporters must change their view of immigration itself. If one believes, as most supporters of immigration have always believed, that immigration is international social work whose fundamental justification lies in helping the individual alien, then opposition to enforcement necessarily follows for the burden of such enforcement falls most harshly upon the object of their compassion. It must be so. Only when immigration advocates are primarily concerned with the deployment of immigration as a strategic tool to promote core national objectives will they be intellectually and emotionally capable of deciding what enforcement to embrace and what to resist. This must happen if an enlightened immigration policy can ever hope to regain control of the national debate and silence Lou Dobbs once and for all. Unless we adopt a more nuanced approach towards enforcement and recognize that new benefits must come with strings attached, ours will remain a minority position in the country at large. Does this make sense? Does it benefit our clients? Does it get us what we want?

The question is not whether enforcement will be front and center in the immigration conversation but, rather, how it will be used and towards what ends. If we who favor immigration do not embrace enforcement and seek to fashion it in our image, then we should not be surprised when our foes shape it in their own. That is precisely what has been happening, and that is one big reason why HR 4437 hurts as much as it does. There are some provisions that deserve our constant condemnation and unremitting hostility; yet, there are others that we should have supported or, at a minimum, sought to modify or moderate. Once you give the American public the distinct impression that only the other side wants to make them safe, even if they are wrong, even if they are only seeking to elicit favorable headlines, you are starting off from a posture of political weakness and playing catch-up is rarely enough to ward off disaster.

For a long time, our side just didn’t get it. While they could read the calendar, their hearts and minds were still stuck on September 10, 2001, a time when Congress was poised to revive Section 245(i) forgiveness and abolish the I-9 employer sanctions regime. Finally, about one year ago, they got religion. President Bush put the issue of guest workers center stage and Senator McCain signed on to S.1003, The Secure and Orderly Immigration Act of 2005. Title IV of S. 1003 deals entirely with enforcement, most notably Section 402 that, precisely as HR 4437 does, mandates establishment of an Employment Eligibility Confirmation System to allow employers to verify an employee’s identity and employment authorization. Indeed, it would not be too much of an exaggeration to say that the inclusion of enforcement was the price that Sen. Kennedy and his allies paid for having Sen. McCain come on board. There was a hearing on S. 1003 before the Senate Judiciary Committee on July 26, 2005 (I testified at one of the panels for that hearing), but no action after that. Since then, leading conservative pro-immigration advocates, like Tamar Jacoby, have called for a melding of McCain- Kennedy’s guest worker provisions with the enforcement mechanism of S. 1438, the so-called “Cornyn-Kyl” Bill , more formally known as the Comprehensive Enforcement and Immigration Reform Act of 2005 whose chief architects are Sen. John Cornyn (R-TX) and Sen. Jon Kyl (R-AZ).

Had McCain-Kennedy been introduced sooner, had the Senate Republican stalemate over immigration been broken, perhaps Rep. Sensenbrenner would not have moved ahead with his own bill, being forced instead to respond to what the Senate had done. There being no Senate action, Rep. Sensenbrenner saw an opening to press his own enforcement agenda and he took it, brilliantly and decisively. His victory in the House may come back to haunt the Republican Party, much as the GOP enactment of national origins quotas in 1924 turned generations of immigrants towards the Democratic banner and as Proposition 187 ultimately derailed the presidential aspirations of California Governor Pete Wilson. Republican stalwart Jack Kemp plays the role of Cassandra:

The so-called Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005 (H.R. 4437)…is so overreaching that, in my opinion, it could become the Proposition 187 of the 21st century…the effect was to drastically alienate Hispanic voters in California from the Republican Party… It’s true our borders are broken and the problem is huge, but Republicans have the opportunity today to take the lead on reforms and fix our immigration system. Sending this legislation to the President to be signed is sure to be perceived as anti-immigrant and, indeed, anti-growth:

How many pro-immigration organizations have invited people like Jack Kemp to serve on their boards? How many Executive Directors of pro-immigration groups have served on the campaign committees of Republicans like Kemp, Rep. Jeff Flake (R-AZ) or Rep. Chris Cannon (R-Utah)? Why are there not more Tamar Jacobys out there? I ask these questions as a life-long Democrat whose political baptism came in volunteering for Bobby Kennedy when he ran for the United States Senate in 1964, went “Clean for Gene” in 1968, stayed up till 2Am to hear McGovern’s acceptance speech, and who still regards Bush v. Gore as illegitimate. If we want immigration policy to be bipartisan, as it must be if it is to create a sustainable national consensus grounded on compassion and enlightened self-interest, then immigration advocates must become bipartisan, not a left-leaning interest group most concerned with advancing the election prospects of the Democratic Party. There is nothing wrong with caring about the Democratic Party first and immigration second if one is honest about their intentions and their purpose. Putting either immigration or the Democratic Party first are both equally moral positions. What is immoral is to pretend to be one when secretly being the other. Far too many immigration interest groups will suddenly fall mute if speaking out means that Republicans get the credit. We need honest priorities openly expressed if the national conversation on immigration is to achieve the kind of results we claim we want and which I believe we do want.

We live in a time when civility is a sign of weakness and sincerity is subject to proof. Now, now more than ever, the vital center must hold. It is in the wake of Sensenbrenner's bill that champions of immigration must seek to create a third way that has within its big tent ample room for those Sensenbrenner supporters who realize that America needs an outward looking immigration policy integrated with the global economy and responsive to the manifold challenges of the digital age. For those who prefer the security of ancient hatreds, this will not be a time of opportunity but remain one of bitterness and suspicion. Yet, it can be more than that if we but have the will to chart a new course towards those whose dreams have not been ours. We owe it to our clients and our country to try. Rather than abandoning our beliefs, we must marry our deepest convictions to an abiding concern for America’s future. When the German Army invaded Russia in June 1941, Prime Minister Winston Churchill immediately went to the well of the House of Commons to urge all out support for Marshall Josef Stalin. Asked how a lifelong foe of Bolshevism could take such a stand and reach out to those who had always been his most bitter foes, Churchill responded with words that we, who seek to make sense out of Sensenbrenner's bill, would do well to take to heart: " If the Nazis invaded hell, I would say a good word for the Devil in the House of Commons!" Amen, Winston. We are all right behind you.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.