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Immigration and the 110th Congress

by Gregory Siskind

The Democratic Party has won twice as many seats as needed to take over the US House of Representatives and seem to be in a position to take over the US Senate as well in a stunning defeat for the Republican Party. In January, the 100th Congress will be sworn in and new leaders will be chosen to run committees which focus on immigration legislation.

Immigration was set to be the Republicans secret political weapon this year, but a funny thing happened on the way to the election. While most Republicans promoted tough immigration positions that emphasized strong enforcement and an opposition to any kind of relief for undocumented immigrants, voters generally rejected this hard-line approach and supported candidates more likely to support comprehensive immigration reform proposals.

The most telling evidence of this is the fact that Tom Tancredo's anti-immigrant Immigration Reform Caucus (comprised of 101 Republicans and 2 Democrats) had a horrible evening yesterday. As many as 20 of its members will be gone in the next Congress. (See further details below)

The rejection of the anti-immigrant message was seen in the overwhelming defeat of John Hostettler (R-IN), the chairman of the House Immigration Subcommittee. Hostettler lost 61% to 39%, a landslide by any definition. He made immigration his major issue and touted his record as rejecting any form of relief for the undocumented immigrant.

Another high profile anti-immigrant Congressman to go down in defeat was J.D. Hayworth, the Arizona Republican who frequently is seen on national television discussing immigration. In another Arizona race, Randy Graf lost by a large margin to Gabrielle Giffords to take over the seat of Jim Kolbe. Graf, a Minuteman, not surprisingly took a number of extremely tough immigration positions including opposing US citizenship for children born in the US to non-citizens, opposition to earned legalization for undocumented immigrants, and supporting of the CLEAR Act, a bill with numerous provisions removing due process rights for immigrants.

Kolbe noted that the anti-immigration strategy of Republicans like Graf was actually hurting the GOP. Kolbe told the Tucson Citizen newspaper "The focus on immigration hurt Republicans. They need to focus on key issues such as terrorism and economic growth."

That's not to say the message was totally one-sided. Arizona voters also approved several messages that limit rights for undocumented immigrants including

" Prohibiting bail for those who commit felonies
" Barring undocumented immigrants from receiving punitive damages in civil lawsuits
" Requiring all official business to be conducted only in English
" Limiting access to public services

But Arizona voters' support of these measures might be misread to indicate that voters have no interest in measures reforming the immigration system. In fact, voters appear to simultaneously support making it tougher to get into the country illegally and limiting rights for undocumented immigrants while at the same time supporting measures to make it possible for the undocumented to legalize their status. That is basically the position of Arizona's Democratic Governor Janet Napolitano who won re-election last night by a large margin despite strong opposition from the anti-immigrant right wing.

So where does this leave immigration legislation? There is a possibility that Congress could take up at least some immigration legislation in the "lame duck" session that will start next Monday and go on for a few weeks after that. Pro-immigration groups have been pushing for passage of the SKIL Act during the interim session. This legislation would increase the number of H-1B visas and also make more employment-based permanent residency visas available. But the soon to be exiting House leadership will need to decide if it wants to move on this while it still has some power or pass on it until the Democrats take over.

The 110th House of Representatives is likely to have a much different attitude on immigration issues than the 109th. For the last twelve years, the House Judiciary Committee and its Immigration Subcommittee have been chaired by a number of virulently anti-immigration Congressmen. House Judiciary Committee Chairman James Sensensbrenner's name is synonymous with being anti-immigration and the combination of Hostettler and Sensenbrenner have ensured that very little pro-immigration legislation has passed in the last few years. This is the case even though the GOP overall is much less anti-immigrant than the Judiciary Committee. In fact, if a measure like the Senate's comprehensive immigration reform bill were voted on by the entire House of Representatives, it would very possibly have passed.

The election will have a less profound effect on the US Senate (assuming it changes hands as now appears likely). The US Senate's Republican members have generally been moderate on immigration issues as was evidenced by its passage of the bipartisan immigration reform bill last may.

Congresswoman Sheila Jackson-Lee (D-TX) is likely to take over the Immigration Subcommittee and John Conyers (R-MI) is should be the next chair of the Judiciary Committee. Both are strongly pro-immigrant and have long track records on this issue. On the Senate side, it is less clear who will take over the relevant immigration committees, though the odds are quite good that the new chair will be strongly pro-immigration. Nancy Pelosi will likely take on the position of Speaker of the House and Harry Reid will assume the position of Senate Majority Leader. Each has a strong record in support of comprehensive immigration reform.

Expect comprehensive immigration reform legislation to be re-introduced early in the next Congress. The legislation could move quickly since Democrats will be able to get the bills easily passed in friendlier subcommittees and enough pro-immigration Republicans should sign on to easily pass the bills. President Bush has strongly pushed for a comprehensive immigration bill and Democratic leaders will likely be interested in passing something quickly that will not be vetoed by the President. And the President is likely to see immigration reform as one of the few areas where he can enjoy success legislatively. It seems ironic that it will take a Democratic Congress to give Bush this victory.

Editor's Note: The following item is from Mr. Siskind's blog posted @ 12:41 AM CT on November 8th.

You'll read tomorrow about the Democrats big win in the House (and possible the Senate). You probably won't read about how badly anti-immigrants in the House have done this evening. Between retirements and losses, at least 11 and as many as 20 hardcore anti-immigrant Congressman will be gone in January. They include

Bass (R-NH)
Beauprez (R-CO)
Bradley (R-NH)
Gutknecht (R-MN)
Hayworth (R-AZ)
Heffley (R-CO)
Hyde (R-IL)
Ryun (R-KS)
Taylor (R-NC)
Sweeney (R-NY)

And another several races are too close to call including

Bilbray (R-CA)
Cubin (R-WY)
Doolittle (R-CA)
Drake (R-VA)
Kuhl (R-NY)
Musgrave (R-CO)
Otter (R-ID)
Renzi (R-AZ)
Schmidt (R-OH)

No matter what is said after this election, the American public spoke and made it clear that they do not buy the anti-immigrant rhetoric of some in Congress. Not a single pro-immigrant Congressman lost to an anti-immigrant opponent as far as I can tell.

About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at

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