Mark Up Process Further Weakens Prospects for Improved Enforcement

By CIS June 2013

The Schumer-Rubio bill has emerged from the committee mark up process with changes that further weaken prospects for improved immigration enforcement. The Senate Judiciary Committee failed to correct the most fundamental flaw of the bill, which is that the amnesty happens before even the most modest and superficial improvements to border security and enforcement occur. While a few token amendments to improve enforcement plans were adopted, several other amendments adopted will weaken enforcement still further.

In summary, these amendments threaten the effectiveness of E-Verify, increase protections for criminal aliens, complicate enforcement for the Border Patrol, and impose inappropriate oversight of enforcement. The following are some of the most significant changes to the enforcement and security sections of S.744:

Undermining E-Verify

  • The committee approved a requirement that prevents ICE or administrative judges from imposing fines on employers for first-time hiring violations if the error rate for E-Verify queries exceeds 0.3 percent. This is an extremely high standard that seems designed primarily to thwart enforcement against employers. (Section 3101(a), offered by Franken).

  • In addition, the committee creates within USCIS an office to advocate for small businesses, not just on how to comply with the law, or improve E-Verify — this advocate actually would have the authority to interfere with an enforcement action and reverse penalties imposed on an employer. This is an astonishing infringement on ICE's authority to enforce laws against illegal hiring. (Section 3107, offered by Franken).

Protecting Criminal Aliens

  • It allows the Attorney General to provide a taxpayer-funded defense attorney to any illegal alien or group of illegal aliens to help them fight deportation in court, a costly benefit to which they are not now entitled, and to which U.S. citizens are not entitled in administrative proceedings (Section 3502, offered by Coons).

  • Illegal aliens fighting deportation will be entitled to see all of the documents in their file, including those obtained by ICE from other law enforcement agencies, which may be law enforcement sensitive or even classified. The likely result is that other agencies will decline to provide ICE with these documents if they are worried about their release. And, if ICE refuses to release any documents, then the alien cannot be removed. This provision is most likely to be exploited by aliens who are criminal and national security threats. (Section 3502, offered by Coons)

  • The bill rewards sanctuary jurisdictions by halting ICE's (feeble) efforts to reduce annual payments under the SCAAP program that go to uncooperative state and local law enforcement agencies for jailed illegal alien criminals. ICE has tried in a very indirect way to reduce payments to sanctuaries, leaving more funds for cooperative jurisdictions, but the senators adopted language to block that effort. (Section 1110, offered by Feinstein).

Interfering with Border Enforcement

  • It creates new responsibilities for Border Patrol and ICE agents to determine if the illegal aliens they apprehend are parents or caregivers, and then determine how that parent or caregiver's removal might impact the child's welfare or the alien's own personal safety. It implies that parents and caregivers (or those who claim to be) will have a chance to contest or delay their removal on those grounds, or on the grounds that the area they just chose to travel through in order to cross illegally is not safe enough for them to return to. (Section 1115, offered by Hirono).

  • It prevents DHS from imposing a general border crossing fee at the land ports, leaving the entire cost of infrastructure and security for these ports of entry to be borne by U.S. taxpayers, rather than those who use the crossings. (Section 1118, offered by Leahy).

  • It forbids the Border Patrol from removing people to Mexico at night without the approval of the Mexican government. (Section 1121, offered by Coons).

  • Illegal aliens apprehended at the Mexican border must be removed in the same sector in which they were arrested. This would end DHS programs to curb recidivism and disconnect illegal aliens from the smugglers they hired. (Section 1121, offered by Coons).

Inappropriate Oversight

  • It expands the mandate of the newly created DHS Ombudsman's office, which is likely to be staffed and led by political appointees, to include inspections of detention facilities and to review policies and programs of CBP, ICE, and USCIS. These are activities more appropriate for the existing and relatively independent Office of the Inspector General and Office of Professional Responsibility. (Section 1114, offered by Hirono).

"Instead of seeking a real compromise that would address the public safety concerns of the many federal and state law enforcement officers who have expressed opposition to this bill, the Gang of Eight and their allies on the Judiciary committee made the bill worse by tacking on irresponsible provisions that serve only to protect lawbreakers instead of the public," said CIS Director of Policy Studies Jessica Vaughan.

This table, which is an update of an earlier publication, summarizes all enforcement, public safety, national security, and fraud provisions in S.744. The amendments adopted in the Judiciary mark up sessions are in bold type and labeled "NEW LANGUAGE".