Making the SECURE Act Better

By Andrew R. Arthur on December 13, 2017

In my last two posts, I discussed two separate provisions of the SECURE Act, S. 2192. As much of an improvement as that bill would be to current law, there are some key amendments that could make that legislation even stronger.

Visa Lottery. The most significant omission from that bill is a provision that would end the visa lottery program. My colleague Preston Huennekens has succinctly detailed the scope and history of that program:

The Immigration Act of 1990 permanently established the Diversity Visa category. The program benefits individuals from nations that send relatively few immigrants to the United States. Eligibility is straightforward: One needs only a high-school education or two years of work experience in certain jobs to qualify. Millions of people apply every year for the 50,000 green cards distributed by lottery, which does not take age, skills, language ability, or connection to the United States into account.

While the program accounts for just a fraction of the immigrants who are admitted to the United States annually, five visa lottery recipients have been involved in terrorist plots in the United States, the most recent being Sayfullo Habibullaevic Saipov, an Uzbekistan national who has been "charged with killing eight people and injuring a dozen others by driving a pickup truck down a bicycle path near the World Trade Center on Halloween."

As the Center has explained:

The security risk has grown over the years as the [visa lottery] program admits a disproportionate share of immigrants from terrorist breeding grounds and has a high level of fraud. Of the top 10 source countries for Diversity Visa immigrants in FY 2016, four were on the U.S. Immigration and Customs Enforcement (ICE) list of Specially Designated Countries (SDCs): Egypt (2,855 immigrants), Iran (2,788 immigrants), Uzbekistan (2,378 immigrants).

The omission of a provision eliminating the visa lottery in the SECURE Act is particularly notable because the RAISE Act, S. 354, portions of which have been incorporated (with amendments) into the SECURE Act, would specifically eliminate the program.

Given the dangers posed by the visa lottery, the SECURE Act should be amended to eliminate the program.

Asylum. In addition, the SECURE Act does not address the vulnerabilities posed by the "credible fear" process related to asylum. In an April Backgrounder, I described the issue of fraud in that process. As I explained:

Unlike refugees, who are screened before coming to the United States and can be denied refugee status before they enter this country, aliens who enter illegally and claim a "credible fear" of persecution have not been screened before physically entering the United States.

In that Backgrounder, I also expounded on the reasons why the process for screening aliens for credible fear after they have entered the United States is vulnerable to fraud and abuse. In particular, resource constraints on U.S. Citizenship and Immigration Services (USCIS) and the immigration courts limit the ability of asylum officers and immigration judges to identify fraud in that process, an issue that has been exacerbated by a ten-fold increase in the number of aliens who have claimed credible fear since 2009. Limitations on the government's capability to identify fraud, as well as evidentiary limitations in both the credible fear process and the asylum process generally, have compounded these problems.

Despite the fact that (as I detailed in that Backgrounder) the credible fear process poses a national security risk, the SECURE Act does not contain any proposals to address the vulnerabilities others and I have identified. Instead, it directs the secretary of Homeland Security and the attorney general to jointly:

(1) conduct a review regarding the effectiveness of parole and custody determination procedures applicable to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts; and

(2) submit a report ... based on the results of such review, that includes—

(A) an analysis of—

(i) the rate at which release from detention (including release on parole) is granted to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts throughout the United States; and

(ii) any disparity that exists between locations or geographical areas, including an explanation of the reasons for this disparity and what actions are being taken to have consistent and uniform application of the standards for granting parole;

(B) an analysis of the effect of the procedures and policies applied with respect to parole and custody determinations by the Attorney General and by the Secretary on the alien's pursuit of their asylum claim before an immigration court;

(C) an analysis of the effectiveness of the procedures and policies applied with respect to parole and custody determinations by the Attorney General and by the Secretary in securing the alien's presence at the immigration court proceedings;

(D) recommendations with respect to whether the existing parole and custody determination procedures applicable to aliens who have established a credible fear of persecution and are awaiting a final determination regarding their asylum claim by the immigration courts—

(i) respect the interests of the aliens; and

(ii) ensure the presence of the aliens at the immigration court proceedings; and

(E) an assessment on corresponding failure to appear rates, in absentia orders, and absconders.

While such a study may provide some useful information, as Hans von Spakovsky of the Heritage Foundation has explained, we already know that: "Aliens are more likely to be ordered deported for their failure to appear than through actual court decisions on the merits of their supposed claimed right to remain in the U.S." In addition, logically a failure to detain aliens who have been apprehended and have claimed credible fear is one of the primary area drivers for the ten-fold increase in the number of aliens making such claims between FY 2009 and FY 2016. As my colleague Jessica Vaughan has noted:

One of the first of many executive actions on immigration taken by the Obama administration was to institute a policy stipulating that, despite the law, newly arrived aliens whose credible fear claims were approved should be released on a grant of parole, even before the full review of their asylum applications.

Although correlation does not always mean causation, it is significant that the number of aliens applying for credible fear spiked directly after the Obama administration instituted this policy. Even the New York Times in 2014 recognized that the administration's release policies were helping to fuel a surge in unaccompanied alien minors and family members:

Since there are no detention facilities for families in the Rio Grande Valley, the Border Patrol has been releasing them without bond, giving them only an order to appear in immigration court for deportation hearings and allowing them to travel to relatives in the United States.

Migrants have been confusing the notice to appear in court—the immigration equivalent of an indictment — with a permit to stay and have sent word to Central America that they received permits to stay here, prompting more to embark on the journey across Mexico.

The SECURE Act should mandate the detention of aliens claiming credible fear after being apprehended along the border or at the ports of entry pending the issuance of a grant of asylum, or in the alternative a final order of removal, in lieu of a study of the effectiveness of parole and custody redetermination procedures in credible fear cases.

E-Verify. Another significant omission in the SECURE Act is the fact that it does not make E-Verify mandatory. As USCIS describes that program: "E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it's the best way employers can ensure a legal workforce."

In a recent posting on the effectiveness of E-Verify, Huennekens noted: "A 2016 study confirmed what many have known for years: The E-Verify system is remarkably effective at deterring illegal immigration." As he described that study:

In their article "Do State Work Eligibility Verification Laws Reduce Unauthorized Immigration", researchers Pia M. Orrenius and Madeline Zavodny found that "having an E-Verify law reduces the number of less-educated prime-age immigrants from Mexico and Central America — immigrants who are likely to be unauthorized — living in a state." They studied the direct effect that the adoption of E-Verify has on the illegal alien population. They focused on Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, and Utah — all states that adopted E-Verify policies.

The researchers constructed their test by using data collected by the U.S. Census' American Community Survey for the years 2005-2014. Although the ACS survey does not ask for immigration status, by using age, education, country-of-birth, and citizenship status the researchers could create an accurate representation of what the unlawfully present population looks like. Specifically, they defined illegal aliens as foreign-born aged 20-54 who have at most completed high school, are from Mexico and Central America, and are not U.S. citizens.

The effects that E-Verify has on the illegal population are astounding. Orrenius and Zavodny found that the number of newly arrived aliens (those most likely to come for employment) fell by nearly 50 percent when a state implemented a mandatory E-Verify law. That is a direct testament to the powerful effect that verification laws have on the ability of illegal aliens to work. The effects were particularly profound in Arizona, where the researchers found an exodus of alien workers following the implementation of mandatory E-Verify in 2008.

Most significantly, the researchers:

[F]ound that the deterrent effect of E-Verify was only present when E-Verify was mandated for all employers. There was no effect on the immigrant population when only government employers or government contractors had to use E-Verify. They write that "the results indicate that E-Verify requirements for government employees and government contractors have relatively little effect on the number of likely unauthorized immigrants or less-educated U.S. natives in a state. This is not surprising since relatively few unauthorized immigrants are directly affected by those laws."

Their study indicates that E-Verify is one of the most important enforcement tools available to states that wish to reduce their illegal alien populations. Research shows that most illegal migration is for economic reasons, and that the adoption of E-Verify and other worksite enforcement measures effectively blocks illegal aliens from procuring employment, thereby preventing many from settling down in the United States. Faced with mandatory E-Verify, the study shows that many aliens either returned to their home countries or traveled to other states that did not have employment verification regulations. [Emphasis added.]

The only proposed changes to the current E-Verify system in the SECURE Act would limit the authority of state and local governments to prohibit the use of E-Verify, and to limit the liability "under any Federal, State, or local law for any employment-related action taken with respect to the wrongful termination of an individual in good faith reliance on information provided through E-Verify.'' While these are plainly positive improvements to the program, they are a shadow of what could be achieved were E-Verify made mandatory for all employers in the United States.

UACs. That bill also has the potential to undermine the ability of DHS to expeditiously remove unaccompanied alien children (UACs) who are apprehended the border or the ports of entry, while at the same time exacerbating the .

In a May 2016 Backgrounder, my colleague Nayla Rush provided an in-depth analysis of the problems that have resulted from the Obama administration's treatment of UACs. In addition, many publications from the Center have detailed how those liberal UAC policies were exploited by gang members.

Section 1322 of that bill would add a new section 235B to the INA, captioned "Humane and Expedited Inspection and Screening for Unaccompanied Alien Children". That screening process would require the immigration court to conduct an in-depth proceeding to "determine the status of the unaccompanied alien child who is an applicant for admission to the United States" and in the case of a UAC "seeking asylum ... determine whether the unaccompanied alien child meets the definition of unaccompanied alien child" under section 235(g) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(g))."

With all due respect to my former colleagues on the immigration court, immigration judges are in no better position than DHS adjudicators to make the determinations called for in section 1322 of the SECURE Act. Moreover, given the complexity of the proceedings envisioned, those proceedings will add significantly to the immigration courts' dockets, without providing substantial additional safeguards for those UACs. In fact, the proposed procedures in section 1322 could provide more incentives for UACs to attempt the dangerous passage to the United States, and lead to further criminal exploitation of the UAC program.

Sanctuary Cities. Finally, provisions in the SECURE Act intended to tackle the significant dangers posed by sanctuary jurisdictions would appear to have the opposite effect of the drafters' intent.

Specifically, section 1309(c) in that legislation would define "sanctuary jurisdiction" as follows:

(1) IN GENERAL.—Except as provided under subsection (2), for purposes of this section, the term ''sanctuary jurisdiction'' means any State or political subdivision of a State that has executed an agreement with the Department of Homeland Security under section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) and has in effect a statute, ordinance, policy, or practice that prohibits or restricts any government entity or official from—

(A) sending, receiving, maintaining, or exchanging with any Federal, State, or local government entity information regarding the citizenship or immigration status (lawful or unlawful) of any individual; or

(B) complying with a request lawfully made by the Department under section 236 or 287 of the Immigration and Nationality Act (8 U.S.C. 1226, 1357) to comply with a detainer for, or notify about the release of, an individual.

(2) EXCEPTION.—A State or political subdivision of a State shall not be deemed a sanctuary jurisdiction based solely on its having a policy whereby its officials will not share information regarding, or comply with a request made by the Department under section 236 or 287 of the Immigration and Nationality Act (8 U.S.C. 1226 and 1357) to comply with a detainer regarding, an individual who comes forward as a victim or a witness to a criminal offense. [Emphasis added.]

The bill renders such "sanctuary jurisdictions" ineligible for federal funding under specified grant programs.

While limiting federal funding to sanctuary jurisdictions is appropriate and sensible, in order to survive potential constitutional challenges, the bill should be amended to make specific findings with respect to the effect of immigration enforcement as it relates to the specific grant programs.

That said, however, the definition of a "sanctuary jurisdiction" in the SECURE Act is so limited (and nonsensical) that it logically only could have arisen from a scrivener's error in drafting. As is clear from the bolded language above, that definition only applies to jurisdictions that have "executed an agreement with [DHS] under section 287(g)" of the INA. As ICE describes that program:

The 287(g) program, one of ICE's top partnership initiatives, allows a state or local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions.

Given the fact that state and local entities have to affirmatively enter into a partnership with ICE under section 287(g) to join that program, those entities are least likely to prevent their officials from communicating with ICE, or to refuse to comply with detainers, the dangers that this provision seeks to mitigate.

Further, were this provision to become law as written, states and localities would have few, if any, incentives to join the 287(g) program, because doing so could potentially result in a loss of critical federal funding.

To strengthen this otherwise critical provision, the words "has executed an agreement with the Department of Homeland Security under section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) and" should be removed from section 1309(c)(1) of the SECURE Act by amendment.

In summary, the SECURE Act contains many provisions that would strengthen immigration enforcement and provide additional, necessary tools to DHS in performing its statutorily mandated duties. A handful of amendments, however, will improve that legislation and make it even more effective in achieving these ends.