9:30 a.m. EST, Date: Monday, January 14, 2013
MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies. We’re a couple weeks away from Groundhog Day. But in the immigration business, every time this debate comes up, it seems kind of like Bill Murray in the movie “Groundhog Day,” where he relives the same day over and over and over again. And everyone else doesn’t realize it’s – he’s reliving the same over and over again. This occurred to me when I read the Wall Street Journal profile of – or interview with Senator Rubio on immigration. And the writer really didn’t seem to get that everything he was talking about was stuff that had been discussed over and over and over again.
And so we’re in the next scene of “Groundhog Day” now with immigration being debated again, and almost all of the same issues, really; you know, should there be a comprehensive bill or should there be targeted bills? What are the parts of the comprehensive bill? It’s the same thing as it always is. Legalization increases illegal immigration in exchange for promises of enforcement. But in a democracy, no issue is ever really settled. So in a sense, it’s to be expected that we’re going to be re-debating all the same issues all over again, just like in “Groundhog Day.” The – this is why we have our panel. It’s called “Amnesties: Past, Present and Future.”
The – our first speaker is going to be Congressman Lamar Smith, who – for whom this may seem like “Groundhog Day” even more than for anyone else. He’s been working on this issue for a very long time. He was the chairman of the immigration subcommittee in – during the 1995 – you were chairman, right?
REPRESENTATIVE LAMAR SMITH (R-TX): Yes.
MR. KRIKORIAN: – during the 1996-96 debates that were sparked by Barbara Jordan’s immigration commission recommendations. He is – has just come off a six-year term as chairman of the Judiciary Committee, which oversees immigration. He’s now chairman of Science but is still on Judiciary, hopefully still be on the immigration subcommittee. And not only has he been doing this for a long time, but Congressman Smith really is one of the thought leaders on immigration in Congress, and so we’re very fortunate to have him here to give us his thoughts about what past amnesties tell us about how this current one, if – this current debate, and if it were to succeed in Congress, how an amnesty might play out.
And then we also have some – several CIS experts – Jessica Vaughan, David North and Jon Feere, to talk about different aspects of that – David North has been doing immigration even longer than Congressman Smith, for some 40 years has been researching the immigration issue and labor-related issues, actually followed directly the implementation of the 1986 amnesty on various grants doing reports and actually going to the offices where people were being interviewed – I mean, this is real granular stuff – and saw it in a firsthand way and has a body of knowledge and experience on how this sort of thing works that really doesn’t exist on any side of the debate anywhere.
Jon Feere is our legal policy analyst and will be talking some about how the DACA amnesty, the Deferred Action for Childhood Arrivals – this is the president’s unilateral Dream “light” amnesty – how the application of that, what that tells us about how this administration might undertake the implementation of some new broader amnesty.
And Jessica Vaughan, who’s our director of policy studies at the Center for Immigration Studies, has very extensive experience in how law enforcement and federal immigration authorities interact. And so she’ll be talking some about this administration has done that and what that tells us about how an immigration deal might play out.
So the congressman has to leave after he makes his comments, so I’d encourage him to come up. You can go to the podium or here, wherever you’d like to speak.
REP. SMITH: I’ll just stay here.
MR. KRIKORIAN: OK. Very good.
REP. SMITH: All right.
MR. KRIKORIAN: So Congressman?
REP. SMITH: Mark, thank you, and thank you for including me in this wonderful forum today. Frankly, I don’t know of anyone who is more knowledgeable or more honest about the subject of immigration than Mark Krikorian. He also helps – keeps others honest as well, which – and provides a real service in that way too.
Let me sort of apologize to my co-panelists up here at the outset because my prepared remarks are probably a little on the long side, and so I’m going to focus a little bit on DACA too, as Jon is, in just a minute. But I appreciate their forbearance in that regard. And then also, as Mark said, unfortunately, my new committee responsibilities require me to have a meeting shortly after I finish here, so I’m being pulled by one committee to another.
But let me go on and start. And then again, I appreciate you all being here and appreciate the interest in the subject. And I just can’t resist saying at the outset, too, that I don’t know of any subject today that Congress deals with that is more sensitive, more emotional, more controversial or more intractable than the subject of immigration, but it’s important because it absolutely impacts every aspect of every American’s daily life. And that’s one reason we’re here, and that’s one reason we need to devote a lot of time and attention to this subject.
Well, from the outset, the Obama administration has ignored U.S. immigration laws, and it has imposed its own immigration agenda on the American people without respecting the legislative process. This became abundantly clear in December 2010 when a memo written by top U.S. Citizenship and Immigration Service officials was leaked to the media. The USCIS memo suggested that the Department of Homeland Security take steps to legalize millions of illegal immigrants through its administrative powers. It specifically stated that the Department of Homeland Security could, quote, “grant deferred action to an unrestricted number of unlawfully present individuals,” end quote, and has suggested that it grant deferred action to illegal immigrants who would be eligible for relief under the Dream Act, end quote, and those who have lived in the U.S. since some particular date.
After that memo was leaked, I asked USCIS about it. USCIS told the immigration subcommittee staff that they had rejected many of the suggestions in the memo and that the memo was simple a, quote, “brainstorming exercise,” end quote. But we all know that these memos were drafted in the context of great political pressure by the administration to legalize countless illegal immigrants through administrative action. And in June 2012, despite their reassurances, the administration announced an administrative amnesty for illegal immigrants who had come to the U.S. before the age of 16, some of whom would be covered if the Dream Act was enacted. The program would be called Deferred Action for Childhood Arrivals, or DACA.
But this was a shock only if you had taken the president at his word on this subject, because on March 28th, 2011, President Obama said, quote, “with respect to the notion that I can just suspend deportations through executive order, that’s just not the case because there are laws on the books that Congress has passed. … The executive branch’s job is to enforce and implement those laws. … There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president,” end quote. Just over a year later the president not only had ignored the intent of immigration law but also had broken his specific commitment to the American people.
Based on the president’s record, the first lesson we can learn from the DACA implementation is that you simply can’t always believe what the president says. That is worth remembering when considering how a large-scale amnesty could be implemented. For example, to be granted DACA, the illegal immigrant must meet the following basic requirements, and I’ll run through them here real quickly: have come to the United States under the age of 16; have continuously resided in the United States for at least five years preceding June 15th, 2012 and to have been present in the United States on that date; is currently in school, has graduated from high school, has obtained a General Education Development certificate or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise does not pose a threat to national security or public safety; and is not above the age of 30.
After Secretary Napolitano announced DACA, it became clear that there was little, if any, planning in place regarding the actual implementation of DACA and the processing of DACA applications. DACA was announced on a Friday, of course, and the following Monday, the heads of USCIS, ICE and Customs and Border Protections held a stakeholder conference call during which USCIS Director Mayorkas began by stating that they were, quote, “not in a position to answer many questions about the process,” end quote. A month later, at a July 13th, 2012, briefing by John Sandweg, counselor to the secretary of the DHS, immigration subcommittee counsels were told that there were a lot of questions to which the administration was not going to be able to give detailed answers. Question after question were met with the words: That has not yet been decided.
Nevertheless, on August 15th, 2012, USCIS began accepting DACA applications. As of December 13th, 2012, USCIS had received 368,000 DACA applications and approved 103,000. While 12,000 had been rejected, that does not mean they were denied; USCIS refuses to release the number of denied DACA applications. If history is any indication, DACA will be accompanied by significant levels of fraud. Remember that it is estimated that nearly two-thirds of the applications for special agricultural workers in the 1986 amnesty were fraudulent – two-thirds.
USCIS lists the types of documents that are accepted as proof of each of the requirements a DACA applicant must meet. For instance, as proof of identity, USCIS accepts a passport, national identity document from the applicant’s home country, birth certificate with photo identification, school or military ID with photo, or any U.S. government immigration document with a name and photo. As evidence that a DACA applicant came to the United States prior to their 16th birthday, USCIS accepts a school record from a U.S. school, travel records or medical records. But there is no requirement that these records be certified or validated, and we all know that identity documents can easily be forged. Nowadays, they can be made on a home computer.
And USCIS admits that they do not have the resources to check whether documents are authentic – yet according to USCIS, the documents required as evidence of DACA eligibility must be independently verifiable. Of course, they are not doing that. But this process also must be cost-neutral. So fraud prevention and detection actions that are expensive or time-consuming, or that unduly impact USCIS’s other responsibilities, will simply not be utilized.
Equally as troubling is that DHS officials have consistently made clear to immigration subcommittee councils that if individuals commit fraud in the application process, DHS retains the flexibility to decide whether or not to prosecute fraud for fraud crimes. You can guess how many will be prosecuted. Not surprisingly, DHS refuses to answer requests for statistics about the fraud found in DACA applications.
Furthermore, the administration claims that DACA provides no path to citizenship, but advanced parole is a loophole in DACA that again contradicts the administration’s reassurances. Advanced parole is permission granted to qualified foreign nationals to allow them to re-enter the United States after temporarily traveling abroad. When I asked Secretary Napolitano at a hearing last July of the House Judiciary Committee whether DACA recipients would be eligible for advanced parole, she indicated yes, there may be cases in which is it granted. And once granted advanced parole, a DACA recipient can adjust immigration status to lawful permanent residence status either through a family- or employment-based immigration petition.
One other result of the Obama administration’s immigration policies, including DACA, is that immigration agencies that have historically been enforcement-based are now being turned into amnesty facilitation agencies. Take CBP. Under DACA procedures, when CBP officers encounter an illegal immigrant who appears to qualify for DACA at a CBP checkpoint on the U.S. interior, the officer cannot take the individual into custody. Instead, the officer must give the illegal immigrant a letter outlining DACA and stating that the individual should contact USCIS to apply for it. And if an ICE agent in the field encounters an illegal immigrant who appears to qualify for a DACA, the ICE agent is prohibited from taking the individual into custody. The agent must notify the individual either verbally or in writing that the individual should contact USCIS to apply for DACA.
From June to October 2012, as chairman of the Judiciary Committee, I sent 11 letters, some in conjunction with Senator Grassley, the ranking member of the Senate Judiciary Committee, to DHS and its immigration agency components, USCIS and ICE, regarding DACA and its implementation. I received only one formal response to these letters. I understand – we’ve been told through staff communications – that the White House specifically told DHS and its components not to respond to letters from members of Congress.
The DACA process is President Obama’s test run for a mass amnesty. Given the lack of detail, transparency and attention to fraud prevention, such a mass amnesty will provide legal status and ultimately voting privileges to potentially millions of unqualified illegal immigrants. This cannot be good for our country, our democratic institutions or our rule of law. As the facts continue to be revealed, I believe Congress and the American people will hold the Obama administration accountable.
Thank you, Mark.
MR. KRIKORIAN: Well, thank you, Congressman. You have to run, right?
REP. SMITH: I’m afraid I do.
MR. KRIKORIAN: OK – no, thank you very much.
REP. SMITH: Good to be with you.
MR. KRIKORIAN: Yeah. (Applause.) So now –
MR. : (Off mic.)
MR. KRIKORIAN: We’ll continue with the panel.
And David, would you like to – any –
DAVID NORTH: I will – all right.
MR. KIRKORIAN: Did you –
MR. KRIKORIAN : Well, I think we’re going to go with Jessica.
JESSICA VAUGHAN: (Off mic) – with me – right –
MR. KIRKORIAN: Oh, OK. Oh, excuse me. David, we – you already worked out beforehand, I guess, and so Jessica’s going to go first. Sorry, go ahead.
MR. NORTH: That’s right.
MR. KIRKORIAN: Go ahead, Jessica.
JESSICA VAUGHAN: Thank you, Mark. And thanks to Mr. Smith for his years of leadership on the Judiciary Committee and Immigration Subcommittee. Yes, as Mark said, the president and his allies have launched another campaign for comprehensive immigration reform, of which massive amnesty – covering as many people, as many illegal residents as possible – is the centerpiece. And the goal is the same, but this time the proponents of comprehensive immigration reform are trying out some new arguments.
The last time, five years ago, the – one of the primary arguments put forward for comprehensive immigration reform was we can’t possible deport 12 million illegal residents. Can’t be done. Well, that was a false – therefore, we need to have comprehensive immigration reform and a massive amnesty. Well, that was a false construct back then, and it – and our work over the years since then often has been focused on demonstrating how it is possible to control immigration, illegal immigration. And that argument ultimately did – was not convincing at the time.
Now, it seems that the proponents have abandoned the we can’t possible deport 12 million people, and seem to be saying, well, we already are deporting many, many people from the country. We’ve built this – what’s been called a formidable machinery and impressive bulwark against illegal migration; therefore – in fact, we may have even gone a little bit overboard in what we’ve done in enforcement, and therefore it – now is the time to enact comprehensive immigration reform and amnesty.
The reality is quite the opposite. We don’t have – we have built some good systems to control immigration, but this is hardly the formidable machinery or foundation that is necessary before we can put any kind of legalization program in place. In fact, I would submit that far from, you know, a bulwark, what we really have is the largest executive amnesty that has ever been put into place by any administration, at this time. And what we need to do in – before – you know, understanding that, it becomes clear that, really, what’s necessary for us is that if we are going to even discuss a legalization program, we must – it’s critical that we lay the foundation for a system of enforcement and also a system of processing legal immigrants and anyone who would be legalized that has control and integrity. And those are the two elements that are now lacking: control and integrity. Why? Because in addition to all the fiscal costs and labor market distortions that result from an amnesty program, one of the most enduring lessons of past amnesties is that they inevitably beget more illegal immigration. And there are indications already that DACA has done just that.
But before I describe this foundation that needs to be in place, of control and integrity, I know some of you are out there saying, but wait a minute, hasn’t this administration deported more people than ever before? Deportations are running at what are called record-high levels. And so let me explain my insertion (sic) that we have the largest amnesty in place now.
First of all, DACA Program itself is a huge program. We have 300,000-some people who are in the pipeline now, but there is no real end date to this program. So we have no idea how many people are ultimately going to benefit from that program.
In addition, there are some other small administrative amnesties that have been implemented that I won’t spend lot of time on here.
But also, as the president himself has said, the deportation numbers are, quote-unquote, “a little deceptive” because they include large numbers of people who were apprehended by the Border Patrol, not by ICE; not in the interior of the country, where most of the burden of illegal immigration is borne by the communities that we live in.
ICE doesn’t actually publish the deportation numbers, so that you can see exactly how these apprehensions came about, but others, including Mr. Smith, have noted that they do include numbers of people that were never counted before, like people caught at the border, people given voluntary return who weren’t actually removed.
And so, you know, a large share of what’s called this formidable machinery is actually immigration that’s kind of happening at the edges of the system, either at the border or within, from the criminal justice system, not – definitely not at the workplace, for example. Workplace enforcement of course is an essential element to an effective immigration/law enforcement system.
And finally, we also have now in place policies that are called prosecutorial discretion that severely limit the ability of immigration enforcement agents and officers in exercising their authority and in carrying out the requirements of the law, which is that people that they encounter who are here illegally are subject to removal. Right now what ICE is pursuing is a policy that it calls – they go after the worst of the worst, and that – not only does it leave a lot of the worst offenders here, living here without fear of deportation; everybody else is exempt from the possibility of enforcement as well.
So what would be an effective foundation to get in place before we could start a conversation on a legalization program?
One of the handouts in your packets is a chart in which I wanted to set up and highlight the differences between the elements of an effective enforcement program and the current situation. And it’s pretty detailed. I know our communications team, when I handed that in as a handout for this event, were looking at me, going, are you kidding? (Chuckles.) This is really long and detailed!
But you know, to summarize, it’s basically – I mean, we know – it is boring and detailed, and the reason it’s boring is because we already know what has to be in place to enforce the immigration laws.
Operational control of the border. The latest GAO report, which – the Government Accountability Office, which does a great job of measuring in an objective way how effective our enforcement really is, has said we’re at about 61 percent, catching about 61 percent of people who are trying to enter illegally.
We need better control of legal entries also at the ports of entry. For example, we need a system that verifies that the people who are using some of the 9 million or so border crossing cards are actually the people to whom that card was issued. We don’t check that now. Most people are kind of surprised to hear that. But that’s essential. It’s an essential part of this foundation of control and integrity.
We need to keep track of who’s leaving because somewhere between 30 and 50 percent of people living here illegally came on legal visas and have overstayed them.
We need a universal workplace compliance and enforcement system that uses the tools like E-Verify and Social Security monitoring, together with actual workplace enforcement.
So again, these are not new ideas that – we know what has to happen. We simply haven’t had the political will to actually implement these programs that we know will work. And there’s ample evidence, both at the federal level and the state and local level, that these programs really work.
So in addition to having a foundation of control and integrity in – on the enforcement side, we need to have these qualities also present in our legal admission system, again, whether it’s going to be for people coming in on temporary visas, on green cards or immigrant visas, but also any program of legalization. And there are two parts to that.
The first has to do with fraud. And you can see by the poster over here that past amnesties have legalized huge numbers of fraudulent applicants, people who did not qualify and who perpetrated fraud to get the benefit.
We know that our legal immigration system is riddled with fraud. Unfortunately, USCIS, the agency that’s responsible for administering most of these benefits, does not publish the results of the studies that it does to determine the level of fraud within these programs, but we know from experts and from anecdotal information that it’s huge. Some people have estimated that the marriage visa program, for example, which is the largest one we have, brings in something like 400,000 immigrants each year, has perhaps a 25 percent fraud rate within it.
We’ve convened a group of experts, people – with experts in the field, to assess the state of our fraud prevention efforts within our legal programs, and we’re going to be coming up with some recommendations that are critical for policymakers to consider. But I think we all know that fraud is a huge program – problem and has to be addressed, and without the controls, potentially millions of people will benefit from future programs without these controls in place.
The other mechanism that helps control not only the fraud but just dealing with people who are may not have committed fraud but they simply don’t qualify for the categories that we have set up and for the categories of people that we’ve decided to accept – this is another critical – and, you would think, would be a given in any legal system, but is something that is absent from our system today. People who don’t qualify are not put on the path to removal, in most cases. They’re simply allowed to stay here. And that was a glaring problem with IRCA, as David will discuss, but also in other – in DACA too, which, has some of the same provisions that make that possible.
One example of that is known as the confidentiality provision. Under this provision, which was a part of IRCA and is also a part of DACA – and the language has been put in, for example, the Bush-Kennedy amnesty plan from 2007 – is that the information on a benefits application can only be used to determine whether someone will get the benefit – in other words, in adjudicating that application. Not only will individuals who don’t qualify or who commit fraud not get the benefit, but they – under the current system they will not be referred for prosecution, nor will they be referred for removal. We obviously don’t have the resources to prosecute the massive numbers of fraud cases, but we can impose the consequence of removal, which is what should happen, and we’re not doing even that.
This is a legal loophole, the confidentiality provision, that really destroys the integrity of the program because people are allowed to stay here even though they didn’t qualify for the benefit.
And so the absence of mechanisms to reduce fraud and remove unqualified applicants really has to be a deal breaker in any discussion of a legalization program. And I think we need to watch in the coming debate what happens, and you’ll be able to see – if the proponents of legalization programs can’t accept even these most basic forms of control and integrity in the process, then they really aren’t serious about making sure that we have control and integrity in the system and are not really looking for a compromise but simply a massive general amnesty.
So those are – you know, that’s one of the key elements that, as I said, you can watch to determine how serious people are.
So I’m going to stop there and turn it over to Jon to David to talk more about DACA and more about IRCA and what we can tell from those programs to inform the debate. Thank you.
MR. KRIKORIAN: Thank you, Jessica.
Jon Feere now, our legal policy analyst.
JON FEERE: Thank you, Mark. Thank you, Jessica. Thank you, David.
Despite all the reasons for not moving forward with a comprehensive bill just listed by Jessica, we may nevertheless see an effort at some sort of a large-scale bill before President Obama’s second term is up, if not this year, according to The New York Times article from yesterday.
There are at least three reasons why a comprehensive bill, in and of itself, is possibly problematic. First, the negotiated terms, as written on paper, often operate differently in practice. Second, advocates of high immigration are disingenuous in their support for comprehensive bills. And third, the enforcement portion of comprehensive bills never seems to materialize, and presidents always seem to limit the scope of enforcement provisions on their own.
As to the first point, the terms “immigration legalization programs” are often presented as one thing but in practice are quite different. The most recent example to really highlight what we should expect in a future immigration bill is President Obama’s deferred action program, which we’ve heard a little bit about. There are a number of myths, if you will, repeated by the Obama administration and the media about the components of the deferred action program. The goal of high immigration advocates, oftentimes, is to paint a picture that voters can embrace, even if that picture is somewhat inaccurate. A few examples highlight this phenomenon.
First, there’s always a problem with the numbers. The public wants to know: how many illegal immigrants are we talking about legalizing? Amnesty advocates regularly lowball the number, understanding that the public is weary of massive immigration programs. As soon as President Obama announced his deferred action program, his staffers claimed that it would benefit only 800,000 people in the country illegally. Soon after that, we started fielding phone calls from a number of journalists asking us where that number had come from; we had no idea.
Our director of research decided to run the numbers himself based on the terms of deferred action, and he found that, in reality, the number was somewhere around 1.5 million. The Pew Hispanic put it at 1.7 million. It turns out that the original estimate being sold to the public was maybe half of what the actual number would be. But these estimates assume no fraud. Again, as was mentioned, the number of qualified applicants is not the same as the number of people who will actually benefit under an amnesty.
And, as has been pointed out, amnesties are notorious for fraud. In 1989, a years after IRCA, the Brookings Institution’s Roberto Suro accurately pointed out that the amnesty was one of the most extensive immigration frauds ever perpetrated against the United States government – that’s a direct quote. He noted that, quote, “federal officials and immigration experts placed the number of fraudulent application at somewhere between 250,000 and 650,000,” end quote. In fact, today we know the number might have been even larger. It is more than likely that the deferred action program and future immigration bills will benefit thousands of people who are technically ineligible.
Another claim that we see with comprehensive bills and with the deferred action program is that they are written to not benefit those who have a criminal history. There will be a background check, it’s claimed. It sounds good; in reality, under DACA, applicants can have extensive criminal records, provided they have not been convicted of a felony, a significant misdemeanor or three or other misdemeanors. This means that an illegal alien with two misdemeanors would not be barred under the DACA program. These misdemeanors include things like petty theft, possession of drug paraphernalia, public intoxication, fleeing from an officer, disorderly conduct, vandalism, indecent exposure, prostitution, trespass – but that’s only half the story.
The timing of the misdemeanors is significant as well in that multiple misdemeanors may only count as one strike against the applicant. As USCIS explains in its DACA guidelines, if an applicant is ineligible – an applicant is ineligible if he has three or more misdemeanors, quote, “not occurring on the same date and not arising out of the same act,” end quote. In other words, an illegal immigrant who commits a handful of misdemeanors during one incident will see those crimes counted as one misdemeanor for purposes of DACA. An alien who commits an additional series of misdemeanors at a later date, provided they don’t happen at one event, those would, again, only be counted as a second misdemeanor. He would still qualify for deferred action.
Amnesty advocates also point out that illegal immigrants are deserving of legalization because they’re already here working. Of course, illegal immigrants who hold jobs have acquired their positions through deception, through fraud, and are often engaged in identity theft, social security fraud, I-9 form fraud, just to name a few examples. And while this lawlessness creates real victims, it’s unlikely to turn up in a background check, because most illegal immigrants have not been prosecuted for these crimes as a result of the Obama administration’s existing policy of giving so-called low-level offenders a pass.
Now, there are many other features of amnesty bills and legalization bills that operate differently than one would expect. For example, the learn English requirement was never actually written in a way so as to actually require illegal immigrants to learn English. Attending a few English courses was sufficient under IRCA; the requirement that deferred action applicants must prove they lived in the United States for five continuous years isn’t what it seems. Under immigration law, an alien seeking naturalization must also prove five years of continuous residency, but that can still be met if the alien has been absent from the country up to six months – even multiple six-month absences in the course of five years is not a problem. The point is that the negotiated parameters of immigration bills are usually quite different in practice.
The second point: advocates of high immigration are disingenuous in their support for comprehensive bills. History shows us that, for the most part, they’re only after the legalization portion and will do everything in their power to undermine the enforcement provisions as soon as the bill becomes law. Here are two reports, authored only a few years after IRCA was passed – one by La Raza and one by the ACLU.
The law had only started to roll out, and yet both the ACLU and La Raza were calling for an end to workplace enforcement. And that was the crux of the enforcement provisions of IRCA. What makes this even more interesting is that the La Raza report was authored by Cecilia Munoz, who now operates out of the White House as President Obama’s chief immigration adviser. In this report, she wrote, quote, “Congress should repeal employer sanctions,” end quote. She even argued that Congress has a, quote, “moral obligation to repeal employer sanctions,” end quote. And one of the reasons that Munoz claimed that employer sanctions should be eliminated was because she felt the sanctions were uneven and inconsistent. And they make the same argument today.
Of course, things could have been made more consistent by making E-Verify a standard part of the hiring process, just like filling out an I-9 form is. This would be effective, it would be consistent, but La Raza and the White House do not appear interested, and that’s because honest immigration enforcement is really not what they want. Remember, these same groups, including the White House, sued Arizona all the way to the Supreme Court to stop the idea of states mandating use of E-Verify.
Interestingly, in this report, Munoz also seems to point out that mass legalization programs really don’t work. She wrote, quote, “NCLR estimates that the size of the undocumented population today” – this was in 1989, 1990 – “perhaps three to four million persons, equals that of the early 1980s, when the debate over IRCA took place. In the wake of this one-time-only program, the nation appears to be left with at least as many undocumented people as when it first considered these proposals,” end quote.
In other words, amnesty didn’t work then to reduce illegal immigration, and it won’t work today, unless we see robust immigration enforcement across the board. These reports tell us two things. First, the goal of these advocates was not to amend IRCA, not to improve sanctions, not to make them more efficient. No, the goal was to end workplace enforcement altogether, and they continue to advance that cause.
The second point is that advocates will call for another amnesty, just as they did in this report only a few years after IRCA when it becomes clear that amnesty doesn’t work for reducing illegal immigration – in fact, makes it worse. The third point is that the enforcement provisions of comprehensive bills never seem to materialize. Presidents tend to limit the scope of enforcement provisions, and President Obama has given plenty of reasons to believe he will not vigorously enforce immigration provisions in a comprehensive bill.
The question that many people are contemplating is whether President Obama can be trusted to honor a grand bargain on immigration, because if he cannot – if the enforcement provisions will not be vigorously enforced, then we’ll simply end up in 10 years or sooner exactly where we are today with millions more illegal immigrants in the country; there will be calls for another amnesty, and the press club will be fielding another panel discussion just like this.
On the other side – and in fact, I should also point out that the 1986 amnesty – IRCA – was not the last amnesty we had, as Jessica alluded to. There have been at least six amnesties since then. They have never reduced illegal immigration. On the other side, we’ve had enforcement-related bills. The big one was in 1996 – the Illegal Immigration Reform and Immigrant Responsibility Act. Even though last week, the director of the migration policy institute referred to the 1996 law as a scorched Earth policy, the reality is that the White House administrations have narrowly interpreted the scope and the intention of these enforcement tools provided in the 1996 act. And a couple of the examples are vivid and hint at what we should expect in future bills containing enforcement provisions. First, expedited removal is a program that came out of the ’96 law which allows illegal aliens without an asylum claim to be quickly returned home without a lengthy trial or the involvement of immigration judges.
As written by Congress, the policy applies to nearly any illegal alien apprehended anywhere in the United States provided they have not been continuously present in the United States for longer than two years. However, successive administrations have not implemented expedited removal to the extent the law allows, and our other panelist, Congressman Lamar Smith, was one of the ones who coauthored this bill. The Clinton administration implemented expedited removal only at a few ports of entry, while the Bush administration decided not to use the expedited removal process for Mexican or Canadian aliens, with rare exceptions.
Today, expedited removal is being used – only being used for aliens apprehended within 100 miles of the borders, and only if the alien is apprehended within 14 days of entry. Rather than expand immigration enforcement, administrative changes have narrowed application of an enforcement program authored by Congress that could save the country millions of dollars while discouraging illegal immigration.
A second example to come out of the 1996 immigration law is the 287(g) program, which allows state and local law enforcement to assist federal immigration authorities in carrying out immigration enforcement. The program has identified hundreds of thousands of illegal immigrants for removal, with the help of over 1,300 state and local officials and 25 states. As soon as President Obama took office, the ACLU came out with a report calling for an end to the 287(g) program. Now, the report is full of hyperbole, like comparing state and local enforcement with the internment of the Japanese during World War II. I’m not making this up. And it was full of inaccuracies. They claim that 287(g) was written for the purpose of removing only aliens convicted of violent crimes, but no such distinction is in the statute.
But it didn’t matter. The Obama administration took the ACLU report to heart and immediately started scaling back immigration enforcement. Through administrative action, the Obama administration made violent offenses such as murder, manslaughter, rape, robbery and kidnapping virtual prerequisites for immigration – for deportation. In other words, people now had to be seriously injured before immigration laws are taken seriously. That’s not a benefit to public safety, and that was never the intent of Congress.
But it gets worse. Early last year the Obama administration decided to terminate seven task force agreements that ICE had with Arizona, as Jessica has written about. Apparently the immigration task forces were too successful. Then right for Christmas, a few weeks ago, President Obama thought no one was paying attention, so he terminated 32 task force agreements. This is unfortunate because the program has taken many dangerous people off the streets.
If we look at the past four years under the Obama administration, nearly every effort the president has made on immigration has been designed to weaken immigration enforcement and to change things administratively in a way that benefits those who are here illegally. His record makes it difficult for Americans who support the rule of law to trust the administration with comprehensive bills.
Being short on time, I will leave it there.
MR. KRIKORIAN: Thank you, Jon.
And finally, David North, a CIS fellow, will tell us some about how this played out the last time we had a big amnesty program. David.
DAVID NORTH: Thank you, Mark.
First of all, we in this row know something that you at the back of the room don’t know, and we want you to act on it. There’s an empty seat up here. (Laughter.) Further, there’s plenty of standing room if you’re going to stand along the far side of the room. No cameras in the way, and we urge you to come forward and take advantage of that.
I will talk to you about amnesty’s past. And I am appropriately bearded for that occasion. (Laughter.) We had a major experience with comprehensive immigration reform back in the ’80s and the ’90s, and we should review what we learned or should have learned before entering those waters again.
Let me outline what happened with the Immigration Reform and Control Act of 1986, full title IRCA, and then draw some lessons from those events. But first, as Mark suggested, I had some substantial contact with this activity. It so happened that both a major foundation, the Ford Foundation, and a minor government agency, the long-departed Administrative Conference of the United States, both asked me to review the operations of the IRCA program. And I did, and I spent a couple years at it in Washington and in the field, talking to the participants, the applicants, the regulators. It’s – the program’s friends and the program’s foes. So I have a – I have a bit of knowledge about that.
Now, let me tell you a little bit about the act. The environment at that time – this is 1986 and the years before – was less partisan and more rancorous than now. Congress was divided. The House then was in the hands of the Democrats, and the Senate was in the hands of the Republicans. And the Reagan administration wasn’t doing very much in terms of writing IRCA. They sort of sat back and let the Congress do it, which the Congress did do.
The key players at the time were the chairman of the Immigration Subcommittee, Senator Alan Simpson, whose absence from the Senate is regrettable, as is the absence of the ranking member of that time, Ted Kennedy. The two differed with each other on a number of issues, but they got along personally, and they respected each other, and their staffs respected each other. It was – it was a – that was good. Meanwhile, on the – on the House side, Congressman Mazzoli of Kentucky was the ranking – was the subcommittee chair and Congressman Lungren of California, who just left the House, was the ranking minority member. And these folks are the ones who actually put this together.
The bill called for a couple of different kinds of things. One is – one is enforcement. It called for employers to verify the legal presence of their workers in the United States and created penalties if they didn’t do so. Now, it’s called employer sanctions. It also created – this is IRCA – also created four and soon to be six separate legalization programs for different groups of unauthorized aliens.
Each of the subprograms related to a different constituency. Each had a different set of eligibilities. Some had different filing schedules. Some had different reward systems. These complexities led to many administrative headaches and ultimately caused the program to be wider and more tolerant of fraud than had been expected in the first place.
Let me just run through very quickly what these programs were – the subprograms, if you will. The pre-1982 was the – was the prime program. This is for people who had been illegally in the country on January 1st, 1982, and were still there in the application period, which was in ’87 and ’88. And there are about a hundred and – there was 1.6 million people who came through that program.
Then there were the SAWs, and this is where most of the fraud was, special – SAW stands for Special Agricultural Workers. The requirements were much less strict for this group. They had to say that they had done 90 days of illegal farm work. In another category, they claimed 270 days of illegal farm work. And there were a lot of folks who were fairly urban types – a lady in a mink coat who applied in New York City, for instance.
There were 10,000 applicants for farm worker categories who lived in New York City. There were people who, when asked, well, what equipment do you need for picking strawberries? And somebody would say, well, got to have a ladder. So there was some problems. Now, there were also some genuine farm workers who came forward and were approved. But there was a lot of problems in the SAW program.
Now, that’s the second. The third group were the Cuban-Haitian refugees who were then given legal status. Then there was another group – the registry group. They had been here since 1972. That was obviously a fairly small group, but there were special rules for them. A little later on, the – there became a provision for the admission of about – no more than 150,000 dependents of the primary beneficiaries. These were to be admitted outside the normal workings of the immigration law, which is extremely generous, to their relatives. But this was 150,000 more.
And finally, there were some folks from Uganda, Poland, I think, Ethiopia, who were in what now would be called Temporary Protected Status, TPS. Then it was called Extended Voluntary Departure, which meant you didn’t have to depart at all. And they were – they were encompassed in the program as well. So there were four, five, six different programs running at the same time. And the staff had to figure out what was – what was – who was eligible for which one. And it made things extremely, and I think unnecessarily, complicated.
Let me suggest seven separate lessons that we can take from this – that experience in the ’80s and the ’90s. First of all, amnesties without real enforcement, such as IRCA, lead to just more illegal immigration, as my colleagues have said, and thus a demand for more amnesties. It’s a self-repeating process. Secondly, it’s hard to administer complex, multipart programs, and any comprehensive immigration reform is likely to be – likely to have those characteristics. Smaller, narrower programs work better.
There should be no program specifically for farm workers. Agribusiness will surely distort and exploit a program were it to be enacted, which certainly happened in the case of the SAWs program. Yes, there were individual farm workers or alleged farm workers who were getting their green cards illicitly and then there, on a very broad scale, agribusiness was encouraging that sort of activity. In fact, they funded several nonprofits to help farm workers apply, despite very dubious records, in many cases.
The fourth thing was that the amnesty program is not something that you can turn on and turn off. Within the packet that most of you got, there is a package that says backgrounder on it, which I did, and in that – in that backgrounder, there is a table 1 which shows for every year since 1988, the number of IRCA-related admissions, and they were still going through the process in 2012. It went on for 20 – close to 25 years, so far. And it’s going to keep going. So amnesties are forever, and there are some statistics that sort of – sort of produce that.
In addition to the 3 million primary beneficiaries – I count a little different than that table up there, which is 2.7 million; I think I have a better set of definitions when I say 3 million people were legalized – in addition to them, there was – there was something like four different follow-on populations – not one, not two, not three – and these are relatives who are seeking to come in or have come in, or are here illegally who are related to the primary worker beneficiaries. So there is not just the initial number of folks who were apparently eligible or maybe not eligible who apply, there’s this enormous follow-on. And this in turn has gummed up the relative preferences; the backlog of relative preferences are something like 4 million worldwide. Many of them are in Mexico, many of them relate to IRCA, and some people are waiting 15, 20 years to get in. Or they’re not waiting, they’re in the United States illegally and hoping that their number comes up ultimately. So there’s this follow-on; it isn’t just the multimillions that may not be eligible, it’s the ones that they would bring in. So that’s a problem which is very rarely discussed.
Nor is the question of fraud, and we’ve talked a little – we’ve all talked a little bit about this. And fraud relates to the fact that there are people who want this benefit, and who are not eligible, and the other fact, which is that the government isn’t very strong about this. Now in IRCA’s days, the government insisted that SAW – that all legalization applicants be interviewed. Doesn’t that sound like a sensible thing to do? But no, not now, DACA requires no interviews at all. There may be some for special cases, but there is no routine interviews, so you just simply file your papers, and cross your fingers. But in the – in IRCA, there was – there at least was a formal requirement that you actually had to talk to somebody.
And as a matter of fact, the decision, however, in IRCA – and this is sad – was not made by the first-line interviewer. The decision was made off in one of the four regional offices by some people just looking at the paper. And one of the things that we found – my colleague and I, when we were doing this research – was we found some unpublished INS data showing 882,000 legalization office-recommended denials as of March 24th, 1989, and the total number of denials in the program was something like 300,000. So in half a million cases, the back office staff, urged on by the leadership, said, no, that’s OK, they can – they can come in, even though the person who actually had a face-to-face interview said, I don’t think this person is here legitimately.
One other instance of the way the INS faded in its efforts to defeat fraud toward the end – and this is something the Obama administration might very well do, too – is that at one point, an INS assistant commissioner, who will remain nameless, though I think he’s still in the government – though not in INS – announced that they had $50 million in what he called excess application fees for the SAW program, so the government decided they’d buy computers with that. They wouldn’t use that $50 million to sort out fraud, they’d use that money instead to buy themselves a new set of shiny computers. So one of the – one of the lessons that should be stressed in all this is that, A, you should certainly spend all the money that you get from the application fees on the program itself, and not let the money go to some other point.
Finally, one of the things that we’ve seen are these follow-on migrations that are sort of inevitable, given the current state of the law. One of the things we might do if we do have another amnesty – which I think is a bad idea – we do one of two things: First of all, we might decide – and this would be the best – that we’re going to get rid of a lot of these relative provisions in the law that allows you – allows citizens and green cards to bring in their relatives, including if you get to be a citizen, you can bring in not just your brothers and your sisters, and your sisters-in-law and your brothers-in-law, you can bring in your nieces and nephews. Now, somebody might regard that as nepotism, but it’s built into the immigration law now, and that obviously should go out, if there’s to be any kind of amnesty at all.
The other possibility, which is a little less attractive, is to say to the newly legalized people, OK, you can spend the rest of your life here, you can be here legally, but you’re not going to bring any relatives. So you have a different set of benefits to the newly-legalized. And I think we should be very clear that we’ve got to have one or the other, or else we’re going to have these follow-ons of millions and millions after the first millions and millions.
So I would suggest that we think about that, and that’s something that I don’t think the White House has talked about at all. Thank you for your attention. Thank you.
MR. KRIKORIAN: Thank you, David.
We have a few minutes for questions. I’ve never had an immigration event where we didn’t provoke somebody to ask questions, so when you – please raise your hand and identify yourself before asking your questions. And no speeches, just please ask a question and we’ll get to it.
Q: (Off mic.)
MR. : Use the mic, please.
Q: Hi, Joanna Anderson with CQ Roll Call.
I just wondered if you – if some of the proposals that you’ve put forward in terms of enforcement, or limits on sort of family, carry over. If some of those were included in an immigration bill, would you be receptive at all to any sort of amnesty, whether limited or broader in scope?
MR. KRIKORIAN: Well, I mean – I’ll let other people talk, but as far as the enforcement parts go, the point is those things have to be in place and functioning before you can have a conversation on the amnesty; that’s the point. See, if it’s in a piece of legislation, then, you know, it just exists in paper, or in ink or bytes. I mean, it doesn’t – in Washington, we seem to think that once something’s actually written down, it actually exists, when in fact – for instance, just to give one example, e-Verify: e-Verify exists, it’s working, it’s actually – you know, it’s – for a federal government program, it’s working out OK. But to make it mandatory to apply to all new hires is something that will take a while, have to be phased in, the opponents of immigration enforcement – the Chamber of Commerce, AFL-CIO/ACLU axis will wage kind of scorched-earth war in the courts to prevent it. And so all of that, it seems to me, has to be finished before you can have a conversation on amnesty.
So the point is not that legalization somehow is so out of the question and beyond the pale that it can never be discussed, but the prerequisites of it can’t be met on paper; they have to actually exist and function and pass judicial muster and be funded before, it seems to me, you can even talk about the rest of it. I – does anyone else have any thoughts on that?
MS. VAUGHAN: And just that the – this idea of an effective foundation is not just in immigration law enforcement, but also in our system for admitting legal immigrants. And that has to do with the two points – the two prongs of preventing fraud and also making sure that those who don’t qualify, whether because of fraud or simply because they don’t meet the requirements that we establish, are put on the path to removal, and that that’s carried out. So those are like a foundation and a prerequisite, and then of course, there’s discussion of, you know, what is our level of legal immigration going to be? What kind of offsets are we going to have to compensate for whatever size population is determined to be legalized?
MR. KRIKORIAN: David, what – David had something to say.
MR. NORTH: Oh, let me just say one thing in support of what my two colleagues have just said. A benchmark: In the ’80s, we were taking in about 600,000 immigrants a year; that was sort of par for the course. That is what you should measure that legalization by. About 3 million people came in in a great burst. In other words, half a decade’s worth of immigrants came in because of that legalization program.
So you’ve got to be aware of the numbers. This room is crowded. It’s a symbol of the United States of America, which has probably too many people in it. I don’t want to get rid of anybody in this room particularly, but we should be aware of the crowding. And if we’re not aware of the crowding, then we will continue to do what the White House seems to be tending to do, which I don’t think is a good idea because it’ll just simply lead to more amnesties, more illegal immigration and yet more crowding, and I think we’re crowded enough as it is.
MR. KRIKORIAN: Just one follow-up, and then you.
Q: So you – you’re saying you would want to see enactment of more enforcement measures before –
MR. KRIKORIAN: Yeah, absolutely.
Q: – you’d be receptive to any sort of increase of amnesty.
MR. KRIKORIAN: I mean – I mean, look, we don’t – we’re not – you know, we’re not elected officials, but it seems to me it’s – that you just cannot talk about any kind of significant legalization program until you have actually existing in place the means to ensure you don’t just have another one 10 years down the road.
MS. VAUGHAN: That is working, not –
MR. KRIKORIAN: That is working, yes. Yes, ma’am. In the back.
Q: I was going to say –
MR. KRIKORIAN: If you could identify yourself, please.
Q: My name is Catherine Haala –
MR. : Wait for the –
MR. KRIKORIAN: And your affiliation, please.
Q: I’m with Cross Check Identification System International. And our feeling is that E-Verify is effective for those who use it, but what illegal person is going to go to someone who uses E-Verify? No one.
What company that uses illegals is going to use E-Verify? So our feeling is that unless you have a system that runs throughout our society, it just isn’t going to work, it’s going to drive more and more people underground. And my question to you is, do you think you’d be willing to look at a system that does run throughout our society, a border within our border, so to speak?
MR. KRIKORIAN: I mean, yes, that’s kind of the point of mandating E-Verify, universal use of E-Verify before you even continue with the rest of the discussion. Congressman Smith, in fact, had written legislation in the past Congress and had gotten it approved by the Judiciary Committee to do just that. So yes, it seems to me that’s actually – I mean, that’s almost the beginning of the discussion even just on enforcement beyond anything else.
MR. FEERE: Let me also add to that, Mark.
MR. KRIKORIAN: Sure.
MR. FEERE: If President Obama feels that he can administratively grant work visas to millions of people who are here illegally without congressional input, then I think he should also feel that he should have the ability to mandate E-Verify across the country. Why not? Clearly, he’s chosen against that, which indicates he’s not that interested in immigration enforcement.
MR. KRIKORIAN: Next question? Sir? Yeah.
Q: Jim McDonald, Alexandria, Virginia. I have a sister-in-law who wouldn’t bother to be in the red quadrant over here, and she’s been here several times. Do we – can we expect or is there past history that, like, in the Philippines, there will be facilities available so you can kind of get your – you know, fill your valise with the proper-looking paperwork, I mean, or do they – who do they need to talk to? Frank Sherry? Rick Schwartz? Biv Zogby (sp)?
MR. KRIKORIAN: David, any – was there any experience –
Q: – the broad stuff’s going to exist, and my sister-in-law’s ready. So –
MR. NORTH: There – fraud comes in all sorts of forms and with all sorts of companions and co-conspirators. And I would worry that it certainly will happen again. I don’t quite know exactly what the format will be, but it will depend on the exact rules.
I mean, people who do something fraudulently often do it fairly skillfully, and they know what the rules are and what they can bend and what they can try to prove that they really can’t prove. So I expect a lot of it, yeah.
MR. KRIKORIAN: Along those lines, I think it was – I remember speaking to some congressional staff about the DACA Amnesty, the DREAM Act-lite. And apparently, a disproportional number of applicants have been home-schooled, something that was not widely known before the amnesty program was implemented.
Did you have something?
MS. VAUGHAN: Yeah, I was going to mention that as well. And also, I mean, we’ve even seen some – a burst in a flow of unaccompanied minors in Massachusetts, where I live, in one particular town. This was – there are some – this has been noted in the border areas, and already these individuals are being relocated to places around the country just because they say that they have family in one particular town in Massachusetts, where they’re now the problem of the local school board.
Nobody knows who they are, how they got here really. Do they have family, but the responsibility is now of the school system to enroll them and take care of them. So it does inspire more illegal entry as people try to take advantage of it.
MR. KRIKORIAN: Any more questions? Yes, sir. In the back. If you could identify – wait for the microphone.
Q: Yes. Robert Vandervoort with ProEnglish. You mentioned earlier there were some English language requirements in the 1986 IRCA. I wonder if you could expand on that some and what their effectiveness was or was not.
MR. NORTH: OK. I talked about it – there being multiple programs. There was an English requirement in the pre-’82 program but not in the SAWS program because the agricultural interest didn’t want to do anything that might hamper the expansion of the labor force. But with the pre-1982 program, which is the main program in IRCA at that time, there was a requirement that was not – as I said, there was no requirement in the SAW program, there was in the 1982 program. And one of the things that you could do is if – you could take a test. You could test your way out of this. Well, practically, nobody did that.
Another thing that you do is enroll in a course. And you didn’t have to finish the course, you needed a document from the people who are running the course, who are essentially – probably friends of yours or certainly very tolerant, indicating that you were making substantial progress in your – in the course, and that would do. So there was a nominal requirement – I think it’s probably the first time that the Congress ever laid on something like that – there was a nominal requirement for part of the IRCA program for some civics and English education. And it really wasn’t enforced very much.
I’m sure that there were some people who got something out of these programs and some people who actually finished them. And so it was mildly useful but it was not – it was not – it was not terribly vigorously enforced.
MR. FEERE: These type of requirements are designed really to elicit support from the American people, but when practiced, they’re always quite different.
One of the things we hear quite often with deferred action is that – and we see the kids who are going on to be college scholars, 4.0s. But if you look at the actual way the policy is written, you don’t have to graduate from college, you don’t have to graduate from high school even. You simply have to be enrolled at the time you fill out your DACA application.
So when you see these surveys that the public supports these type of amnesties, the reality is they’re voicing their opinion on something the White House and the media has created, which is quite different from the actual policy in practice.
MR. KRIKORIAN: And one last point along those lines. There’s much in the legislation – in any proposed legislation – that really is just designed to garner votes and then be discarded afterwards. And I think, actually, one central element of so-called comprehensive immigration reform is like that, which is the fines that illegal immigrants supposedly will pay, not the fees. In IRCA, there were fees, they had to pay processing fees. Those they’ll probably do because the government wants the money for processing. But, you know, $10,000 fines, this sort of thing. Every piece of legislation like this will have a waiver.
And how many, you know, landscapers are going to be able to afford a $10,000 fine? Everybody will get waived. Almost – very few people will pay the fine, but it’s there only to get Republican votes. So it’s actually – I think there’s a – the language provisions, the fine provisions, it actually is a lot in any comprehensive immigration reform proposal that is just window dressing. It’s what Senator Moynihan, the late Senator Pat Moynihan years ago called – in a different context called “Boob Bait for Bubba.” It was just there to fool people into thinking that the legislation was something that it wasn’t.
I want to respect people’s time and wrap it up now. Thank you very much, all, for coming. Our whole event will be online at our site, cis.org, within a day or two. David’s paper on IRCA and the lessons from it is online; the one you have in your pack. And everyone here is willing to be accosted afterwards if you have further questions. So thank you for coming. (Applause.)