Posted by Curt on 20 May, 2007 at 5:03 pm. 4 comments already!


After reading Hugh Hewitt’s analysis of the Immigration Reform bill I would have to agree with him that it needs LOT’s of work. He has broken down his analysis into 8 parts for each section.   Since he has done a ton of legwork I am going to go over his analysis of the bill.

First lets get into the triggers that are supposed to occur before the act can go into effect:


(a) With the exception of the probationary benefits conferred by Section 601 (h), the provisions of Subscetion C of Title IV, and the admission of aliens under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by Title IV,

(i)the programs established by Title IV of this Act; and (ii)the programs established by Title IV of this Act that grant legal status to any individual or adjust the current status of any individual who is unlawfully present in the United States to that of an alien lawfully admitted for permanent residence,

shall become effective on the date that the Secretary submits a written certification to the President and the Congress that the following border security and other measures are funded, in place and in operation:

Translation: Except for those illegal aliens qualifying under Section 601(h), no illegal aliens can obtain new status until the Secretary of Homeland Security sends the president and Congress a letter saying all triggers have been met.

The proposed bill goes on to detail the triggers which include the  hiring of Border Patrol agents until 18,000 are on staff, the construction of at least 200 miles of vehicular barriers and 360 miles of fencing, the end of  "catch and return," the establishment and use of new enforcement tools designed to keep illegals from working, and the processing of applications of aliens for Z status.

Which sounds fine and dandy but wait till you read the exceptions to the triggers.

Then we have Title I in which they promise a lot with no guarantee of funding:

*the proposed build-up in Border Patrol agents (Sec. 502),

*much discussion of biometric data,

*an odd amendment to the existing law that appears to allow catch and release to continue but only after the posting of a $5,000 bond (Sec. 113(4)),

*a section promising to study "border security on certain federal land" which invites the U.S. Fish & Wildlife Service into the action –an ominous development for anyone wanting construction of the border fence to proceed quickly and free of the Section 7 consultation provisions of the Endangered Species Act,

*a long provision on the creation of a National Strategy for Border Security in Section 127 which leaveS us wondering why not develop the strategy first and implement regularization later (answer: no one will care what the strategy is later),

*another study in Section 128 on the Border Patrol’s training and capacity (Section 128),

*instructions to train Customs and BP agents in fraud detection, a grant program of $50 million annually for law enforcement agencies in communities impacted by illegal immigration (but with no requirement that the grantee agencies cooperate fully with federal authorities),

*another study –Section 133’s "Port of Entry Infrastructure Assessment Study", another plan, Section 134’s National Land Border Security Plan, a "demonstration project"

*Section 135’s "Port of Entry Technology Demonstration Program,"

*an instruction to the Secretary of Homeland Security to construct or acquire 20 new detention facilities in Section 137,

*and to top it all off in classic D.C. style, a new commission, the 17 voting member "United States-Mexico Border Enforcement Review Commission, with four appointees each from the governors of California, New Mexico, Arizona and Texas, the purpose of which is to study the overall enforcement strategies, program, and policies of Federal agencies along the U.S.-Mexican border" and to "make recommendations" about those policies.

Title II appears to give us a few new crime definitions and a process for the FBI to do background checks on all the new legal immigrants, which Hugh believes will not work.

Title II opens up with a substantial hike in trial attorneys for various agencies, adjudicators, judicial clerks and immigration judges etc. Fine.  This assumes a much greater caseload, the result it seems of an anticipated upsurge in prosecutions (though given the enormous regularization that is also going to be unleashed by the bill, it seems counter-intuitive to assume a spike upward in caseload when nearly all of the immigrants in the country illegally will suddenly be immunized from prosecution, but I digress.)

There are useful new crimes detailed, such as Sec. 1541’s criminalization of "Trafficking in passports," and Section 1543’s "Forgery and unlawful production of passports."  Sec. 1545’s "Schemes to defraud aliens" stands out as not part of immigration reform per se, but as a very vague and potentially far-reaching new federal crime:

[…]I brought up in my interview with Tony Snow Friday the fact that everyone knows the federal governmnt simply lacks the ability to conduct millions of background checks on the illegal aliens who will be regularized by the law.  The law provides they get probationary status upon filing their forms, so imagine a stack of 12 to 20 million folders, each full of a variety of documents.  Anyone who has ever processed a loan application or checked references for a job applicant knows what happens next –a long, time-consuming an inexact hunt for confirming information which, more often than not, is abandoned and the paper pushed on.

[…]This section tells us that the bill’s drafters are anticipated system breakdown and perhaps even paralysis. They are convening the scapegoat search two years before the first application is due because there is simply no way that the proposed application process can work.

We are about to swamp the FBI with a tidal wave of paperwork. Not only is this foolish in the extreme, the hint that "country of origin" might be a marker worth examining in the future suggests that we know going in that we won’t be able to verify much of the data on criminal backgrounds from some countries where justice systems either don’t exist or aren’t credible –say Afghanistan and Somalia

Title III appears to really go after businesses, which is a good thing….except for the little problem of a loophole which Hugh found:

Title III has teeth. “Big pointy teeth that could mangle a man in a minute” as was said of the Killer Rabbit in Monty Python and The Holy Grail.

Section 302(e) (p. 116 of the draft released Friday night at just before midnight) spells out that each instance of hiring or continuing to employ an unauthorized alien will cost the employer $5,000. Employers previously fined for doing so fork over $25K per illegal alien, and three-strikers get hit for $75K each.

There are also record keeping violations of $1,000 per violation, which will send a shudder down the backs of honest employers who work hard to jeep the illegal aliens out of their workforce but who recognize in paperwork compliance penalties the ultimate blackjack for an out-of-temper bureaucrat.

Criminal penalties are available under 302(f) (p. 122) for employers engaging in a “pattern or practice of knowing violations.”

The ruse of using contractors to avoid the law is supposedly banished under Section 302(a)(3):

For purposes of this section, an employer who uses a contract, subcontract, or exchange to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien (as defined in subsection (b)(1) with respect to performing such labor shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).

The loophole?

In Section 302(c) are listed the documents that will satisfy an employers’ burden, and there in 302(c)(1)(B)(iii) is the answer:

(B)Documents establishing both employment authorization and identity… (iii)a temporary interim benefits card valid under section 218C9c) of the Immigration and Nationality Act, as amended by Section 602 of the Comprehensive Immigration Reform Act of 2007, baring a photograph and an expiration date, and issued by the Secretary to aliens applying for temporary worker status under the Z-visa.

Back to the immediate issuance of the probationary cards we go. The plan anticipates millions of probationary cards being issued in the immediate aftermath of the law’s passage subject to background checks which will at best be conducted months or years down the road, and possibly never. Employers will be quick to help their employees get their probationary cards and thus insulate themselves from the fines or even prosecution at least until the government catches up with its flood of probationary status applications, which as the previous post noted, isn’t likely to occur in a timely fashion, if ever.

So while at first glance it appears like this bill will finally take it to businesses who hire these illegals, there is a pretty big loophole which would allow these businesses to skate along for years.

Hugh skims over Title IV and notes only one aspect:

Title IV is the "NEW TEMPORARY WORKER PROGRAM"and it runs 94 pages. These are the "Y visa" people, and I’ll leave it to others to assess this section. I note just two provisions.

Section 218A ADMISSION OF Y NONIMMIGRANTS provides in subparagraph (d)(5)(C) that the applicant must (i)certify by signature that he or she "has read and understands all the questions and statements on the application form, (ii)certify under penalty of perjury that all statements are true and correct, and (iii) agree to the release of any information in the application for law enforcement purposes.

So we have the assurance of every future Y Visa worker being literate and bound by their oath not to have perjured themselves.

Yeah….we shall see.

Title V is about Immigration Benefits

Title V "IMMIGRATION BENEFITS" is beyond the comprehension of a nonspecialist. What is clear is that the law is reshuffling the deck of get-out-of-jail-free cards, and the total number of visas it authorizes over the next few years –above and beyond the Y Nonimmigrant Visas and the Z Visas for illegals already in the country– is impossible for a layman to calculate.

Apparently some kind of point system in which more educated illegals get more points and a faster track to citizenship?

Title VI:

Among the many surprises in Title VI "NONIMMIGRANTS IN THE UNITED STATES PERVIOUSLY IN UNLAWFUL STATUS" is the stipulation in Section 601(f) "Eligibility Requirements," is subparagraph (7):

Interview: An applicant for Z nonimmigrant status must appear to be interviewed.

Let’s use the low number of 12 million potential Zs, and assume that an average of 3 Zs will appear for each interview, which means the feds need to schedule, conduct and write-up 4 million interviews. Is it fair to allocate, say, 2 hours per interview set-up, completion and follow up? So we need 8 million federal manhours.

8 million federal manhours. Isn’t going to happen. Then this section goes into those who are ineligible to become citizens, namely those who commit crimes and such. Hugh details this interesting part:

Part of the rules of admission to Z-land is the production of proof of years of continuous presence, the forms of which are detailed in 601(i) "ADJUDICATION OF APPLICATION FILED BY ALIEN." The applicant has to come up with at least two types of reliable documents that "provide evidence of employment" which include the obvious business or employer records, union records, or "sworn affidavits from nonrelatives who have direct knowledge of the alien’s work," which seem to me to become the document of choice given the understandable reluctance of employers or unions to provide the feds evidence that they had previously been law breakers,

I’m back to the nagging question of how in the world anyone thinks this paper, interview and follow-up-heavy process is really going to work? It makes sense that those under 16 and those over 65 don’t have to show evidence of continuous employment (601(m)(1)(B)) and that aliens with physical or mental disability as defined by the ADA get a pass (601(m)(1)(B)(iii), but each exception or special circumstance adds an enormous burden of investigation and paperwork to the already leaning tower of bureaucratic overload.

The renewal of Z visas (601(k)) puts a premium on the showing of "an attempt to gain an understanding of the English language and knowledge of United States civics by taking the naturalization test described in sections 312(a)(1) and…by demonstrating enrollment in or placement on a waiting list for English classes."

Note that you don’t actually have to learn any English or civics, just get your name on the right lists. Four years after the first Z visa issues (not the probationary ones) there is going to be a boom market in ESL and civics classes offered around the country.

By the time the second renewal comes around –8 years after the issuance of the original nonprobationary Z visa– must pass the naturalization test, though "the alien may make up to three attempts to demonstrate such understanding and knowledge." There’s an exception of course for those with physical or develomental disabilities, those over 50 who have been in the country 20+ years, and those over 55 who have een here at least 15 years.

Finally Title VII goes into things such as those serving in the military don’t need to be fingerprinted again and a statement saying English is our countries language.

Looks to me like there are ton’s of problems with this bill, and based on all these problems and no explanations on how to fix them and even how to fund all this, there is just no way I could support this bill in it’s current form. Granted, this is just from Hugh Hewitt’s analysis, I will try to go through the bill myself over the next few weeks but as of right now I vote thumbs down.  

It is a start tho, for discussion.  Not for passage.

Check out NZ Bears site for a section by section read of the bill. You can even comment after each section.

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