December 8, 2008
Immigration Law in Congress and current immigration legislation impacting Americans

  • Senate Majority Leader Expects Comprehensive Amnesty Bill to Easily Pass
  • Governor Napolitano to Head DHS
  • Obama Announces Appointments; Congressional Hispanic Caucus Lobbies for More Hispanics
  • President Bush Yet to Commute Sentences of Border Patrol Agents
  • Military to Recruit from Temporary Visa Holders

Legislative Update – December 8, 2008

Senate Majority Leader Expects Comprehensive Amnesty Bill to Easily Pass

With an increased Democratic majority coming to Capitol Hill in the spring, Senate Majority Leader Harry Reid (D-NV) is already preparing for a number of sweeping reforms, including amnesty legislation. During an interview with the Detroit Free Press, Sen. Reid indicated that plans for comprehensive amnesty legislation were in the works: “On immigration, there’s been an agreement between (President-elect Barack) Obama and Arizona Republican Sen. John McCain to move forward on that. … We’ll do that.” In a follow up question, the reporter asked Sen. Reid if he expected an immigration bill to yield “much of a fight.” Sen. Reid responded, “We’ve got McCain and we’ve got a few others. I don’t expect much of a fight at all.” (Detroit Free Press, November 23, 2008)

Despite Sen. Reid’s confidence in the ease of passing a controversial amnesty bill, his Democratic counterparts in the House may prove to put up more of a fight. Rep. Heath Shuler (D-NC) co-sponsored the SAVE Act in the 110th Congress and has already announced he plans to re-introduce the bill again in the 111th Congress. Where Sen. Reid’s immigration bill would grant amnesty to millions of illegal aliens across the country, Rep. Shuler’s SAVE Act is an enforcement-first approach to immigration law. (Asheville Citizen-Times, November 29, 2008)

In the event of another amnesty debate, Sen. Reid will again find himself at odds with the American people. Exit polling conducted by Zogby International for FAIR found that an overwhelming majority of the electorate opposes amnesty. Moreover, among Obama voters, 67 percent said that Obama’s support for amnesty was either not a factor in their choice or that they voted for Obama in spite of his position on amnesty. (See Legislative Update, November 6, 2008)

Governor Napolitano to Head DHS

President-elect Barack Obama announced at a press conference last week that he will nominate Arizona Governor Janet Napolitano to serve as Secretary of the Department of Homeland Security (DHS). (Arizona Republic, December 1, 2008) If confirmed, Napolitano will be responsible for the enforcement of our nation’s immigration laws having oversight of Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP).

As governor of a border state, Napolitano frequently dealt with immigration issues. She signed the Legal Arizona Workers Act of 2007, a bill that requires all Arizona businesses to use the federal online E-Verify database to ensure that all new hires are legally authorized to work in the United States and penalizes employers who knowingly hire illegal aliens with the loss of their business license. Napolitano signed this bill reluctantly, however, and pointed out that it was the federal government’s refusal to take action on illegal immigration that had forced her to sign the legislation. (See Legislative Update, July 16, 2007) Interestingly, Napolitano refused to take a public position on an Arizona ballot initiative in last month’s general election that would have gutted the Legal Arizona Workers Act by allowing employers to elect to participate in E-Verify on a voluntary basis and making it virtually impossible to punish employers who hire illegal aliens: “I’m going to let the voters make up their own minds.” (Tucson Citizen, October 24, 2008)

Napolitano also used her gubernatorial power to veto several important immigration-related bills in Arizona, including legislation that would have denied benefits to illegal aliens; required proof of citizenship when registering to vote; allowed local law enforcement agencies to arrest and detain suspected illegal aliens; barred acceptance of the Mexican matricula consular card as a valid form of identification; and made English the official state language. (See FAIR’s Newsletter, June 2005) Additionally, she openly supported the 2007 Bush-Kennedy amnesty bill, wrote a New York Times editorial on the legislation, and joined with other members of the Western Governors Association in signing a letter urging the Senate to pass a “legalization-plus-enforcement bill,” calling it “among the highest priorities for the Western states.” (San Francisco Chronicle, June 28, 2007)

On border security, Napolitano opposes the building of a physical fence along the border and once said, “If you build a 50-foot high wall, someone will find a 51-foot ladder.” (Time) However, she was also the first governor to call for the National Guard to be deployed to the U.S.-Mexico border at federal expense. (Id.) Furthermore, in June 2008, Governor Napolitano signed into law HB 2677, which barred Arizona from complying with Real ID, calling it an unfunded federal mandate. (The Arizona Republic, June 18, 2008)

Obama enumerated his reasons for choosing Napolitano at the press conference, noting that “she understands the dangers of an unsecure border.” The President-elect added that he expects her to be “a leader in reforming a sprawling department while safeguarding our homeland,” and that “she insists on competence and accountability.” Both Obama and Napolitano hinted that they intend to strengthen DHS’s relations with state and local governments. Obama noted that the Arizona governor “knows first-hand the need to have a partner in Washington that works well with state and local governments.” Napolitano added that, under her guidance, DHS will “work hand-in-hand with state and local governments to share information, secure our borders and keep our country safe.” (Arizona Republic, December 1, 2008)

Reactions to the selection of Napolitano have been mixed. Current DHS Secretary Michael Chertoff said that the Arizona governor “is an excellent choice,” and added that Napolitano “has a tremendous intellect and possesses the leadership and sound judgment needed to make the difficult decisions that this job presents.” (MSNBC, December 1, 2008)

Representative Lamar Smith (R-TX), who serves as the Ranking Member of the House Judiciary Committee, -expressed concern. Smith said that he was “troubled” by Obama’s choice of Napolitano, and argued that it was “an early sign that the Obama administration intends to weaken enforcement and push for amnesty.” (House Judiciary Committee Minority Press Release, December 1, 2008) Smith added: “From an immigration enforcement perspective, Napolitano is nothing more than a sheep in wolf’s clothing: she talks tough, but her record is weak.” (Id.)

Obama Announces Appointments; Congressional Hispanic Caucus Lobbies for More Hispanics

President-elect Obama announced last week who he plans to nominate for several high-level positions in his administration. If confirmed, these individuals will have the opportunity to shape and enforce immigration policy through the way they carry out their duties and by having a direct line of communication with Obama. The list includes:

  • Hillary Clinton, Secretary of State

As Secretary of State, Clinton would oversee several administrative offices that work with immigration-related affairs, including visa and passport issuance, consular affairs, and monitoring and preventing human trafficking. In the Senate, Hillary Clinton supported the Bush-Kennedy amnesty bill and cosponsored the DREAM Act and AgJOBS bills. She has also said that she supports efforts to strengthen the border and advocates sanctions for employers who hire illegal aliens. (Senator Hillary Rodham Clinton: Immigration)

  • Bill Richardson, Secretary of Commerce

If confirmed, Richardson will take over a large department that – among other responsibilities – will oversee the 2010 census. (The Boston Globe, December 4, 2008) As a former Democratic presidential candidate and current governor of New Mexico, Richardson’s positions on immigration are fairly well-documented. Richardson supports granting driver’s licenses to illegal aliens (FOXNews Transcript, August 21, 2005); opposes building a fence along the border (CNN Transcript, June 10, 2007); believes we should increase legal immigration; and supports amnesty. The New Mexico governor also supports employer sanctions; increasing the manpower and technological capabilities of the Border Patrol; and cracking down on document fraud. (Presidential Campaign Website)

  • Cecilia Muñoz, Director of Intergovernmental Affairs

Muñoz will leave her current post as Senior Vice President for the National Council of La Raza’s (NCLR) Office of Research, Advocacy, and Legislation to serve in the Obama White House. (NCLR News Release, November 26, 2008) As Intergovernmental Affairs Director, she will oversee the White House office responsible for communication between the Obama administration and state and local governments. (Washington Post, November 26, 2008) For decades, the La Raza has supported amnesty programs, including last year’s failed Bush-Kennedy amnesty bill. NCLR also opposes the REAL ID Act; disagrees with “efforts to make state and local police responsible for the enforcement of federal immigration laws”; and advocates passage of the DREAM Act and AgJOBS bills. (NCLR: Immigration)

Obama also announced that he will nominate Retired General James L. Jones to serve as his National Security Advisor; Eric Holder for Attorney General; Susan Rice as Ambassador to the United Nations; and will retain Robert Gates as Secretary of Defense. Positions on immigration for these individuals are not well-documented, though Jones is currently the president of the Institute for 21st Century Energy. The Institute – which is an affiliate of the U.S. Chamber of Commerce – has a transition plan for the incoming administration posted on its website that recommends that, within Obama’s first year in office, “The administration and Congress should reform visa and immigration policies to enable the United States to attract and retain science, technology, engineering, and mathematics students from around the world to study for advanced degrees and remain in the United States to work.” (Institute for 21st Century Energy: Transition Plan)

The Congressional Hispanic Caucus (CHC) responded to the announcements last Tuesday by sending a letter to Obama’s transition office, recommending 14 Hispanics for eight remaining cabinet positions. (Bloomberg, December 3, 2008) CHC Chairman Representative Joe Baca (D-CA) told Bloomberg that the caucus would be “disappointed” if Obama failed to nominate more Hispanics. (Id.) Pointing out that Richardson was the sole Hispanic that Obama has announced for a cabinet-level position thus far, Baca warned the President-elect that his legislative agenda could be jeopardized if he fails to nominate more Hispanics: “If it’s just one, he’s going to have to answer to a lot of the issues that come before us.” (Id.) The CHC website lists 24 Members of Congress as its membership, including one Senator. (CHC Home Page)

President Bush Yet to Commute Sentences of Border Patrol Agents

President Bush, who has used his pardoning privileges to pardon at least 14 individuals this holiday season, has not indicated whether he will commute the sentences of Border Patrol agents Ignacio Ramos and Jose Compean, despite multiple Congressional hearings and pleas from elected officials to do so. Attorneys for the border patrol agents are seeking a commutation for the decade-long sentences, which are the result of mandatory 10-year sentence requirements “for the discharge of a firearm in the commission of a violent crime.” The case is currently pending review in the Office of the Pardon Attorney, though the final decision will be President Bush’s despite any recommendation by the pardon office. (CBS News, November 19, 2008)

The Border Patrol agents were convicted on multiple charges stemming from a February 17, 2005 incident during which they attempted to apprehend an illegal alien smuggling drugs into the United States. The March 8, 2006 convictions came after a federal trial revealed that, during the incident, a bullet fired from Ramos’ service weapon struck the alien as he attempted to escape back to Mexico. The agents were convicted on charges that they “failed to report the shooting incident to supervisors, concealed evidence and obstructed the investigation.” Under current law, these gun-related charges carry mandatory 10-year minimum sentences for both agents, even though the defendants were on-duty law enforcement officers. In July, the 5th U.S. Circuit Court of Appeals ruled to uphold the prison terms given to two Border Patrol agents convicted of shooting a fleeing drug smuggler. (See Legislative Update, August 4, 2008)

Multiple House Republicans sent a letter to President Bush in late November outlining the case and citing a bipartisan resolution (H.Res.267) with over 80 House co-sponsors asking for the commutation of the two border agents’ sentences. (Letter to President Bush, November 20, 2008)

In a separate press release, Rep. Dana Rohrabacher (R-CA) stated: “The fact that the President has neglected to free these men from their imprisonment while freeing drug dealers, embezzlers and other criminals is insulting to the American people who have been begging and pleading for the President to release the agents whose prosecution was unjust from the beginning. For the sake of justice, let’s hope this is not the last round of pardons and commutations.” (Rohrabacher Press Release, November 24, 2008) Rep. Steve King (R-IA) said of the list of individuals Bush had pardoned: “”If you can’t do it for Ramos and Compean, how can you do it for any one on that list?” (Boston Herald, November 20, 2008)

Military to Recruit from Temporary Visa Holders

On Friday December 5th, the Pentagon announced that it has launched a year-long pilot program to recruit 1,000 aliens who do not have permanent legal resident (green card) status but do have temporary visas and work permits. The Pentagon hopes to recruit health care workers and language and cultural specialists under the pilot program. The Department of Defense argues that the program is necessary in order to maintain a recruitment level of 24,000 doctors, dentists, and nurses. A Pentagon spokesman commented that, “In those areas, combined, we’re short almost 1,000 [people] against that 24,000 base, divided equally between physicians and nurses.” (Department of Defense Press Release, December 5, 2008)

The program also provides successful applicants with a way to accelerate and achieve U.S. citizenship. A pentagon spokesman added that this provision of the program is dependant upon the applicant being, “willing to serve in our time of need to fulfill a vital national interest.” Applicants will be required to commit to and serve to specified periods of military service. (Department of Defense Press Release, December 5, 2008) According to the Boston Globe, the announcement comes at a time when service members are re-enlisting in large numbers because of a declining job market. The pilot program will be the first time the Pentagon will use a law passed three years ago. (Boston Globe, December 5, 2008; 10 U.S.C. 504(b)(2))

For more information about the program, see DoD Fact Sheet.

The Federation for American Immigration Reform (FAIR) is a national, nonprofit, public-interest, membership organization of concerned citizens who share a common belief that our nation’s immigration policies must be reformed to serve the national interest. FAIR seeks to improve border security, to stop illegal immigration, and to promote immigration levels consistent with the national interest—more traditional rates of about 300,000 a year.