Five Concerns about the Gang of Eight’s Immigration Bill
Conservatives raise hard questions about what’s in — and what’s not in — the proposal.

Members of the Senate "Gang of Eight" at a press conference April 18, 2013


Andrew Stiles

Conservative critics of the Gang of Eight’s immigration-reform bill worry that the bill’s Republican backers, well meaning as they might be, are putting politics before policy by letting their desire to win over Hispanic voters blind them to what’s actually in the bill. Here are five major concerns these critics have identified: 

Border Security
Those favoring an “enforcement first” approach to immigration reform — 68 percent of registered voters, and 66 percent of Democrats, according to a recent Fox News poll — are bound to be disappointed by what the bill has to offer.

The only requirement for triggering a pathway to citizenship for immigrants who are here illegally is that Department of Homeland Security Secretary Janet Napolitano must submit a plan “to achieve and maintain effective control in high risk border sectors along the Southern Border.” The bill defines “effective control” as “persistent surveillance” and a 90 percent apprehension rate at three out of nine total border sectors. Supporters of the bill often cite this figure of 90 percent. However, as Secretary Napolitano indicated during congressional testimony last week, the true apprehension rate would be almost impossible to determine accurately, because there is no reliable way to measure the total number of illegal border crossings. Napolitano told Senator Ted Cruz (R., Texas) that DHS would focus instead on the overall “trend” of border crossings, which Cruz dismissed as “an amorphous, multi-factored, subjective test.”

The legislation allows the secretary to develop a “fencing strategy” for border security, but nothing in the bill requires the actual construction of any new fencing. Secretary Napolitano suggested that DHS would rather rely on alternative methods, such as drone surveillance. “If we have our druthers, we would not so designate a fence fund,” she said.

The bill does contain a backup trigger — the creation of a “Southern Border Security Commission” to make additional recommendations if the initial DHS plan does not succeed. However, that is all the new commission would be authorized to do: make recommendations. Furthermore, the bill gives the DHS secretary sole discretion to determine whether or not the initial plan has been “substantially” implemented and completed.

The secretary would also be given considerable leeway in deciding how strictly to enforce the law in the future. She would be able to accept an otherwise ineligible candidate for legal status, for example, or she could decline to deport an immigrant, if she decided it would be in the “public interest” or would prevent a “hardship” to the immigrant or his immediate family members. However, the legislation does not specifically define the meaning of “public interest” or “hardship.”

Public Charge
Critics of the bill are questioning the potential burden to taxpayers that could result from legalizing significant numbers of illegal immigrants who would qualify for “public charge” status. The term “public charge” does not appear once in the text of the Gang of Eight’s legislation. It appears indirectly, however, via reference to a section — 212(a), paragraph (4) — of the Immigration and Nationality Act of 1952, which deemed “inadmissible” any immigrant who is considered “likely at any time to become a public charge.”

The U.S. Citizenship and Immigration Services defines “public charge” as any individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” For the purpose of determining eligibility to register for provisional legal status — the first step on the pathway to citizenship — the Gang’s bill states explicitly that section 212(a), paragraph (4) of the Immigration and Nationality Act “shall not apply.”


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