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Clear Immigration Loopholes
The DHS secretary would have the power to waive most requirements for border security.

DHS secretary Janet Napolitano

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Hans A. von Spakovsky

About those strict new rules and requirements for border security set forth in the Gang of Eight’s immigration proposal: They’re not so tough after all. In fact, the 867-page mega-bill gives the secretary of homeland security pretty much carte blanche to waive the vast majority of the requirements detailed in the bill. And that’s not sitting very well with the folks charged with enforcing immigration law.

On May 9 the National Immigration and Customs Enforcement Council of the American Federation of Government Employees, which represents immigration and customs agents, sent a letter to Congress warning that the bill gives the DHS secretary “virtually unlimited discretion.” Calling this a “dramatic step in the wrong direction,” the union characterized the proposal as a failure “on the subjects of public safety, border security, and interior enforcement.” They were joined on May 20 by the union representing 12,000 adjudications officers and staff for the United States Citizen and Immigration Service Council.

The bill’s sponsors claim that unlawful immigrants would not be given amnesty — i.e., granted “Registered Provisional Immigrant” (RPI) status — until after our borders have been secured. And, indeed, the bill calls for the DHS secretary to put together a “Comprehensive Southern Border Security Strategy” that will “achieve and maintain an effectiveness rate of 90 percent or higher in all high risk border sectors.” Supporting this strategy is another one, the “Southern Border Fencing Strategy,” which will identify where fences should be built.

Sounds tough, sure. But the secretary has complete authority to choose how much — or how little — fencing is actually built. Moreover, section 3(c) of the bill stipulates that the secretary can start processing applications for RPI status as soon as she notifies Congress of the “commencement of implementation” of the border-security and border-fencing strategies.

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What the bill really says, then, is that people living in the country illegally can receive amnesty not when the border is actually secured but when the secretary tells Congress that she is starting to try to secure the border. That’s a loophole big enough to drive a tractor-trailer truck full of illegal immigrants through.

Section 3(c) stipulates that the secretary can’t “adjust” the status of RPIs — i.e., grant applicants (except blue-card holders) citizenship or permanent legal residency — until she certifies four conditions: that the border-security and border-fencing strategies have been “substantially” completed and that she has implemented both a mandatory employment-verification system and an electronic exit system at air- and seaports. But since the secretary is the one who determines if these conditions are satisfied, these “requirements” are meaningless.

Even if these requirements had teeth, the bill would suffer from another gaping loophole: If “litigation or a force majeure has prevented 1 or more of the [four] conditions” from being implemented, section 3(c)(2)(B) empowers the secretary to upgrade those granted the RPI amnesty to permanent-resident status.

So you can bet the house that one or more of the pro-amnesty groups pushing this legislation will file suit to block implementation of one or more of the four requirements. If the Justice Department does not vigorously contest the lawsuit, or if just one federal judge tosses out one condition, the secretary can start granting permanent status wholesale.

Want more? Section 2101 authorizes the secretary to waive some of the grounds that would normally make applicants ineligible for RPI status. Indeed, it empowers her to grant RPI status for “humanitarian purposes, to ensure family unity, or if such a waiver is otherwise in the public interest.” This last reason, “otherwise in the public interest,” gives the secretary essentially unlimited latitude to grant amnesty to most anyone, including people who have committed numerous misdemeanors.

The ability to waive misdemeanors may sound like a minor issue. But as the Customs Enforcement Council pointed out in its letter, in many states “misdemeanor crimes include serious offenses such as assault, assault of a law enforcement officer, vehicular homicide, possession of drug manufacturing equipment, unlawful placing or discharging of an explosive device, DUI, and sex offenses.” The secretary is also given discretion to start, or not start, removal proceedings against unlawful immigrants who don’t qualify for RPI status. In essence, the secretary could let anyone stay in the U.S. illegally.

Under section 3701, the secretary can grant amnesty to gang members if they have “renounced all association with the criminal street gang.” The Customs Enforcement Council anticipates that “gang members will falsely claim to renounce their association with criminal street gangs to obtain legal status and continue engaging in unlawful conduct in the United States.” Senator Chuck Grassley (R., Iowa) attempted to put the burden of proof on gang members to demonstrate by “clear and convincing” evidence that they didn’t know the street gangs were criminal organizations, but the amendment he introduced was voted down in committee.

To deter new aliens from entering the U.S. illegally in hopes of being amnestied, an updated version of the bill includes a date after which its provisions for aliens resident in the country will not apply. But the secretary is given the “sole and unreviewable discretion” to waive this cutoff date for millions of illegal aliens — for the parents, spouses, and children of citizens and lawful permanent residents; for aliens who were 16 or older on the date on which they entered the U.S. and who have earned a high-school diploma or GED in the U.S.; and for aliens who were 16 or older when they entered the U.S. and were physically present in the U.S. for not less than three of the six years immediately preceding enactment of the new immigration bill.

Would Secretary Janet Napolitano and this administration really exercise the discretionary authority salted throughout the immigration bill? Well, they already have a policy of granting “executive amnesty” to millions and of not enforcing immigration laws currently on the books.

And a lawsuit in Texas, filed against Napolitano by nine DHS agents, suggests that DHS is itching to make the most of its discretionary powers. The agents are contesting an administration directive barring them from starting deportation proceedings against unlawful immigrants who would have been amnestied if Congress had passed the administration-backed DREAM Act.

In a Justice Department brief filed last December in Crane v. Napolitano, the Obama administration made it clear that it believes it “inherently” has almost unbridled discretion in the matter of immigration enforcement. DOJ even argued that the federal court has no jurisdiction to review or question DHS’s decisions.

It is highly likely that if this immigration bill is passed, the administration will take advantage of many, if not all, of the bill’s provisions that give it authority to waive legal restrictions and rules that would require our borders to be secured and amnesty to be denied to many illegal immigrants for cause. As the Customs Enforcement Council concludes, “This legislation fails to meet the needs of the law enforcement community and would, in fact, be a significant barrier to the creation of a safe and lawful system of immigration.”

— Hans von Spakovsky is a senior legal fellow in the Heritage Foundation’s Center for Legal and Judicial Studies.



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