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Future Of Immigration Policy Unclear In Wake Of Election

by Gregory Siskind and Amy Ballentine

I've decided to reveal a big secret in this week's newsletter. Most immigration lawyers and most pro-immigration advocates are Democrats (myself included). That's probably why so many of my colleagues have been gloomy this week in the wake of Tuesday's midterm national elections.

But partisan leanings may be clouding a happy truth - Republicans are increasingly pro-immigration and the future of immigration legislation in Congress may be rosier than the conventional wisdom would suggest.

John B. Judis and Ruy Teixeira, in their new book THE EMERGING DEMOCRATIC MAJORITY, outline a potential scenario to which many Republicans are beginning to pay attention. Judis and Teixeira argue that the electorate is becoming more diverse, with increasing numbers of Asian and Hispanic voters going to the polls. Such voters have traditionally voted for Democrats. White, anglo American voters may continue to vote Republican, but their numbers are not increasing. Judis and Teixeira's conclusion that the Democrats will reap the rewards of this massive demographic change assumes that the Democrats will attract these voters.

Smart Republicans have begun to figure out that there is more to be gained in the long run by reaching out to immigrant voters. In the past, Republicans have had success in the past using immigration as a wedge issue and playing to white Americans' fears of newcomers. But Republican leaders have begun to steer their party away from this course and you are less and less likely to see such appeals today.

So is there evidence from Tuesday's election that would justify optimism?

First and foremost, we have a President who, at least in terms of his words, is one of the most pro-immigration Presidents in decades. While the President has given a fair amount of leeway to Attorney General John Ashcroft to impose tighter security measures relating to immigration, he still regularly expresses his view that immigration is good for the country and he recently resumed talks with Mexico regarding establishing a genuine guest worker program. He has also expressed his support for reinstating Section 245i of the Immigration and Nationality Act.

Bush has good political reasons for taking a pro-immigration position. Bush lost key states like New York and California and barely won Florida, a state that used to be a reliable vote for Republicans. These states have two things in common - a lot of electoral votes and a lot of immigrant voters. Reapportionment following the 2000 election means even more electoral votes are shifting to states with a lot of immigrants so the President cannot ignore these states.

Bush has met many times with Mexican President Vicente Fox, who is pushing Bush to enact a guest worker program. Bush has been putting Fox off using 9/11 as an excuse, but he'll have a harder time doing this as we move further away from the tragedy. He has contended that putting the issue off was just temporary and would resume once national security issues were addressed. With a mandate from this election, Bush may feel empowered to push the agenda forward again.

What about the Congress?

In the House, things might get better. Why? Control of the House did not shift, but the anti-immigrant chair of the House Immigration Subcommittee, Pennsylvania's George Gekas, lost his seat in a very tight race. That means that one of the remaining Republicans on the committee is likely to take the spot. There are seven remaining Republicans on the committee. Two of them, Lamar Smith, the past chair, and Randy Forbes, are both part of the Congressional Immigration Reform Caucus. This group of 50 members of the House generally supports very tight immigration rules. Smith will not take the chair again due to rotation rules. Elton Gallegly of California generally has voted with Lamar Smith and is considered a restrictionist even though he is not a member of the immigration caucus.

One way to judge the others is by how immigration restrictionist groups rate them. The worse their ratings from such groups, the more pro-immigration they can be considered. Melissa Hart of Pennsylvania gets a D+ rating from Americans for Better Immigration. Elton Gallegly gets an A+. Daryl Issa of California gets a D+. Jeff Flake of Arizona gets a C+. Chris Cannon of Utah gets a D. Lamar Smith gets a B+. So consider the appointment of Hart, Issa or Cannon good news. I would be surprised if House Republican leaders let an immigration restrictionist take the chair of this committee again given the stakes in 2004 and the President's pro-immigration agenda.

Well, on the Senate side, we already have had a preview of things to come since the Republicans ran the Immigration Subcommittee only a little over a year ago. Sam Brownback will presumably retake his seat as the chairman of the committee (though it is still not certain he will be reappointed to head the committee). His brief record as Subcommittee Chair is generally considered pro-immigration. He has been particularly vocal in pushing for easing the rules for the immigration of health care professionals. And Americans for Better Immigration gave him a D- rating, indicating that he is very pro-immigration. Brownback actually gets the same grade as Ted Kennedy, the Democratic Senator who has chaired the committee for the last year.

Other Senate Republicans on the committee are generally pro-immigration. Mike DeWine of Ohio gets a D- rating from Americans for Better Immigration and Arlen Specter gets a D rating. Charles Grassley of Iowa and John Kyl of Arizona get a so-so B- grade. Consequently, we can expect the Senate's immigration committee to remain pro-immigration.

There are some significant changes in the overall makeup of the Senate that are worth noting. John Sununu, the new Senator from New Hampshire, overcame negative attacks in the primary from the outgoing Republican Bob Smith over Sununu's support of Section 245i. Lindsay Graham of South Carolina is a member of the Immigration Reform Caucus in the House and could be a vocal anti-immigrant voice in the Senate as his state's new Senator. Georgia's new Senator, Saxby Chambliss had an anti-immigrant record in the House, though lately he has been moderating his views.

The House Immigration Subcommittee needs to be watched to determine the future of the immigration debate in this country. Who takes that seat will determine whether pro-immigration or anti-immigration forces will have the upperhand in the 108th Congress.

About The Author

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.