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Finding Direction In The Shifting Winds Of President Bush's Immigration Reform

by Jon Eric Garde, Esq.

President Bush once again stirred the hornet’s nest of immigration reform during a two-day trip to border states that included a speech Monday, November 28, 2005, before an audience of military officials and Republican supporters in Tucson, AZ, and ended the next day with a survey of the Rio Grande near El Paso, TX with U.S. Border patrol agents. In his speech, Mr. Bush promoted heavy-handed enforcement against illegal immigration while conceding the need for a limited temporary guest worker program. The President has yet to realize that national security will be furthered not only by sealing our borders from unlawful entry but also by bringing those living clandestinely among us out of hiding with the promise of lawful residence. The conflict between these objectives is more political than practical, as explained at the conclusion of this article.

In last week’s speech, President Bush emphasized a hard line crackdown on illegal immigration to secure the nation’s borders, actually downplaying a guest worker program that was his focus when he first outlined his plan for reform nearly two years ago. Of the strategies to strengthen border enforcement, President Bush promoted:

  • interior repatriation whereby Mexican illegal entrants are returned to their hometowns so as to make their return more difficult,
  • increasing the number of beds in detention facilities to end the practice of “catch and release” for non-Mexican illegal immigrants due to limited detention space,
  • use of expedited streamlined removal proceedings,
  • eliminating judicial proceedings that review the accuracy and constitutionality of removal proceedings, (which he described as “streamlining”),
  • increasing manpower on the border,
  • deploying new increased technology such as infrared pilot-less aircraft, and
  • constructing new and extensive physical barriers to stop people from illegally crossing the borders.

In addition to enforcement measures, the president discussed a guest worker program that would allow currently undocumented workers to earn only temporary legal status before forcing them to return home after a fixed period of up to six years. These measures, said the President, would address the business community’s concerns of labor shortages when Americans are unavailable, particularly in the industries of agriculture, meatpacking and processing, landscaping, construction, restaurant, hospitality and nursing homes. Union participation would be permitted to allow guest workers to protest violations of their rights by unscrupulous employers imposing sub-minimum wages, uncompensated extended working hours, and unsafe and unfair working conditions—all without fear of criminal penalties or deportation. Yet, President was adamant against granting unlawfully present temporary workers a procedural pathway towards legal residence, stating that this would draw additional illegal border crossings and reward those who have already violated U.S. immigration law. 

To many observers of this ongoing controversy, the President’s emphasis on border enforcement and security is without concern for uniting American families who include immigrants, and providing lasting and durable status to out-of-status immigrant tax-payers residing in this country for extended period of time with their U.S. citizens children or spouses. The President’s agenda attempts to offer a compromise by way of a guest worker program but fails to reconcile the conflicting agendas of the right wing of the Republican Party, the President’s corporate contributors, and the Democratic Party leaders, many of whom have forged alliances with Republican leadership in supporting lawful status for hard working undocumented taxpayers. 

The Republican conservatives are adamantly against any illegal immigration and thus, view any kind of a guest worker program as amnesty by another name. Congressman Tom Tancredo (R-Colorado), who is also the chairman of the Congressional Immigration Reform caucus, said that “allowing illegal aliens in the U.S. to stay for six years is a privilege not granted to the millions who are waiting to come here the right way…By rewarding lawbreaking, the President only encourages more of the same.” However, the President knows that a GOP anti-immigration agenda would alienate the Latino vote, which accounts for 12% of the electorate, a crucial margin in relation to upcoming mid-term elections for the House of Representatives and about a third of the Senate. 

Business interests are concerned with sustaining a stable labor force, especially in the above-mentioned industries that are characterized by seasonal workload and rely on low-skilled foreign workers. By offering a guest worker program that fails to provide a path to permanent resident status, the President defends against those who would label the program a veiled amnesty, but naively fails to address the stark reality that people will not voluntarily return home and will, in all probability, go underground again once the six-year period is over. In fact, most prospective beneficiaries would hesitate to avail themselves of any temporary status that would be accompanied by heightened worksite enforcement against employers and expedited removal provisions, as the beneficiaries of such legal status would be easily identified and targeted for removal once their temporary status has lapsed. Coupled with stricter border controls as needed to protect national security, these provisions would continue to feed difficulties for companies wanting to find and hire new laborers. The enactment of a guest worker program that did not lead to permanent resident status would simply defer current political pressure and debate without any meaningful reconciliation.

 The House of Representatives is expected to consider measures to secure the country’s borders before the year-end, but not the guest worker program. Border security seems to be a precursor now to any meaningful, comprehensive immigration reform. In an interesting thump on the Republican-led House, the Democrats appear to be urging the President to a guest worker program. In a letter from Senate Minority Leader Harry Reid (D – Nevada), he urged the Pres. to “stand up to the right wing of his party” while Senator Edward Kennedy (D – Massachusetts) said that the Pres. “must demonstrate his leadership by saying no to his right-wing allies who want to close our borders.”

 In furthering the cause of undocumented taxpayers, a bi-partisan bill remains pending in the Senate that provides a framework to strengthen and protect our borders, while establishing a guest worker plan that CAN lead to legal permanent residence. The Secure America and Orderly Immigration Act of 2005 is sponsored by Senator John McCain (Republican, Arizona), Senator Edward Kennedy (Democrat, Arizona), Senator Jim Kolbe (Republican, Arizona), Congressman Jeff Flake (Republican, Arizona) and Congressman Luis Gutierrez (Democrat, Illinois). Neither national security nor secure borders can be ignored after September 11, 2001. Yet, amidst all of the rhetoric to get tough on illegal immigration, one must wonder why national security legislation is being promoted by federal lawmakers from border states or states with high numbers of undocumented workers which focus on bringing the undocumented out of hiding. The President alludes to the answer within his recent speech, where he advocates for heightened penalties to persons who manufacture false documentation necessary for illegal employment and for implementing high tech document verification systems. 

It should be of no surprise that many undocumented workers are actually falsely documented so as to be able to work. Nor should one be surprised that the production of false documentation is the domain of criminal organizations, including Al Qaeda and other terrorist organizations, which use false documents to access countries they seek to terrorize. Despite these few dangerous intruders, the overwhelming majority of falsely documented persons are hardworking family breadwinners and taxpayers (many with US citizen family members), comprising millions who live peaceably among us, yet who provide a sea of anonymity for a proportionately few number of sharks to hide until ready to strike. A huge number of falsely documented workers conceal a proportionately few terrorists, who are a monumental security threat. We must drain the sea to catch the sharks! Failure to do so compares to a ticking time bomb. 

The solution cannot be found in criminalizing undocumented status or mass deportations, however favorable such harsh actions may sound to law and order enthusiasts. The vast numbers of undocumented workers are not criminals, and their removal would bring misery to millions of U.S. citizen spouses and children. Mass deportations would also create economic havoc for businesses otherwise unable to find suitable U.S. workers to perform numerous shortage occupations. 

Furthermore, mass human displacement would likely cause civil unrest unseen in this country since the 1960s protests over civil rights and the Vietnam War, an outcome not desired by most of us, regardless of political leanings. Moreover, those regularly exposed to immigration law, both in and out of government, know that detection and enforcement of unlawful status is subtly performed in conformance with the U.S. constitution. To the contrary, immigration enforcement when engaged in a headstrong manner can lead to the harassment and unlawful deportation of U.S. citizens and permanent residents to an extent unaccustomed by our society, nor should we nor will we grow accustomed to such civil rights abuses without endangering all of our freedoms.

Moreover, criminalizing undocumented status and enabling police officers to enforce immigration and not just criminal law, as had been unsuccessfully promoted by certain Congresspersons, would imperil not just immigrant communities, but ethnic communities. Any calculating violent criminal would likely target poorer ethnic victims, perceiving them as more likely be too afraid to report crimes to the police for fear of deportation, and likewise, law-abiding immigrant communities would be much less willing to assist the police with law enforcement. Undoubtedly, such concerns were weighed in the Congressional defeat of such a frightening and dangerous plan. 

The only way to drain the sea of falsely documented workers is to permit unlawfully present taxpayers and their families to remain in the communities they call home. The economy should continue to benefit from their contributions of hard work and tax revenues, viable families must remain in tact, U.S. citizen spouse and children must not be driven to welfare, and more importantly, falsely documented workers must become legally documented by offering the goal of permanent residence so as to enable our government to locate and corner those now hiding among us, meaning to do harm. Sizeable application fees could be charged and would be gratefully paid by intending U.S. citizens who know the value of the American dream, raising funds for additional border fortification. However, removal of undocumented workers would diminish a sizeable payroll tax base presently available for security expenditures. 

The salient parts of the McCain / Kennedy bill are available at: www.immigrationjeglaw.com
To urge the enactment of this bill, the American Immigration Lawyers Association (AILA), http://capwiz.com/aila2/issues/alert/?alertid=7614761&type=CO, can help you contact your state’s representatives and senators. Call your voting friends in other states and urge them to do the same! 

It is ironic that national security can only be realized by offering immigration benefits to those living unlawfully among us, an irony that is understood by many of our nation’s leaders. However, the continued delay in building the consensus between immigration and security advocates can only serve to compromise the constitutional rights of many Americans under the misguided banner of national security in a manner that only Osama Bin Laden could have intended. 


About The Author

Jon Eric Garde, Esq. is a member of the Nevada and New York State Bar Associations and of American Immigration Lawyers Association, has been practicing immigration law since 1992, and has worked with immigrant’s rights organizations as a volunteer since 1981. For inquiries, contact (702) 898-9540, or visit the law firm’s website at www.immigrationjeglaw.com for a consultation.


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


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