ENLIST and BRIDGE

The first day of Congress in 2017, Rep. Jeff Denham of California’s 10th District, introduced his priority legislation in the ENLIST Act. This bill is fairly simple, immigrants not lawfully present in the US can enlist in the armed services and can earn lawful permanent residency for doing so. This is assuming that the person was younger than 15 when they entered the United States. It’s a decent bill that would provide a path to legal residency for many immigrants in the United States here illegally.

Somewhat surprisingly, Rep. Don Bacon supported the bill by being a co-sponsor of the bill. There are 203 cosponsors of the bill, currently. It has widespread bipartisan support It is unlikely that it will be put up for a vote, much like it has not in the past. Rep. Denham introduces the bill fairly consistently and has been fairly moderate on immigration issues.

Marine Corps Gen. Peter Pace testified before Congress “some eight, nine, or ten percent fewer immigrants wash out of our initial training programs than do those who are currently citizens.” In the ACLU’s report, “Discharged Then Discarded”, they note that this view is often repeated in other military reports. One report said “relative to citizen recruits, noncitizen recruits generally have a stronger attachment to serving the United States, which they now consider to be ‘their country’ and a better work ethic.” Noncitizen retention rates are higher than of U.S. citizens. According to the ACLU, the dropout rate for noncitizens are nearly half of that of U.S. citizens when service reaches four years.

The ACLU provides a brief history, in their report, about how noncitizens could serve in the military. In 2006, Congress limited eligibility to serve in the military to Lawful Permanent Residents. Prior to 2006, undocumented immigrants could enlist and be conscripted during wartime. Congress left a provision for the Secretary of Defense to determine if other noncitizens could serve, if it is vital to the national interest. The Department of Defense created the Military Accession Vital to the National Interest (MAVNI). This authorized a maximum of 1,500 of “legally present” noncitizens to join the military. In 2014, they expanded to included DACA individuals and came to the United States prior to the age of 16. By 2016, the cap increased from 1,500 to 5,000. Outside of MAVNI, Congress rejected efforts to expand the pool of eligible noncitizens. Despite that, other noncitizens have enlisted in the military outside of MAVNI by accident or due to “deceptive practices of military recruiters.”

Lawful permanent residents are eligible to naturalize after five years. The ACLU provides the relevant sections of the Immigration and Nationality Act. There are different requirements depending on if the noncitizen is serving during peacetime or wartime.

Peacetime naturalization

An LPR who serves in the military during peacetime can naturalize under Section 328 of the INA, if he or she served honorably in the armed forces for a period or periods aggregating one year. If separated from the service, the separation must be under honorable conditions. Both ‘Honorable’ and ‘General – Under Honorable Conditions’ discharges qualify; discharge types such as ‘Other than Honorable’ do not

US Customs and Immigration Services notes on their fact sheet about qualification for naturalization and citizenship. They write

The President signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11 2001, to file for citizenship under section 329 of the INA. Section 329 also covers veterans of certain designated past wars and conflicts. The authorization related to the War on Terrorism will remain in effect until a date designated by a future presidential executive order.

USCIS has interpreted this statute to include a requirement of a separate and additional showing of “good moral character.” The ACLU and many reasonable people look at military service as its own showing of “good moral character.” The 9th Circuit, as the ACLU notes, agrees. There is not a mention of the good moral character in the statute. It would simply be easier legislatively to require that USCIS interprets the INA statute to equate military service with good moral character.

The ENLIST Act is a pretty good bill. I would like it to also codify the interpretation of the INA statute so that “good moral character” is not used to determine eligibility for either legal status or citizenship.

Bacon also co-sponsored legislation from Mike Coffman, the BRIDGE Act. The BRIDGE Act would make it possible for certain immigrants to receive “provisional protected presence” and work authorization. This protected presence and work authorization would only last, at most three years. There is not a path to citizenship for immigrants under the BRIDGE Act.  To qualify for the BRIDGE Act,it is essentially the same requirements for the Deferred Action for Childhood Arrivals (DACA). From October of 2012 to October 2016, nearly 750,000 unauthorized immigrants received DACA.

The requirements for the BRIDGE Act and DACA would be that the person would have to be at least 15 years old; born after June 15, 1981; came to the US before their 16th birthday; lived continuously since June 15, 2007; been physically present since June 15, 2012; at the time of filing an application need to be in school or in a program aimed at receiving a high school diploma or passing a GED exam; have graduated; have received the GED; or be an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanor offenses.

This is not any type of comprehensive immigration plan nor does it provide for a path to citizenship. the bill would merely kick the can down the road for three years. Then perhaps hundreds of thousands of immigrants would feel their status in limbo under a new Presidential administration. Bacon opposes “amnesty” for those here illegally because he does not think it’s fair to those waiting to come here. His issue position from his campaign website said the following

“We need to have employer enforcement when it comes to hiring illegals. This is the root cause of our illegal immigration problem. We also need to secure our borders. It is a security disaster to have over 300,000 illegal immigrants crossing our border every year. Finally, we owe it to the 4.5 million people who are waiting to come to the United States legally to not give amnesty for citizenship to those who came here illegally.”

Rep. Bacon and others try to carve through a middle ground to give immigrants a legal status even if it is below citizenship status. I believe that in their mind, this moves undocumented immigrants out of the shadows. The problem is what happens after they are out of the shadows. In this bill, the answer is, well they’re out for three years. Without any details as to what happens after that. I’m not sure what the end goal of this type of legislation is. It’s a stopgap legislation leading to more comprehensive immigration reform.

After the Gang of Eight immigration did not advance any further in Congress due to inaction in the House of Representatives, Marco Rubio announced his newfound belief that we should address immigration in a piecemeal way. I disagree with the approach, as a matter of sound policy, but if it were to advance in such a way, the BRIDGE and ENLIST Act would provide paths forward to talk about how immigration should be fixed going forward.

At any rate, while Bacon likes to cite public support for some of his positions including some of his more prominent conservative positions, he is oddly silent about polling on a path to citizenship. About 50% of Republicans support a path to citizenship. In total about 65% of US adults support a path to citizenship for illegal immigrants. It seems odd to me that those who have either served in the military or are continuing with education would be excluded from a path to citizenship. It has become somewhat fashionable to make arguments in favor of naturalizing citizens is the argument based on merit. If someone is good enough, they should be able to get citizenship or at the very least legal status. I do not buy the argument on merit but I am making it to adopt the style that is being used, currently.

 

 

 

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Mandatory E-Verify

E-Verify began as a pilot program as part of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It began in November of 1997 and has been extended multiple times. The electronic verification process was used to strengthen the process of employment verification that was initially used with the I-9 forms. Since 2003, E-Verify has been administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (DHS/USCIS). While it is mostly a voluntary program, certain federal contractors since 2009 have to commit to use E-Verify going forward.

So what is it? Employers collect information on the employee including name, date of birth, social security number, and immigration or citizenship status. The information is sent electronically and compared to the information to the Social Security Administration (SSA) and possibly to DHS to confirm identity and employment eligibility. If the information matches what is in the SSA’s system, then the employee is eligible to work provided that the electronic image of the worker’s ID “reasonably” matches the worker’s actual ID. If there is not a match, a Tentative Nonconfirmation (TNC) notice is issued. If an employee gets a TNC, the worker has eight federal working days to contact DHS or SSA to figure out the problem. If the worker does not do so, the employee receives a Final Nonconfirmation notice (FNC) and the employer is required by law to fire the employee.

The Congressional Research Service (CRS) found that 8% of employers participate in E-Verify. In FY2012, the number of E-Verify requests were over 21 million according to the Bureau of Labor Statistics, there were 52 million nonfarm hires in 2012. E-Verify currently represents a significant portion of nonfarm hires currently in the United States. The point of E-Verify is to limit the number of unauthorized workers working in the United States. Supporters of it point out that it works by being a deterrence for those applying to jobs that do not have proper authorization and that most people receiving FNC’s are, in fact, not authorized to work. It follows that a massive increase in E-Verify would be a bigger deterrent in unauthorized workers and would take those unauthorized workers out of the workforce.

In the past few years, there has been an increased push for mandatory E-Verify for all jobs and hires whether it is on the federal level or at the state level. If implemented without serious reforms, it would be a massive increase in government bureaucracy and place a significant burden on many workers who may erroneously be prevented from working.

An increase in government bureaucracy

Perhaps the most popular policy agenda item of the Republican Party is the idea that the Federal Government is much too large with too large of bureaucracies able to make decisions that affect too many of our daily lives. Currently, neither DHS nor SSA are capable to be handle such an increase in E-Verify. They would have to greatly expand their offices by hiring more employees and more training. In the American Civil Liberties Union’s (ACLU) report “Prove Yourself to Work: The 10 Big Problems with E-Verify”, they note that AARP has expressed concern about further expanding SSA’s administrative burdens. The AARP is concerned that a further expansion of the role of the SSA in E-Verify would prevent them from being able to provide timely services to beneficiaries. As our population ages and many Baby Boomers are set to retire and increase the claims for Social Security, taking employees away from helping those retirees to help administer E-Verify seems like a poor choice.

Politicians on both sides of the aisle have tried to run on the idea of cutting government spending and stopping waste. The nonpartisan Congressional Budget Office found that legislation expanding to mandatory E-Verify would have a significant impact on federal spending, according to the Congressional Budget Office. To comply with the increased workload and upgraded computer systems, DHS would need to spend $454 million over the next 5 years. SSA would need to spend an additional $161 million over the first 5 years. Over the 10 years, the CBO projected that direct spending would increase by about $9 billion over a 10 year period. Further, they project that a number of unauthorized workers will leave the normal workforce, the revenues for the federal government would decrease by $39 billion over a 10 year period.

One of the things that we need to think about when we think about government policies, if we are to even consider the idea that we are fiscally conscious, is the cost of programs and whether or not it is worth it. For instance, the cost of E-Verify over the course of 10 years is about $50 billion. What can we for the cost of $5 billion/year? And is it worth the cost to run a mandatory program, especially one that would place a significant burden on businesses and a number of individuals?

A significant burden

Not surprising to anyone who has ever had to work with a data set, a small typo, a mistake, or an extra keystroke can cause information not to show up when it is supposed to. The ACLU tells the story of Jessica St. Pierre in their report. St. Pierre was a U.S. citizen who was told there was a problem with her E-Verify. She was fortunate in that she was able to visit the local SSA office. She was told that everything was correct and received a printout to that effect. The E-Verify representative at the SSA office promised that the he would call the employer.  But the issue was still there. St. Pierre contacted several government offices and eventually was told to contact the E-Verify hotline. She was, again, told that the information in the system was correct.  The E-Verify hotline representative promised to call the employer. St. Pierre was unable to correct the issue in the system and was fired from her job for not being authorized to work. The issue? The employer submitted her information with two spaces after her last name.

According to the USCIS, in 2012, 1 in every 400 cases submitted to E-Verify regarding a TNC determination were reversed upon appeal by the worker. The ACLU is correct to note that while it does not seem like that many people but with over 150 million workers in our country, that would be 400,000 people would have been deprived of their ability to work. While employers are not supposed to be able to take adverse action against those who contest their TNC status, some employers end up doing so. For instance, in the Westat study for the USCIS, 17.1% of employers admitted to restricting work assignments until authorization was confirmed, 15.4% reported delaying training until authorization was confirmed, and 2.5% reported reducing pay during the verification process.  In one survey of immigrant workers in Arizona, a third were immediately fired after receiving a TNC violating the rules that were already in effect. Even worse, since the employee has to take the matter into his own hands to contest the TNC, a worker is often at the mercy of the employer to get time off to do so. Since the hotlines are only open from 8:00 AM – 5:00 PM and the local offices are only open during normal business hours, it is fairly difficult for a worker to do so.

Per the ACLU, “The GAO found that from April through June of 2008, the TNC rate for employees who were eventually authorized to work was approximately 20 times higher for foreign-born employees than for U.s. – born employees.” The Migration Policy Institute notes that “erroneous nonconfirmations will disproportionately affect citizens with foreign names, naturalized citizens, and legal immigrants.” So while it will disproportionately affect people in those categories, the GAO predicted that 164,000 citizens per year will receive a TNC for issues related to name changes. The erroneous thought is that it will only impact those who are unauthorized to work under the false premise that if you’ve done nothing wrong, you have nothing to fear. But there will almost certainly be an impact on nearly every American.

The U.S. Chamber of Commerce often complains about the number of rules and regulations that small businesses have to follow that bury the businesses without a way of getting out to create much needed jobs. The National Immigration Law Center points out the potential impacts on small businesses with mandatory E-Verify.  An Arizona small business owner Mike Castillo stated “the program isn’t user-friendly for small business owners.” Arizona is one of the states that requires employers to use E-Verify. Castillo complained about a technical glitch that took several days to fix made it difficult for him to make a part-time hire taking time away from his core business. According to the National Immigration Law Center, only 12% of E-Verify users are small businesses, noting that many farms and small businesses do not have high-speed internet access. A Bloomberg analysis found that the use of E-Verify would have cost small businesses $2.6 billion in 2010. Bloomberg estimates that E-Verify cost small businesses currently in E-Verify $81 million. One small business in Maryland stated that it would cost $27,000 for the company to use E-Verify for one year.

The National Immigration Law Center estimates that between 50 and 75% of the U.S. agricultural labor force is made up of unauthorized workers. The National Immigration Law Center compiled testimony from Rick Roth, a farmer in Florida who said that he could not get legal residents to harvest his crops and a mandatory E-Verify bill would bankrupt farmers. The U.S. Department of Agriculture estimates that for every 1 on-farm job there are about 3.1 upstream and downstream jobs, that support and are created by the growing of agricultural products.

 

 

 

Citizen by birth: Part 2

Birthright citizenship prior to the 14th Amendment

Strangely enough, the United States Constitution is remarkably silent on the issue of who is considered a citizen in the United States.  It references citizenship in defining who is eligible to run for the House of Representatives, the Senate, and President of the United States.  Our founding document did give the power to Congress to determine naturalization.  While the constitution is silent on the issue of what makes a person a citizen, the courts routinely were able to use English common law to set a precedent for jus soli citizenship.  Alexandra Wyatt wrote in her report for the Congressional Research Service titled “Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate”, noted that the Supreme Court in Smith v. Alabama opined “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, are to be read in the light of its history.”   Wyatt found that in Inglis v. Sailor’s Snug Harbor, Justice Story wrote in a dissent (on other grounds) that “nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”  But these are not the best examples for a number of reasons to say that the case is settled.  The New York Court case of Lynch v. Clarke was probably a better example.

Julia Lynch was born to Irish aliens during a “temporary sojourn” in 1819.  She, with her parents, departed to their native country and lived there continuously from then on.  The court was asked to rule on the claim of Julia Lynch, if she was a citizen, because if she was, she was set to inherit real estate.  Her father did not state any intention of becoming a citizen of the United States and even though he had a daughter while in the United States, they had no real intention of staying.  They moved back to Ireland. The New York Court held that Julia Lynch was a citizen of the United States.  In the opinion, the justice wrote “the right of citizenship, as distinguished from alienage, is a national right or condition. It pertains to the confederated sovereignty, the United States; and not to the individual states…the policy and the legislation of the American Colonies, from their earliest times until the Revolution was adapted to foster immigration, and to bestow upon foreigners all the rights of natural born subjects…the uniform course was to extend, not to abridge, the right of citizenship.”  The justice continued until ultimately concluding “I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United Stats, whatever were the situation of his parents, is a natural born citizen.”

In one of the most infamous rulings in the United States Supreme Court’s history, the Taney court, in Dred Scott opined that the class of citizenship could not be given to descendants of slaves and to people of African descent, in general.  The Dred Scott case is one of the worst decisions that the Supreme Court has issued and is rarely cited as any precedent outside of hiding in Shelby County v. Holder and by Trump confidante and anti-birthright citizenship crusader Kris Kobach.  After the Civil War, which more or less repudiated the decision in Dred Scott, it was still up to Congress to determine who could be naturalized and become a citizen.

 

 

Citizen by birth: Part 1

 

Citizenship by birth

If you are born in the United States, you are a citizen of the country, regardless of the citizenship status of your parents.  This is known as jus soli (“right of soil).  Advocates for ending birthright citizenship talk about moving the United States to the same doctrine as many of the other countries in the world to change citizenship based on the status of your parents, this is known as jus sanguinis (“right of blood”).  This is why when an undocumented immigrant has a child here, the child is a citizen.  This is the legal doctrine that creates the idea and derogatory term as “anchor baby.”  According to the Pew Hispanic Center, about 340,000 babies in 2008 were born to those here illegally.

More recently, in the last few years, at least, there has been increased scrutiny on maternity hotels in the United States.  This is where immigrants from other countries will come to the United States for the expressed purpose of having their child so that the child can gain citizenship in the United States.  Even those opposed to ending birthright citizenship note how this causes an increased difficulty for mothers and babies because the babies might not be properly cared for.

Some seemingly moderate Republicans have a view on ending birthright citizenship, such as Judge Richard Posner and Senator Lindsey Graham or Rand Paul.  All think that it would be better practice to end this immigration practice in an effort to curb immigration.  But these views have mainly been on the fringes of the Republican Party and outside the mainstream of the Democratic Party, as well.

There are many reasonns, looking back, where we should have known that the Republican Party, writ large, would captulate to their party’s nominee, whoeveer it was.  The one that probably stood out the most at the time, that was undeercovered was when Donald Trump talked about ending birthright citizenship.  May of the Republicans who were running decided to try to appease the leader in the polls istead of standing up for what they previously thought was right.

The most egregious example of one of the candidates bending over backwards waas former Louisiana Governor Bobby Jindal.  Jindal claimed his citizenship through his parents, almost explicitly through the idea of birthright citizenship.  Jindal’s parents were not citizens but he was able to claim citizenship because of the fact that he was born in the United States.

Chris Christie and Scott Walker also came out in favor of ending birthright citizenship to gain favor with the Republican base that they needed to continue in their presidential runs.

Some of the Republican candidates had previous issues with the idea of birthright citizenship.  This included the South Carolina Senator, Lindsey Graham, who once said that immigrants could “drop their babies and leave.”.  This also included Kentucky Senator Rand Paul.  Both of these Senators sponsored legislation ending birthright citizenship in the Senate.

The principled Conservative, John Kasich, previously supported ending birthright citizenship but ended up denouncing that end in his presidential run, this time around.  He talked about reforming the immigration system that we have, including a path to citizenship for many of the undocumented immigrants, out there.

And some tried to hold strong to their values such as former Florida Governor, Jeb Bush and Florida Senator, Marco Rubio.

I’m not trying to pick on Republicans with this idea.  Senator Harry Reid once offered up legislation to end birthright citizenship but over the course of the last 20 years, has moved from immigration hawk to an immigration reform advocate.

Ending birthright citizenship is not really an idea that can be laughed off, at this point.  Republicans hold a trifecta in the federal government and will hold a majority on the Supreme Court once Trump puts his nomination through.  Representative Steve King of Iowa will likely push his legislation of ending birthright citizenship the first day the House is in session, like he does seemingly every session, now.

The ending of birthright citizenship is a direct assault on the 14th Amendment of our Constitution that was passed at the end of the Civil War.

Because of this and because of the possibly high importance on this issue from both Congressional Republicans and the President elect, what I want to do is look at the history of birthright citizenship and why I think it is so important and ultimately talk about why the attacks on it are misguided and unfounded.