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Immigration bill ridden with loopholes?

Opponents of amnesty have serious new questions about the immigration reform bill filed by the Senate’s “Gang of Eight,” opening a debate on whether the bill’s enforcement provisions, insisted on by conservatives, could simply be waived.

Florida and “Gang of Eight” Sen. Marco Rubio’s press secretary, Alex Conant, told WND there are “six security triggers that must be met before any illegal immigrant is allowed to apply for permanent legal status.”

However, Steven Camarota of the Center for Immigration Studies told WND he believes the enforcement mechanisms “are weak, and the secretary of Homeland Security can waive them.”

There are at least four questions raised by the text of the bill itself, which was released last week. First, the bill is silent as to whether the enforcement “triggers” are binding. Second, the act leaves gaps in enforcement of parts of the border fence. Third, nothing in the act limits the number of illegal immigrants who can receive amnesty. In fact, the act would remove important limits on the number of illegal family members who can gain legal status. Finally, illegal immigrants using many welfare programs will be allowed to gain legal status.

The bill describes two “triggers” required for amnesty, which make up a two-step process. First, an illegal immigrant is placed on “registered provisional immigrant status” (c(1), p. 10). This is not supposed to happen until the Homeland Security secretary has submitted to Congress a plan to strengthen the border (c(1), p. 10-11). Ann Coulter has ridiculed this requirement, saying it amounts to a “strongly worded letter.”

In the second step, the DHS secretary will “adjust the status of aliens who have been granted registered provisional immigrant (RPI) status” ((2)(A), p.11). RPI status is upgraded to lawful permanent resident status. This second step is not supposed to happen until the secretary gives Congress and the president a “written certification” that four additional triggers have been met:

  1. A “Comprehensive Southern Border Security Strategy” is “substantially operational” ((2)(A)(i), p.11)
  2. A “Southern Border Fencing Strategy” is “substantially completed” ((2)(A)(ii), p.11)
  3. A “mandatory employment verification system” is in place ((2)(A)(iii), p.12)
  4. An electronic passport system is being used at air and sea ports of entry ((2)(A)(iv), p.12).

“The DHS Secretary cannot waive any of these triggers,” Rubio’s press secretary told WND.

Critics, however, claim the triggers rely on the political will of DHS, which can waive much of the enforcement if officials are so inclined.

“This is especially true given the orientation of the current administration,” Camarota told WND.

Too much of the Senate immigration proposal depends on trusting politicians, and “many of these same promises have been made before and not met, so there is no reason to think this time will different,” Camarota explained.

Con Carroll of the Washington Examiner has called the triggers “completely worthless,” noting that historically Congress has failed to resolve border issues.

Can ‘exceptions’ cancel enforcement triggers?

Proponents of the bill have claimed “real triggers” for enforcement will make it good policy.

Immediately following the “triggers” listed in the immigration bill, however, there is a subparagraph titled “Exceptions” (subpara. B, p. 12).

There are several exceptions listed: One states if “10 years have elapsed since the date of the enactment of this Act,” illegals could “apply for an adjustment to lawful permanent resident status” (subpara. B(ii), p. 12-13).

Another exception says that “if litigation … has prevented one or more” of the four triggers described above, then illegals could “apply for an adjustment to lawful permanent resident status” (subpara. B(i)(I), p. 12).

Mickey Kaus, writing in the Daily Caller, suggests if the ACLU can just tie up” the legislation long enough, then “all the legalized illegals get green cards anyway, whether the system is in place or not.”

Are the “triggers” really triggers?

The “Southern Border Security Strategy” mentioned in the first of the four triggers is supposed to have an effectiveness rate of 90 percent or higher at “high risk border sectors,” defined as a border sector in which more than 30,000 individuals were apprehended during the most recent fiscal year ((5), p. 10).

The act doesn’t mention, however, sectors that are not “high risk,” or what happens if there is a lower effectiveness rate in those sectors.

Because of past controversies, there is a context of scrutiny surrounding border-fence issues. In 2011, Obama said that the border fence was “basically complete.” The Washington Post, however, rated this claim “mostly false.” The 2006 Secure Fence Act was supposed to provide for a viable fence. However, funding for the fence was reduced, rendering the Secure Fence Act less effective than fence advocates expected.

The third trigger, the employment verification system, has furthermore been criticized as a move towards national identification.

Sen. Rand Paul, R-Ky., has said that he opposes E-verify, while immigration reform groups see it as crucial to ensuring a legal workforce. If Affordable Care Act waivers are any indication, employers may seek waivers if E-verify implementation is too costly or time-consuming.

The fourth trigger, an electronic passport system, is “already required,” according to Mark Krikorian of the Center for Immigration Studies.

He points out, “The political class has ignored immigration-security requirements passed over the years, and now is promising to water down the requirements it has long ignored.”

According to the proposed legislation, if the border effectiveness triggers are not reached in five years, a bipartisan “Southern Border Security Commission” will be established (Sec. 4, p. 14). This commission is supposed to “submit to the president, the secretary and Congress a report setting forth specific recommendations for policies for achieving and maintaining the border security goals” ((d), 17).

In sum, Homeland Security submits a plan to Congress, and if that plan fails, a commission is created, which then submits a different plan.

“If there is no plan, then there is no legalization at all,” says Rubio’s press secretary, Conant.

However, the act is silent about what happens if Homeland Security, Congress and the Commission all fail to produce a plan or the plan fails.

Limits on illegal immigrant family members removed

Aside from the effectiveness of the triggers, the text of the act presents other questions.

In a section entitled “Numerical Limitations Do Not Apply,” the proposed act does away with existing limits with regard to family members seeking legal status under the act: “The numerical limitations under sections 201 and 202 of the Immigration and Nationality Act (8 U.S.C. 1151 and 1152) shall not apply to the adjustment of aliens to lawful permanent resident status under this section” ((d)(1), 178-79).

Sections 201 and 202 currently place a cap of roughly 200,000 on the number of family-member visas the U.S. can issue.

It is commonly estimated that there are 11 million illegal immigrants in the country. If the actual number turns out to be greater, the act does not place any limit on the number of who can receive amnesty.

Use of welfare programs allowed

The bill states that an illegal immigrant will not be given legal status unless he establishes he is “not likely to become a public charge” ((i)(II), p. 81; (II), 97). “Public charge” is a term that comes from a long-established U.S. immigration law. Whether or not an illegal immigrant is likely to become a public charge depends on a set of factors including age, health, family status, assets, education and skills.

Ranking Republican senators, however, have criticized DHS for giving immigrants access to many welfare programs, yet not be considered a “public charge.”

The following programs are, by law, not allowed to be considered when determining whether one is likely to become a public charge: food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, Medicaid, Head Start, the Children’s Health Insurance Program and housing benefits.

Last year, the Department of Homeland Security admitted that, in all of 2012, it brought only one case against an immigrant for becoming a public charge.

Robert Rector of the Heritage Foundation puts the cost of amnesty at $2.5 trillion dollars for Medicare and Social Security alone.

The Senate bill also claims to require that illegal immigrants establish that they “can demonstrate average income or resources that are not less than 125 percent of the Federal poverty level” (II(ii), 97).

Yet in the past, critics warn, various immigration standards have been negated by executive order or simple non-enforcement.

Thus far, the proposed act hasn’t decreased the economic or demographic concerns of amnesty critics.

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