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UPDATED: Top 10 Errors In The Gang of Eight’s Immigration Bill

The Gang of 8’s immigration bill was finally released Wednesday morning. (Click here for the 844-page bill or here for the 19-page Senate summary.) While we’ll hear much lofty praise and pitches by its sponsors, particularly Senator Marco Rubio, let’s dig a little deeper and find what’s concerning, missing, or outright wrong in this bill.

1) There are no actual triggers of border enforcement or border security.
Repeat after me: there are no actual triggers. Crafty as ever, the bill’s summary, disclosed by the Senate, has a section misleadingly entitled: “Border Security Triggers.” It lists the two so-called triggers:

(1) “Trigger to Initial Adjustment of Status” (the ‘trigger’ necessary for the initial legalization, changing an undocumented immigrant to a “Registered Provision Immigrant”); and
(2) “Trigger to Adjustment of Status from Registered Provisional Immigrant Status to Lawful Permanent Resident Status” (the ‘trigger’ for then moving one from legal status to greencard/permanent resident)

But then one reads and realizes these ‘triggers’ aren’t really triggers at all.

Six months after the bill is enacted, the Secretary of Homeland Secuirty must submit a strategy plan for dealing with the high risk sections of the Southern border, as well as a strategy plan regarding border-fence improvement. The two [aforementioned] triggers are simply:

1) No R.P.I. status for anyone “until the Secretary has submitted to Congress” notice of the two plans’ “commencement.” In other words, border security and fencing plans merely need to have started – that’s it! – for the mass legalization to go ahead. It’s tantamount to a parent giving the green-light just because you’ve started your homework, not because you’ve completed it. Perhaps Senator Rubio was understandably careful in his language when he recently stated: “you don’t get to apply for anything until the enforcement mechanisms are in place” — the key phrase there being just “in place.”

2) Further down the line (approximately 10 years), no one in R.P.I. status can obtain a greencard until the Secretary submits a written certification to Congress that certain security measures have been “achieved.” OK, well that sounds encouraging until you realize just how weak the ‘achievement’ bar is. All it requires is that the two strategies have been “substantially” deployed, implemented, and operational; that national E-Verify has been implemented by employers; and that there is an electronic visa exit system used at airports and sea ports.

Moreover, notice the impressive-sounding goal, deliberately placed in the Senate summary’s first page and first section (Section A: Goal for Border Security), regarding the ‘effectiveness’ rate on the border, is just that: a goal. It is not a trigger. And, its reassuring “90% effectiveness rate” on border security actually only applies to “high risk” areas of the border (those where apprehensions are above 30,0000 per year).

Nonetheless, Senator Rubio’s office’s press release this morning states there are “six triggers,” including those that are merely goals (#3 and # 4 below) and not, in fact, triggers.


[Pictured above, Senator Marco Rubio’s press release, April 17, 2013. Mediaite has asked various top members of Senator Rubio’s team for clarification on this and is awaiting response.]

2) It could extend to undocumented immigrants who arrived recently after the news of a potential amnesty.

Sure, the bill only allows applicants who were in the U.S. before December 31, 2011 and maintained a continuous presence. But how easy will it be to have crossed the border a month ago and falsify some papers, or friends’ testimony, claiming one came in earlier?

3) No, they don’t have to go to the back of the line and there is special treatment.
The American public has repeatedly heard from the Gang of 8, and particularly Senator Rubio, that there will be no special pathway and applicants must go to the back of the line behind everyone else. But that isn’t exactly right. The path creates a very clear, ‘special’ path and makes no mention of how exactly these applicants are placed behind anyone else.

And, once one qualifies for a green card (permanent residency), one is eligible for citizenship in three years (versus the usual five years).

Pathway? Yes. Special treatment? You bet.

In addition, it is special treatment in that it grants millions of individuals the ability to apply for a greencard – who normally would not qualify for one. What is the usual process for qualifying for a green card? Well, you’ll need a qualifying family member connection, an employment sponsor, refugee or asylum status (e.g., Somalis), or a few other special provisions. In contrast, this bill therefore does grant special treatment to those who will qualify simply because they are or were physically here (provided they meet the fairly easy requirements of a $500 fine and no severe criminal history), versus applicants abroad who must meet one of the special categories or obtain entry via a visa lottery.

4) Family members can piggyback on one’s application.
Thought this amnesty was limited to those already here? Think again. Even family members of those who qualify for this new R.P.I. status will qualify — specifically, spouses and children. Though we constantly heard this immigration reform would move away from family-based immigration to skills-based immigration — where is that? On the contrary, this bill seems to emphasize family-based immigration.

5) “Rigorous background check”? Doesn’t look like it!
One is ineligible to apply if one has a felony conviction, three or more misdemeanors, or a few other no-no’s such as having unlawfully voted. But it is unclear just how detailed — or effective across databases (for individuals who often may have provided fake names or falsified documentation) — these background checks will be.

6) Did we deport you? Come on back!
It’s not only amnesty for those currently here but even for those who were already deported. Even if one was already deported (provided it was for non-criminal reasons), as long as one was in the U.S. before 12/31/2011, one may apply to re-enter the U.S. in cushy RPI status (as long as your spouse, parent, or child is a U.S. citizen or resident).

7) Are you currently undergoing deportation proceedings or have a deportation order? No worries!
“Individuals with removal orders will be permitted to apply[,] as will aliens currently in removal proceedings.”

8) Sure, the bill specifies applicants may not qualify for federal benefits but…
what about state benefits or state programs? And what of legislation down the road that may overturn this restriction?

9) The bill does little, if anything, to track down those who overstay their visits.
As Senator Rubio has noted in previous interviews, millions of those who are here illegally overstayed a tourist or student visa but the system does little to track these individuals. This bill does not provide any actual solution to that problem.

10) A one-time fix?
There does not appear to be any wording in the bill preventing another future amnesty.

Senator Rubio Tweeted this morning that he looks forward to “an extensive and open discussion and debate.” May this column, and others like it, present some points, for conservatives in particular, to consider as we move forward with a thorough, honest discussion on this bill.

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UPDATE (posted April 17, 5:13 p.m. EST): This article was posted circa 1 pm, and inquiries were sent to Senator Rubio’s office and staff asking for clarification on why their press release claims there are six ‘triggers’ when the bill does not, in fact, provide such. No response has been received yet. Mediaite will update if and when a response or clarification is received. Instead, circa 4 pm on Wednesday afternoon, Senator Rubio and his staff circulated what appears to be an immigration-bill-summary video, possibly filmed today (Rubio’s stumbling in certain sections indicates it may be a rushed, previously unplanned video). The video not only contradicts what is in the bill but also contradicts his own office’s press release this morning, this time referencing three triggers, instead of six. At the 2:44 mark, Senator Rubio notes: “Our bill says that no one who is illegally here gets to even apply for a green card until the (1) border plan has been fully implemented, (2) E-Verify has been fully implemented, and (3) the entry-exit has been fully implemented. Until these three things happen, the green card process is not triggered.” Rubio later repeatedly references “the three enforcement mechanisms.”

Yet, his office’s press release, still up on the senator’s website, claims (wrongly, as I noted above) that there are six triggers/mechanisms (when, in fact, there are not). It is possible Senator Rubio is attempting to backtrack from that press release without issuing an outright correction.

Moreover, his video contracts the bill itself. When Rubio notes that the border plan must be “fully implemented” for green cards to proceed, he is directly at odds with the bill’s language. The bill only requires ‘substantial’ implemention:

So which is it? Why does Senator Rubio’s press release note that there are “six triggers”, even listing ‘goals’ as ‘triggers,’ when the bill does not, in fact, contain such triggers? Why does Senator Rubio’s Wednesday afternoon video wrongly claim that border enforcement would have to be “fully” implemented before any green cards are issued, when the bill does not?

Click below to view Senator Rubio’s video, released Wednesday afternoon:

UPDATE II (posted April 22, 1:36 p.m. EST): In addition to the misinformation repeatedly distributed by Senator Rubio and his staff (see here and here), as well as by his fellow Gang of 8 member Senator Flake (see here), there is yet another troubling aspect about this bill. As Heritage Foundation chief, former senator Jim DeMint, points out in a post today, entitled “Taxpayers Would Pay for Amnesty”:

Taxpayers are right to be cautious of another large, incomprehensible bill like Obamacare—which created numerous new federal programs while politicians still falsely claimed it would lower the deficit. In fact, Section 2524 of the Gang of Eight bill sheds light on the rising taxpayer costs likely to flow from the bill, as it creates a new federal commission specifically designed to promote the use of federal benefits to newly legalized immigrants.

Indeed, while the bill claims legalized applicants will be ineligible for federal benefits, that does not rule out state benefits (or the possibility that calls for its repeal, on grounds of compassion, would soon flourish). And naturally, once they are citizens they will be eligible for any and all federal benefits.

The bill creates a “New Americans Task Force” whose description indicates its purpose is to facilitate legalized immigrants’ access to benefits and programs, as well as the creation of new programs to benefit them. The relevant section, Section 2524, reads:

UPDATE III (posted April 22, 4:06 pm): In today’s Senate Judiciary Committee hearing on the bill, Kansas Secretary of State Kris Kobach testified regarding his opposition to the bill. Kobach raised various concerns, including that the background checks will be insufficient to prevent a terrorist from legalization, as there is no requirement that one provide an official, government-issued document proving one is who one claims to be. Kobach added that, even if an applicant uses his or her real name in the application, a background check can still be ineffective in spotting a terrorist or would-be terrorist, citing Tamerlan Tsarnaev as an example.

Kobach also noted that the bill has no age limit for legalizing those who came before age 16.

Kobach described the bill not only as amnesty but as “amnesty plus,” as it not only declines to prosecute, which is amnesty, but rather gives the person what he or she is seeking or taking.

UPDATE IV (posted April 23, 10:58 a.m. EST): During her testimony before the Senate Judiciary Committee this morning, Secretary of Homeland Security Janet Napolitano conceded that the border effectiveness rate’s “denomination” methodology is a problem. Kris Kobach’s testimony touched upon this yesterday, as well. The so-called ‘trigger’ for the initial legalization (for changing illegal immigrants’ status to Registered Provision Immigrant) calls for a plan to be submitted and commenced regarding border strategy (as well as a plan regarding fencing). The goal of this plan is a 90% effectiveness rate in the southern border’s “high-risk” border sectors (which are three of the nine sectors). The effectiveness rate is is determined by: [number of apprehensions and turn backs] divided by [“the total number of illegal entries”] that year. That ‘denominator’ used is a problem that Napolitano conceded today. Why? Because it is not actually the ‘total number of illegal entries,’ as we have no way to know how many entered but, is only the number of illegal entries we actually notice or catch.

UPDATE V (posted April 24, 2:06 p.m. EST): The bill could incentivize employers to hire non-citizens over American citizens. And no, this is not referring to the consequences of increasing the number H-1B visas, nor the consequences of newly legalized work permit holders who will likely work for less, pushing out American workers, nor the consequences of a ‘downward push’ on wages which even pro-immigration-bill economist Douglas Holtz-Eakin conceded during the Senate Judiciary Hearings last Friday. This is a whole other separate, serious consequence on the American citizen worker, regarding ObamaCare. In a nutshell: These newly-legalized workers would be more attractive to employers due to ObamaCare’s requirements. Under ObamaCare, any business with over 50 employes who does not offer adequate health insurance could be fined up to $3,000 per worker if at least one worker obtains coverage through a government-run exchange using federal subsidies. Since non-citizens are not eligible for ObamaCare subsidies, employers would find these non-citizen workers (the bill grants work-permits in the first wave of legalization) far more appealing, since employers would not face any fines over these workers by not offering adequate health insurance. As The Examiner‘s Philip Klein notes:

Essentially, when combined, we’d have a system under which employers would be subject to a substantial tax on hiring American citizens that they would not be subject to if they were to hire newly legalized immigrants who have not yet obtained citizenship.

This issue is different from the usual debate over whether immigrants would be taking away jobs from American citizens or putting downward pressure on wages. This is about two government policies interacting to disadvantage American citizens.

Read Klein’s piece here, including the response of Senator Rubio’s Press Secretary, Alex Conant.
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Editor’s note: This post has been updated and republished from its original publication date of April 17, 2013 – Jon Nicosia

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