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  • Immigration Full Coverage News

    http://www.baltimoresun.com/news/nat...al-pe-asection



    Senators, sharply divided, tackle immigration law Need to secure borders clashes with desire for guest worker program

    By Nicole Gaouette
    Originally published March 3, 2006

    WASHINGTON // The opening bell sounded yesterday on the Senate's effort to overhaul immigration laws, but the panel that will take the lead on the legislation appeared severely divided.

    Members of the Senate Judiciary Committee staked out sharply different positions on whether to create a guest worker program, how to enforce border security and how to handle the estimated 11 million undocumented immigrants already in the country.





    "I have seen virtually no agreement on anything," said Sen. Arlen Specter, a Pennsylvania Republican who leads the committee, during a meeting intended to begin negotiating the legislation.

    He said the committee faced a "gigantic task" in fashioning legislation by a deadline set by Senate Majority Leader Bill Frist, a Tennessee Republican.

    Committee members, four of whom are first-generation Americans, seemed united only in their assessment that the bill Specter provided as a starting point is "an unmitigated disaster," as Specter characterized their criticism.

    Frist has told the committee that if it cannot deliver a bill by March 27, he will present a measure of his own for a vote. Like the immigration legislation passed by the House in December, Frist's bill concentrates on enforcement measures.

    To meet the deadline, the lawmakers will have to work through Specter's 305-page bill and more than 30 of their own amendments, ranging from proposals that would deny U.S. citizenship to the children of illegal immigrants to amendments that would forbid the Department of Homeland Security from indefinitely detaining illegal immigrants.

    Their challenge will be reconciling the views of senators who feel that no reform can take place until there is greater control of the border with those of senators who feel that border security will be possible only with the creation of a guest worker program, which would create a legal pathway for foreign workers to take jobs in the United States.

    Specter's bill, which has heavy enforcement provisions, has been controversial in both camps. Specter would create a program that allows workers to come to the United States for up to six years, but would not lead to citizenship.

    And while Specter would allow undocumented workers already in the country to stay under an indefinite work permit, they also could never become citizens.

    Republican Sens. Jon Kyl of Arizona and John Cornyn of Texas also offered a guest worker plan that would not grant citizenship.

    A competing bill by Sens. John McCain, an Arizona Republican, and Edward M. Kennedy, a Massachusetts Democrat, would create a guest worker program that could allow newly arriving workers to gain citizenship. It would also set a pathway for the 11 million illegal immigrants now in the country to obtain citizenship as long as they met certain requirements and paid fines and back taxes.

    "The choice is to legalize them or leave them in the shadows," Kennedy said yesterday of undocumented immigrants. He argued that without the incentive of citizenship, illegal immigrants would not come forward. "Only legalizing them will work," he said.

    Sen. Charles E. Grassley, an Iowa Republican, dismissed that argument. A guest worker program would simply draw more undocumented immigrants and burden already struggling government agencies, he said, advocating more resources for the border. "If we go forward with a guest worker program, we'll have a much worse problem," he said.

    Sen. Diane Feinstein, a California Democrat, proposed a modified version of a guest worker program for the agriculture industry that would provide 300,000 jobs a year for three years. Feinstein said she did not want to expand her program beyond agriculture because "you displace American workers that way."

    But others made it clear that they saw no value in even limited programs. Sen. Tom Coburn, an Oklahoma Republican who sponsored the amendment to deny citizenship to the children of undocumented immigrants, said the senators "shouldn't do anything until we secure the border."

  • #2
    http://www.baltimoresun.com/news/nat...al-pe-asection



    Senators, sharply divided, tackle immigration law Need to secure borders clashes with desire for guest worker program

    By Nicole Gaouette
    Originally published March 3, 2006

    WASHINGTON // The opening bell sounded yesterday on the Senate's effort to overhaul immigration laws, but the panel that will take the lead on the legislation appeared severely divided.

    Members of the Senate Judiciary Committee staked out sharply different positions on whether to create a guest worker program, how to enforce border security and how to handle the estimated 11 million undocumented immigrants already in the country.





    "I have seen virtually no agreement on anything," said Sen. Arlen Specter, a Pennsylvania Republican who leads the committee, during a meeting intended to begin negotiating the legislation.

    He said the committee faced a "gigantic task" in fashioning legislation by a deadline set by Senate Majority Leader Bill Frist, a Tennessee Republican.

    Committee members, four of whom are first-generation Americans, seemed united only in their assessment that the bill Specter provided as a starting point is "an unmitigated disaster," as Specter characterized their criticism.

    Frist has told the committee that if it cannot deliver a bill by March 27, he will present a measure of his own for a vote. Like the immigration legislation passed by the House in December, Frist's bill concentrates on enforcement measures.

    To meet the deadline, the lawmakers will have to work through Specter's 305-page bill and more than 30 of their own amendments, ranging from proposals that would deny U.S. citizenship to the children of illegal immigrants to amendments that would forbid the Department of Homeland Security from indefinitely detaining illegal immigrants.

    Their challenge will be reconciling the views of senators who feel that no reform can take place until there is greater control of the border with those of senators who feel that border security will be possible only with the creation of a guest worker program, which would create a legal pathway for foreign workers to take jobs in the United States.

    Specter's bill, which has heavy enforcement provisions, has been controversial in both camps. Specter would create a program that allows workers to come to the United States for up to six years, but would not lead to citizenship.

    And while Specter would allow undocumented workers already in the country to stay under an indefinite work permit, they also could never become citizens.

    Republican Sens. Jon Kyl of Arizona and John Cornyn of Texas also offered a guest worker plan that would not grant citizenship.

    A competing bill by Sens. John McCain, an Arizona Republican, and Edward M. Kennedy, a Massachusetts Democrat, would create a guest worker program that could allow newly arriving workers to gain citizenship. It would also set a pathway for the 11 million illegal immigrants now in the country to obtain citizenship as long as they met certain requirements and paid fines and back taxes.

    "The choice is to legalize them or leave them in the shadows," Kennedy said yesterday of undocumented immigrants. He argued that without the incentive of citizenship, illegal immigrants would not come forward. "Only legalizing them will work," he said.

    Sen. Charles E. Grassley, an Iowa Republican, dismissed that argument. A guest worker program would simply draw more undocumented immigrants and burden already struggling government agencies, he said, advocating more resources for the border. "If we go forward with a guest worker program, we'll have a much worse problem," he said.

    Sen. Diane Feinstein, a California Democrat, proposed a modified version of a guest worker program for the agriculture industry that would provide 300,000 jobs a year for three years. Feinstein said she did not want to expand her program beyond agriculture because "you displace American workers that way."

    But others made it clear that they saw no value in even limited programs. Sen. Tom Coburn, an Oklahoma Republican who sponsored the amendment to deny citizenship to the children of undocumented immigrants, said the senators "shouldn't do anything until we secure the border."

    Comment


    • #3
      AAmmeerriiccaann IImmmmiiggrraattiioonn LLaawwyyeerrss AAssssoocciiaattiioonn
      The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437)
      Section-by-Section Analysis
      Section 1. Short Title and Table of Contents
      The Act may be cited as the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005.
      Section 2. Definitions
      This section defines the following terms: "appropriate congressional committee" and "State."
      TITLE I. SECURING UNITED STATES BORDERS
      Section 101: Achieving Operational Control on the Border
      Section 102: National Strategy for Border Security
      Section 103: Implementation of Cross-Border Security Agreements
      Section 104: Biometric Data Enhancements
      Section 105: One Face at the Border Initiative
      Section 106: Secure Communication
      Section 107: Port of Entry Inspection Personnel
      Section 108: Canine Detection Teams
      Section 109: Secure Border Initiative Financial Accountability
      Section 110: Border Patrol Training Capacity Review
      Section 111: Airspace Security Mission Impact Review
      Section 112: Repair of Private Infrastructure on Border
      Section 113: Border Patrol Unit for Virgin Islands
      1
      Section 114: Report on Progress in Tracking Travel of Central American Gangs Along International Border
      Section 115: Collection of Data
      Section 116: Deployment of Radiation Detection Portal Equipment at United States Ports of Entry
      Section 117: Consultation with Businesses and Firms
      TITLE II. COMBATTING ALIEN SMUGGLING AND ILLEGAL ENTRY AND PRESENCE
      Section 201: Definition of Aggravated Felony
      Section 201 would amend INA § 101(a)(43) to expand the definition of "aggravated felony" to include all smuggling offenses, illegal entry and reentry crimes with a sentence of one year or more, and solicitation and assistance in specified offenses.1 In addition, section 201(a)(4) would put enhancements2 and divisible statutes3 back in play and would reverse the burden of proof for the latter.4 This means that any offense in any part of the aggravated felony definition (not just
      1 This provision affects cases holding that soliciting and aiding and abetting are not aggravated felonies, such as Martinez-Perez v. Gonza***, 417 F.3d 1022 (9th Cir. 2005) (noting that aiding and abetting theft does not constitute an aggravated felony); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (noting that aiding and abetting theft does not constitute an aggravated felony); Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999) (conviction for solicitation to possess marijuana not an aggravated felony because solicitation is not punishable under the Controlled Substances Act).
      2 This provision overrules United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001) (conviction for petty theft not an aggravated felony where two-year sentence imposed was due to application of recidivist sentence enhancement; without such an enhancement, maximum possible sentence for petty theft under California law is six months).
      3 This provision eliminates the courts' long-standing categorical approach to determining whether state-level convictions constitute aggravated felonies. The categorical approach allows the government to establish deportability based only on the conviction record. At the same time, it protects against a second trial in the immigration proceeding about the underlying facts of the crime. Under the categorical approach, if the statute of conviction encompasses conduct which does not meet the aggravated felony definition, the conviction will not be deemed an aggravated felony. See, e.g., United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939) ("the deporting officials may not consider the particular conduct for which the alien has been convicted..."); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758-59 (2d Cir. 1933) (where the government alleges that an alien had been convicted of a crime involving moral turpitude, "neither the immigration officials nor the court reviewing their decision may go outside the record of conviction to determine whether in the particular instance the alien's conduct was immoral. And by the record of conviction we mean the charge (indictment), plea, verdict, and sentence."). The Supreme Court endorsed this approach in Taylor v. United States, 495 U.S. 575, 602 (1990), in which the Court stated that trial courts, in making sentencing decisions based on prior convictions, should "look only to the fact of conviction and the statutory definition of the prior offense."
      4 It is clearly established that the government must show by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276 (1966). Courts have consistently held this to mean that the government must prove through judicially noticeable evidence that the underlying facts of a conviction met the statutory definition of an aggravated felony. See, e.g., Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) (government failed to meet its burden of showing that alien's conviction was a "theft offense" within the meaning of 8 U.S.C. § 1101(a)(43)(G)); United States v. Harrison, 2004 U.S. Dist. LEXIS 3621, at *30 (government failed to establish conviction of an aggravated felony where the statute of conviction criminalized 2
      smuggling offenses) could be categorized as an aggravated felony even if the statute under which the person was convicted is divisible and also includes non-aggravated felony conduct.
      Section 202: Alien Smuggling and Related Offenses
      Section 202 would expand the alien smuggling provisions of INA § 274 to include "offenses" where the "offender" acts with knowledge of, or in reckless disregard of, the fact that the alien lacks lawful permission to enter or remain in the U.S. This incredibly overbroad definition of smuggling would criminalize the work of social service organizations, refugee agencies, churches, attorneys, and other groups that counsel immigrants, treating them the same as smuggling organizations. In addition, family members and employers could be fined and imprisoned for "harboring," "shielding," or "transporting" undocumented family members or employees, filling our prisons with people who have done nothing more than try to reunite their families, or help a worker, friend or client. Section 202 also mandates the seizure and forfeiture of any property, real or personal, that has been used to commit or facilitate the commission of a violation of this section.
      Section 203: Improper Entry by, or Presence of, Aliens
      Section 203 would amend INA § 275 to create a new federal crime of "unlawful presence." Under current law, presence in the U.S. without valid status is a civil, not a criminal violation. Section 203 defines the term broadly to mean "present in violation of the immigration laws or the regulations prescribed thereunder," essentially rendering every violation, however minor, technical or non-intentional, a federal crime.5 This section also would expand penalties for aliens who illegally enter or who are present without authorization following convictions for certain crimes, and double the penalties for marriage and immigration-related entrepreneurship fraud.
      Section 204: Reentry of Removed Aliens
      Section 204 would roll back the various due process safeguards secured through judicial rulings respecting reentry issues and would amend INA § 276 to create mandatory minimum sentences for aliens convicted of reentry after removal.
      Section 205: Mandatory Sentencing Ranges for Persons Aiding or Assisting Certain Reentering Aliens
      conduct that qualified as a drug trafficking offense and conduct that qualified as an offense under the Controlled Substances Act, but also encompassed offenses that did neither). This provision also allows the use of police reports, court records, and presentence reports, which the Supreme Court has prohibited. Shephard v. United States, 125 S.Ct. 1254 (2005) (prohibiting use of police reports to determine whether guilty plea defined by a non-generic statute necessarily admitted elements of the generic offense; such inquiry is limited to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record..."); see also United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758-59 (2d Cir. 1933) (only the record of conviction may be used to determine whether an alien has committed a crime of moral turpitude, "[a]nd by the record of conviction we mean the charge (indictment), plea, verdict, and sentence.").
      5 Such violations would include lawful permanent residents who fail to report a change of address to the Department of Homeland Security within ten days (see INA 237(a)(3)(A)), as well as university students on an F-1 visa who drop below a full course load (see INA 237(a)(1)(C) and implementing regs for F-1 students) or H-1B workers who get laid off and do not find new sponsorship within a small window of opportunity (see INA 237(a)(1)(C) and implementing regs for H-1Bs). In conjunction with Section 201 of this bill, such "crimes" could trigger "aggravated felony" liability, subjecting the individual to mandatory detention and virtually no relief from deportation.
      3
      Section 205 would amend INA § 277 to impose upon persons who aid or assist certain aliens to enter the U.S. the same sentences that the aliens themselves would receive.
      Section 206: Prohibiting Carrying or Using a Firearm During and in Relation to an Alien Smuggling Crime
      Section 206 would add smuggling crimes to the list of crimes for which the use or carrying of a firearm during the commission thereof would result in criminal sentencing enhancements.
      Section 207: Clarifying Changes
      Section 207 would amend INA § 212(a)(6)(C)(ii) to expand, retroactively, the current provision rendering inadmissible aliens who have made false claims to U.S. citizenship to include aliens who have made false claims to U.S. nationality.6 Section 207 also would provide that the DHS shall have access to any information kept by any federal agency as to any person seeking a benefit or privilege under the immigration law.
      Section 208: Voluntary Departure Reform
      Section 208 would amend INA § 240B to make various changes to the Voluntary Departure laws. Specifically, this section would: reduce from 120 to 60 days the maximum period of voluntary departure that can be granted before the conclusion of proceedings; require aliens receiving a grant of voluntary departure before the conclusion of proceedings to post a bond or demonstrate that such requirement would create serious hardship; and require aliens, in exchange for voluntary departure, to waive all rights to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal. If the alien chooses to take a subsequent appeal, such appeal would invalidate the voluntary departure grant, as would an alien's failure to timely depart. Failure to timely depart would also subject the alien to a $3,000 fine, render him ineligible for various immigration benefits for 10 years after his departure, and preclude a reopening of the removal proceedings except to apply for withholding of removal or protection under the Convention Against Torture. Section 208 would also preclude courts from reinstating, enjoining, delaying, staying, or tolling the period of voluntary departure.7
      6 This section appears to be designed to overturn case law holding that the analogous criminal statute, 18 U.S.C. § 911 ("[w]hoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both") does not apply to those who claim U.S. nationality, rather than citizenship. U.S. v. Karaouni, 379 F.3d 1139, 1140 (9th Cir. 2004) (holding that a noncitizen defendant who had checked the box on Form I-9 attesting to being a "citizen or national of the United States" had not violated § 911 because he might have been claiming to be a national).
      7 Section 208 would override established case law from several circuits and the BIA, including: Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005) (holding that "in cases in which a motion to reopen is filed within the voluntary departure period and a stay of removal or voluntary departure is requested, the voluntary departure period is tolled during the period the BIA is considering the motion"); Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005); Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005) (applying Azarte's reasoning to the pre-IIRIRA scheme, and holding that "the pre-IIRIRA voluntary departure provision requires that aliens be afforded a reasonable opportunity to receive a ruling on the merits of a timely-filed motion to reopen"); Barrios v. Attorney General of U.S., 399 F.3d 272, 278 (3d Cir. 2005); In re A-M-, 23 I. & N. Dec. 737, 743 (BIA 2005) (emphasizing that "recent statutory and regulatory changes have not altered the basic principle... that the timely filing of an appeal with the Board stays the execution of the decision of the Immigration Judge during the pendency of the appeal and tolls the running of the time authorized by the Immigration Judge for voluntary departure"); Matter of Chouliaris, 161 I. & N. Dec. 168 (BIA 1977).
      4
      Section 209: Deterring Aliens Ordered Removed from Remaining in the United States Unlawfully and from Unlawfully Returning to the United States after Departing Voluntarily
      Section 209 would render individuals ordered removed who fail to depart the U.S. ineligible for any discretionary relief from removal pursuant to a motion to reopen during the time they remain in the U.S. and for a period of 10 years after their departure, with the exception of motions to reopen to seek withholding of removal or protection against torture.
      TITLE III. BORDER SECURITY COOPERATION AND ENFORCEMENT
      Section 301: Joint Strategic Plan for United States Border Surveillance and Support
      Section 302: Border Security on Protected Land
      Section 303: Border Security Threat Assessment and Information Sharing Test and Evaluation Exercise
      Section 304: Border Security Advisory Committee
      Section 305: Permitted Use of Homeland Security Grant Funds for Border Security Activities
      Section 306: Center of Excellence for Border Security
      Section 307: Sense of Congress Regarding Cooperation with Indian Nations
      TITLE IV. DETENTION AND REMOVAL
      Section 401: Mandatory Detention for Aliens Apprehended at or Between Ports of Entry
      Section 401 would require the Department of Homeland Security (DHS), by October 1, 2006, to detain all aliens apprehended at ports of entry or along the international land and maritime borders of the U.S. until they are removed from the U.S. or a final decision granting their admission has been determined. The only exceptions to mandatory detention are reserved for aliens who depart immediately, such as Mexican nationals who are voluntarily returned across the border, and those paroled in on the basis of urgent humanitarian reasons or significant public benefit. Section 401 also sets up an interim scheme which would begin 60 days after enactment. Under the interim regime, a person attempting to enter the U.S. illegally and apprehended at a U.S. port of entry or along a land or maritime border could not be released pending proceedings unless the DHS Secretary determines that the alien does not pose a national security risk and the alien posts bond of at least $5,000. The provision makes an exception for Cubans.
      Section 402: Expansion and Effective Management of Detention Facilities
      Section 402 would require DHS to utilize fully all available detention facilities and all possible options to cost effectively increase detention capacity, including temporary facilities, contracting with state and local jails, and secure alternatives to detention.
      5
      Section 403: Enhancing Transportation Capacity for Unlawful Aliens
      This section would authorize the DHS Secretary to enter into contracts with private entities to provide secure domestic transportation of aliens apprehended at or between ports of entry from the custody of the Border Patrol to a detention facility and other locations as necessary.
      Section 404: Denial of Admission to Nationals of Country Denying or Delaying Accepting Alien
      Section 404 would amend INA § 243(d) to authorize the DHS Secretary, after consultation with the Secretary of State, to deny admission to any citizen, subject, national, or resident of any country that has denied or unreasonably delayed accepting the return of an alien ordered removed from the U.S. This section of the INA currently allows the State Department (DOS) to discontinue granting visas to individuals from such countries upon notification by the Attorney General of the delay or denial. Because the proposed amendment would not require the DOS to cease issuing visas to individuals of the countries in question, such persons could find themselves at our borders with proper visas and have their entry subsequently denied by DHS officials. In addition, no exception is made for asylum applicants, creating the potential for individuals to be sent back to countries in which their lives could be in danger.
      Section 405: Report on Financial Burden of Repatriation
      Section 405 would require the DHS Secretary to submit an annual report to the Secretary of State and Congress detailing the costs to DHS of repatriating aliens, and providing recommendations for more a cost effective repatriation program.
      Section 406: Training Program
      This section would require the DHS Secretary to review and evaluate the training provided to Border Patrol Agents and port of entry inspectors to ensure consistency in their referrals to an asylum officer for credible fear determinations.
      Section 407: Expedited Removal
      Section 407 would expand the expedited removal provisions of INA § 235(b)(1)(A)(iii) to aliens other than Mexicans or Canadians who have not been admitted or paroled into the U.S. and who are apprehended within 100 miles of an international land border and within 14 days of entry. This section would also broaden the "Cuban exception" (which currently excepts from expedited removal Cubans arriving by air at a port of entry) to any Cuban present in the U.S. regardless of place or manner of arrival. Section 407 includes no other exceptions to the expedited removal policy, thus raising the likelihood that more and more individuals would be wrongly subjected to this policy without recourse to relief.8
      TITLE V. EFFECTIVE ORGANIZATION OF BORDER SECURITY AGENCIES
      8 The Section's broad grant of unreviewable authority to remove persons within U.S. territory runs contrary to the Constitution's guarantee of due process, as repeatedly articulated by the Supreme Court: "[T]he Due Process Clause applies to all ˜persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). "[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law." Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
      6
      Section 501: Enhanced Border Security Coordination and Management
      Section 502: Office of Air and Marine Operations
      Section 503: Shadow Wolves Transfer
      TITLE VI. TERRORISTS AND CRIMINAL ALIENS
      Section 601: Removal of Terrorist Aliens
      Section 601 would render ineligible for withholding of removal aliens who are deportable under the broad definition of "terrorism," including "any alien who the Secretary of State, after consultation with the Attorney General [or vice versa], determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States." Section 601 would also expand the bars to asylum to include all of 212(a)(3)(B)(i) and (212)(a)(3)(F), thus making the asylum bar coextensive with the withholding bar. These changes would apply retroactively to all aliens in removal, deportation, or exclusion proceedings and to all applications pending on or filed after the date of enactment of this legislation.
      Section 602: Detention of Dangerous Aliens
      Section 602 would amend INA § 241 to create a new "dangerous aliens" detention ground permitting indefinite detention for aliens who cannot be removed. Review of the new detention provisions would be limited to the U.S. District Court for the District of D.C. 9
      Section 603: Increase in Criminal Penalties
      Section 603 would amend INA § 243 to increase penalties and set mandatory minimum sentences for aliens who fail to depart when ordered removed, who obstruct their removal, or who fail to comply with the terms of release pending removal.
      Section 604: Precluding Admissibility of Aggravated Felons and Other Criminals
      Section 604 would amend INA § 212(a) to render inadmissible aliens: who have been convicted of offenses related to the misuse of Social Security numbers and cards, or fraud in connection with identification documents; who at any time have been convicted of an aggravated felony; who have procured citizenship unlawfully; who have been convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment; or who have violated a protective order. It also would bar such aliens from seeking a waiver of inadmissibility.
      9 This provision seeks to invalidate Supreme Court precedents Zadvydas v. Davis, 533 U.S. 678 (2001) and Clark v. Martinez, 125 S.Ct. 716 (2005), by allowing for indefinite and potentially permanent detention. Zadvydas and Clark hold that, where removal of a noncitizen is "a remote possibility at best," Zadvydas at 690, indefinite civil detention under the INA is an unconstitutional infringement of basic liberty principles built into the Constitution. By limiting extensions of the 90-day statutory removal period to six months, Zadvydas holds that indefinite, potentially permanent civil detention is unconstitutional because "the Due Process Clause applies to all ˜persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent," Zadvydas at 693. Clark interpreted the Zadvydas rule to apply to inadmissible noncitizens who cannot be removed, holding that any distinction between the classes of immigrants "cannot justify giving the same detention provision a different meaning," Clark at 724.
      7
      Section 605: Precluding Refugee or Asylee Adjustment of Status for Aggravated Felonies
      Section 605 would amend INA § 209(c) to bar asylees and refugees convicted of an aggravated felony from adjustment of status. The amendments made by section 605 would be retroactive.
      Section 606: Removing Drunk Drivers
      Section 606 would broaden the definition of aggravated felony at INA § 101(a)(43) to include a third drunk driving conviction, regardless of the states in which the convictions occurred, and regardless of whether the offenses are deemed to be misdemeanors or felonies under state law, thus rendering deportable individuals so convicted.10
      Section 607: Designated County Law Enforcement Assistance Program
      This section would authorize and reimburse local sheriffs in "designated counties" (defined as "a county any part of which is within 25 miles of the southern border of the United States") to enforce state and federal laws in their counties, including the immigration laws if authorized under a written agreement pursuant to INA § 287(g), and to transfer aliens to federal custody. Section 607 also would reimburse those Sheriffs for costs associated with detaining, housing and transporting undocumented aliens whom they arrest.
      Section 608: Rendering Inadmissible and Deportable Aliens Participating in Criminal Street Gangs; Detention; Ineligibility from Protection from Removal and Asylum
      Section 608 would render inadmissible and deportable aliens participating in "criminal street gangs" (as defined under this section). Section 608 also would render such individuals ineligible for asylum, withholding of removal, and temporary protected status, and would subject them to mandatory detention. In addition, section 609 would adopt procedures similar to those used by the State Department to designate foreign terrorist organizations under INA § 219, to enable the Attorney General to designate criminal street gangs for purposes of the immigration laws.
      Section 609: Naturalization Reform
      Section 609 would amend INA § 316 to bar the naturalization of anyone the Secretary of Homeland Security determines, in the Secretary's discretion, to have been at any time an alien described in the INA's terrorism-related inadmissibility and removability provisions. The Secretary's determination could be based upon "any relevant information or evidence, including classified, sensitive, or national security information," and "shall be binding upon, and unreviewable by, any court exercising jurisdiction under the immigration laws over any application for naturalization." In addition, section 609 would prevent aliens in removal proceedings from naturalizing while those proceedings are pending, and require that conditional permanent residents have the conditions on their residence removed before they can be naturalized. As to the latter point, there are currently many EB-5 conditional permanent residents whose applications to remove the conditions on their residency have been pending for years due to agency disorganization, who are nonetheless eligible to naturalize under current law. Section 609 of the bill would preclude that. Section 609 would also gut the right to apply to the district court in the face of naturalization adjudication delays. INA § 336(b) currently provides
      10 This provision is an attempt to circumvent Leocal v. Ashcroft, 543 U.S. 1 (2004), which recognized that driving under the influence convictions which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle are not "aggravated felonies."
      8
      that if the naturalization interview has occurred, and 120 days have passed without a decision (for whatever reason), the applicant may apply to the U.S. district court for a hearing on the matter. The court can choose to adjudicate the application, or remand the matter to the DHS for further action.11
      Section 609 would effectively eliminate this ability to get a decision in delayed citizenship cases. While it appears to just shift the wait time from 120 to 180 days, in reality the clock would never start, as section 609 also allows the DHS to define by regulation an "interview" or "examination" to be continuing until a final decision. This is a tactic DHS tried successfully in a court in Virginia recently, but other courts have rejected this as vitiating the 120-day rule completely. Moreover, under section 609 the only power the court would have would be to remand the case to DHS; the bill thus strips the court of the ability to grant the application after reviewing the record. As noted above, current law gives the court the option to remand the case to the agency for further action, where appropriate, e.g., if the court wanted more background check information completed.12
      Finally, section 609 would provide that "No court shall have jurisdiction to determine, or to review a determination of the Secretary made at any time regarding, for purposes of an application for naturalization, whether an alien is a person of good moral character..." Recent litigation demonstrates that the DHS often gets good moral character decisions wrong. Absent judicial review, the agency will be able to continue this erroneous process unfettered.13
      Section 610: Expedited Removal for Aliens Inadmissible on Criminal or Security Grounds
      Section 610 would authorize the Secretary of Homeland Security to use expedited removal proceedings to determine inadmissibility under INA § 212(a)(2) and issue an order of removal with respect to an alien who has not been admitted or paroled, has not been found to have a credible fear of persecution pursuant to the procedures set forth in § 235, and is not eligible for a waiver of inadmissibility or relief from removal. In addition, section 610 would cut from 14 to 7 days the prohibition on executing such a removal order designed to allow the alien an opportunity to seek judicial review.
      Section 611: Technical Correction for Effective Date in Change in Inadmissibility for Terrorists Under REAL ID Act
      11 Historical note: Prior to 1990, the statute provided that the courts would decide naturalization applications after the applicant applied to INS for a recommendation on his or her citizenship application. In IMMACT 90, Congress decided to make it a more administrative process, and shifted to INS the power to decide the application as an initial matter, but preserved a role for the courts if INS did not do so within 120 days of the interview.
      12 See, e.g., United States v. Hovsepian, 359 F.2d 1144, 1160 (9th Cir. 2003) ("Congress intended to vest power to decide languishing naturalization applications in the district court alone, unless the court chooses to ˜remand the matter' to the INS, with the court's instructions").
      13 By strictly limiting the circumstances in which a noncitizen can appeal a denial of naturalization, Section 609 defeats the policy objectives behind the Immigration Act of 1990, namely to increase "the consistency and fairness of naturalization decisions," and "to give naturalization applicants the power to choose which forum would adjudicate their applications," Hovsepian at 1163-64. Finally, section 609(f) alters the burden of proof in court cases challenging denials of naturalization, thereby undermining the role of the courts in determining citizenship.
      9
      Section 611 purports to "clarify" that the amendments made in the terrorist grounds of removal in the REAL ID Act are to be applied to aliens in all removal, deportation, and exclusion cases, regardless of when those cases were initiated.
      Section 612: Bar to Good Moral Character
      Section 612 would amend the definition of "good moral character" at INA § 101(f) to preclude from a finding of good moral character anyone described in the terrorism- or security-related grounds of INA §§ 212 and 237. Section 612 also would allow an aggravated felony conviction to bar a person from a finding of good moral character even if the crime was not classified as an aggravated felony at the time of conviction. In addition, section 612 would allow the DHS and the Attorney General to base a discretionary finding that a person is not of good moral character on conduct by the applicant that took place outside the statutory period for which good moral character must be established, effectively increasing the good moral character eligibility requirement from five years to a lifetime.14 Finally, section 612 would bar naturalization for all applicants convicted of "aggravated felonies" (a term of art that is more misleading than instructive, as it can include misdemeanors, and many crimes that most people would not consider "aggravated") where the conviction was prior to November 29, 1990 (the effective date of the Immigration Act of 1990). Current law and regulations provide that there is no bar to naturalization where the conviction occurred before that date, assuming that the applicant can show the five-year good moral character requirement.15
      Section 613: Strengthening Definitions of "Aggravated Felony" and "Conviction"
      Section 613 would amend INA §101(a)(43)(A) to state that sexual abuse of a minor is an aggravated felony for immigration purposes "whether or not the minority of the victim is established by evidence contained in the record of conviction or by evidence extrinsic to the record of conviction." In addition, and more noteworthy, section 613 would provide that "any reversal, vacatur, expungement, or modification to a conviction (or of a sentence or conviction record) that was granted to ameliorate the consequences of the conviction, or was granted for rehabilitative purposes, or for failure to advise the alien of the immigration consequences of the guilty plea" will have no effect on the immigration consequences resulting from the original conviction. Moreover, the alien would have the burden of demonstrating that the reversal, vacatur, expungement, or modification was not so granted. This change would be made retroactive.16
      14 This provision appears to be an attempt to overturn a recent en banc 9th Cir decision in Hovsepian, 422 F.3d 883 (9th Cir 2005), which held that since citizenship required good moral character for only the past five years, if the applicant showed he met that requirement, the DHS could not deny based on an offense prior to the five-year period. As the Hovsepian court stated, "To hold otherwise would sanction a denial of citizenship where the applicant's misconduct...was many years in the past, and where a former bad record has been followed by many years of exemplary conduct with every evidence of reformation and subsequent good moral character. Such a conclusion would require a holding that Congress had enacted a legislative doctrine of predestination and eternal ****ation, whereas the statutes contemplate rehabilitation." See also Repouille v. U.S., 165 F.2d 152, 153 (2d Cir. 1947), and Klig v. U.S., 296 F.2d 533, 535 (2d Cir. 1961) (holding that GMC determinations in naturalization applications "are made on a case by case basis in accordance with the ˜generally accepted moral conventions current at the time'").
      15 This provision also alters Congress's judgment in 1990 not to make new bars to citizenship retroactive and instead reaches back to pre-1990 conduct to bar citizenship fifteen years later, without any rationale that could meet due process standards.
      16 Section 613 ignores violations of the requirement that a plea be knowing and voluntary and permits immigration proceedings to proceed on the basis of constitutionally suspect pleas. In addition, it reverses standards established 10
      Section 614: Deportability for Criminal Offenses
      Section 614 would render removable aliens who have procured citizenship unlawfully (or attempted to do so) as well as aliens convicted of offenses relating to the misuse of social security numbers and cards or fraud in connection with identification documents. Once again, this section would be made retroactive.
      TITLE VII. EMPLOYMENT ELIGIBILITY VERIFICATION
      Section 701: Employment Eligibility Verification System
      Section 701 and the entire title would make major revisions to the employment eligibility verification regime contained in Section 274A of the INA. This section seeks to amend §274A(b) by requiring the Secretary of Homeland Security to create a system for telephonic or electronic verification of an individual's employment authorization. It would require the system to provide verification or tentative non-verification of an individual's identity and employment eligibility within 3 days of the inquiry and, in the case of tentative non-verification, a secondary process for final verification or non-verification within 10 days. The Commissioner of Social Security and the Secretary of Homeland Security would be responsible for developing a process for comparing the names against the respective databases to ensure timely and accurate responses to employer inquiries. When a single social security account number has been submitted in a way that suggests potential fraudulent use of the number, the Secretary of Homeland Security would be obligated to investigate.
      This provision states that the information contained in this database cannot be used by the government for any purpose other than as provided for in this section and it states that this section does not authorize issuance of a national identity card. This section would prohibit class actions challenging problems with the verification mechanism and would limit claims for relief to the mechanism established in the Federal Tort Claims Act. It also would immunize from liability anyone who takes action in good faith reliance on information provided through this system.
      This section would repeal §274A(d) relating to evaluation of and changes to the current employment verification system.
      Section 702: Employment Eligibility Verification Process
      Section 702 sets out the steps that an employer would have to undertake to be eligible for a good faith affirmative defense to liability for hiring or employment of unauthorized workers. It would obligate employers to seek verification under the new system within 3 working days of new hires or pursuant to the schedule set forth elsewhere in this title for previous hires. It also would create some limited exceptions to these requirements for failures of the verification system.
      by the BIA and the courts. See, e.g. In re Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (not looking behind court's decision to reduce a sentence); In re Pickering, 23 I & N 621 (2003)(finding a conviction despite vacatur that was solely for immigration purposes); Matter of Rodriguez-Ruiz, 22 I & N 1378 (BIA 2000)(conviction that had been vacated on the merits pursuant to Article 440 of the New York Criminal Procedure Law did not constitute a conviction for immigration purposes within the meaning of the statute); Lujan-Amendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (holding that conviction expunged under the Federal First Offender Act does not serve as a conviction under INA 101(48)). 11
      This section would revise the attestation process that employers and employees (both citizens and noncitizens) must follow in connection with verifying employment authorization. It would maintain the requirement that employers examine the individual's authorizing documentation (e.g., U.S passport or other authorizing documents prescribed by the Secretary of Homeland Security). It also would amend the retention of verification forms requirements to conform to the new verification system procedures while keeping the same basic timeframes intact (three years after the date of hiring or one year after date of termination).
      In the event of a tentative non-verification, the individual for whom verification is sought would have to seek secondary verification pursuant to the process established in Section 701 (above). If the individual chooses not to contest the tentative non-verification within the time period allowed, the non-verification would become final. An employer would not be permitted to terminate an individual (for reasons relating to non-confirmation of identity and employment authorization) until a tentative non-verification becomes final.
      Section 703: Expansion of Employment Eligibility Verification System to Previously Hired Individuals and Recruiting and Referring
      This section would establish requirements for employers to verify the identity and employment eligibility of previously hired employees. Employers would be authorized to use the system on a voluntary, nondiscriminatory basis to verify previous hires two years after enactment of this legislation. Federal, state, and local governmental entities and private employers in specified fields (relating to critical infrastructure) would be required to verify all previous hires within three years of enactment of this legislation. All other employers would be required to use the new system to verify the identity and employment eligibility of individuals not previously verified within six years of enactment.
      Section 704: Basic Pilot Program
      Section 704 would revise the date upon which the basic pilot program for employment verification systems becomes mandatory to two years after enactment of this legislation.
      Section 705: Hiring Halls
      This section would define "recruit or refer" for purposes of triggering obligations under this title to verify identity and employment eligibility. ˜Refer' would be defined as the act of "sending or directing a person or transmitting documentation or information to another, directly or indirectly, with the intent of obtaining employment in the United States for such person." It would generally limit the definition to individuals seeking remuneration for such referral but it would encompass union hiring halls as well. ˜Recruit' would be defined as "the act of soliciting a person, directly or indirectly, and referring the person to another with the intent of obtaining employment for that person. The same limitations and exceptions to those limitations would apply.
      Section 706: Penalties
      This section would significantly increase the civil penalties for hiring, recruiting, and referral violations. For the first violation, it would establish a minimum penalty of $5,000 for each unauthorized alien with respect to whom a violation occurred. For entities previously subject to cease and desist orders under this section, it would raise the minimum penalty to $5,000 and the
      12
      maximum penalty to $10,000 for each offense. For entities previously subject to more than one such order, the minimum penalty would be raised to $25,000.
      The civil penalty levels for paperwork violations would also be significantly increased. Paperwork offenses, including failure to use the new verification system, would be subject to a minimum $1,000 penalty and maximum $25,000 penalty. This section also would establish a scheme for mitigating the penalty structure by reducing the amounts in question based on the size of the employer.
      This section would increase dramatically the criminal penalties for entities engaged in a pattern or practice of hiring and employing unauthorized workers. It would raise the maximum fine from $3,000 to $50,000 for each unauthorized worker and would establish a minimum period of imprisonment of one year (the maximum period under current law is six months).
      Section 707: Report on Social Security Card-Based Employment Eligibility Verification
      This section would require the Commissioner of Social Security, in consultation with the Secretaries of the Treasury and Homeland Security and the Attorney General, to submit a report to Congress evaluating a list of proposed requirements and changes, including: making social security cards with encrypted, machine-readable electronic identification strips and a digital photograph; creating a unified database to be maintained by DHS and including data from the SSA and DHS specifying work authorization of all individuals; and requiring all employers to verify employment eligibility using the new social security cards through a phone, electronic card-reading, or other mechanism.
      Section 708: Effective Date
      Section 708 would make the amendments contained in this title effective on the date of enactment, except that the requirements of persons and entities to comply with the employment eligibility verification process would take effect two years after the date of enactment.
      TITLE VIII. IMMIGRATION LITIGATION ABUSE REDUCTION
      Section 801: Board of Immigration Appeals Removal Order Authority
      This section, which deals with when a BIA order becomes final, seeks to reverse 9th circuit precedent "requiring the BIA to remand cases in which it has reversed an IJ [immigration judge] decision granting an alien relief back to the IJ for entry of the decision." See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003). This section would amend INA§ 101(a)(47), which has been interpreted as only permitting immigration judges to enter orders of deportation or removal, and would make the order final when the BIA decision is issued.
      Section 802: Judicial Review of Visa Revocation
      Section 802 would amend INA § 221(i) to eliminate completely judicial review over claims or challenges arising from the revocation of a visa after the holder of the visa has entered the U.S., thereby removing any judicial oversight over consular decisions. As background, the House, in last year's Intelligence Reform Bill, made visa revocation a ground of removal, but the Senate added in conference a clause allowing aliens facing removal to seek judicial review of their visa 13
      revocations. This section would reverse the Senate's attempt to inject a measure of due process into the revocation process.17
      Section 803: Reinstatement
      Section 803 would negate various circuit court rulings that prohibit reinstatement of removal without a hearing, or permit certain applications for adjustment of status, by amending INA § 241(a)(5) to state that reinstatement applies "regardless of the date of the original order or the date of the reentry"18 and shall not require proceedings before an immigration judge under INA section 240 or otherwise.19 Such reinstatement also would preclude adjustment of status under 245(i). In addition, section 803 would amend INA § 242 to restrict any judicial review on the issue of reinstatement to the United States Court of Appeals for the District of Columbia Circuit and to limit the issues available for review.
      Section 804: Withholding of Removal
      Section 804 would import the REAL ID Act's "at least one central reason" requirement into the withholding statute by amending INA § 241(b)(3) to preclude a grant of withholding of removal unless the alien can establish that his or her life or freedom would be threatened in the country in question, and that race, religion, nationality, membership in a particular social group, or political opinion would be at least one central reason for such threat. The provision would be effective retroactive to the date of the REAL ID Act's passage into law (May 11, 2005).
      Section 805: Certificate of Reviewability
      Section 805 would implement an unprecedented, single-judge certification process for judicial review of orders of removal, so that circuit court review is no longer available unless a single judge determines that the petitioner has "made a substantial showing that the petition for review is likely to be granted" and issues a "certificate of reviewability." Specifically, section 805 would amend INA §242(b)(3) so that a petitioner's brief is reviewed by a single court of appeals judge who must issue a "certificate of reviewability" before the case can proceed to a panel for review. The decision of the single judge denying the petition for review would be unreviewable. In addition, if the judge fails to issue such a certificate within 60 days (with certain limited
      17 By precluding review in any court, including review of narrow legal issues, section 802 seeks to reverse decisions that have allowed such review, such as Ana Intern., Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) and Knoetze v. U.S., Dept. of State, 634 F.2d 207 (5th Cir. 1981).
      18 In Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005), cert. granted, 126 S.Ct. 544 (2005), the Supreme Court is considering whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 can be applied retroactively to eliminate relief from removal for persons who re-entered the United States before 1996. If enacted, it would affect court decisions in Castro-Cortez v. INS, 239 F.3d 1037, 1050-53 (9th Cir. 2001) (Congress unambiguously intended for INA § 241(a)(5) to be applied only to previously deported aliens who re-entered the country after the effective date of the statute); Bejjani v. INS, 271 F.3d 670, 676-77 (6th Cir. 2001) (same); Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) (INS reinstatement under 241(a)(5) negating pre-IIRIRA pending adjustment after an illegal reentry, has an impermissibly retroactive effect); Sarmiento-Cisneros v. United States AG, 381 F.3d 1277, 1284 (11th Cir. 2004) (adjustment application filed before the effective date of IIRIRA not affected by § 241(a)(5)'s elimination of the availability of discretionary relief because would attach a "new disability to a completed transaction"); Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002) (limiting retroactive application of portions of reinstatement rule).
      19 It is the implementing regulation governing the process under § 241(a)(5), which eliminates the basic procedural safeguards, that has been found objectionable. Under 8 C.F.R. § 241.8(a) (1999), a person charged with illegal reentry under § 241(a)(5) has no right to a hearing before an immigration judge. Rather, an immigration officer alone makes the relevant inquiries and decides whether to issue a reinstatement order. 8 C.F.R. § 241.8(a)(1)-(3). 14
      extensions available), the petition for review would be deemed denied. If no certificate of reviewability is issued, any stay of removal would dissolve automatically, the government would not be required to file its brief, and the petitioner could be removed without further recourse.20
      Section 806: Waiver of Rights in Nonimmigrant Visa Issuance
      Section 806 would prohibit the issuance of a nonimmigrant visa unless the applicant first waives his or her right to any review or appeal of an immigration officer's decision at the port of entry as to the alien's admissibility, and gives up his or her right to contest, other than on the basis of an application for asylum, any action for removal of the alien. This would requi

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      • #4
        Hard Lessons in Immigration Law
        Undocumented Students Put College Hopes in Va. Tuition Bill

        By Susan Kinzie
        Washington Post Staff Writer
        Thursday, March 9, 2006; Page A01

        Lidia Pereyra knows there are plenty of people who think that taxpayers shouldn't pay any part of her tuition -- and that families such as hers should have stayed out of the United States.

        She stopped and briefly closed her brown eyes, rimmed with green shadow.

        "I don't know," she said.

        She knows full well that her future without a college degree would be like the least of her present. More hours working as a receptionist at a car dealership and as a store clerk. No more anatomy classes. No career as a nurse practitioner.

        "I don't want the thought," she said.

        Pereyra assumed she would be a legal, permanent resident by the time she got to college. Now, at 20, the oldest child in a family that came to a farm in Winchester from Mexico about a decade ago, she is caught up in a debate over illegal immigration that has grown in intensity across the country and recently become acute in Virginia.

        Some Virginia lawmakers have pushed bills to keep illegal immigrants out of state colleges entirely -- so far, unsuccessfully. Pereyra had pinned her hopes to a bill -- which reflected a real shift in the political climate and was passed overwhelmingly by the state Senate -- that would help students like her. It would allow some undocumented students with long-standing ties to Virginia to pay in-state tuition.

        But an informal opinion from a deputy attorney general froze that possibility for this year.

        A much-debated federal law bans states from giving benefits to students who are not here legally if the benefits aren't available to U.S. citizens. The opinion warned legislators that the bill would force schools to open up the in-state rate to students throughout the country.

        Hearing that, a House subcommittee voted to carry the bill over. But the lawmakers didn't kill it.

        "We've not seen the end of it, that's for sure," said Del. Thomas Davis Rust (R-Fairfax), chairman of the higher education subcommittee.

        That's because it's a question not only of cost -- out-of-state tuition is about three times as much, enough to tip the balance from a college degree to nothing at all for some -- but of identity.

        For critics, undocumented residents are illegals -- freeloaders who take away jobs and form gangs. Others see valedictorians, hardworking families and the American dream hobbled by red tape.

        Millions of illegal immigrants have entered the United States in recent decades, and more than 20 years ago, a Supreme Court ruling established certain rights: Public primary and secondary schools cannot deny an education to foreign-born children, no matter how they got here or what their legal status is.

        A generation later, some of those kids are graduating from American high schools.

        Their parents' stories are often complicated, with laws broken and laws followed, rules complied with and deadlines missed, and the children caught up in the ugly tangle of Catch-22s that follows illegal immigration. Others are just stuck, waiting for approvals.

        Maria Pereyra, Lidia and her siblings left Mexico on a bus about a decade ago to sneak into the country, she said. They were joining her father, Isidro Pereyra, who has been a permanent resident for many years, working legally and paying taxes. They started the application process to become legal residents right away, but it often takes many years. Two of the children were born in the United States and so are citizens, but the others need green cards. She's now just one step away, but she needs to pay more than $1,000 on top of application fees.

        As an unauthorized immigrant in 2004, Pereyra found that although she could enroll in nearby Lord Fairfax Community College, she didn't qualify for in-state tuition. And she couldn't get state or federal financial aid.

        Friends in town jumped in to help, raising money to cover the difference last year.

        This year, she's on her own.

        Sen. Emmett W. Hanger Jr.'s (R-Augusta) bill would ban in-state tuition for illegal immigrants but carve out exceptions for students such as Pereyra who have lived in Virginia for years and graduated from high schools in the commonwealth, whose families have paid taxes and who are actively seeking U.S. permanent residency.

        A bill in Congress estimated that about 65,000 students could be eligible nationally -- most of whom don't go on to college. Some analysts guessed hundreds or possibly even a few thousand would qualify in Virginia.


        It seems odd, said Steven Camarota of the Center for Immigration Studies, to let people who aren't supposed to be in the country enroll in public universities. "Then, to subsidize it at taxpayer expense -- most people in Virginia and elsewhere think that doesn't make sense." He said it's part of a larger agenda working toward amnesty for illegal immigrants: "You find the most telegenic, appealing group of illegals -- kids who want to go to college. You don't start with an MS-13 member. "

        Sen. Mark D. Obenshain (R-Harrisonburg) said: "We have people who have waited in line for years to obtain the proper documentation and to obtain legal status, and in essence, we're punishing them . . . by rewarding those who have chosen not to follow the law."

        Some advocates for immigrants argue that is an oversimplification. "It's not that they're not trying to become legal," said Luis Parada, a private lawyer who does pro bono work on this issue. It can take many years to go through the process. Some have temporary protected status or another legal intermediate step.

        "Colleges in Virginia have been making many mistakes," Parada said, "because immigration law is so complicated -- even students who are legally here are being wrongfully labeled illegal."

        Tensions have been simmering in Congress and about half of the state legislatures. In 2003, Maryland Gov. Robert L. Ehrlich (R) vetoed a bill that would have granted certain immigrants in-state status; another bill was submitted this session. Nine states have enacted similar laws in recent years, with ongoing attempts to overturn them.

        "There's a multi-front assault that's taking shape on these laws," including class-action suits, said Travis Reindl of the American Association of State Colleges and Universities. There's still a lot of disagreement about the federal law, he said. "The upshot of that for Virginia is that even if they pass something they are going to have a target on their back in terms of this law standing. They're going to have people lined up to fight it."

        Lidia Pereyra didn't know any English when she started school in Winchester. She was 11 years old and scared. She can't remember anything of sixth grade, except that she wouldn't let herself cry until she got home from school. She knew education was important even though her parents hadn't been able to afford much -- her father had six years of schooling before going to work on a ranch, and her mother, who wanted to be teacher, had to stop at nine.

        In high school, retiree Geoffrey Huggins tutored Pereyra in the kitchen, with the rest of the family staying in the back rooms of the small worn trailer respectfully. When she could analyze history, her hardest subject, she thought, "Oh! I'm a student, like the others now!"

        Now, she's in college, but she can't afford a full course load. And she knows the rest of her family wants an education, too.

        Her mom was starting to cook a dinner of beans, spinach and ground meat for the seven of them.

        "I've already been to college!" 7-year-old Marcos Pereyra joked one evening recently; he has gone to the campus with his sister.

        Kenya, a sixth-grader, wants to be a teacher. Victor, 13, wants to be an engineer. Reynold, who's in the 11th grade, wants to be a cardiologist.

        Even Isidro Pereyra, striding in with strong hands brown from work and his John Deere cap low over his eyes, grinned when he thought about it. Go to college? If he had the chance? " ¡ Claro que s Ã* !" he said, delighted: "Yes, of course!"

        And yet -- they know how controversial this is. Lidia Pereyra doesn't know whether she will be able to finish college or whether her family can remain in Virginia, with too little money and too much uncertainty.

        "If it was possible, yes, we would stay here," her mother said. Lidia Pereyra nodded, long dark hair falling over her face, translating her mother's words into English. "The laws apply to everyone the same, and at school, too, everybody's the same. Nobody is seen as less."

        Comment


        • #5
          "The laws apply to everyone the same, and at school, too, everybody's the same. Nobody is seen as less."
          Too bad mama doesn't seem to realize that this means immigration laws, too.

          The subtext of this story: Papa came to the US illegally, was able to legalize through an amnesty of some sort, probably 1986, and instead of "getting religion" and starting to obey our laws, decided to break them yet again by bringing his daughters illegally. The family has had a couple of more (at least) children in the U.S., probably at taxpayer expense given the likely income level of a farm worker. Papa still hasn't bothered to learn English and to become a U.S. citizen, hence the children have had a longer and harder time legalizing. Again, given his lack of education and skills, the U.S. is now expected to foot the bill for the education of his children, even those here illegally.

          Moral of the story: This family has made poor choices all along, breaking laws, and now expecting that yet again, all will be forgiven as it was with Papa's amnesty.

          Comment


          • #6
            AliBA: I agree with your analysis of this situation.

            You're entirely correct that the family have continued to make bad choices. Had the father made the effort to assimilate and learn our language, he could have easily become a citizen...at which point, it would have been simple for his wife and non-U.S. Citizen children to legalize their immigration status.

            As usual with uneducated immigrants, the most logical option was ignored, and now the immigration situation for the older children is very difficult. This family, through their continual bad choices, has also placed America in a no-win situation. The intent of this article was clearly to yank at the country's heart strings...to show us in a bad light because we don't let such apparently "wonderful" people legalize their status.

            If this family had followed the law, and if the father had naturalized, then their immigration problems would have been resolved a long time ago. Indeed, with 245-i eligiblity, the family's illegal immigration status would have been forgiven.

            This family's irresponsibility and unwillingness to either learn the law or follow the law has resulted in their own ongoing problems.

            Comment


            • #7
              Someone12, SunDevilUS and AliBa are mentally sick individuals who need psychiatric treatment.

              Pack yourself ASAP and leave for your Arabic country.

              Comment



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