AILA Statement on Senate Immigration Legislation and Next Steps

As happens with any significant piece of legislation, interested organizations have begun to articulate their institutional positions in the wake of S. 2611's passage. These views and perspectives have led some to ask where AILA stands on all of this. So we wanted to take a moment to share our views about the bill that passed and what we think is likely to happen next.

We do not share the view expressed by some that this bill is catastrophically bad. Some have categorically rejected any legislation that includes any sort of temporary worker program, and these same groups and others reject any legislation that does not provide full permanent legal status for all undocumented persons, without regard to any "cut-off date" or time in the United States. Some of these groups also opposed the 1986 IRCA legalization program, either because it contained a 4-year "cut off date" or because it contained a new employer sanctions regime.

The Senate bill plainly has serious defects, including several onerous enforcement measures such as mandatory detention, expanded expedited removal, expanded aggravated felony definitions and other criminal grounds of removal, and potential bars to any new legalization programs for those who used fraudulent documents. Several onerous measures were soundly defeated and reversed in committee markup and subsequent floor debate. We won successful amendments to strike retroactivity provisions, strike bars to judicial review, strike bars to stays of removal, strike and modify certain document and passport fraud provisions. We also won amendments to eliminate new criminalization of the undocumented and to provide waivers from smuggling charges for humanitarian assistance. To be sure, onerous enforcement measures are still part of the Senate package. But we do not believe they should be overstated. Loosely conflating the Senate bill with the House Sensenbrenner bill, as many groups continue to do, is not helpful. Senate bill S. 2611 is still serving an important purpose as a bulwark defending us from enactment of H.R. 4437.

Perhaps more importantly, we do not believe the positive aspects of the Senate bill should be understated.

To name just a few of the positive measures, the Senate bill includes:

-- AgJobs (after 8 years of advocacy),
-- DREAM Act (after more than 5 years of advocacy),
-- a broad temporary worker program with significant labor protections including a path to permanent residence and the ability to self-petition,
-- a path to legalization for millions of current undocumented workers and families,
-- a large increase in family-based immigrant visa numbers,
-- a large increase in employment-based immigrant visas numbers,
-- significant reforms to the high-skilled immigration programs, and
-- reversal of the BIA streamlining rules.

Whether these positive measures are outweighed by the provisions of concern is an issue over which reasonable minds can and do disagree. AILA has not yet taken a formal position on how that balancing calculus computes, and for good reason: we believe it is unnecessary and premature. Our strategy in the Senate was to produce the most generous, most comprehensive bill possible to serve as a counterweight to H.R. 4437 and to serve as a precedent for the future. While the Senate bill that passed is imperfect, it nonetheless exceeded our expectations in terms of the benefits it offers.

We believe that passage of S. 2611 puts opponents of H.R. 4437 in a significantly stronger position than we would have been if the bill had stalled in the Senate. We continue to believe that the House will refuse to pass any conference report that contains a legalization component; the Senate has now committed itself to several broad legalization measures. Our goal is to ensure that the Senate stays strong and committed to its approach, a goal we cannot achieve by attacking their bill.

There will be a great deal of discussion in the coming weeks as the House and Senate decide whether there is any possibility to "conference" their two wildly diverging bills. Whatever happens, we must keep the pressure up in support of the Senate holding firm to the important positive provisions in the Senate bill, and to insist that the Senate reject any conference product that eviscerates the positive elements listed above. Meanwhile, we will also continue to work to improve the Senate bill, and especially to insist that any provisions that undermine the legalization programs be fixed.

If the Senate holds firm, then the likely result this year will be a stalemate between the House and the Senate.

Let's not lose sight of one additional important reality: the House is going to continue pressing for strong enforcement-only measures that undermine due process for noncitizens. H.R. 4437 simply represents the most significant looming threat. We can be certain to see pieces of H.R. 4437 offered up as amendments to moving appropriations vehicles and one of our best weapons against those encroachments will be the Senate's rejection of an enforcement-only or enforcement-first approach.

AILA Executive Committee