Immigration Law for the New Year

The New York Times

December 26, 2006
Bipartisan Effort to Draft Immigration Bill
By RACHEL L. SWARNS

WASHINGTON, Dec. 25 — Counting on the support of the new Democratic majority in Congress, Democratic lawmakers and their Republican allies are working on measures that could place millions of illegal immigrants on a more direct path to citizenship than would a bill that the Senate passed in the spring.

The lawmakers are considering abandoning a requirement in the Senate bill that would compel several million illegal immigrants to leave the United States before becoming eligible to apply for citizenship.

The lawmakers are also considering denying financing for 700 miles of fencing along the border with Mexico, a law championed by Republicans that passed with significant Democratic support.

Details of the bill, which would be introduced early next year, are being drafted. The lawmakers, who hope for bipartisan support, will almost certainly face pressure to compromise on the issues from some Republicans and conservative Democrats.

Still, the proposals reflect significant shifts since the November elections, as well as critical support from the Homeland Security Department.

Proponents said the prospects for such a measure, which would include tougher border security and a guest worker plan, had markedly improved since Nov. 7.

The Senate plans to introduce its immigration bill next month with an eye toward passage in March or April, officials said. The House is expected to consider its version later. President Bush said last week that he hoped to sign an immigration bill next year.

The major lawmakers drafting the legislation include Senators Edward M. Kennedy, Democrat of Massachusetts, and John McCain, Republican of Arizona, along with Representatives Jeff Flake, Republican of Arizona, and Luis V. Gutierrez, Democrat of Illinois. The four met this month, and their staffs have begun working on a bill.

“I’m very hopeful about this, both in terms of the substance and the politics of it,” said Mr. Kennedy, the incoming chairman of the Senate Immigration, Border Security and Citizenship Subcommittee.

Mr. Kennedy acknowledged that there would be hurdles. But he and other lawmakers say Republicans and Democrats are now more likely to work together to repair a system widely considered as broken.

House Republicans blocked consideration of the bill that passed the Senate this year, saying it amounted to an amnesty for lawbreakers and voicing confidence that a tough stance would touch off a groundswell of support in the Congressional elections. The strategy largely failed.

Hispanic voters, a swing constituency that Republicans covet, abandoned the party in large numbers. Several Republican hardliners, including Representatives John Hostettler of Indiana and J. D. Hayworth of Arizona, lost their seats. After the dismal showing, House Republicans denied F. James Sensenbrenner Jr. of Wisconsin, the departing chairman of the Judiciary Committee and an architect of the House immigration approach, a senior position on any major committee in the new Congress.

Domestic security officials have voiced support for important elements of the framework under consideration. Homeland Security Secretary Michael Chertoff has repeatedly raised doubts about the effectiveness of border fencing in remote desert areas. Mr. Bush signed the fence bill this year, but Congress did not appropriate enough money for it. Officials say they would also prefer a less burdensome process than the original Senate bill outlined.

That bill divided the estimated 12 million illegal immigrants into three groups, those living here for five years or more, those here for two to five years and those here for less than two years.

All but the illegal immigrants living here for five years or more, roughly seven million, would have to leave the country briefly to be eligible for legal status. Those here for fewer than two years would have to leave the country and would not even be guaranteed a slot in a guest worker plan.

Domestic security officials said the original plan would have been enormously difficult to administer because many illegal immigrants lacked documentation to prove how long they had been in the United States.

The officials said it would have fueled a market in fraudulent documents as illegal immigrants scrambled to offer proof of residency.

The three-tiered approach would also discourage millions of illegal immigrants from registering, driving millions deeper underground.

“We do have concerns over breaking it down into that tiered system,” said a domestic security official who insisted on anonymity. “When you do that, you run the risk of people trying to create false documentation that would get them the highest benefits.”

Also expected to have prominent roles in the debate are Representatives Zoe Lofgren, the California Democrat who is likely to head the House Immigration, Border Security and Claims Subcommittee; Howard L. Berman, a California Democrat who has followed immigration issues closely for many years; and Bennie Thompson, the Mississippi Democrat who is set to lead the House Homeland Security Committee and has said he plans to re-evaluate the 700-mile fence.

But Mr. Flake described himself as optimistic, saying the elections had disabused many Republicans of the notion that opposing legalization and guest worker plans would win widespread support.

“That illusion is gone,” he said.

The percentage of Hispanics who voted for Republicans fell to 29 percent, from 44 percent in 2004, and some Republicans say passing immigration bills is a crucial part of the effort to win them back.

Mr. Flake warned that some Republicans might balk at proposals like broadening the number of illegal immigrants eligible for a less burdensome path to citizenship, making passage of bipartisan legislation potentially “politically more difficult.”

The prospects for a bill that contains such a proposal remain particularly uncertain in the House, where many prominent Democrats want to ensure broad bipartisan backing as part of their efforts to maintain their majority in 2008, Congressional aides said.

The House Democrats are concerned about protecting newly elected moderate and conservative Democrats, some of whom had campaigned against legalizing illegal immigrants.

It is also unclear whether Mr. Gutierrez and Mr. Flake will produce the only House legislation on immigration and whether their plan will ultimately become the basis for the bill that emerges.

In the Senate, Mr. Kennedy’s bill certainly has the backing of the Democratic leadership, Congressional aides said.

Senator John Cornyn, Republican of Texas, argued that expanding citizenship eligibility and abandoning financing for the fence would alienate moderates in both parties. The three-tier legalization system, a hard-fought compromise, was critical for moderate Republican support for the original bill.

The plan under consideration would allow 10 million or 11 million illegal immigrants to become eligible to apply for citizenship without returning home, up from 7 million in the original Senate bill. To be granted citizenship, they would have to remain employed, pass background checks, pay fines and back taxes, and enroll in English classes.

“I think it’s a nonstarter,” said Mr. Cornyn, who opposes a path to citizenship for illegal workers, but supports a plan for temporary workers that would let foreigners work here temporarily before returning home.

Congressional aides and lawyers familiar with the proposed bills emphasize that it will be very difficult for a smaller group of illegal immigrants, those who arrived after a certain date, perhaps 2004, to become citizens. The aides said the bill might include incentives for illegal immigrants to leave the country. While they hope such elements may ease concerns, many challenges remain.

Some powerful unions, which expect to exert more leverage in the new Congress, remain deeply opposed to the temporary worker program in the Senate bill. The unions say it threatens American jobs.

Officials at the A.F.L.-C.I.O. say they can scuttle such a plan next year, even though Mr. Bush and businesses say it is critical to ensure an adequate labor force.

There is also the political clock to consider. Supporters of immigration measures acknowledge that the prospects for a bipartisan bill will dim significantly if a bill is not passed before the presidential primaries of 2008 are in full swing.

Some Congressional aides and immigrants’ advocates worry about the commitment of Mr. McCain, a likely presidential candidate in 2008.

Mr. McCain has long supported legalization that would not require illegal immigrants to leave the United States. Some advocates fear that his ambitions may lead to a shifting of that stance to avoid alienating moderate Republicans.

A spokeswoman for Mr. McCain said last week that he was not available to comment on the bill being drafted.

Many lawmakers say their hope is growing that Congress will pass an immigration bill next year.

“There are going to be hard choices that are going to be made, because we need to build a bipartisan, broad-based coalition,” said Mr. Gutierrez, who leads the House Democratic immigration group. “But I’m hopeful that in the environment in which we’re working now we can get it done.”


Copyright 2006 The New York Times Company