By JOSH GERSTEIN and ANNA PALMER | 1/28/13 4:14 PM EST
politico


Many devils lie in the still-undetermined details of the immigration legislation. | AP Photo

Don’t be fooled by the bipartisan push announced in the Senate Monday: Immigration reform is still far from a done deal.

The White House has signaled its general support and immigrant rights advocates are more optimistic than they’ve been in years, but the just-over-four-page framework that the Senate group released has all the signs of a rush job which glosses over some of the key questions that have led immigration reform efforts to founder many times in the past.

Even a key proponent of the effort, Sen. Chuck Schumer (D-N.Y.), acknowledged that many devils lie in the still-undetermined details of the legislation the bipartisan group hopes to craft.

“We are only part of the way done. There are loads of pitfalls,” Schumer said at the news conference announcing the agreement.

Here’s POLITICO’s look at some of the key hurdles and sticking points that could delay — or destroy — the deal:

Linking citizenship to border enforcement

The big change between the new Senate framework and previous efforts is an effort to make the granting of citizenship to formerly illegal immigrants “contingent” on attaining a new level of border security. The trade-off is a sweetener for Republicans who can claim no one will get permanent residency in the U.S. until the flow of illegal immigrants is all but cut off.

The plan calls for a commission of governors, attorneys generals and others living along the Southwest border to monitor the process of securing the border and seeing that the security-related goals of the legislation are implemented.

That linkage has some reform proponents nervous. They fear that the so-called pathway to citizenship could be dragged out for years or even decades as those in the program wait for certification of border goals that may prove difficult to attain.

National Council of La Raza’s Clarissa Martínez-de-Castro told POLITICO that its biggest goal “first and foremost is to make sure people are able to get good with the law.” But one veteran immigration lobbyist said the Senate plan, which limits federal services individuals can partake in, will be a major point of contention. “The question has to be answered: How long are we talking about?” the lobbyist said. “Many of the organizations want to put in a process where they are able to provide for their families, not continue to be in a situation of living in the shadows to a process of being in limbo.”

The Senate plan’s effort to make immigrants’ citizenship contingent on border security milestones is the most obvious divergence from the plan Obama laid out in 2011, which lacked such an explicit link and seemed focused on speeding the path to citizenship, not slowing it.

White House press secretary Jay Carney declined to say Monday whether the president would be willing to endorse such a trade-off or even sign a bill containing one. “We’re not at a stage here where, especially from the briefing room, that we’re going to negotiate details of legislation that doesn’t exist yet.”

Other more basic trade-offs in the bill are also sure to provoke debate, like the notion that the measure respects would-be immigrants who have obeyed the law by applying for green cards abroad.

“Rubio has been quite clear that he doesn’t want people to jump ahead of the line, ahead of others who have waited patiently in their own countries and haven’t crossed the border against the law,” Schumer said Sunday.

The Senate framework says a permanent resident “green card” for undocumented immigrants in the country would wait until green cards are awarded to those already waiting overseas for green cards in official U.S. lotteries and other programs.

Not letting illegal immigrants “jump the line” is a good talking point, but virtually any plan that allows undocumented immigrants to stay in the U.S. and work legally effectively gives them a legal status those waiting abroad don’t have.

Guest worker programs

Even the key advocates in Congress for immigration reform acknowledge that one huge hurdle it faces is how to design a guest worker program for hundreds of thousands of agricultural workers — an issue advocates have now dubbed “future flow.”

“Future flow has been one of the shoals on which the good ship immigration reform has foundered,” Schumer said Monday. He said efforts in 2007 and 2009 both derailed in large part because of disagreements between business and labor over how to structure such a program.

This time, Senate leaders have essentially farmed out the issue to the AFL-CIO and the Chamber of Commerce. Schumer said the two sides are much closer to a deal now but still not there. Whether that gap can be bridged and whether the Congress will find such a compromise palatable is one of the major unknowns facing the latest immigration reform effort.

“The thing that has me most concerned is the future flow component and whether or not we can keep the grand coalition with labor and business together as we get into the details. That’s where things broke down last time around,” League of United Latin American Citizens’ Brent Wilkes said.

How a secure border will be achieved — and measured

The Senate plan calls for tougher border enforcement: better training for the Border Patrol and more use of drones to “apprehend every unauthorized entrant” — an extraordinarily difficult goal.

The White House claimed Monday that there’s already been “tremendous” progress on securing the Southwest border and that statistics suggest illegal border-crossing from Mexico has dropped significantly in recent years.

“I think they’ve really exhausted enforcement. Almost all the enforcement ideas have been put in place already,” Wilkes said. “More money [for the] Border Patrol. It’s overplaying the issue. Migration from Mexico is zero or less.”

However, some of the enforcement measures laid out in the framework are already being attacked as fanciful, such as one requiring “the completion of an entry-exit system that tracks whether all persons entering the United States on temporary visas via airports and seaports have left the country as required by law.”

“Congress mandated that in 1996 — 17 years ago and five more times in the interim,” said one critic of the framework, Mark Krikorian of the Center for Immigration Studies.

“How many times does Congress have to say something … before it actually happens? The government needs to keep old promises before it make new promises,” he said. “It’s an insult.”

Immigration rights for gays and lesbians

Gay advocates had hoped that any immigration package would include the Uniting American Families Act, a bill that sought to put gay and lesbian couples on equal footing in the immigration system with heterosexual married couples. However, on Sunday afternoon, Sens. Schumer, Robert Menendez and Dick Durbin convened a conference call with gay rights groups to inform them that the legislation — at least the initial bill — will not include language to address LGBT concerns, a source familiar with the call told POLITICO.

“They blamed it on the Republicans…. Schumer was very matter of fact about it, very Machiavellian,” said the source, who asked not to be named. Gay advocates were told that Senate Judiciary Committee Patrick Leahy (D-Vt.) will offer an amendment in his committee to protect gay couples.

While LGBT groups aren’t happy about their favored legislation being left off, they aren’t irate.

Any legalization program will benefit some undocumented gay and lesbian immigrants who might otherwise be sent home to face hostile cultures. “That’s an important goal in and of itself. There are a lot of people who could face significant amount of harassment or death, potentially, in their home countries,” the source said.

And there are ways the issue could still be defused. For example, if the Supreme Court uses a pending case to strike down the Defense of Marriage Act or to find a federal constitutional right to same-sex marriage, the debate over how to treat gay couples in the immigration process could be moot.

National ID cards

Making parts of the bill work, like the E-Verify system for employers to conduct checks on workers’ legal status, may require inching toward a tamperproof national ID card. But proposing anything too much like a national ID could provoke an angry reaction from the left and right that might bring down the entire bill.

Schumer has been on record for years in favor of a “tamper-proof” Social Security card that contains some form of biometric identifier, like a fingerprint. The new Senate plan says workers would have to “demonstrate both legal status and identity, through non-forgeable electronic means.” However, there is no explicit reference to a national ID, which relieved some privacy advocates.

“It didn’t mention a biometric ID card,” said Chris Calabrese of the American Civil Liberties Union. “That’s a positive step. Stay away from fingerprinting everyone and issuing them a national ID.”

However, it’s unclear precisely what the bipartisan Senate group foresees to make sure that workers really are who they claim to be.

“The question remains what kind of tamperproof electronic ID system the gang of eight contemplates. If the system will include an identifier for everyone on an electronic system, with photos, that will raise serious national ID concerns as well,” Calabrese said. “It’s not really clear which direction they’re going to go.”

Some immigrant advocates worry that Latinos and other minorities may become the focus of such a system.

“If there is going to be a biometric program, what it looks like matters. Does it apply to only immigrants, or all U.S. citizens?” the AFL-CIO’s Ana Avendaño said. “We have to protect against discrimination because many employers have shown that when asked to implement work authorization programs, they get scared and say, ‘I am just not going to deal with this so anyone who looks or sounds foreign.’”

How to handle criminal records

The Senate plan includes tough-sounding language about “immediate deportation” for immigrants who’ve committed “serious crimes.” But the framework doesn’t offer any details about what would constitute a “serious criminal background” that would disqualify someone from staying.

Defining what crimes make a person ineligible to stay in the U.S. has proved very difficult over the years and was a point of contention in the last major legislative push in 2007.

“All illegal immigrants who’ve had jobs on the books have committed multiple felonies,” Krikorian said, pointing to the myriad of forms one makes out to get a job. While prosecutions are rare, use of another person’s Social Security number can amount to identity fraud.

Immigrant advocates insist that any comprehensive bill cannot exclude people who’ve committed those kinds of offenses or, for example, driven without a driver’s license that in most states they could not legally get.

Hashing out the legislation is sure to produce a heated debate about just where to draw the line between trivial criminal conduct and that which is so dangerous that someone should be forbidden from staying in the U.S. Does reckless driving count? Driving under the influence?

“Last time, [Sen. Ted] Kennedy fought against a provision that would have barred known gang members,” Krikorian said.

Even less clear is what happens to those who have too long or too serious a record to be given legal status. They could number in the millions depending on where Congress draws the line.

Obama and others have scoffed at the notion of deporting the full complement of illegal immigrants in the country, estimated at about 12 million. But the Senate framework doesn’t explain how authorities could carry out the “immediate deportation” of what could be several million immigrants ineligible for the pathway to citizenship envisioned by the Senate group.

How immigrants prove work

The Senate plan says illegal immigrants hoping to get permanent legal status will have to “demonstrate a history of work in the United States” and show “current employment.” Since many undocumented foreign nationals in the U.S. work as day laborers or off the books as maids and nannies, proving years of work could be difficult even for those who’ve had steady employment.

“Making the citizenship path consistent on proof of employment … could be problematic,” AFL-CIO President Richard Trumka said in a statement. “Depending on implementation, the principles could potentially exclude millions of workers — those who care for our children and our elderly, mow our lawns and repair our homes, drive taxis — who cannot prove employment because they have been forced to work off the clock or have no employer by virtue of being independent contractors.”

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Pitfalls that could stop an immigration deal - Josh Gerstein and Anna Palmer - POLITICO.com