Organizations & Leaders’ Critique of S.744

a statement by the Mexican American Political Association

[This statement, dated July 18, 2013, appears on the website of the Mexican American Political Association, www.mapa.org.]

AFTER MUCH REFLECTION, we have concluded that S.744 does more harm than good to the cause of fair and humane immigration reform.

What follows is a more complete explanation of our major concerns about S. 744:

S.744’s Registered Provisional Immigrant (RPI) program will exclude and/or disqualify over time 5 million undocumented persons from adjustment of status.

With the exceptions of the beneficiaries of the Dream Act and AgJobs programs, S.744’s legalization provisions fail most of the 11 million undocumented people in the United States. According to the recent Congressional Budget Office (CBO) study only eight of the 11 plus million undocumented persons in the U.S. will initially achieve RPI status.

Moreover, a recent analysis by leading immigration attorney and national advocate Peter Schey of the Center for Human Rights and Constitutional Law (CHRCL), of Senate Bill 744’s legalization provisions found that (1) for several reasons the entire population of Registered Provisional Immigrants may never be eligible to apply for permanent resident status or citizenship, and (2) even if these obstacles are overcome, at least half of the remaining approximately eight million undocumented immigrants may never qualify for permanent status (or citizenship) because of the onerous “continuous employment” and federal poverty guideline requirements, and the high costs combined with the requirement to pay past taxes. (http://mexmigration.blogspot.com/2013/06/peter-schey-deconstructs-s-744.html)

The RPI program will have a disproportionately negative impact on immigrant women who only have a 60% workforce participation rate according to a recent Migration Policy Institute (MPI) study. (http://www.migrationpolicy.org/pubs/CIRbrief-2013House-SenateBills-Side-by-Side.pdf)

In the face of these facts, those positing that “11 million will be legalized” are exaggerating. They do a disservice to both the U.S. public and, more importantly, to the millions of individuals and families who do not know that they may be among the many excluded by S.744.

S.744’s continuous employment and 125% of poverty income provisions subject RPI visa holders to workplace discrimination, exploitation and sexual harassment;

Even those “fortunate enough” to meet the requirements to gain RPI status are at high risk to become indentured servants locked into overly burdensome continuous employment and income obligations for at least 10 and perhaps 15 or more years given the “backlog/back of the line” and “border security” trigger provisions.

RPIs will be without health care and are ineligible for federal safety net benefits. They will be excluded from access to billions of dollars in previously paid social security benefits.

S.744 RPI’s will be denied their most basic power as an employee — the right to withhold their labor if an employer abuses, harasses or exploits them. Conversely, employers will be empowered to engage in unlawful worksite and labor law violations. RPIs who resist employer abuses risk losing employment for 60 days or more. This puts them at high risk of losing RPI status and/or becoming ineligible for permanent resident status.

Female RPI card holders will be disproportionately affected. For example, S.744 grants some housewives “dependent” status; i.e. dependent on their husbands’ continuous employment and their continuous relationship. In practice, “dependents” suffering domestic abuse, including children, will be significantly discouraged from leaving their homes or reporting abuse to the authorities.

Notably, the provisions obligating that permanent resident status not be awarded to qualified RPI card holders upon completion of the multi-year probationary period, unless the border is “secure” and the backlog of pre-existing visa applications are resolved, create a scenario of inevitable and unpredictable delays.

There will be no objective way to “prove” border security concerns have been met as S.744 is written, or assurances that resolving 100% of the current visa backlog can be accomplished in 10 or 20 years, or ever.

For example, the current backlog includes cases more than 20 years old. S.744’s “backlog”and “border security” requirements guarantee an indeterminate number of years of delay before RPI status holders can even apply for permanent resident status.

At the same time, S.744 significantly increases judges, courts and the legal mechanisms to detain and deport those excluded from RPI status or ultimately denied lawful permanent resident status.

E-Verify “Fatally Flawed”

S.744’s E-verify program is fatally flawed. E-verify will just increase discrimination and racial profiling. It places an undue burden of costs on small businesses and if fully implemented will undermine job growth.

The extension of E-Verify to every worker in the U.S. lays the foundation for precisely the national identification system and national database tracking systems that most people in the U.S. oppose.

The “enhanced driver’s license” provision adopts the requirements of section 202 of the REAL ID Act of 2005, requiring the sharing of driver’s license photos among the states and federal government, a program 25 states have opposed by law or resolution.

We understand that only 13 states have joined the enhanced driver’s license program of the REAL ID Act of as of 2012. This law also removes the religious accommodations that 20 states offer in the form of driver’s licenses without photographs for reasons of religious faith.

E-Verify in fact misidentifies about one percent of American job applicants as unlawful. The GAO has predicted that approximately 164,000 U.S. citizens per year will receive a Tentative No confirmation (“TNC”) just for issues related to name changes. Tens of thousands more may receive TNCs because of transliteration problems, simple typos in government records databases, or identity theft.

Even the existing limited use of E-Verify has shown that erroneous TNCs produce discriminatory outcomes primarily affecting citizens with foreign names, naturalized citizens, and legal immigrants. Furthermore, errors will disproportionately impact women and immigrants about whom the databases have incorrect information due, for example, to marriage-related name changes or hyphenated last names.

Mandatory E-Verify may also reduce state and federal payroll tax revenues because many employers will move existing unauthorized workers not granted RPI status and future unauthorized workers off the books to avoid detection.

Under S.744, hundreds of thousands of US workers may be required, within 10 days of getting a TNC, to contact an appropriate Federal agency and “appear in person….” As past experience shows, a significant number of U.S. workers will fail to correct erroneous non-confirmations, with a disproportionate number being women and other low-income workers.

It has been estimated that mandatory nationwide use of the E-Verify program will cost employers with fewer than 500 employees about $2.6 billion a year.

Deadly “Border Security”

S.744’s border surge is unnecessary as a matter of policy, and will significantly increase border deaths along with violations of human and civil rights.

Today, $18 billion in enforcement infrastructure is already in place after an unprecedented 10-year build-up that includes 300 towers, hundreds of miles of walls, electronic surveillance equipment and thousands of border guards. At a border that the FBI certifies as safe, prioritizing “border security” represents an unacceptable escalation of an already extremely dangerous pattern of waste and violence.

Net migration from Mexico has been zero or close to zero for several years and unauthorized border crossings are the lowest in a generation. DHS Secretary Janet Napolitano certified the border as “secure.”

The “border surge.” with a price tag of $47 billion dollars, will significantly increase border deaths as unauthorized crossers brave even more harrowing and dangerous circumstances. This has been documented over the last several years as increased border enforcement has caused border deaths to increase substantially even though unauthorized crossings have gone down.

The “border surge” will cause civil rights violations of U.S. border residents. 40,000 border guards buttressed by electronic surveillance equipment and dozens of drones will “occupy” border communities combing for “undocumented immigrant” profiles that are in practice indistinguishable from that of the majority citizen and legal population. Fifty-four percent (54%) of the 7.5 million border county inhabitants are Latinos according to the 2012 Census.

The “border surge” will also adversely impact indigenous communities whose ancestors have lived in the area and worked the land for hundreds of years, including Lipan Apaches, Kickapoo, and the Tohono O’odham nation. Indigenous peoples in the border areas have suffered destruction of their land, loss of land grants, and unilateral extinguishment of land titles, more recently through Operation Gatekeeper, Operation Hold the Line (1993/4), Operation Safeguard (1995), the Secure Border Initiative (2005), and the Secure Fence Act (2006).

Finally, as recent exposés in the New York Times and the Los Angeles Times report, S.744 is a boondoggle for the private prison and surveillance technology industries that will get even more billions of dollars in contracts for border enforcement, for more “immigrant prisons,” and for the implementation of E-verify.

Join us in this prolonged campaign for driver’s licenses and visas for our families. The first step in making change is to join an organization that pursues the change we desire. We welcome you to our ranks. Other organizations leading this movement include: Hermandad Mexicana Latinoamericana, Mexican American Political Association (MAPA), National Alliance for Immigrant’s Rights, and immigrant rights coalitions throughout the U.S.

September/October 2013, ATC 166