Wednesday, April 17, 2013

The Game is On: Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

Here is the long-awaited comprehensive immigration reform bill from the bipartisan "gang of eight" U.S. Senators.  It is 844 pages long and entitled the "Border Security, Economic Opportunity, and Immigration Modernization Act of 2013."  Here is the New York Times annotated version of the bill.

The Senators released a summary of the proposal.  Here is CNN's quick summary.  My very general thoughts on the proposal can be listened to at this link.


This is the statement on immigration reform issued yesterday by President Obama:

"This afternoon, Senators Schumer and McCain briefed me on the bipartisan immigration reform bill that they have drafted with their colleagues in the Senate. This bill is clearly a compromise, and no one will get everything they wanted, including me. But it is largely consistent with the principles that I have repeatedly laid out for comprehensive reform. This bill would continue to strengthen security at our borders and hold employers more accountable if they knowingly hire undocumented workers. It would provide a pathway to earned citizenship for the 11 million individuals who are already in this country illegally. And it would modernize our legal immigration system so that we’re able to reunite families and attract the highly-skilled entrepreneurs and engineers who will help create good paying jobs and grow our economy. These are all commonsense steps that the majority of Americans support. I urge the Senate to quickly move this bill forward and, as I told Senators Schumer and McCain, I stand willing to do whatever it takes to make sure that comprehensive immigration reform becomes a reality as soon as possible."

With respect to the right to counsel, Mark Noferi (Brooklyn)  points out that the bill essentially provides for appointed counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable when compared to other aliens in removal proceedings.” See Sec. 3502(c), “Improving Immigration Court Efficiency and Reducing Costs By Increasing Access To Legal Information,” at bill p. 567 et. seq. (providing changes to 8 USC 1362, the current statutory right to counsel section, and 8 U.S.C. 1229a(b)(4), “alien’s rights in [removal] proceeding”). It also gives the Attorney General authority to appoint counsel at government expense to noncitizens in removal proceedings, “in the Attorney General’s sole and unreviewable discretion.” Sec. 3502(a), (b)(2). It reiterates that “[t]he Government is not required to provide counsel to aliens.” Id.   Funding for appointed counsel will be provided from the new “Comprehensive Immigration Reform Trust Fund,” Sec. 3502(d), as established at Sec. 6(a)(1) of the bill (p. 24 et. seq.) The Trust Fund will initially be established with $6.5 billion of general Treasury funds, an additional $100M of startup costs, and then receive ongoing funding through the collection of various visa fees and penalties.  The bill also establishes an “Office of Legal Access Programs” within EOIR. Sec. 3503. It appears to formalize and expand the Legal Orientation Program for detainees, and to statutorily require the LOP to perform the screening function for counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable.” Sec. 3503(b). It also directs DHS to establish procedures to ensure that LOP is available to all detainees within 5 days of arrival into custody, so as to “[i]nform such aliens of the basic procedures of immigration hearings, their rights relating to those hearings under the immigration laws, information that may deter such aliens from filing frivolous legal claims, and any other information deemed appropriate by the Attorney General, such as a contact list of potential legal resources and providers.” Sec. 3503(c). That said, the statute provides that “[n]othing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” Sec. 3503(d). LOP funding would also come from the general Trust Fund. Sec. 3503(e). The bill also directs EOIR to produce a “practice manual” describing “best practices for the immigration courts” to be made available electronically. Sec 3506(b). There are other procedural provisions for hiring more IJs, training for IJs, BIA appeals, provision of digital recording, review of translation and transcription practices, etc. See generally. secs. 3501-06 (pp. 566-77).

For more from Professor Noferi on the counsel, detention, bond, and stipulated removal provisions of the proposal, click here.

The proposal has drawn support from conservative groups.  For example, Americans for Tax Reform (ATR) President Grover Norquist today released the following statement:

“The Senate proposal takes serious steps to fix our immigration problem that are rooted in conservative principles. The bill provides a tough but fair path to citizenship for those who are here and willing to work and support themselves. And it facilitates more legal immigration, which will enhance our labor markets and spur economic growth.

“Conservative economists, taking into account both the costs and benefits of reform, predict trillions of dollars in economic growth. The dynamic effects of immigration reform are very important: This bill will increase the size of our American workforce, as well as its productivity. Much needed highly skilled talent will start businesses and create jobs in the United States, rather than receiving an American degree and returning home to compete with us. And temporary and seasonal workers will fill jobs that remain vacant, strengthening and enlarging the American workforce.

“To be sure, this legislation is not perfect. Our economy needs a more robust guest worker program to ensure a vibrant labor supply and discourage future illegal immigration. But it is a solid proposal worthy of conservative support. People are an asset, not a liability. It is time our immigration system reflects that fact, and we allow more workers to pursue the American Dream.”


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