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President Signs DHS Appropriations and Secure Fence Act, New Detainee Bill Has Repercussions for Noncitizens
By Julia Gelatt
Migration Policy Institute
November 1, 2006
President Signs DHS Appropriations, Secure Fence Act into Law
President Bush signed the $35 billion Department of Homeland Security (DHS) Appropriations Act into in a ceremony held in Arizona on October 4, and signed the Secure Fence Act into law in a White House ceremony on October 26.
Republican members of Congress had urged the president to hold a public signing ceremony for the Secure Fence Act close to the November 7 elections. After some resistance, the administration agreed to a low-key public signing. The president used the ceremony to reiterate his desire for complements to enhanced border enforcement: a temporary worker program and measures to address the unauthorized population in the country.
The Secure Fence Act authorizes the construction of 700 miles of double-layer fencing along the Southwest border and allows for the creation of a virtual fence along the entire Southwest border. The bill does not appropriate any funding for the fence. It calls on the DHS Secretary to take all measures deemed appropriate and necessary to prevent all unlawful entry.
The DHS appropriations bill makes construction or financing of a tunnel under the border a crime carrying a 20-year prison sentence, and makes knowledge or disregard of the building of a border tunnel on one's property a crime punishable with a 10-year prison term.
The bill also authorizes $362 million for the US Visitor and Immigrant Status Indicator (US-VISIT) project, with $200 million on hold until officials provide Senate and House Appropriations Committees an expenditure plan for the funds.
It provides a total of $7.4 billion for Customs and Border Protection (CBP), including $1.2 billion for fencing and other barriers along the border, and funding for 1,500 new Border Patrol agents; $3.9 billion for Immigration and Customs Enforcement (ICE); and $181 million for US Citizenship and Immigration services (USCIS).
Legislators inserted some flexibility into the border fence legislation in last-minute negotiations before the September 29 passage of the two bills. The DHS appropriations act was altered to allow the Bush administration flexibility in using the money not only for a physical fence, but also for roads, technology, and tactical infrastructure to support the type of "virtual fence" pushed by the president.
Further, GOP congressional leaders promised in a letter inserted into the Congressional Record that American Indian tribes, members of Congress, and local governments would be consulted in determining the exact placement of fencing, and that DHS Secretary Michael Chertoff would have discretion over whether to use alternative tactics in places where fencing was deemed ineffective or impractical.
Outgoing Mexican President Vicente Fox and incoming President Felipe Calderon criticized the fence and its implications for US-Mexico relations. Calderon cast the fence as a measure aimed at internal US electoral matters rather than a real solution to immigration issues.
Fence critics have expressed a wide range of concerns, from the proposed fence's impact on fragile ecosystems and endangered species in border areas to its possible effects on cross-border tourism and on ties between Mexican and US members of the Tohono O'odham American Indian nation. Others predict that the fence will not stop border crossings, but rather will divert them to new, unfenced locations, to boat and tunnel crossings, or will increase numbers of those who enter on legal visas but overstay or violate the terms of those visas.
Detainee Bill Has Repercussions for Legal Immigrants
- Read the 2007 Department of Homeland Security (DHS) Appropriations Act (HR 5441) here.
- Read the Secure Fence Act of 2006 here.
Under the detainee bill President Bush signed into law on October 17, noncitizen immigrants in the United States can be held indefinitely, without access to the court system, if they are accused of being "enemy combatants."
The aim of the Military Commissions Act of 2006 is to provide the government a legal means to interrogate and try terror suspects. In June, the Supreme Court struck down the military tribunals the Bush administration had established following September 11 for trying terror suspects.
The original text of the act denied habeas corpus (the right to ask federal courts to review their imprisonment) only for detainees being held outside the United States, such as the 450 prisoners at Guantanamo Bay. However, an amendment added just before the House voted on the bill expanded this provision to cover any "alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
The law also expands the definition of enemy combatant to include anyone who provides material support to enemies of the United States and its allies.
A proposed amendment sponsored by Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT) would have preserved the right to habeas corpus for detainees both within and outside the United States, but the amendment failed to gain the necessary votes in the Senate.
Currently, the United States is holding only one "enemy combatant" within the United States, Qatari student Ali Saleh Kahlah al-Marri, who has been in custody for four years without charges.
Human rights activists and even some members of Congress who supported the legislation predict that the Supreme Court will eventually strike down the legislation because of the habeas corpus provision, requiring Congress to again draft legislation on the issue.
Immigration Not Key Issue for Most Voters
- To read the Military Commissions Act of 2006, click here.
While immigration has arisen in many campaign debates in districts across the country, only 24 percent of voters named immigration as a key issue in the upcoming midterm elections, according to a recent poll by the Pew Research Center. In contrast, 51 percent named Iraq and 37 percent cited terrorism as key issues.
Voters' views on the immigration policy debate partly determined how much emphasis they placed on immigration in the upcoming elections. One-third of respondents who backed stronger border protection said immigration was important to their vote, compared to only 11 percent of respondents who favored a comprehensive approach to immigration reform.
Proponents of several immigration enforcement initiatives in Arizona and Colorado may benefit if the greater concern felt by supporters of border enforcement translates into their higher turnout at the polls on November 7.
Arizona ballots will ask voters to decide the fate of a bill aimed at preventing unauthorized immigrants from gaining access to public benefits including adult education classes, in-state tuition, state financial aid, and child care subsidies.
Arizona residents will also vote on whether unauthorized immigrants who commit serious felonies should be able to post bail rather than serving a prison sentence. They will decide whether unauthorized immigrants will be able to receive punitive damages from civil lawsuits, and whether the state constitution will be amended to make English the official language of the state government.
Voters in Colorado will be asked whether tax laws should be used as a means of requiring employers to verify the legal status of workers they hire. Under Colorado House Bill 1020, employers would be prohibited from claiming employees' wages as deductible businesses expenses if they had not verified the legal status of those employees. A law passed by the Colorado legislature in a special session in July already requires employers to document their compliance with federal employment-verification requirements.
Colorado voters will also decide on November 7 whether the Colorado attorney general should sue the federal government in order to demand that it enforce federal immigration laws.
- To view the results of the Pew Research Center poll on the issues most important to voters in the November midterm elections, click here.
Policy Beat In Brief...
Remittances. Latin American immigrants in the United States sent home about $45 billion to family members in 2006, up from $30 billion in 2004, according to a new report by the Inter-American Development Bank. The 2006 amount represents five times the level of official development assistance to Latin America and the Caribbean. US remittances make up about three-quarters of all remittances to Latin America, with most of the rest coming from Europe and Japan. The survey researchers used to determine these remittance levels found that 73 percent of Latin American immigrants frequently send remittances home, and that, on average, Latin American immigrants remit about 10 percent of their incomes, with the other 90 percent remaining in the US economy.
H-2B Cap Exemptions. The H-2B visa program, which admits nonagricultural temporary workers, will continue to exempt returning H-2B holders from the annual cap of 66,000 visas a year. Following the late-September extension of the Save Our Small and Seasonal Business Act, the cap will continue to apply only to new applicants for H-2B visas and not to those who have entered on an H-2B visa in a previous year. H-2B workers are often employed in seasonal industries such as tourism, filling housekeeping, landscaping, restaurant service, and other jobs. The cap exemption will be discontinued if not renewed in 2009.
- The full Inter-American Development Bank Report, "Sending Money Home," is available here.
TPS for Liberians. Liberians with temporary protected status (TPS) will lose their designation after September 2007, according to a DHS announcement. There are currently about 3,600 Liberian nationals with TPS living in the United States. DHS Secretary Michael Chertoff determined that the conditions in Liberia no longer meet TPS requirements. Once the TPS designation lapses in September 2007, affected individuals from Liberia will return to the immigration status they held prior to the TPS designation, unless they have acquired a different immigration status while in temporary protected status. Those without a legal immigration status will be expected to leave the United States prior to October 1, 2007.
- To read the Save Our Small and Seasonal Business Act of 2005 (S. 2284), click here.
Border-Crossing Card. Border crossers between the United States and Mexico, Canada, or the Caribbean may be able to purchase a $20 crossing card as an alternative to carrying a passport to meet new requirements that take effect in June 2009. Under the Western Hemisphere Travel Initiative, all US citizens crossing back into the country from Canada, Mexico, or the Caribbean through a land or sea port of entry will be required to carry a passport or a new border-crossing card (air travelers must carry a passport by January 2007). The new PASSport cards proposed by the Department of State would use radio frequency technology to allow CBP officers to read the cards from up to 20 feet away. Some critics of the proposed plan have raised privacy concerns, explaining that the use of radio cards could lead to identity theft. Officials say the cards will store only a number, and no personal information, and will come with protective sleeves that can prevent unauthorized readings. The proposal is open for public comment for two months before a final decision is made. State Department officials have not determined when the new cards would become available.
- Read the DHS press release announcing the end of TPS for Liberians here.
- To read a DHS press release about the proposed PASSport card, click here.
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