By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
November 16, 2009
As the US Census Bureau gets ready for the 2010 census, a controversial amendment that would have required the questionnaire to ask about participants' citizenship status was narrowly defeated on a procedural vote in the Senate.
According to the amendment's sponsors, Senators David Vitter (R-LA) and Bob Bennett (R-UT), the measure was intended to ensure that only the count of US citizens in a state would determine the state's share of seats in the US House of Representatives. But the amendment sparked a heated national debate over its impact on the census and its constitutionality.
The US Constitution requires the federal government to conduct a national census once every 10 years. The census is used to apportion the nation's 435 congressional seats among the 50 states. It is also the basis for allocating federal funding for many public services at the local level, such as by hospitals and schools.
Historically, the decennial census has counted the total population of the United States without distinguishing between citizens and noncitizens. The Fourteenth Amendment states that the apportionment of congressional representatives shall be based on a count of the total number of persons residing in each state. This language was added to remedy the pre-Civil War law under which slaves were counted as only three-fifths of a person.
In introducing their amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act of 2010 (HR 2847), Vitter and Bennett acknowledged that the amendment would change the traditional method of congressional apportionment by distributing House seats based on each state's US-citizen population, rather than its entire population.
According to demographers at Queen's College in New York City, such a change would increase the number of House seats allocated to states with small immigrant populations, such as Indiana, Montana, and Oregon, at the expense of states with large immigrant populations, such as California, New York, and Illinois.
The amendment invited controversy on a number of fronts. In Congress, opponents of the amendment argued that adding a question to the 2010 census just months before its scheduled implementation would force the Census Bureau to reprint 425 million census questionnaires, a process that Census Bureau officials said would cost millions of dollars.
Eight former directors of the Census Bureau issued a statement in mid-October indicating the proposal "greatly troubled" them, both because it would delay the start of the census and because it could jeopardize the accuracy of census data.
In testimony before Congress two weeks later, Census Bureau Director Robert Groves echoed similar sentiments. He also noted that when the text of the 2010 census questionnaire was presented to Congress in April 2008, lawmakers did not raise any objections.
The Vitter-Bennett amendment also came under attack from civil rights and immigrant advocate groups, which said the amendment violated the Constitution's express mandate. On October 20, a coalition of civil rights and advocacy organizations, including the Leadership Conference on Civil Rights, the National Association of Latino Elected and Appointed Officials, and the Asian American Justice Center, held a press conference to urge the Senate to vote against the amendment.
At the same time, Census Bureau leaders and members of community-based organizations stated that adding a question to the census about citizenship status would undermine year-long efforts to encourage immigrant participation in the census. Since many demographers have expressed strong concerns about the undercount of immigrant and minority communities in the 2000 census, the Census Bureau had purposefully targeted these communities as part of its public relations strategy leading up to the 2010 census.
In 2009, the Census Bureau increased the number of languages in which it published census advertising materials from 14 to 28, expanded its language assistance program, and sought partnerships with local community groups and religious organizations to encourage census participation. Many community leaders suggested that the Vitter-Bennett amendment would compromise these efforts, especially because media campaigns funded by the Census Bureau had emphasized that the census would not ask about citizenship status.
Census Bureau officials have noted that an undercount of immigrants in the 2010 census would have major implications for states and localities. Some policy analysts have also concluded that inaccurate demographic data could especially impede the recovery of some state and local economies from the current economic recession, as local governments would not receive their appropriate share of federal funding.
ICE Signs 55 Revised 287(g) Agreements
US Immigration and Customs Enforcement (ICE) has signed 55 revised memoranda of agreement (MOAs) with state and local law enforcement agencies participating in the 287(g) immigration enforcement program. Twelve additional jurisdictions have also signed agreements to participate in the program, pending final approval from local authorities.
In July, ICE announced it had revised and standardized the MOAs governing the 287(g) partnerships, and that participating law enforcement agencies would have 90 days to sign the new agreements or end their participation.
Six jurisdictions that previously participated in 287(g) will not continue with the program, citing a range of reasons, including the program's cost and its impact on policing efforts. The Houston Police Department, one of the largest agencies in the program, chose not to continue because of concerns about police officers acting as immigration agents.
In another significant development, ICE decided to limit the 287(g) authority granted to the Sheriff's Office in Maricopa County, Arizona. The sheriff's office will still be allowed to screen inmates in county jails for immigration violations. However, it will no longer be allowed to implement a "task force" version of the program, through which police officers question individuals stopped on the streets about their immigration status.
Immigrant advocates and civil liberties groups heavily criticized Maricopa County's 287(g) program. They argued that officers frequently violated immigrants' civil rights and engaged in racial profiling in the course of enforcement operations.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act authorized the federal government to enter into agreements with state and local law enforcement agencies through which local police officers are trained to enforce certain aspects of immigration law.
The state of Florida signed the first 287(g) agreement in 2002, but the program did not begin to grow substantially until 2007, when an increasing number of law enforcement agencies wanted to respond to local concerns over unauthorized immigrants.
Critics have argued that 287(g) partnerships undermine relationships between the police and immigrant communities.
They maintain that cross-deputizing local officers to act as ICE agents will make immigrants reluctant to call to the police, leading to higher levels of crime.
The government has said that its revisions to the 287(g) MOAs addressed many of the previous concerns about the program. ICE has emphasized that the new MOAs ask program participants to target noncitizens who have committed serious drug offenses and violent crimes. The agency has also said that the MOAs improve ICE's supervision of the program and strengthen reporting requirements.
How meaningful these changes will prove to be in reality remains to be seen.
Policy Beat in Brief
Final Rule Lifting HIV Travel Ban. Foreign nationals who are HIV positive will no longer be barred from visiting or immigrating to the United States under the terms of a new regulation issued by the Obama administration. Since 1987, foreigners who are HIV positive have been required to obtain a special waiver in order to enter the country. In 2008, Congress voted to amend the Immigration and Nationality Act eliminating HIV as grounds for inadmissibility. The new regulation effectuates that change, and states that as of January 4, 2010, intending immigrants will no longer be required to obtain HIV testing prior to their admission to the United States.
Widows Penalty Ended. Foreign-born widows and widowers of US citizens are now eligible to self-petition for lawful permanent resident status, even if they were married to their American spouses for less than two years. The Immigration Act of 1990 only permitted a widow or widower to self-petition for immigration status if the couple had been married for at least two years. The new law eliminates this requirement and allows widows and widowers ineligible for immigration benefits under the old law to immediately file self-petitions.
E-Verify Extension. Congress voted to extend implementation of the federal E-Verify program for an additional three years but rejected an amendment that would have mandated permanent reauthorization of the program. E-Verify enables employers to check whether new employees are authorized to work by entering their biographic information into an online database. Critics of the program, including the United States Chamber of Commerce, have held that E-Verify is prohibitively expensive for businesses and that errors within government databases could result in the termination of lawful workers.
Asylum for Battered Immigrant. The Obama administration has recommended granting asylum in a potentially precedent-setting case of a Guatemalan national who had been the victim of severe domestic violence. Although an immigration judge approved Rodi Alvarado's application for asylum in 1996, the case remained pending for the next 13 years, as the government appealed the decision and sought guidance from the attorney general's office. At issue was whether Alvarado could establish that her persecution was based on "membership in a particular social group," one of the criteria required for a grant of asylum. The decision is expected to pave the way for further asylum claims based on domestic abuse.
Foreign Born among US Nobel Prize Winners. In a year when US citizens figured prominently among Nobel Prize winners, naturalized Americans made up four of the eight American citizens who won Nobel Prizes in chemistry, physics, and medicine in 2009. Academic and business groups have cited this fact as proof that the United States should increase the number of visas granted to students and high-skilled foreign nationals in order to remain competitive in science and technology.
New Data on Fugitive Operations Program. ICE arrested a greater percentage of immigrants with criminal histories through the agency's Fugitive Operations Program (FOP) in 2009 than it did in 2008. The Associated Press reported that 45 percent of the 35,000 immigrants arrested through the FOP program in 2009 had criminal convictions, as opposed to 23 percent in 2008. In February 2009, the FOP program came under heavy criticism after reports issued by the Migration Policy Institute and the Benjamin Cardozo School of Law found that many of the immigrants arrested through the program did not have outstanding deportation orders or criminal histories.
Decline in H-1B Petitions. US Citizenship and Immigration Services (USCIS) has received just 54,700 H-1B visa petitions since April 2009, 84 percent of the annual cap of 65,000 cap and the lowest number of petitions USCIS has received during the April-November time frame since 2003. The H-1B visa program allows US employers to sponsor high-skilled immigrants, including scientists, engineers, and computer programmers, who are admitted to the United States for up to six years. Most experts agree that the current economic recession is responsible for the drop in applications. In addition, the federal economic stimulus bill made it difficult for companies to qualify for assistance under the Troubled Asset Relief Program (TARP) if they hired large numbers of H-1B visa holders.
Extraordinary Rendition Case. A federal appeals court has dismissed the claims of Canadian-Syrian citizen Maher Arar, who alleged that the United States violated his Fifth Amendment rights and the Torture Victims Protection Act (TVPA). US immigration officials arrested Arar while he was changing planes at JFK airport in New York in 2002. Following his arrest, Arar was deported to Syria, via Jordan, where he was detained for a year and tortured. In its decision, the court found that Arar could not claim relief because he could not show that US officials had conspired with Jordanian and Syrian officials or acted under the color of foreign law in his detention and torture.
State and Local Policy Beat in Brief
San Francisco Sanctuary Ordinance. The San Francisco Board of Supervisors reinstated an ordinance prohibiting city police officers from turning over arrested immigrant youths to ICE. In doing so, the board overrode Mayor Gavin Newsom's veto of the measure. Newsom amended San Francisco's "sanctuary" policy in 2008 to allow local police to contact ICE with information about juvenile offenders who had been arrested on felony charges. Under the terms of the new ordinance, the police will only be allowed to contact ICE if a juvenile has been convicted of a felony offense.
Denver Ballot Initiative on Unlicensed Drivers. Voters in Denver, Colorado, rejected a measure that would have required the Denver police to impound the car of any driver who was found to be driving without a license. The sponsors of the initiative maintained that the measure was aimed at getting rid of unsafe drivers. But opponents argued that the real target of the measure was unauthorized immigrants, who are not eligible for driver's licenses in Colorado.
Lawsuit on Behalf of Immigrant Workers in New York. New York Attorney General Andrew Cuomo has filed a civil lawsuit against six New York construction and contracting companies, charging that they violated labor law and discriminated against minority and immigrant employees. According to the suit, the companies routinely forced immigrant workers to work up to 70 hours a week and failed to pay over $4 million in wages and overtime pay. The companies had also established a tiered salary system in which Irish workers were paid $25 an hour, African Americans $18 an hour, and Latinos $15 an hour for the same work.