Elections Bring Policy Changes
By Jennifer Yau
Migration Policy Institute
December 1, 2004
Immigration was not a prominent issue in the campaign of either Presidential candidate. However, public controversy over
immigration fueled an important state ballot initiative, and, since election day, President Bush has called for immigration
reform in his second term. In addition, two of his top cabinet members – Homeland Security Secretary Tom Ridge and Attorney General John Ashcroft – have resigned. These and other policy developments are outlined below.
Arizona Passes Proposition 200
Arizona voters have approved Proposition 200, which limits undocumented immigrants' access to
public benefits and voting rights. Proposition 200 requires government workers to verify the “immigration status” of “public benefit” applicants; government workers who do not comply will be subject to jail time. The initiative also requires voter registrants to show proof of citizenship.
However, Proposition 200, which received 56 percent of the vote, does not define the term “public benefits.” The original sponsor of the proposition, citizens' group Protect Arizona Now, asserts that the wording applies to state and local welfare benefits. Opponents contend the initiative's ambiguity could preclude undocumented immigrants from benefits such as police protection and park use.
Since the election, Arizona Attorney General Terry Goddard has issued a non-binding advisory opinion specifying that Proposition 200 amends only Arizona state and local welfare laws. Shortly after the opinion was issued, the Federation for American Immigration Reform (FAIR), a national organization that favors a temporary moratorium on immigration, along with the local organization Yes on Proposition 200, filed a lawsuit seeking to expand the proposition's scope.
The suit alleges that the initiative should cover grants, loans, public housing, post-secondary education, food assistance, and similar benefits funded by a state or local government.
US-Mexico Migration Back on Policy Agenda
The Bush administration has acknowledged the importance of immigration to US-Mexico relations in meetings
with high-level Mexican officials. On November 21, President Bush reaffirmed his commitment to a guest worker program in talks with Mexican President Vicente Fox at the Asia-Pacific Economic Cooperation (APEC) meetings held in Chile.
In a press conference the following day, Bush pledged to work with Congress to enact the necessary legislation. In January 2004, President Bush announced a proposal for allowing undocumented immigrants to obtain temporary work permits.
In addition, several Bush cabinet members discussed immigration reform during the semiannual meeting of the United States-Mexico Binational Commission held on November 9. Secretary of State Colin Powell emphasized to President Fox the current administration's commitment to a guest worker program.
In talks between US Homeland Security Secretary Tom Ridge and Mexican Interior Secretary Santiago Creel, both agreed that immigration reform must acknowledge the circular migration flows of Mexicans who return home after working for a time in the United States.
- Click here to read more on Bush's guest worker proposal in the February 2004 Policy Beat.
Congressional Leaders Continue Debate on Homeland Security Bill
Passage of a Homeland Security Bill remains at a standstill due to continued disagreements over intelligence
reorganizations and immigration measures. Those in favor of including immigration provisions maintain they are necessary for blocking terrorist actions.
Key leaders in the House want the legislation to include national standards to prevent undocumented immigrants from obtaining drivers' licenses. Despite urging by the White House to strike these provisions, proponents of the language have been unwilling to do so unless other immigration provisions are inserted.
These provisions – related to asylum determinations and deportation processes – were deleted from earlier versions of the bill by the conference committee.
- For more information on the Homeland Security Bill, see the November 2004 Policy Beat.
DHS Appropriations Bill Signed, ICE Financial Difficulties Highlighted
President Bush signed into law the second annual Homeland Security Appropriations Bill on October 18. The bill provides a total of $40.7 billion to the Department of Homeland Security (DHS) in fiscal year 2005, and it allocates $419.2 million in new funding to enhance border and port security activities, including $340 million for the US-VISIT program.
The bill also earmarks $179 million for improvements in immigration enforcement. Another $160 million is intended to help DHS reach its goal of a six-month processing time for all immigration applications.
Despite the recent approval for DHS funds, the Department's Immigration and Customs Enforcement (ICE) Bureau faces significant financial problems. The conference report of the Homeland Security appropriations bill notes that legislators are “extremely concerned about the financial health of ICE, and whether it has the systems and management in place to support the functioning of the agency.”
ICE's financial troubles are rooted in complicated accounting practices within DHS that have led to financial disputes among ICE, Customs and Border Protection (CBP), and Citizenship and Immigration Services (CIS). The three bureaus share support functions including human resources, legal services, and information technology.
Disagreements about the amounts owed by each bureau for such services involve hundreds of millions of dollars. ICE is confronting the biggest shortfall of the three bureaus, and it has instituted temporary bans on hiring and transfers, training, supply purchases, and vehicle maintenance.
Despite the cutbacks, officials have projected that the division's expenses will exceed its current budget of $3.8 billion.
- Click here to read the DHS fact sheet on the fiscal year 2005 appropriations.
DHS Begins Enforcement of Expanded Visa Security Measures
The Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP) adopted more flexible
criteria in enforcing a requirement that all travelers entering the US through the Visa Waiver Program (VWP) present a
machine-readable passport. On October 22, 2004, DHS announced it would give a one-time exemption to VWP travelers entering the US without the correct passport. The VWP allows nationals from 27 selected countries to travel to the United States for tourism or business for 90 days or less without obtaining a visa.
The security-related measure, which went into effect on October 26, 2004, has met with resistance from some foreign governments and commercial airlines concerned about confusion among VWP travelers.
An original implementation date of October 1, 2003, was extended until October 26, 2004. Congress has also extended a deadline for addition of biometric data to VWP-country passports to October 26, 2005.
- See the September 2004 Policy Beat for more information on Visa Waiver Program machine-readable passports.
- Click here to read a DHS press release about machine-readable passport VWP travelers.
District Court Judge Rules Treatment of Detainees in Guantanamo Bay Unlawful
A US District Court judge has ruled that military commissions used by the US government to prosecute detainees
held on terrorism charges at the Guantanamo Bay, Cuba, Navy base are unlawful. The decision by Judge James Robertson states that detainees may be “prisoners of war” rather than “enemy combatants.”
Several hundred non-citizen detainees held at Guantanamo Bay have been awaiting possible trial before military commissions as “enemy combatants.” The designation – conferred by the government to detainees accused of terrorist acts – excludes detainees from several rights granted to “prisoners of war” under the Geneva Convention. These rights include admittance to all commission sessions and access to trial evidence. Judge Robertson's verdict states that special trials should have been held to determine if detainees were eligible for “prisoner of war” protections.
The decision came in a lawsuit filed by the first alleged Al Qaeda member facing trial before a military commission. Military officers halted commission proceedings after the ruling was issued.
The Justice Department has disagreed with the ruling, saying that it “has put terrorism on the same legal footing as legitimate methods of waging war." Supreme Court rulings earlier in the year have also challenged the treatment of non-citizens held on terrorism charges.
- Click here for an analysis of the Supreme Court rulings by MPI's Muzaffar Chishti.
Policy Beat Briefs
DHS Secretary Ridge Resigns. Tom Ridge, Department of Homeland Security (DHS) Secretary, announced his resignation on November 30. His term will continue until February 1, 2005, unless a successor is confirmed earlier. Ridge took office as the first head of DHS in January 2003. The department's creation was the largest government reorganization since the Defense Department was created in 1947.
DOJ Attorney General Ashcroft Resigns. Attorney General John Ashcroft resigned from his position as head of the Department of Justice (DOJ) shortly after the elections. President Bush has nominated current White House Counsel Alberto Gonzales to replace him. Gonzales may face questioning in Senate confirmation hearings regarding his positions on civil liberties in relation to combating terrorism. Gonzales served as liaison for Mexican border and migration issues during President Bush's tenure as Governor of Texas.
Temporary Protected Status. The United States has extended the Temporary Protected Status (TPS) held by approximately 4,300 Nicaraguan nationals and 81,875 Honduran nationals residing in the US. The TPS extension is valid until July 5, 2006 and was granted on the grounds that neither country has yet overcome damage caused by Hurricane Mitch in 1998.
The US is also considering TPS for Haitian nationals in the United States due to the devastation caused by Tropical Storm Jeanne in September 2004. While the decision is pending, some Haitians will be allowed to stay on case-by-case determinations.
DHS Enforcement Operations. Air and marine operations dedicated to law enforcement under US Immigration and Customs Enforcement (ICE) were transferred to US Customs and Border Protection (CBP). The transfer is intended to consolidate efforts where missions and needs overlap.
US VISIT. The Department of Homeland Security is adding biometric data intake measures to its US VISIT program at three land ports of entry (Laredo, Texas; Douglas, Arizona; and Port Huron, Michigan). The measures, which include matching fingerprints and photos against database information to detect immigration violations and terrorist ties, are in a test phase at the three sites and will be implemented in the 50 busiest land ports of entry by the end of the year.
Deportation Numbers. A record 157,000 undocumented immigrants were deported from the US during fiscal year 2004, according to statistics announced by the Immigration and Customs Enforcement (ICE) bureau of the Department of Homeland Security (DHS). ICE attributes the numbers to increased efforts to track down persons who posed possible security threats. About half of those removed had criminal convictions, while those with no criminal record constituted approximately 10 percent of the deportees. Approximately 70 percent, or nearly 110,000 undocumented immigrants, were deported to Mexico.
GAO Report. A new Government Accountability Office (GAO) Study, “DHS Has Incorporated Immigration Enforcement Objectives and Is Addressing Future Planning Requirements” (GAO-05-66), reports that while ICE does not have a distinct interior enforcement strategy, the former Immigration and Naturalization Service's (INS) interior enforcement objectives have been incorporated into a broader homeland security strategy that uses joint customs and immigration investigations.
- See the December 2002 Policy Beat for an overview of how the Department of Homeland Security was created.
- Click here to read the official ICE press release on detention and removal records.
- Click here for the text of GAO-05-66.
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