The comprehensive immigration bill before the U.S. Senate (S.
1639) has been roundly and justly criticized for what it would do
up front: grant immediate amnesty to virtually all illegal aliens
now in the country and jeopardize U.S. national security. However,
that is only half of the problem. S. 1639 would also create a legal
morass that would entangle immigration courts, as well as newly
created administrative courts, for years to come.
S. 1639 would grant immediate amnesty (in the form of a
"probationary" Z visa) to between 12 million and 20 million illegal
aliens. According to Section 601 (f)(2) of the bill, the amnesty
must begin within 180 days after the bill is signed--no
border enforcement triggers need to be met. Under Section 601
(h)(1), the bill allows the government only one business day to
conduct a background check to determine whether an applicant is a
criminal or a terrorist. Unless the government can find a reason
not to grant it by the end of the next business day after the alien
applies, the alien receives a probationary Z visa.
The 24-hour requirement is particularly inexplicable,
considering that the ombudsman for U.S. Citizenship and Immigration
Services (USCIS)--the agency that would implement the
amnesty--recently released a report revealing that, even without
the tripling of the workload that the amnesty will bring, FBI name
checks on aliens seeking benefits routinely take 90 days or more to
A Legal Mess
Legal snares are scattered throughout the 400-plus-page bill.
The most pernicious of them include:
1. Reopening the Absconder Files. The amnesty under S.
1639 extends even to absconders--fugitives who had their day in
court, were issued an order of removal by an immigration judge, and
ignored the order. Approximately 636,000 absconders now roam the
country, having defied the law twice--first when they broke
immigration laws and again when they ignored the removal orders.
That number has grown by an average of 68,184 a year from September
2003 to September 2006.
Since 2001, tracking down and removing these absconders has been
a top priority of Immigration and Customs Enforcement (ICE). The
agency has made recent progress by increasing its Fugitive
Operations Teams from 18 in 2005 to 61 at present. S. 1639 would
bring this effort to an end, rewarding absconders who have
successfully evaded federal law enforcement with another bite at
Section 601 (d)(1)(I) of the bill would allow USCIS to grant Z
visas to absconders, provided that the recipient can demonstrate
that his departure from the United States "would result in extreme
hardship to the alien or the alien's spouse, parent or child."
The flexible term "extreme hardship" has long been the subject
of interpretation in immigration law. For more than 30 years,
courts have wrestled with its meaning. Extreme hardship can include
consideration of the alien's age, health, length of residence in
the United States, family ties in the United States and abroad,
position in the community, financial status, occupation, and
possibility of other means of adjustment of status, immigration
history, as well as the political and economic conditions of the
alien's home country. It is a fact-intensive inquiry into
circumstances that vary from case to case.
The bill not only allows the absconder to obtain amnesty if he
can show extreme hardship to himself, but it also allows him to
receive amnesty if he demonstrates that his removal would cause
extreme hardship to his spouse, parent, or child. This is a
wide loophole. For example, immigration attorneys representing
absconders could argue that, if any member of an absconder's family
is a U.S. citizen, that family member must remain in the
United States, and then the separation of family members would
constitute extreme hardship.
Perhaps most troubling is the fact that this offers a massive
reward to aliens who have defied immigration courts. Successfully
fleeing justice can win absconders the most generous visa ever
created, as well as de facto permanent residence in the United
States. Aliens who obeyed their removal orders and left the
country, however, are not eligible. This perverse incentive system,
rewarding those who disregard the rule of law, may already be
having an effect, simply by virtue of the bill's introduction.
Because leaving the country renders an illegal alien ineligible for
the amnesty, few can be expected to obey their removal orders while
this bill is pending in Congress.
2. Creating a New Court of Amnesty Appeals. As the
Government Accountability Office (GAO) reported in 2006, USCIS is
already overburdened. It labors under a backbreaking annual
workload of more than 6 million applications for immigration
benefits (asylum, green cards, etc.) and faces a backlog of several
million additional cases. Its operation is a bureaucratic sweatshop
with an informal "six minute rule" in place--adjudicators are urged
to spend no more than six minutes looking at any application.
Adjudicators are offered cash rewards for processing applications
quickly, and perhaps most tellingly, a supervisor's signature is
required to deny an application but not to approve one. As a
result, fraudulent applications sail through.
S. 1639 would triple the workload of an agency that is already
at the breaking point. The vast majority of amnesty applications
would be approved after receiving only a few minutes of
Moreover, virtually every denial would be appealed, for two
reasons. First, the alien has nothing to lose by pursuing an
appeal, and second, the alien cannot be deported while his amnesty
application is pending. Even if only 1 percent of the 12
million-plus amnesty applications are denied, that is at least
Under a more reasonable amnesty policy, the illegal alien would
be immediately placed in removal proceedings following the denial
of the amnesty application. He would then have to argue for his
eligibility before an immigration judge. If he lost, he could
appeal to the Board of Immigration Appeals and the U.S. Court of
Appeals. If he lost in those courts, he would be deported.
However, S. 1639 would give the alien the opportunity to appeal
the denial of amnesty in a separate, newly created court within the
Department of Homeland Security. The court would have to be massive
to deal with at least 120,000 amnesty denials in the first two
years. Still, it would take years for a court to sift through so
many appeals, but that imposes no burden on the alien, because he
is protected from deportation while his case is pending. From the
illegal alien's perspective, justice delayed is just fine.
The bill is vague on the details of the new tribunal. Section
603 (a) states simply that "an appellate authority" will be
established. The appeal process would be a permissive one, allowing
the alien to introduce "newly discovered" evidence and to file a
motion to reconsider previous decisions in light of additional
If the alien loses before the newly created appeals court, he
still gets a break. Inexplicably, the bill does not require that
the government place illegal aliens who are twice denied the
amnesty into removal proceedings. Rather, the government has the
option of doing so, but only if the denial was for past criminal
convictions. Illegal aliens who are denied the amnesty on appeal
for any other reason can walk. If they want to seek further review,
they can voluntarily place themselves into removal
proceedings under Section 603 (b)(1). Otherwise, they are free to
disappear back into the fabric of American society.
3. Fraud in the Agricultural Fields. Because S. 1639 is a
slapdash effort created by stitching various amnesty bills
together, the previously proposed "Ag Jobs" amnesty appears under
the guise of a special "Z-A visa" for agricultural workers. Under
Section 622 (b) of the bill, agricultural workers would qualify for
this special amnesty by showing that they have performed
agricultural work in the United States for at least 863 hours or
150 workdays during the two-year period ending on December 31,
2006. The alien must prove "by a preponderance of the evidence that
the alien has performed the requisite number of hours or days of
Few employers of unauthorized aliens in the fruit and vegetable
fields keep such detailed records. The bill gets around this
problem by allowing the alien to offer an "inference" rather than
actual documentation. To meet this burden of proof, the alien can
offer evidence to show that he worked the required hours or days
"as a matter of just and reasonable inference." In other words, the
alien could present or even fabricate a pay stub for one day's work
at the end of the season and simply assert that he was in the
fields for the entire season.
In this way, the strict-sounding standard of the "preponderance
of evidence" is transformed into a standard of virtually no
evidence whatsoever. Furthermore, the adjudicators would spend only
a few minutes on each application. Under the status quo, they
rarely demand additional information from aliens seeking benefits.
With their workload tripled, there would be no time for such
inquiries. Growers need not worry about receiving inquiring phone
calls from USCIS.
If the unauthorized alien worker who speaks little English found
this legal charade challenging, the American taxpayer would
actually be required to help him out. Section 622 (b) allows Z-A
amnesty applicants to receive free legal services at taxpayer
expense. Under current law, illegal aliens are not eligible for
federally funded legal services. That prohibition would end if S.
1639 becomes law. It is difficult to estimate the cost precisely,
but it is likely to be in the hundreds of millions of dollars each
4. Permanent Jobs for Agricultural Workers. S. 1639
offers an especially sweet deal for illegal agricultural workers
once they obtain their Z-A visas. In Section 622 (b), the bill
states, "No alien granted a Z-A visa may be terminated from
employment by any employer during the period of a Z-A visa except
for just cause."
Employers who dare to fire newly legalized aliens holding Z-A
visas would do so at their own peril. The bill would create yet
another administrative court system to review complaints by Z-A
agricultural workers "who allege that they have been terminated
without just cause." If the administrative hearing officer finds
that the alien has established reasonable cause to believe that he
was fired without just cause, the alien and the former employer
must enter binding arbitration proceedings supervised by an
arbitrator whose fees are paid by taxpayers. The burden is on the
employer to demonstrate by a preponderance of the evidence that he
fired the alien for just cause. To give the alien yet another legal
boost, this special administrative process is non-exclusive. In
other words, the alien may sue the employer at the same time in
state or federal court for damages if any relevant causes of action
On top of an already complicated immigration court system, S.
1639 would layer a complex mix of parallel administrative courts
with nebulous standards and vulnerabilities to fraud. This new
system would be an immigration lawyer's playground. Absconders
would see their cases reopened, and the addition of poorly drafted
new statutory language to already voluminous immigration laws and
regulations would make the Internal Revenue Code look simple.
Aside from the 12 million to 20 million illegal aliens who would
receive amnesty, the biggest beneficiaries of this legal morass are
the immigration lawyers who would bill millions of dollars
representing their clients as the cases drag on. That is not
entirely surprising, because the American Immigration Lawyers
Association reportedly played a central role in drafting the Senate
bill. It is also a natural consequence when a bill is drafted
behind closed doors and shielded from the normal process of
Kris W. Kobach, D.Phil, J.D., is Professor of Law at the
University of Missouri-Kansas City and a Visiting Fellow at The
Heritage Foundation. He served as Counsel to U.S. Attorney General
John Ashcroft in 2001-2003 and was the Attorney General's chief
adviser on immigration law.