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Reform or Retread?

Advocates see hope and pitfalls in immigration bill

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No one was pining for perfection when the Senate's so-called "Gang of Eight" released its ambitious stab at immigration reform on April 18.

The gang included Arizona senators John McCain and Jeff Flake, who respectively played up the measure's ambitious reform goals—from widening pathways for citizenship to easing America's draconian deportation crusade—and its largely redundant security enhancements along the border.

At first glance, these security measures seem mostly a solution in search of a problem, considering that illegal immigration rates have plunged to record lows in recent years.

Yet beefing up the border's fortification does serve two bona fide goals, namely giving anti-immigrant right-wingers political cover to support the reforms they detest, and nourishing a border security industry that has already sucked billions from the taxpayer teat.

This means even more agents for the Border Patrol, which has already seen its ranks double since 2004 to a record 21,000. It means dishing out another $1.5 billion for a fencing plan—although two years ago, Border Patrol Chief Michael J. Fisher reported to Congress that Homeland Security's existing, 650-mile fence was just two miles shy of the length considered necessary for controlling our southern boundary.

The 844-page Senate bill would also beef up illegal entry prosecutions in the Border Patrol's Tucson Sector, shovel more border-security money to local law enforcement agencies through a program called Operation Stonegarden, fund the construction of additional Border Patrol stations, and allow the Border Patrol increased access to threatened public lands.

Within that bill, subsequently, are several "triggers" that must be in place before immigrants can begin accessing the reforms. For instance, the U.S. Department of Homeland Security must first fashion a "Comprehensive Border Security Strategy" and a "Southern Border Fencing Strategy."

Under these plans, the DHS must prove that it has a fully functional electronic legal-status verification system in place, that it actively monitors 100 percent of the border, and catches up to 90 percent of illegal crossers. The $3 billion plan includes a shopping list of fresh surveillance electronics equipment and plenty of new manpower. Only when those "triggers" are running at full speed for at least six months can the government begin offering new options for immigrants.

Still, those options are significant. For instance, the bill would legalize so-called Dreamers, immigrants brought here illegally as children. And it would present alternatives for immigrants who can't get visas through their families or employers. The proposed Registered Provisional Immigrant program would upend the current system by adding two "merit-based" legalization routes for the roughly 11.5 million undocumented immigrants already here. Those pathways would be open for people who can pass a background check, have no major crime convictions and can prove that they've resided in the United States continuously since Dec. 31, 2011.

Tucson immigration attorney Maurice Goldman considers the R.P.I. program a serious reform. "I have clients who are in imminent danger of being deported," he says, "and this would be a lifesaver for them."

Goldman describes one client who, under current law, is not eligible to have his deportation proceedings halted. That law demands that a person seeking legal status must prove continuous residence in the United States for at least 10 years. "My client was at nine years and 11 months when he got caught by immigration," says Goldman. "There was no way I could argue that he would be eligible (for legal status) because he missed the cutoff date by one month."

The client's deportation hearing is slated for December, "and unless I could stop the removal through the Registered Provisional Immigrant process, then there's nothing more that I can do for the guy."

Goldman describes R.P.I. as "hybrid status," in which a person does not exactly have permanent residency or a green card. "All they'll get, as I read it, is a six-year permit to stay here that they can renew for an additional six years.

Either way, "it's going to be a long road to travel," Goldman says. "But if you talk to my client, he's going to say, 'Hey, I'll take a work permit and the ability to travel back and forth to the U.S. any day over being deported and never being able to come back.'"

So-called R.P.I.s would also be eligible for driver's licenses and Social Security numbers, bringing them out of the shadows. "In my opinion, the legalization program is really wonderful," Goldman says.

But how the bill would affect the roughly 34,000 people held daily in detention—and typically awaiting deportation—by U.S. Immigration and Customs Enforcement is less clear.

The bill does contain provisions for more oversight of detention facilities, many of which are operated by the Corrections Corporation of America. Serious questions have arisen about harsh tactics in those facilities, such as holding prisoners in solitary confinement for long periods. The Senate measure also expands the ability of immigration judges to conduct speedy bond hearings—potentially allowing for the quicker release of detainees—and offers alternatives to detention, such as the use of ankle monitors.

But many who monitor ICE detention policies question whether these measures mark true reform. Among the skeptics is Jacqueline Stevens, a political science professor and director of the Deportation Research Clinic at Northwestern University in Illinois. "This bill doesn't seem to make significant changes to the oversight of detention facilities," she says, "except that it's putting into law that there should be financial penalties if the private contractors violate the detention standards."

Those standards include provisions for medical and mental health screenings to ascertain whether detainees have been victimized by domestic violence or sexual assault. They also require that only guards of the same gender as the detainee can do pat-downs, and provide special-care provisions for transgender detainees.

But there's a big caveat, says Stevens: Those standards lack the heft of a bona fide legal regulation. At the same time, she argues that ICE attempts to stymie contact between detainees and immigrant advocates. "The detention standards are very restrictive about the access standards for people who are not part of the 'official' media,'" she says. "If the government is really interested in deterring abuse in detention, they have to allow the people being held in detention facilities to speak directly to people who might hold those facilities accountable."

We were unable to obtain comment from ICE by press time.

Still, Stevens does agree that suggested alternatives to detention are a "huge" change. So is the plan for a far speedier bond-hearing process, allowing the release of detainees and reducing chances that they'll just give up, regardless of the strength of their case. "The first thing people want is a bond hearing," she says. "For people who are locked up, their priority is getting out of detention. And if the bond hearings are held up indefinitely, that's a big incentive for them to sign out and get deported."

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