Legislation

Statement of Jack Martin, Special Projects Director, Federation for American Immigration Reform

at a hearing in Lancaster on October 19, 2007

of the House Republican Policy Committee Illegal Immigration and its affects on society and the economy

Thank you for this opportunity to speak today on behalf of FAIR and its members as you study state measures related to immigration reform. FAIR is a non-partisan, non-governmental membership organization that has worked on immigration policy issues for more than 27 years. I have been with FAIR for about 11 years.

Illegal immigration is fundamentally an issue of law violation. Our sovereign right to regulate who is legally admitted to the country is being massively undermined by illegal entry and refusal to leave at the end of an authorized stay. We estimate the illegal population of the country to be between 11 and 13 million persons, and it has been rising recently each year by about a half million persons. Other reputable researchers have estimated a much higher illegal population.

We estimate the illegal alien population in Pennsylvania has been rising rapidly. An estimate by the Pew Hispanic Center is that the state’s illegal alien population is currently about 125,000 to 150,000 persons. The most recent estimate of that population by the federal government was that there were 49,000 illegal alien residents in 2000. Regardless of who is doing the estimates, the trend is very clearly a rapidly escalating problem.

Based on an earlier estimate of the illegal alien population in the state by FAIR, we reported that the education of the children of illegal aliens in Pennsylvania’s public schools is costing the state’s taxpayers nearly $230 million dollars annually. We subsequently expanded that estimate to include emergency medical expenditures and incarceration costs of illegal aliens and arrived at an estimated cost of $285 million per year as of 2006. We also estimated that those costs could rise to $812 million per year by 2020 based on a continuing rapid rise in illegal immigrants. These fiscal cost estimates represent only a fraction of the costs attributable to illegal immigration. They relate to only the education of the children of illegal aliens, emergency medical treatment that hospitals are required to provide, and limited costs associated with incarceration of criminal aliens.

The total fiscal burden from illegal immigration borne by the state’s taxpayers is considerably higher than those estimates because they cover only a limited number of outlays. If the full costs of administration of justice, e.g., such costs as policing, processing, trials, interpreters, medical expenses and other incarceration costs beyond salaries of the incarceration staff were included, those estimated costs would greatly expand.

The data that we use on estimating the costs of incarceration are based on reports that are filed with the federal government for compensation under the State Criminal Alien Assistance Program (SCAAP) However, SCAAP compensation represents only a drop in the bucket compared to actual expenditures, and some jurisdictions apparently decide that the paperwork to participate in the program is not worth the effort. As an example, the per prisoner costs attributable to incarceration personnel reported in the 2003 SCAAP data (the last report with full data available) that was reimbursed to Pennsylvania facilities amounted to about $2,200 per prisoner year for these deportable aliens. By contrast, in Maryland, the estimated overall annual incarceration cost per prisoner is about $24,300. In Pennsylvania, the SCAAP claim in 2003 included claims from only 18 of the state’s 67 counties plus a claim from Philadelphia. Yet, there are 63 local detention facilities in the state in addition to the 27 state facilities.

Similarly, estimates of welfare benefits paid to the children of illegal aliens and other services such as assisted housing would further increase the public outlays. Educational cost estimates are understated because they do not include, for example, the costs of Limited English Proficiency (LEP) instruction or the costs of remedial instruction to students with educational gaps. Data compiled by the Department of Education indicate that over the 1996-2005 period, overall kindergarten through grade 12 enrollment dropped slightly (7.7%) while the student enrollment in LEP classes nearly doubled (96.4%).

As a rule of thumb, the fiscal cost estimates that we have developed are probably no more than about half of the full costs.

Background

Apologists for illegal immigration historically have argued that immigration is a federal responsibility and state and local governments should abstain from any legislative activity in this preempted area. That began to change in the 1990s when the apologists became frustrated in their efforts to obtain legislation at the federal level to accommodate the illegal alien population. They began a broad campaign at the state and local level to take advantage of the lack of immigration policy expertise by local lawmakers to try to enact state laws and local ordinances that would by-pass the federal government.

One of the key campaigns was to get state governments to issue driver’s licenses to illegal aliens. Related to this campaign was an effort to get state governments to recognize the Mexican consular ID card (matricula consular) as a valid identity document on which to base driver’s license issuance. Another campaign targeted the issue of admitting illegal aliens to state universities as in-state residents rather than the foreign students that they in fact are. A further effort was aimed at getting state and/or local communities to adopt sanctuary policies under which law enforcement officers were precluded from inquiring about immigration status or furnishing that information to federal immigration authorities.

These campaigns were initially somewhat successful because state and local lawmakers were fundamentally operating in the dark. The measures were characterized as addressing the needs of the growing Latino population which is being fueled by the stream of new foreign residents.

Gradually the tide began to turn. The September 11, 2001 attacks played a major role in causing the American public to focus on the relationship of our inability to control illegal immigration and national security. But already before then, California, a bellwether state on immigration issues, had helped to turn the tide when an initiative on the ballot in 1994 (Proposition 187) which was adopted by a large majority, instructed the state government to stop state benefits to illegal aliens. Later, after the state’s governor signed a law to give driver’s licenses to illegal aliens he was removed by recall petition. States that had issued driver’s licenses to the 19 terrorists in the 9/11 attack, e.g. Florida, New York, and Virginia, changed their permissive licensing laws. But this process is not unidirectional. There are policy advances and reverses. Most recently the governor of New York has acted to restore driver’s licenses for persons without legal residence.

Another milestone was reached when Arizona passed Proposition 200 in 2004. In Arizona, as in California, the states voters approved the initiative by a large majority. Even though the political establishment opposed the proposition, the courts have upheld it, and FAIR’s legal offshoot, the Immigration Reform Law Institute, is involved in a lawsuit challenging the effort of the state leaders to limit the scope of the reform’s application. Earlier this year Arizona became the first state to enact a measure requiring employers to verify that their workforce is legally entitled to work here.

Other pioneering measures in the effort to discourage illegal aliens have been enacted in Georgia and Colorado as well as several other states. Pennsylvania deserves credit for being among those states that have recently enacted broad measures to combat illegal alien settlement. HB 2319, enacted last year, prohibits the use of labor by illegal immigrants on projects financed by grants or loans from the state government.

The Need for State Action

If the federal government were dedicating sufficient resources to preventing illegal immigration, state action would theoretically be unnecessary. However, the fact that the nation’s illegal alien population is rapidly rising is testimony to the fact that this is not the case. Pennsylvanians can see this in the rising illegal resident population in the state.

As noted above, illegal immigration is a fiscal burden on the state’s taxpayers. But this is only one reason for concern. A blue-ribbon panel on immigration cautioned in a 2006 report, "Illegal immigration generates insecurity about America’s borders, carries economic and fiscal costs, and risks the creation of an isolated underclass. The prevalence of illegal immigration also generates disturbing social and cultural tensions, and causes a decline in Americans’ support for immigration more generally."[i]

As our research study "Illegal Aliens and Crime Incidence" shows, the rate of incarceration of known deportable aliens indicates that they are 50 percent more likely to be jailed than the adult public at large. When you consider that deportable aliens are supposed to be removed from the country after having completed a sentence if they are illegal aliens or if they are legal residents who have committed a felony offense with a sentence of more than 6 months, this higher rate of crime incidence is a clear indication that law enforcement authorities should look at the presence of an illegal alien population as an increased threat to the public they are sworn to protect.

That message was underscored in August when Jose Lachira Carranza, an illegal immigrant from Peru, was identified as having committed the execution-style murder of three New Jersey youth. According to the New York Times (August 19, 2007), he could have been turned over to federal immigration authorities for deportation after he was earlier arrested three times on criminal charges (one charge of aggravated assault and two of sexual assault). Instead, he was released on bail at the time of the murders. Five others, including two Nicaraguans, have also been arrested for the murders.

Another societal impact from illegal immigration is in crowded housing. In 2005 over 55,000 Pennsylvania households were defined as crowded or severely crowded by housing authorities. Because illegal aliens are most often working in low-paying jobs, they tend to pool housing costs by sharing living quarters. This frequently leads to multiple families living in the same apartment or home, garages being rented out as bedrooms, and related problems of safety, hygiene, and issues that impact on property values.

At the outset we noted that the overarching issue is lawbreaking. The absence of effective law enforcement is often characterized by apologists for illegal aliens as intentional, because the country needs the workers, and therefore their presence should be accommodated. Virtually all immigration experts concur that the principle reason that aliens come here illegally is for jobs, i.e., for greater economic opportunity.

This issue, the job magnet, is the key concept in any approach to reestablish respect for our immigration law. Congress in 1986 made it illegal to hire an illegal alien. Ten years later in 1996 they realized what they had passed was not working because fake identity documents foiled the employers sanction law. At that time they passed a requirement to establish a employee document verification system.

The concept is that if foreigners know that they will not be able to get jobs here they will not come. If they stop their massive assault on our borders, the Border Patrol can more effectively deter the reduced problem of drug and alien smugglers and the incentive to overstay a visa will also be removed. Further, when employers can no longer hide behind the excuse that they did not know an employee was an illegal alien, the full force of the law can be brought to bear on them. As those employers who continue to try to exploit illegal workers to lower payroll costs are prosecuted, it will further increase the effectiveness of interior immigration enforcement.

As polls have shown, most small business employers would like to see effective actions to prevent illegal aliens taking jobs. The problem has been that when a competitor begins to cut costs by employing illegal workers, the choice you face is to be run out of business or to adopt the same business practice. This is why it is essential to create a level playing field in which no employer will be able to get a comparative advantage by hiring illegal workers.

There are other measures that either encourage illegal immigration by accommodating it or discourage illegal immigration by adopting policies that make it clear that illegal presence will not be sanctioned. Those relate to the provision of government-provided benefits to persons residing illegally in the jurisdiction.

While it is not possible for state and local lawmakers to restrict education for illegal alien children, that limitation established by the 1982 Plyler Supreme Court decision applies only through secondary education.

What must remain the focus on actions to deal with the illegal alien problem is what message it sends to illegal aliens. In the same way that the lack of adequate enforcement encourages illegal immigration to the United States, the measures adopted and enforced by a state or local government will either attract more illegal residents or deter them. That is the test that should be kept in mind when legislating on this issue.

It is also fundamental that provisions to discourage illegal alien residency be enforceable. As the failure of the 1986 employer sanctions law demonstrates, when an enforcement law is proven toothless, it will have no deterrent effect, and may actually lead to increased disrespect for the law. In this regard, it is important to avoid enacting tough appearing measures that have no enforcement capability. For example, a provision that calls on employers to sign an affidavit that they are not hiring illegal aliens has no more effectiveness than the already existing employer sanctions law and the I-9 document collection system. The problem with both lies in the issue of whether the employer knowingly is hiring persons who are in the country illegally.

There are a number of organizations that are prepared to challenge in the courts any measures designed to deny benefits to illegal aliens. The ACLU, Mexican American Legal and Defense Fund, and similar organizations of Puerto Ricans and Asians have long attempted to win rights for illegal aliens. It, therefore, is important to legislate carefully in the knowledge that imprecise provisions may cause the entire thrust of reform legislation to be undone in the courts.

Foot Dragging

As anyone who has grappled with the issue of illegal immigration is aware, there is a broad array of organization most of whom stand to benefit from the presence of the illegal immigrant population working assiduously to oppose any immigration restrictions and to confuse the issues so that the public is unsure of their understanding of what is at stake.

One example of the divergent focus may be found in statements by policymakers in Philadelphia in favor of increasing the flow of immigrants, and accommodating the illegal immigrant population with the argument that this is necessary to reverse a trend of population decline in the city. Census Bureau data show that during the 1990s, Philadelphia had an average annual population exodus of more than 25,000 residents. Since the 2000 Census, that decline has slowed somewhat to an annual rate of slightly more than 20,000 residents. It is not as if the city were not already attracting immigrants. During the 1990s, Philadelphia was adding a net number of about 5,000 immigrants each year, and that number has risen slightly since 2000.

The Philadelphia foreign-born population in 2000 was nine percent of the total population and we estimate that share has now increased to about 11.5 percent. It seems that the problem is not that the city is not attracting immigrants, but there may be a problem in the composition of the immigrants they are attracting. If the flow of foreign-born into the city is coming illegally and taking low-wage jobs, it may be inducing native residents who cannot find well-paying jobs to leave to seek better opportunities elsewhere. This should be studied in an effort to design policies that will attract the city’s residents to stay, rather than advocating programs to replace departing residents with foreign residents, especially those who are here illegally.

Other foot draggers use their position in providing services to needy populations to falsely argue that denying benefits to illegal immigrants would harm immigrants and needy Americans. According to an October 18 Associated Press news account of a legislative hearing in Harrisburg, an attorney with Community Legal Services in Philadelphia, claimed that proposed legislation,"…would foster an atmosphere of fear and confusion among immigrants, and would prevent poor and elderly Pennsylvanians from getting the benefits they need." Statements of this type are a common tactic of the defenders of illegal alien, and they mislead the public. The public generally does not know that all foreign legal residents in the United States are given documents by the immigration authorities that establish that they are legally in the country. That applies to immigrants, refugees, temporary residents and even illegal aliens who have been granted temporary protected status.

What States Can Do

The increasing instances of state and local jurisdictions adopting measures to discourage illegal alien settlement are creating a groundswell that may encourage decisive federal action. It clearly influenced the House of Representatives in adopting enforcement first legislation in the last Congress. However, a stalemate currently exists in Congress and effective new deterrent measures can not be counted on from the federal government in the near term.

We are pleased to note that Pennsylvania has joined the trend of state action to protect its residents from the problems associated with illegal immigration. The Prohibition of Illegal Alien Labor on Assisted Projects Act signed into law in 2006 demonstrated that commitment. A package of measures currently pending (HB750-754), identified as the National Security Begins at Home legislation would add additional disincentives to illegal aliens to seek jobs in Pennsylvania. One of these measures establishes a complaint process for reporting employers who have illegal alien workers in their employment. Another measure would establish a verification requirement for licensees doing business with the state. One of the bills provides that the state should enter into an agreement with the federal government for state police to be trained in and deputized to identify and detain illegal aliens for the federal authorities. A further measure requires an arresting authority to establish whether a person in custody is a U.S. citizen or an alien, and if the latter verify with federal immigration authorities whether the person is legally in the country. A proposed measure would establish an identity verification process for state benefits and prohibit those benefits for illegal aliens.

Each of these measures encompasses one of two major principles: 1) Most illegal aliens enter the United States to seek greater economic opportunities. 2) The hard-earned taxes paid by the state’s residents should not be spent on services to foreigners who have no business being in the United States.

By systematically denying access to jobs, the magnet that draws foreigners will be cut off. Federal legislation enacted in 1986 and 1996 encompasses this conviction, but continues to be flawed by the voluntary nature of the work eligibility documentation verification requirement. That is why states and local jurisdictions have been adopting legislation to plug the hole left by federal inaction. Federal law mandates that applicants for federal benefits must have their identity checked to assure that they are eligible U.S. citizens or long-term legal residents. State benefits may vary from and may supplement federal benefits, and it stands to reason that states would have to answer to the state’s taxpayers if they were not at least as diligent in denying benefits to illegal alien residents as is the federal government.

In general, FAIR recommends that state and local governments subscribe to the worker verification system the E-Verify program previously known as the Basic Pilot program that was mandated by law in 1996. FAIR participates in that program, and the outside evaluation of the program establishes that it is effective, efficient, and economical. The problem with it is that it is voluntary until such time that the federal government makes it mandatory. Nevertheless, the state and local governments have available to them the opportunity to use the power of the purse strings (government contracts and licensing) to require contractors and subcontractors who bid on government contracts to vet their employees using that program, as Pennsylvania has done. There can be no justification for spending the taxpayers contributions on wages paid to illegal aliens.

Similarly, any state benefits may be denied to illegal aliens except for and public education through the secondary level This is already the case for federal benefits. The only other exception is emergency medical care until a patient’s medical condition is stabilized. The federal programs are vetted through the SAVE program that is similar to the E-Verify program.

Another major area for deterring illegal alien sentiment is local cooperation with the federal immigration law enforcers. The cooperative programs set up under the 1996 IIRAIRA (INA Section 287g agreements) are gaining in acceptance. First established in the wake of the 9/11 attacks, Florida (2002) and Alabama (2003) were the first to take advantage of the opportunity to have state officers trained in immigration law enforcement and deputized to remove liability for acting to detain illegal aliens and turn them over to federal authorities for removal. The Colorado and Georgia Departments of Public Safety concluded agreements in February and August 2007, respectively. Dozens of local governments have also entering into 287g agreements to the extent that a backlog has developed in training requests.

While federal immigration authorities are already supposed to be collaborating with state prison officials to identify illegal alien convicts for deportation upon release, local law enforcement authorities are increasingly beginning to seek similar cooperative programs.

Arizona has for the past year been vetting all state employees with the Social Security Administration to assure that SSNs are valid rather than fake cards used by illegal workers. The state’s experience with the program, similar to the SAVE and the Basic Pilot programs, has demonstrated its effectiveness. Other states have adopted measures to deal with issues such as state benefits, driver’s licenses, contractors, and criminal detainees. Oklahoma’s HB1804 and Florida’s HB73 are both bills on which FAIR has offered legal advice. On a different issue, Georgia’s SB529 straightforwardly addresses the issue of in-state tuition to the state’s higher education system in a way that protects the state’s taxpayers and the state’s students from unfair burdens.

FAIR’s Immigration Reform Law Institute (IRLI) stands ready to share its expertise in immigration law enforcement with state and local officials as they grapple with devising state laws that will withstand challenges at the federal as well as state level. Lawmakers should recognize that the issues involved in dealing with illegal immigration at the state level are complex, and that there is constant record of legislation in this area being challenged by the large array of apologists for illegal immigrants. It is of utmost importance to the adoption successful immigration legislation to anticipate legal challenges during the drafting stage in order to deter later challenges.


[i] - "Immigration and America’s Future: A New Chapter," Report of the Independent Task Force on Immigration and America’s Future, Migration Policy Institute, Washington, DC, September 2006