The Corker-Hoeven Amendment is a Mirage
The Gang of Eight is touting the amendment authored by Senators Bob Corker (R-TN) and John Hoeven (R-ND) as the silver bullet to securing the border. Senate Majority Leader Harry Reid called it a “wonderful product” that would alleviate any concern about the border. However, the Corker-Hoeven amendment does little to improve the border security provisions in the bill and also includes provisions that would seriously undermine immigration enforcement. This summary addresses just some of the provisions contained the 1,200-page re-write of the bill, the Senators filed on Friday.The Corker-Hoeven amendment still keeps the core amnesty-first, enforcement-later approach to the bill. The Department of Homeland Security (DHS) will still be able to grant amnesty (registered provisional immigrant (RPI) status) in six months once she submits a border security plan to Congress.The Corker-Hoeven amendment does add minimum requirements to the border security plan. It provides that the border security plan “must require, at a minimum, the deployment of the following technologies for each Border Patrol sector along the Southern border…” and then lists all of the technologies and resources that the Secretary must include in her border security plan. But note the language of the amendment doesn’t actually require DHS to deploy the technologies and resources listed.This is not by accident. After the amendment lists all the technologies and resources the plan must require, it gives the Secretary of Homeland Security discretion to: (1) reallocate the personnel, infrastructure and technology required by the plan, and (2) substitute the technology required in the plan with other technology she determines is equally effective, regardless of “the minimums” required by the plan. (p. 29-30) Thus, there is no real purpose to requiring the plan to include specific technologies or resources, when the amendment allows the Secretary to change them all anyway.Having ostensibly designed a new border security plan, the Corker-Hoeven amendment – like the original bill – requires that certain conditions be met before DHS may grant green cards to RPI aliens. Specifically, the Corker-Hoeven amendment provides that DHS may not grant green cards to RPI aliens (excluding DREAMers and agricultural workers) until 6 months after DHS has submitted written certification that:
(1) The border security plan:(a) has been “submitted” to Congress and includes the technology and resource requirements noted above; and(b) is “deployed and operational.”(2) The fencing plan has been “submitted to Congress and implemented,” and “as a result DHS will certify that there are no fewer than 700 miles of pedestrian fencing,” which includes replacement of all currently existing vehicle fencing with pedestrian fencing “where possible” and “may” include a second layer of fencing where DHS “deems necessary and appropriate.”(3) DHS has “implemented” the mandatory verification system “for use by all employers”(4) DHS “is using” the entry-exit system created by Sec. 3303 at all air and sea (but not land) ports of entry where CBP officers are currently deployed.(5) No fewer than 38,405 Border Patrol agents are “deployed, stationed, and maintained” along the U.S.-Mexico border. (p.3-6)However, this revised trigger still raises serious concerns. The fencing provision does not require double-layered fencing, and the amendment does not delete the language in the bill that expressly states DHS is not required to build any fencing whatsoever. (p.35-36) Even if the amendment contained a clear requirement to build border fencing, Senator Mary Landrieu, Chairman of the Senate Appropriations Committee, said on the floor only days ago that she would not spend any money on the “dumb fence.” She is likely to fight any attempt to appropriate money for the fence, making this language another empty promise.In addition, the trigger still does not require biometric exit at all air, sea, and land ports of entry, as current law does. Finally, the amendment does not eliminate the exception to the trigger that allows DHS to grant green cards to RPI aliens if litigation prevents the implementation of the triggers and 10 years have passed.The Corker-Hoeven amendment does substantially increase the number of Border Patrol agents (about 19,000), but DHS has eight years to accomplish this (the deadline is 2021) and paying for the agents requires raiding the Social Security Trust fund. Indeed, the bill sets aside $30 billion to pay for the Border Patrol agents. But when asked on the floor how the Gang of Eight found the money, Senator Hoeven said he was able to add the $30 billion in spending because the CBO projects that S.744 will bring in more revenue than it requires in expenditures. While that is true on it’s face, projected revenue under the CBO analysis is due to an increase in Social Security and Medicare taxes. This money must be set aside in the Trust Fund if Social Security and Medicare are to remain solvent. Thus, taking that tax revenue and using if for the fence means raiding the Social Security Trust Fund. (See FAIR’s analysis of the CBO score on S.744)The Corker-Hoeven amendment also codifies the administration’s prosecutorial discretion policy with respect to visa over-stayers. (p.23) The amendment adds new language that provides DHS shall do one of the following for 90 percent of aliens who overstay their visas by at least 180 days:
- Initiate removal proceedings;
- Confirm that an immigration judge has allowed the alien to stay in the U.S. or the alien has a case pending that seeks such relief; or
- Administratively close the case.
- RPI aliens for work performed between 2004 and 2013 (but allows it for prior years), and
- Guest workers who overstay their visas, unless they can establish that they were work authorized.
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