While Some See Compromise, Critics Say Senate Immigration Bill Punishes Undocumented Immigrants

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The Senate version of the immigration bill is expected to be voted on as early as today. While the bill is being hailed as a compromise solution to immigration, many immigrant advocates point to a number of adverse provisions in the bill that they say will actually bar millions from legalization and threaten their civil liberties. [includes rush transcript]

We take a look at the Senate immigration bill, which is expected to be voted on as early as today. The bill, which has caused much debate in Congress, would heighten enforcement measures, establish a temporary guest worker program, punish employers who hire undocumented immigrants and open a route to citizenship for at least some undocumented immigrants. But many immigrant advocates point to a number of adverse provisions in the bill that they say will actually bar millions from legalization, threaten their civil liberties and declare English the country’s national language.

If passed, the Senate bill would have to be reconciled with the draconian Sensenbrenner bill passed by the House in December. That bill focuses strictly on enforcement and would consider undocumented immigrants to be felons. It would also make it a crime for priests, nuns, health care workers and other social workers to offer help to undocumented immigrants. The passage of the Sensenbrenner Bill sparked the massive protests in support of immigrant rights that recently took place around the country

To discuss this legislation we host a roundtable discussion:

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: To discuss this legislation, we’re joined in our Firehouse studio by Stan Mark. He’s the program director of the Asian American Legal Defense and Education Fund. In Miami, we’re joined by Steve Forester. He’s the senior policy advocate for Haitian Women of Miami, which is an immigration advocacy and social services agency in Florida. We welcome you both to Democracy Now!

STAN MARK: Thank you.

AMY GOODMAN: Stan Mark, can you start off by explaining your reaction to the Senate bill expected to be passed today?

STAN MARK: I believe that the only thing that’s comprehensive about this legislation, although it’s supposed to be a compromise — it’s been advocated as comprehensive legislation — is the fact that it’s comprehensive enforcement, as mentioned earlier by Juan. There are so many provisions in there, I don’t even know where to begin, but essentially what happens is there is a limit of due process, undermining due process, judicial review, administrative review, provisions there to allow for indefinite detention, which is contrary to current Supreme Court precedent.

AMY GOODMAN: What do you mean?

STAN MARK: There was a decision earlier, about 2001 but prior to 9/11, that essentially said that the ICE and the Department of Homeland Security could not detain people for more than six months without some kind of a hearing. If the provision that’s in the compromise gets through, it will allow the ICE or the Department of Homeland Security to actually detain people beyond that point and without judicial and administrative review.

AMY GOODMAN: ICE being Immigration and Customs Enforcement?

STAN MARK: That’s right, Enforcement. That’s correct. And there are other provisions in the bill that undermine judicial review and federal jurisdiction over these — any type of deportation removal cases. It’s a total evisceration of what our current system allows for, and it undermines due process and any type of defenses that people may have in removal proceedings and accelerates and expedites removal for certain people. In addition, I think the — you know, looking at the bill itself, if you look at individual provisions, it’s one thing. But if you take it as a total package, it certainly is overwhelming and severely detrimental and undermines our ability to represent or defend any of the people who are in detention.

JUAN GONZALEZ: Well, even on the issue of legalization, as I understand the final version now, it would still call for only seven million of the eleven million people to get on the path immediately to citizenship and for another —

STAN MARK: Actually, our position is that it’s more than 50% of people would be ineligible for legalization. I think some litigators and some people who have followed this much more closely, in terms of their past experiences with the litigation program from '86, predict about two to three million people who may get through the first level. As you know, there's a three-tier system. The first-tier system does allow people to, you know, eventually over a period of perhaps more than ten, fifteen years to actually get citizenship, and the first step, of course, to legalization. The second tier does not necessarily allow very many people to get through at all.

And, as a matter of fact, the third level actually creates a guest workers program, which we believe is tantamount to legalized slavery, as a famous official Department of Labor official, Lee G. Williams, in the early 1960s, heading the Department of Labor when the Bracero Program, the last major guest workers program that went through, was finally terminated, he called it, quote, “legalized slavery.” And we believe that any type of guest workers programs that reinstitutes those types of provisions or those provisions instituting programs like the Bracero Program should be —

JUAN GONZALEZ: Am I correct in this also that those people who have been in the country a year or less would have to be deported?

STAN MARK: That’s correct.

JUAN GONZALEZ: In that sense, that there’s at least a million people?

STAN MARK: Right. Theoretically they could register and become so-called temporary workers, but most people — there would be no reason for them to do that, because they wouldn’t gain very much in wages and better working conditions, but they would expose themselves to being on the database and perhaps being removed later on. And they also would give up all their rights.

AMY GOODMAN: Why would a guest worker program be legalized slavery? What does it mean, a guest worker program?

STAN MARK: Well, in terms of — most guest workers programs in the past have and, I think, would be perpetuated in any type of guest worker program today, the lack of — the absolute control of the workplace by employers with the government-sanctioned program itself being put in place, people would have very little rights to move from job to job. Their ability to depend on employment would be tied to that type of job. They wouldn’t be able to go from place to place. And historically these types of programs open them to the most — make them most vulnerable to exploitation and really abuse by employers with very little avenues or options to get out of that kind of a situation.

AMY GOODMAN: We wanted to turn also to Miami, a large Haitian community there. Steve Forester has worked with the Haitian community for many years. Steve, I remember speaking to you more than ten years ago during the first coup against the president then, Jean-Bertrand Aristide, when tens of thousands of Haitians were fleeing the brutality there and coming into this country. Some were caught at Guantanamo who had HIV/AIDS. Now you’re dealing with another situation with this bill. Can you talk about that?

STEVEN FORESTER: Well, there are many problems with this bill. The first problem is the cutoff date, January 7, 2004. About 1.6 million people who arrived thereafter are left out. For the persons in the two- to five-year category before that, you only got three months to apply for this thing. There’s no confidentiality in your application procedure and no right of appeal, unless you deport yourself, as I understand it.

Now, in terms of the people that we’re particularly concerned about, there are many problems. You know, a lot of Haitians have green cards, just like all Americans — I’m sorry, nationalities, there are green cards all over the place. There’s a vast expansion of the definition of aggravated felony in this bill that means that you can be deported if — let’s say you’ve had a green card for ten to twenty years; thirty years ago you pled guilty to a bogus shoplifting charge. There’s a vast expansion of that definition of aggravated felony to include the most minor misdemeanors, no matter how remote. In terms of specific Haitian concerns, you mentioned the people who came through Guantanamo with HIV. Those people are barred from legalizing. There’s no waiver provision. That’s a sentence of death. They’re living healthy productive lives here, but if they’re deported to Haiti the lack of medical care will mean simply they’re not going to make it.

And there are two other groups we are very concerned about. There’s a bar to legalization for persons who have what’s called final orders of deportation and also persons who came into the country fleeing persecution with a fraudulent or phony document. Now, remember those two years you were just referring to. President Clinton was saying things like “They’re chopping people’s faces off.” The United States led an international political and economic boycott of the Cedras dictatorship that killed thousands of people from '91 to ’94. Yet our Coast Guard was still repatriating every boatperson caught trying to flee. The only way out, especially if you were politically active, was to fly out with a phony document. At Miami International these people said, ’My true name is such-and-such. I need political asylum.' This bill bars them from legalizing. That’s wrong. It violates basic American traditions.

Also, persons who have been here for years and came forward early on to comply with U.S. law and identify themselves and were placed in proceedings, and it’s gone through the process, and now they have orders of deportation that are final, those persons also barred from legalizing. So this bill is riddled with problems. It’s going to be a nightmare in enforcement, and probably millions of people are going to be left out.

AMY GOODMAN: We’re talking to Steve Forester, who is speaking to us from Miami. He works with the Haitian Women of Miami, concerned about the situation of Haitians under what could be this new bill if it’s passed by the Senate. Of course, then, there has to be a negotiation that takes place. Can you talk about going back in history and looking now, mentioning Guantanamo? People may not remember before the current detainees were held, there were Haitian detainees, those that were believed to be HIV-positive or who had AIDS, who were fleeing the coup in Haiti, 1991 to ’94. How does that connect to today?

STEVEN FORESTER: Well, as you say, on September 30 of '91, I guess it was, President Aristide was overthrown in an extremely bloody coup, and for three years there was the Raul Cedras military dictatorship. Everyone — the Haitian military knew precisely who had supported Aristide, because in the very brief seven-month period of his presidency, people all over the country had come out of the woodwork and joined community groups and plastered Aristide's photo all over their houses. So when the military crackdown occurred, they knew exactly who to target all over the country, and thousands of young people were killed in Haiti.

And others fled. They fled by boat. And at first, they were taken to Guantanamo. A small number were let in at that time. Others, and among them were HIV-positive persons who eventually were paroled in, and those are the people who have been here more than a decade, who — they’re not large in number, a couple hundred, but, of course, the test of a great nation is how it treats the most vulnerable. These people have been leading productive lives here. Under this bill, there is no possibility for them, other than deportation, and, of course, lacking the care necessary, that’s a sentence of death.

We’re also concerned for the people, because this Guantanamo phenomenon, when they took some people to Guantanamo, only lasted five or six months. Then we continued the Coast Guard interdiction and repatriation of every boatperson trying to flee. Haiti was a pressure cooker, if you will. And the only escape route for the most politically active and for anyone who needed to get out of that hellhole at the time under this military repression, there was a business profiting on the misery of these people. They flew out with a phony document, landed at Miami International Airport, gave their true names — that’s the only reason they were paroled into the community as they were, right away — and said, “I need asylum.” Now, those people had been here twelve, thirteen, fourteen years. They have U.S.-born children. They own houses, businesses, pay taxes and send remittances back to Haiti that support thousands of relatives there. Those persons, they are barred from legalizing.

So you have somebody like Gary Joinville deported two years ago, an electrician, lived here since '93 with a wife and three U.S.-born children. He now is unemployed in Haiti, because he was deported. The three U.S.-born children, who are the future of this community, not born in Haiti, don't speak Creole, as American as apple pie, if you will, they’re constantly asking their mother, “When’s daddy coming back?” Well, there are a few thousand people in this situation, who had to flee repression using a bad document.

We made Raoul Wallenberg an honorary U.S. citizen for helping people flee with bad documents, as we should have. And it is wrong to violate American tradition and asylum law and say that the very use of a document to flee repression, in a repressive government that doesn’t give travel documents to those it’s persecuting, is going to bar you from legalizing. That’s wrong. It’s wrong to bar from legalizing anyone who came forward early on and now has a final order of removal. They played by the rules. They went through the process. There’s been a notorious history of discrimination in the processing of Haitians. And now they’re to be deported, too.

So we’re very concerned about the gaps. It’s going to be necessary, hopefully with a Democratic congress, to come back and try to fix some of these things. But as it stands now, this is bad for all kinds of people, not to mention, as I mentioned at the beginning, people of all nationalities who have green cards. There’s a vast expansion, because of this sort of rightwing zealotry in enforcement stuff and scapegoating immigrants, there’s a vast expansion of the definition of aggravated felon, so that that term, a term of art in immigration law, civil law, now includes the remotest misdemeanors of the most minor nature, so that even if you’ve got a green card, if I understand correctly, were this to become a law, you’d have to watch out, and even if you had a green card for ten or fifteen years. That applies to Haitians and everyone else.

JUAN GONZALEZ: Well, I’d like to ask Stan Mark, what do, then, immigrant rights advocates do in this situation, because clearly you have millions of undocumented immigrants that are desperate in this country for some kind of legalization? Suddenly this watered-down or rightwing version in the Senate will now have to compete with an even more rightwing version in the House, and as I’ve been saying, there are some advocates who say, “Defeat the entire thing and just wait until after the November elections to see a new congress,” rather than take this poison pill that appears to be developing in the Senate and the House.

STAN MARK: Well, I think that with the vote on closure and the possibility of this really devastating bill passing through, the obvious thing is to oppose passage of it on the vote in the Senate, but at the same time to really look affirmatively and reframe the debate and link up with the mass movement, which has an upsurge. People didn’t march and demonstrate for this kind of a compromise bill. Clearly it does not meet the needs of people in our communities, both undocumented, documented and citizens. It will bust up families, and many, many people who believe at this point that there is a possibility to legalize, I think, are fooled by this compromise, and we have to get the word out. For example —

JUAN GONZALEZ: But there are lots of groups, immigrant groups in Washington and lots of Democratic Party leaders who say anything is better than nothing. And so, you’re getting now a debate, obviously, that’s percolating, as to what’s —

STAN MARK: Well, within the supporters of this compromise, I think there’s probably some belief that this is the best we can do, but frankly, it’s worse than anything getting through, as far as we’re concerned. And I believe that the opportunity with the mass movement and the major marches and demonstrations could help reframe this debate in the next session and perhaps actually ask for things that are very principled and that would help our communities in a better way. I mean, one thing that I really am concerned about is people believe that this legalization program will benefit a lot of people. If you’ve used false Social Security numbers, if you had used false names in your documentation in any way, shape or form when you’ve hired in employment, you would not be allowed to participate in this kind of a legalization program, which would knock out many, many people in our communities. So it’s a bad deal for everybody in the community.

AMY GOODMAN: Stan Mark, I want to thank you for being with us, program director of the Asian American Legal Defense and Education Fund, and Steven Forester from Miami, a senior policy advocate for Haitian Women of Miami. We thank you both for joining us.

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