As Senate Immigration Bill Stalls, ACLU Calls for Much-Needed Fixes, Says Lawmakers Must Act to Protect Due Process and Privacy

April 7, 2006 12:00 am

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WASHINGTON – As legislation to reform the nation’s immigration laws stalled in the Senate today, the American Civil Liberties Union urged lawmakers to modify that legislation to better protect privacy, judicial review and due process rights.

“Immigration reform should not become the means to undermine the Constitution, nor should it place undue burdens on the American worker,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Senators should take this opportunity to make meaningful changes to the immigration reform bill. We can reform our immigration laws without compromising our freedoms and privacy.”

While the Senate has been unable to come to an agreement on specific legislation, the ACLU noted that the competing bills recognize that “enforcement-only” approaches to immigration reform do not work. However, some proposals would expand deeply flawed policies that have already eroded due process and civil liberties and should be jettisoned or overhauled.

One major point of contention is the lack of privacy protections in the proposed Employment Verification System. This proposal would require – for the first time – all workers to obtain a federal agency’s permission to work, regardless of citizenship or immigration status. All employers would be required to participate in a national employment eligibility verification program in an expansion of the faulty but voluntary “Basic Pilot” program.

The new program would likely use an Internet-based system to check the names and Social Security numbers of all employees — citizens and non-citizen alike — against two government agencies’ databases. But, legislators have not provided for a secure system. Thus, the data provides a ripe target for identity thieves.

This move would also place a huge burden on both employers and workers. The non-partisan Government Accountability Office found that conservative estimates of implementation costs are at least $11.7 billion annually, a large share of which would be borne by businesses. Also, even assuming a near-perfect accuracy rate, millions of legal, eligible American workers could still have their right to work seriously delayed or denied – while they fight bureaucratic red tape to resolve errors. The conservative Heritage Foundation, the U.S. Chamber of Commerce and other business organizations have expressed strong objections to the employment verification provisions.

Some have also called for the “hardening” of Social Security Cards to make them tamper-proof. Recent GAO reports estimate that issuing such a card to all Americans and lawful permanent residents would cost at least $9 billion and it would take 67,000 work years. The commissioner of the Social Security Administration recently said it would take a doubling of her existing staff of more than 60,000 people to implement. The ACLU noted that technological glitches, database errors and bureaucratic bungling would also be inevitable.

The Senate also unwisely proposes to direct all immigration appeals to one court: the U.S. Court of Appeals for the Federal Circuit. Congress has yet to fully consider this radical proposal, which would undermine the rights of immigrants to judicial review. Furthermore, the Federal Circuit Court of Appeals has no experience with immigration, civil rights, or related constitutional claims – claims that could overwhelm the court.

Another provision would institute one-judge pre-screening of cases that get to the federal circuit court level. Under this provision, if the judge does not act on a case within 60 days, the case gets dismissed. If the judge does find the case meritorious, that judge would then issue a “certificate of reviewability” that allows the case to be heard by a three-judge panel.

The ACLU noted that given the high workloads faced by America’s federal courts, it is all too likely that many immigrants’ appeals would never receive serious review from a judge and would be dismissed without any judicial consideration of their merits.

“With this complex issue, the devil is truly in the details,” said Timothy Sparapani, ACLU Legislative Counsel. “Too much of the debate has not been focused on provisions that would bar the courthouse door for many immigrants who deserve their day in court and would require that everyone in the United States who wants to work must apply for ‘permission to work’ from the government. Congress should not pass a bill until these misdirected provisions are addressed.”

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