If Rubio is serious, he needs to show that he has the Republican House leadership behind any king of pro-immigrant reform, otherwise he is just playing politics. No advocate wants a strategy for getting the DREAM Act through the Senate if it is just going to die in the House. The fact that the House Republicans took VAWA protections away from immigrant women who have been beaten up by their U.S. citizen husbands tells you that the Tea Party is still on an anti-immigrant rampage.

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The lawmakers’ challenge was to fix last year’s terrible immigration law, House Bill 56, which turned state and local police officers into papers-checking immigration agents and imposed a grab bag of criminal punishments and deterrents on undocumented immigrants and on businesses and charitable organizations that help or hire them. The only real solution is the full repeal of the law, but bills to do that have died.

Republican leaders have said they want to make the law more “efficient,” but have vowed not to weaken it. So the question as time runs out is whether the Legislature will approve any “tweaks” through a new measure, House Bill 658, that has already passed the House, or some other bill originating in the Senate.

It may be that only the courts can rescue Alabama from itself. Some parts of the current law are temporarily on hold awaiting the outcome of a federal lawsuit, including the requirement that schools collect students’ immigration data and sections criminalizing “business transactions” by the undocumented and nullifying contracts they enter. But other sections are still in force, including the one directing police to check the papers of those they stop.

House Bill 658 preserves the malign intent of the earlier law and makes some of its provisions worse. It expands the “papers, please” requirement to target passengers in a stopped car as well as the driver. It doubles, to 48 hours, the time someone can be jailed while awaiting an immigration check. It increases jail time and fines for newly created — and surely unconstitutional — state immigration crimes. It does nothing meaningful to shield from prosecution those who “harbor” or “transport” immigrants for religious or humanitarian reasons. As for the expense of litigation, the harm to public safety as crime victims avoid the police, and the misery inflicted on the working poor — all of those ill-effects seem quite intact.

The Supreme Court recently heard oral arguments on the constitutionality of Arizona’s immigration law, whose noxious spirit and letter Alabama has copied. A ruling in that case is expected in June, and could unleash more Arizona-style damage in other states. Meanwhile, the two Republican architects of Alabama’s immigration law, Micky Hammon in the House and Scott Beason in the Senate, are pressing on. And The Associated Press reported this month that Alabama farmers are planting less and shifting to mechanized crops as the reality of an immigrant labor shortage — the high price of xenophobia — sinks in.

Anti-Immigrant law leads to loss of farmworkers-Surprise!

After Alabama’s harsh anti-immigrant law passed last year, migrant farm workers fled the state. This left crops rotting in the fields. Farmers have reluctantly decided that the only way to deal with the labor shortage is to plant less crops. This means that many farms there will lose profitability, state and local governments will see reduced tax revenues, and consumers will pay higher prices at the supermarket.

According to the Washington Post:

Some Alabama farmers say they are planting less produce rather than risk having tomatoes and other crops rot in the fields a second straight year because of labor shortages linked to the state’s crackdown on illegal immigration.

Keith Dickie said he and other growers in the heart of Alabama’s tomato country didn’t have any choice but to reduce acreage amid fears there won’t be enough workers to pick the delicate fruit.

“There’s too much uncertainty,” said Dickie, who farms with his brother on a ridge called Straight Mountain, about 40 miles northeast of Birmingham.

On nearby Chandler Mountain, another prime farming area, Jimmy Miller said he cut back on produce because of possible labor shortages and instead planted more cotton and peanuts, which can both be harvested by big machines called combines that require minimal labor.

Mac Higginbotham, an expert with the federation, said this growing season is important for the state’s farmers, about 1,100 of whom grow labor-intensive produce.

“I think this year will really show how much of a labor shortage is actually out there and it will reflect in the produce availability (and) prices eventually,” he said.

State agriculture officials said the law has created chronic labor shortages since it was passed last year by the Republican-controlled Legislature, where sponsors said they wanted to drive illegal immigrants from the state by making it difficult for them to live in Alabama.

Georgia has a similar law on the books, and farmers there have had similar concerns about finding a work force to pick crops like Vidalia onions. Some farmers there have also said they were scaling back their acreage, fearing they wouldn’t find the workers to pick the crops.

While some immigrants who left the state last fall in fear of the law have since returned, farmers said they still don’t know whether there will be enough workers to harvest crops. A major squash producer in north Alabama is cutting back production and moving some crops to Tennessee because of uncertainty over the law, said John Aplin, a fourth-generation farmer who serves on the state board that oversees farmer markets statewide.

Aplin, who grows tomatoes and about 200 other varieties of produce on 200 acres near the Florida line, said he planted his regular crops and is hoping he can get them out of the fields when his first large tomato harvest begins later this month. Like other farmers, Aplin said he has had little luck finding Alabama natives who could or would perform the grueling field work that Hispanic immigrants have done for years.

“They’ll work a morning and come up at lunchtime and say, ‘I’m done,’” said Aplin.

“‘Self-deport?’ What the heck does that mean?” Martinez snaps. “I have no doubt Hispanics have been alienated during this campaign. But now there’s an opportunity for Gov. Romney to have a sincere conversation about what we can do and why.”

Naturally, Martinez has some suggestions. First, Republicans should remind Latinos that Obama pledged to pass comprehensive immigration reform by the end of his initial year in office, but “didn’t even have the courage to try.” Next, the GOP should outflank the president–on the left–by proposing its own comprehensive plan. “I absolutely advocate for comprehensive immigration reform,” Martinez says, , sipping a caramel macchiato. “Republicans want to be tough and say, ‘Illegals, you’re gone.’ But the answer is a lot more complex than that.” Martinez envisions an approach “with multiple levels”: increased border security; deportation for criminals; a guest-worker program for people who want “to go freely back and forth across the border to work”; a DREAM Act-style pathway to citizenship, through the military or college, for children brought here illegally by their parents; and a visa (coupled with a “penalty” or a “tagback”) that allows rest of the illegal population to remain in the U.S. while they follow standard naturalization procedures.

Lucas Guttentag was the nation’s preeminent immigration litigator for two decades in his position as head of the ACLU’s Immigrant Rights Project. He offered up a strong critique of the Federal government’s performance a couple of weeks ago at the Supreme Court in its challenge to Arizona’s anti-immigrant law. Here are excerpts from the New Republic article:

In arguments before the Supreme Court on Arizona’s SB 1070 immigration law last month, the elephant in the room—racial profiling and discrimination—made just a short-lived cameo appearance. When the Justice Department’s top lawyer rose to make the Obama administration’s case against SB 1070, the Chief Justice immediately demanded confirmation that “no part of your argument has to do with racial or ethnic profiling, does it?” A few moments later he reiterated: “OK. So this is not a case about ethnic profiling.”

The Chief Justice may have dismissed the idea, but racial and ethnic profiling is exactly what lies at the heart of the debate around SB 1070, a law that targets Arizona’s Latino population for continual stops, interrogations, and status checks. And while the Obama administration directly challenged Arizona’s controversial law on narrower grounds—that it violates federal law and hence is “preempted” under the Constitution—a discrimination claim could and should have been evoked as part of that legal principle. Indeed, years of judicial precedent, going back to the nineteenth century, demonstrates that ethnic discrimination against immigrants itself interferes with core principles of federal law.

To be sure, part of the reason why racial profiling is not directly before the Court is that the administration—importantly—challenged the law before it could go into effect, in order to stop its implementation. To do that, the Justice Department mounted a “facial challenge,” which tries to stop the law when its broader impact, as measured by empirical evidence, is not yet available.

But the second and more troubling reason is the government’s unduly narrow understanding of its own case.  The legal claim of federal “preemption” compels courts to strike down state laws that interfere with federal primacy. But preemption is a famously malleable doctrine. Critical to the question of whether a state law is inconsistent with federal law is which laws the Court is asked to consider as part of the federal interest.

In the oral arguments, however, the Court considered only whether SB 1070 interferes with federal immigration law and federal immigration priorities. As a result, the justices’ questions turned on whether Arizona’s mandate interfered with immigration enforcement, including the Obama Administration’s recent and laudable exercise of “prosecutorial discretion” that focuses deportation resources on those it deems as high priority targets.

Sadly missing was any invocation or discussion of other federal laws and policies that are directly relevant to discrimination and profiling. Properly understood, the federal government’s preemption claim should have encompassed the harm from discrimination and profiling that the law necessarily triggers. To be sure, the Solicitor General argued that harassment of foreign nationals would occur, that abuse is inevitable, and that detentions of citizens would last hours not minutes. But these harms were invoked to show why SB 1070 would interfere with U.S. foreign relations, not that the discrimination itself violates core principles reflected in federal law.

IT DIDN’T HAVE to be this way.  In other times when states have targeted foreigners during one of our cyclical periods of nativism and parochial hostility, the Supreme Court has grappled with state immigration legislation without limiting its inquiry to the almost indecipherable federal immigration laws. Instead, the Court would consider whether federal civil rights statutes had also been violated. A state’s treatment of non-citizens was routinely considered in light of whether it was based on, or caused discrimination. In other words, there was no reason that racial and ethnic profiling needed to be peripheral to the government’s seemingly technical federal preemption case.

In fact, part of the reason Congress enacted its landmark civil rights statutes of the post-Civil War period was to prevent states from enacting laws that discriminated against immigrants.

Yet the new federal civil rights laws,  seeking to guarantee protection of Chinese immigrants, outlawed “alienage” discrimination. The most important provision mandated that every “person” shall the have the same right to commercial transactions and to the “full and equal benefit of all laws and proceedings” as “white citizens.” The law’s formulation was intended to prohibit both race and alienage discrimination. It established a federal norm of equality requiring all “persons” to be treated the same as white citizens, thereby outlawing race discrimination, and all persons to be given equal rights as citizens thereby outlawing “alienage” discrimination.

The Supreme Court recognized the broad scope of these laws when it struck down a California law in 1948 that denied Japanese aliens—who were also denied citizenship under the laws of that era—the right to earn a livelihood as fishermen in coastal waters. Although the exact formal parameters of these post-Civil War civil rights laws remain in dispute, the critical point is that federal law manifests an overriding principle of non-discrimination against “aliens” that preempts state laws.

In 1971, the Supreme Court announced precisely this principle. In Graham v. Richardson the Supreme Court issued a landmark ruling holding that another Arizona law—denying welfare to longtime immigrants with green cards—violated the Equal Protection guarantee of the Fourteenth Amendment. In that case the Court also addressed the same kind of federal preemption claim asserted against SB 1070. In that context, Justice Blackmun explained at length that the Arizona law not only was inconsistent with federal immigration policy but violated the broader and deeper federal principles of the century-old federal civil rights law prohibiting alienage discrimination. In its decision, the Court held that federal law and policy preempt state authority, not only when it is inconsistent with federal immigration law but also when it contravenes the fundamental federal policy prohibiting state discrimination on the basis of “alienage.”

Therefore, even on the most technical legal grounds, the federal government’s interest in state immigration laws should not only be a question of their interference with federal immigration enforcement but also of their impact on the state’s immigrant and Latino populations. In the case of the SB 1070, the Arizona law clearly violates the federal government’s non-discrimination principles. We should not have to wait for civil rights cases years from now to establish this point. The Supreme Court should recognize now—as it did more than three decades ago—that federal law has primacy not only on immigration statutes but also on questions of preventing discrimination. To the extent that the Justice Department asked the Court to only weigh SB 1070 against the intricacies of federal immigration laws, it missed this critical point.

Lucas Guttentag

The problem for the Latino consultants on the Republican payroll is they can’t say that. Here is columnist Ruben Navarrette on the embarrassment one of these spinners experienced when asked the obvious follow-up question:

[M]y friend Bettina Inclan, whom the Republican National Committee recently hired to direct its Hispanic outreach efforts…[met] with about 30 reporters…to highlight GOP efforts to reach Hispanic voters, Inclan said President Obama doesn’t deserve Hispanic support. Not only did he break his promise to make immigration reform a top priority, she said, he also went the extra mile by deporting more illegal immigrants — the vast majority of them Latino — than any president since the 1950s.

Up to that point, Inclan was spot on. I’ve said the same thing myself many times, and I’ll continue to say it because it’s true and because Latinos need to hear it. They grade Obama on the curve. Because he’s a Democrat and a person of color, they put up with slights from him that they would never tolerate from a white Republican. And they get less respect because of it.

Then a reporter zeroed in and asked exactly the right question, which also happened to be the toughest question that Inclan could have been asked that day: Well then, how would Mitt Romney’s immigration enforcement policies be any different if he were elected president?

If you have Inclan’s job, it’s a trick question. If she says that Romney would be softer and more lenient than Obama on illegal immigration, she’ll set off eruptions from the nativist wing of the GOP. If she goes in the other direction and says that Romney will be the same as Obama or tougher, she would torpedo her earlier point.

Confronted with only bad choices, Inclan said: “I think as a candidate, to my understanding, that he’s still deciding what his position on immigration is. So I can’t talk about what his proposal’s going to be, because I don’t know what Romney exactly — he’s talked about different issues. And what we saw in the Republican primary is that there’s a very diverse opinion on how to deal with immigration.”

Immediately, a reporter sent out Inclan’s remarks on Twitter. And naturally, Democrats pounced on the misstep.

Later that afternoon, Inclan said via Twitter that she “misspoke” and Romney’s “position on immigration is clear.”

Sure it is, my friend. Clear as mud.

Romney started out as a moderate who noted, in a 2005 interview with the Boston Globe, that illegal immigrants “contribute in many cases to our economy and to our society.” Then, to run for president, he underwent an extreme makeover as a conservative. Now that he’s the presumptive GOP presidential nominee and needs to win at least 30 percent of the Hispanic vote to capture the White House, he doesn’t know who to be.

It’s easy to blame Inclan for misspeaking, but the GOP’s problem goes deeper than that. This story has legs because it plays into a larger narrative set out in March when Romney senior adviser Eric Fehrnstrom said that shifting his candidate from the primary to the general election was “like an Etch A Sketch” — referring to the toy where nothing is permanent and you can shake it up and start all over.

There are people like Bettina Inclan in both parties, and it’s their job to make this ugliness look nice and pretty. And so, whatever the parties are paying them, clearly it’s not enough.

 

Romney met with anti-immigrant Sheriff Joe Arpaio for help in appealing to Minutemen.

The Justice Department filed a massive discrimination suit against Arizona sheriff Joe Araio on Thursday. Here is what the Feds say Arpaio did wrong according to the Huffington Post:

Maricopa County Employees Call Latinos Derogatory Names

Jail employees frequently refer to Latinos as “wetbacks,” “Mexican bitches,” and “stupid Mexicans,” according to the lawsuit. An email that included a photography of a Chihahua dressed in swimming gear with the caption “A Rare Photo of a Mexican Navy Seal” was widely distributed by sheriff’s office supervisors.

Officers Mistreat Latinos In Routine Traffic Enforcement

The lawsuit recounts how a Latina woman who was five-months pregnant and a U.S. citizen was stopped as she pulled into the driveway. “After she exited her car, the officer then insisted that she sit on the hood of the car. When she refused, the officer grabbed her arms, puled them behind her back, and slammed her, stomach first, into the vehicle three times. He then dragged her to the patrol car and shoved her into the backseat,” reads the complaint.

She was cited for failure to provide identification, which was later changed to failure to provide proof of insurance. The issue was resolved when the woman proved she had insurance to a court.

In yet another case, two officers followed a Latina U.S. citizen a quarter of a mile to her home without flashing their lights. When she arrived home, they insisted that she stay in the car. The reason for the stop was a “non-functioning license plate light.” After she tried to enter her home, officers took her to the ground, kneed her in the back and handcuffed her. She was brought to a Maricopa County Sheriff’s Office (MCSO) substation and cited for “disorderly conduct,” which was later dismissed, according to the lawsuit.

Latinos Are Indiscriminately Detained In Immigration Raids

A Latina born in the United States was taken into custody for four hours in a raid to determine her immigration status. Arpaio was quoted in response, “That’s just normal police work. You sometimes take people in for probable cause for questioning and they’re released.” The suit notes that the reason for her detainment — being Latina and present during a raid — were insufficient.

Arpaio And MCSO Staff Foster Discrimination Against Latinos

Arpaio received a letter reading, “If you have dark skin, then you have dark skin. Unfortunately, that is the look of the Mexican illegals who are here illegally. … I’m begging you to come over … and round them all up.” The sheriff labeled this as “intelligence” and forwarded to his deputy chief of enforcement operations for someone to “handle this.”

Upon receiving a letter backing the policy of “stopping Mexicans to make sure they are legal,” he sent a letter of appreciation to the authors and kept three copies for himself, according to the lawsuit.

An email circulated among MCSO staff had an image of a fake driver’s license from “Mexifornia” and listed the driver’s class as “illegal alien.”

MCSO Employees Fail To Provide Assistance To Prisoners With Limited English

The failure to provide adequate language assistance caused some female Latina prisoners to remain with sheets or pants soiled from menstruation, alleges the suit.

Others have allegedly been put in solitary confinement for “extended periods of time” for not understanding a command in English.

MCSO Arrests Arpaio Critics Expressing Their First Amendment Rights

The suit claims on multiple occasions that people were arrested for merely applauding against the office’s immigration policies. The judge presiding over the case of the arrestees found that the deputy who made the arrest “believes it is his role to make uncomfortable anyone who express[es] views that disagree with the sheriff” and that he had “trampled” over the First Amendment. The court acquitted them.

Sen. Marco Rubio’s (R-FL) plan to introduce a bill to provide legal status—but not citizenship—for undocumented youth ran into an obstacle when Speaker of the House John Boehner (R-OH) announced on April 26 that such a proposal would not pass his chamber. As Speaker Boehner put it, “We’re operating in a very hostile political environment and to deal with a very difficult issue like this I think would be difficult at best.” Nevertheless, Sen. Rubio has been making a big push for his proposal, talking to reporters, members of the Congressional Hispanic Caucus (who, afterward, could only muster a bland statement saying that, “we look forward to learning more about his plan”), immigration advocates, and DREAM Act-eligible students.

Our desire for bipartisan engagement on immigration policy reform leaves us hoping that Sen. Rubio can, in fact, lead his party out of the wilderness on this issue with a smart policy that advances the nation’s interests. Given the complexity of immigration law, we will withhold final judgment on the wisdom of Sen. Rubio’s proposed policy until the bill’s actual text can be reviewed.

In the meantime, however, the media coverage generated by the senator’s efforts to pitch his bill, along with his own public and private statements, has provided enough of a window into the proposal to raise some early red flags. As there is no written bill at present, and the devil is, as always, in the details, below we offer what we know about what might be included in the bill and explain the real-world concerns created by those provisions.
What we know (or think we know) about the bill

Sen. Rubio has voiced opposition to the DREAM Act—a bipartisan bill from its inception more than 10 years ago—because it contains a legal mechanism that would allow youth brought to the United States before age 16 to earn permanent residence and eventually citizenship by attending college or the enlisting in the military. Sen. Rubio has proclaimed that such a mechanism equals “amnesty” and is therefore unacceptable to Republicans. Still, he explains,“I do support, and have consistently supported … the notion that we need to accommodate these kids who, through no fault of their own, find themselves in this legal limbo.”

He addresses his “amnesty” concerns in his bill by allowing undocumented youth who meet DREAM Act-like criteria to receive a newly created nonimmigrant visa—a temporary visa—instead of permanent residence. If they subsequently satisfy DREAM Act-like requirements—attending college or performing military service, for example—they would be eligible to remain in the United States and maintain lawful status. The new nonimmigrant visa that Sen. Rubio contemplates would be renewable in perpetuity (it, in other words, is basically a permanent temporary visa) and would authorize the beneficiaries to work and travel legally.
The “amnesty” canard

In important respects Sen. Rubio’s bill would provide the same benefits as permanent residence—i.e., a “green card.” It would redress the central real-world impediments confronting these kids by ending their fear of deportation and making it lawful to work, drive, and travel out of the country. This makes it highly appealing to the kids who have been traveling roads with nothing but dead-ends ahead.

But it also makes it exceedingly difficult to understand why the DREAM Act amounts to “amnesty” and Sen. Rubio’s proposal does not. Both approaches would create a new mechanism to legalize undocumented youth. Both approaches would authorize the beneficiaries to work and travel freely, which they currently cannot do. Both, in other words, provide substantial benefits to individuals not currently entitled to them. Under his (in our opinion, misguided) “amnesty” test, it is hard to see why his proposal passes while the DREAM Act fails.
Distinctions that matter

The conceptual distinction that leads Sen. Rubio to conclude that granting one set of benefits amounts to amnesty, while granting another very similar set of benefits does not, is elusive at best. But the practical consequences of this definitional hair-splitting are significant.

By providing a way for these kids to earn permanent temporary visas but not permanent residence, many or most of them will effectively be blocked from ever becoming citizens. Sen. Rubio has assured us that there will be no “bar” to citizenship—but there will also be no independent path to permanent residence.

The distinct advantage of permanent residence, however, is that after a number of years, the individual can apply for naturalization and—upon showing good moral character, command of the English language, and knowledge of basic American civics—become a full citizen. With no specific pathway to permanent residence, this bill would leave to luck and chance the possibility of ever gaining citizenship.

Individuals in this new nonimmigrant status would have two avenues to permanent residence: sponsorship by a close relative (in all likelihood via marriage) or sponsorship by an employer. But our legal immigration system is woefully backlogged, with waiting times stretching into the decades for most green cards.

So how long would it take eligible young people to receive citizenship under Rubio’s proposal?
Employment-based immigration

Although there are a number of employment-based visa categories, the EB-3 category—for “skilled workers, professionals, and other workers”—is the most likely category under which eligible young people could obtain a green card. But eligibility for this category requires a college degree, sponsorship by an employer, and a finding by the U.S. Department of Labor that there is no qualified and available American worker able to perform the job.

Take, for example, an immigrant from Mexico. After a determination of eligibility by the departments of Homeland Security and Labor, the individual would currently need to wait six years before a green card became available. After receiving employment-based permanent residence, an immigrant must wait another five years to apply for citizenship, for a total waiting time of at least 11 years. For an immigrant from India, the wait is even longer—10 years for permanent residence, and an additional five years for citizenship.

These waiting periods are only based on current backlogs. Each month the State Department issues a Visa Bulletin showing current visa availability. As of May 2012, for example, to receive an EB-3 visa, an immigrant from Mexico would have to have applied prior to May 1, 2006. But because the number of available visas is fixed on an annual basis (with just more than 40,000 visas given out to the EB-3 category) the visa availability date fluctuates based on demand.

This means that while it might currently take six years to receive a green card for people who applied in 2006, with increased demand—say, for example, from a new crop of young people eligible through Sen. Rubio’s plan—it will take far, far longer. If Sen. Rubio’s bill provides legal status to 1 million to 2 million individuals, the demand on this visa category will increase exponentially, even if only a portion of those individuals seek permanent residence through this portal.
Family-based immigration

Of course, in addition to employment sponsorship, nuclear family members can also sponsor relatives for green cards. The most direct path to legal permanent residence and eventually citizenship is marriage to a U.S. citizen because there are no annual numerical limitations. But do we really want to make these children’s futures and full integration to American society contingent on their marriage to a citizen?

If the young person marries a legal permanent resident (i.e., a green card holder) instead of a U.S. citizen, under the current backlogs he or she would have to wait at least three years for a visa to become available and another five years for citizenship for a total waiting period of eight years—at the absolute minimum.Those backlogs, however, would surely swell significantly (meaning much longer waiting periods) with the increased demand on the category that would result from legalizing this group of young people that Sen. Rubio’s bill addresses. But even if eight years, 10 years, or even 20 years of waiting sounds like a reasonable price to pay for their parents’ transgressions, it is still contingent on their getting married.

What does this say to, for example, gay [1] and transgender youth who, even if they live in a state that has legalized gay marriage, cannot receive a green card because of it? What about people who want to get married but can’t find a spouse? What about undocumented youth who have married each other? To be sure, there are other ways to obtain a family-based visa, but these take far longer and are less likely to be available to an undocumented youth.
Political detour from good policy

Instead of a clear road forward, then, Sen. Rubio’s plan would lead a significant population into a nonimmigrant limbo for decades or even for life. For a population of young people who have been wholly without protection for most of their lives, the prospect of any type of legal status that allows them to pursue their dreams is desperately tantalizing. But to consign hundreds of thousands of people who are American in all but their papers to an indefinite, potentially nonexistent path to permanent residence or citizenship because “that’s all the politics will bear” is deeply cynical.

Even accepting that this is a good faith effort to break political gridlock around this issue, the end result subverts the nation’s interest in a well-integrated, fully participatory citizenry. Without citizenship these individuals will never be able to vote, gain security clearances needed for any number of jobs, run for office, or even obtain a U.S. passport and the international protections that it accords. Going down this path will ultimately fracture, not unify, our country.
Conclusion

To be certain, we strongly believe that half a loaf is better than no bread at all. We certainly won’t reject a half loaf without inspecting it, especially given how hungry we are for reform. But whether the bread is poisonous or nutritious depends on the actual ingredients and whether it is fully baked. We look forward to seeing the details of Sen. Rubio’s proposal—and who he has in the kitchen with him.

Bottom line: Show us the bill, and show us the votes. And then we’ll talk.

Marshall Fitz is the Director of Immigration Policy and Philip Wolgin is a Policy Analyst with the Immigration team at the Center for American Progress.

[1]The term “gay” is used as an umbrella term for people who identify as lesbian, gay, or bisexual.

 Changing the standard of proof in self-petition cases to “clear and convincing evidence”
from the current “preponderance of evidence” standard in self-petitions. This would set a higher standard than that required for other forms of humanitarian relief, such as asylum. It also does not take into account the challenging circumstances for immigrant survivors who often lack access to services and legal representation and encounter language barriers.
 Providing that in VAWA cases where DHS finds “material misrepresentation” the applicant is permanently barred from immigration benefits, and the individual is referred to the FBI for criminal prosecution and removed on an “expedited basis.” Their derivatives would also be permanently barred from immigration benefits, including prosecutorial discretion and deferred action.
This provision would severely punish victims who often lack access to legal representation
and services and encounter language barriers in the adjudication process. This would re-victimize survivors and discourage them from seeking help.
• Section 802 imposes arbitrary and unreasonable barriers for victims, and undermines the law enforcement purpose of the U visa by:
 Requiring that the crime must be reported within 60 days for a certification to be issued.
This imposes problematic restrictions for traumatized or injured victims, those who face
language barriers and have limited access to services, those who fear of law enforcement, and children who are victims of sexual abuse, among others.
 Requiring that the statute of limitations for prosecution of the crime has not lapsed. This
defeats law enforcement interests in stopping serial criminals, particularly perpetrators of sexual
assault and child abuse.
 Requiring that the criminal activity must be “actively” under investigation or that
prosecution has commenced. This results in re-victimizing or penalizing the victim for the
decisions and actions of others.
• Section 806 terminates the eligibility of a U visa recipient for permanent residence. This
would discourage crime victims from cooperating with law enforcement, especially in complex or dangerous criminal investigations or prosecutions or where the victim may fear retaliation, and eliminates stability for vulnerable crime victims and their children..
How Do Other Provisions in HR 4970 Fall Short in Protecting Immigrant Victims?
• Sections 803 and 804, which amend IMBRA, omit critical amendments that were included in S. 1925 including:
• A provision to close a dangerous gap by penalizing US clients of international marriage broker agencies who intentionally lie about IMBRA-required disclosures of their criminal history information in order to lure women; this provision is needed to keep serial predators from attempting to “whitewash” their records here by seeking new unwitting victims abroad.
• A provision to alert foreign fiancé(e)s and spouses if their US citizen petitioners have a
protection order taken out against them (based on a search of the FBI National Crime
Information Center’s Protection Order Database).