Perhaps in this day of failing news organizations, the headline is a bit unfair to the AP. However, news coverage that is a mile wide and an inch deep doesn't serve citizens well.

The AP story linked here is interesting, but the Pew Hispanic Center report on which it is based is even more so. The headline in the AP story is "New study: Hispanics account for 40% of sentenced Federal offenders." What it should have said is --  "Non-citizen Hispanics account for 29% of all federal offenders." Buried within the 27-page report is the fact that 72.5% of all Hispanic offenders in 2007 were non-citizens. If illegal aliens make up only about 30% of the total Hispanic population of 44 million yet account for 73% of all Hispanics in federal prisons, maybe that should set off some alarms.    

Anyone who takes the trouble to look behind the news story and read the Pew report will be drawn to the striking differences between US citizen Hispanics and non-US Citizen Hispanics:

Little seems to have changed since my commentary below was published online in November 2007 by Family Security Matters (www.familysecuritymatters.org). Yes, there has been some unsteady progress in erecting physical barriers to entry on the southern border and in implementation of the E-Verify system. And yes, some illegals are reported to have departed on account of the poor economy.

This essay proceeds from the writer’s belief that the greatest privilege any person can enjoy is citizenship in the United States of America. Second is holding a Green Card, the visa signifying legal permanent residency. The third greatest privilege — whatever it is — falls far below second.

Surely there isn’t another nation enjoying the long lines of other nations’ citizens striving to emigrate here. Many, however, don’t wait in line. Apparently they don’t need to; they just walk in and make themselves at home.

As one watches U.S. political leadership wrangle over illegal migration, classical American philosopher George Santayana comes to mind with, “Those who cannot remember the past are condemned to repeat it.” And what a remarkably inept past it is!

President Reagan signed the Immigration Reform and Control Act in 1986. Also known as Simpson-Mazzoli for its sponsors, U.S. Sen. Alan Simpson (R-Wyo.) and U.S. Rep. Ron Mazzoli (D-Ky.), this law led to amnesty and permanent resident status for some three million migrants then illegally in the United States. Amnesty just this one time said the advocates — a humane, practical one-time fix that we won’t face again because from now on we’re going to really enforce our immigration laws.

A short four years later in 1990, Simpson expressed apparent lack of confidence when, during congressional debate on more immigration legislation, he said, “Uncontrolled immigration is one of the greatest threats to the future of this country.”

Indeed it is.

Another 17 years have gone by, and press accounts of migrants now illegally in the United States typically use an estimate of 12 million. No one really knows the number or how much it grows every night through border crossings and child births.

In 2006, President Bush and a bipartisan assortment of U.S. senators backed “comprehensive” reform that was an amplified echo of Simpson-Mazzoli. Fortunately it went down in flames. Bush’s attempts to tell us why this bill wasn’t another amnesty sadly reminded me of the rhetorical parsing for which his predecessor, Bill Clinton, will be remembered throughout U.S. history. If it walks like a duck and quacks like a duck, it must be a duck.

The amnesty crowd lost again last month, October 24, when the votes weren’t there in the Senate to stop a promised filibuster of new legislation designed as the first of several steps toward achieving what they couldn’t get last year.

Longtime amnesty supporter Sen. John McCain (R-Ariz.) was missing in action from last month’s vote. However, he may have undergone an epiphany of sorts. McCain now says he has learned from public reaction all over the country that enforcement of current laws must come first. One should hope he believes that and count it as progress.

As many know too well, “racist,” used by many non-whites and their purported advocates, either as a noun or adjective, 1) is the only word they deem needed to dismiss any argument unfavorable to their positions, and 2) is considered blasphemy when reciprocally applied. The ugly head of racism rises from both sides in discussions of immigration policy.

So it is that to line up for unflinching enforcement of our nation’s immigration laws is to attract a forest of fingers pointing to oneself as racist. U.S. Rep. Tom Tancredo (R-Colo.) continually gets this treatment. This fine patriot is among the country’s best-known advocates for immigration law enforcement.

He also speaks eloquently of the wonderful things immigrants have contributed to making the United States the great nation it is. That part just about never appears in the press, since it is obviously at odds with the racist xenophobe face his opponents, prominently including most of the mainstream press, want him to wear.

Count me as standing proudly with Tancredo on both counts: appreciative of immigrants’ past and future value as U.S. citizens, and appalled that we collectively permit that value to be diluted and our country put at risk by flagrant immigration law violations.

What to do?

Were I in a position to design our country’s illegal migrant policy today, it would look like this:

Priority One: Seal the entire southern border with a fence.

Priority Two: Enact legislation to discontinue granting “birthright” citizenship to a child born in the U.S. of a mother either illegally, or legally but temporarily, in the U.S. (The Fourteenth Amendment contains only a qualified guarantee of citizenship to those born in the U.S. See video here.)

Priority Three: Put in place a system enabling employers to rely absolutely on one or more Federal government data bases for matching Social Security numbers to job applicants, thus protecting them (employers) against civil rights liability for refusing to employ persons for whom a proper “match” cannot be achieved.

Priority Four: Commence methodical enforcement against employers, with particular severity for those found to be aiding and abetting illegal entry into the U.S. (e.g., through recruitment practices, knowingly dealing with smugglers, employing persons with credentials known to be forged or otherwise deficient, etc.)

Guest workers, “pathways to citizenship,” and other issues claimed in need of addressing through comprehensive immigration reform would wait.

In response to being asked whether the U.S. should round up and deport all illegal migrants, some emphatically say Yes. I don’t. I believe that course is neither humane nor achievable.

Instead, I argue for handling this the way companies frequently manage workforce reductions: through attrition. When businesses can rely on a real-time Federal data source verifying that an applicant may legally be employed, thus providing safe harbor against civil rights liability, it will be fair to punish them for employing illegals.

Currently, a business refusing to employ an individual who provides documentation purporting to be sufficient for Form I-9 does so at considerable risk of a civil rights lawsuit, particularly if the refused applicant happens to look, and speak English, about like most of the nation’s illegals: non-white and not well, respectively. So fulmination about sticking it to employers, tantamount to making them immigration law enforcers, is unfair to the vast majority who are simply filling jobs with available workers and doing nothing overt to aid and abet illegal migration.

When jobs for illegals dry up, the attraction to those not already here will diminish a great deal, and many already here (and sending home remittances so coveted by governments of their home countries) will become unemployed and leave.

As throughout its history, the United States has the capacity to absorb, and should avail itself of the opportunities presented by, millions seeking entry wanting to be Americans, to assimilate.

Our experience today is uncontrolled borders and a large, growing corps of other nations’ citizens here illegally and unassimilated. At least one foreign government, Mexico’s, is clearly aiding and abetting this onslaught. Why do so many dither, continuing to pretend this isn’t the threat to our future noted in 1990 by Sen. Simpson?

October 17, 2008

The Honorable Bill Ritter

Office of the Governor

State Capitol

Denver, CO80203

Dear Governor Ritter:

We are writing to alert you that the City and County of Denver is not in compliance with SB 06-90, enacted by the General Assembly in regular session in 2006 (CRS 29-29-101). We ask that you direct the Department of Local Affairs to cut off state funds to the City and County of Denver as provided in the law.

SB 06-90 does more than prohibit any city from adopting policies which interfere with police communication with the federal Immigration and Customs Enforcement agency (ICE). Section 29-103(2)(b) establishes for peace officers a positive duty to cooperate and communicate with that agency. It requires all cities and political entities to inform their law enforcement personnel of this duty and it requires them to report annually to Legislative Council the number of such reports to ICE made in compliance with the law. These requirements are clearly explained on the DOLA web site (www.state.co.us/gov_dir/leg_dir/lcsstaff/immigration/immigrationmainpage.htm). 

Because of Denver’s size and location, the city’s disregard for CRS29-29-101 affects public safety not only in Denver but throughout the region and the entire state. Francis Hernandez was in custody in Denver in 2007 and then was arrested in September 2008 for vehicular manslaughter in Aurora. The thousands of illegal alien criminals who cycle into and out of the Denver jail without ever coming to the attention of ICE often commit serious crimes later in other cities and towns.

Denver claims to be in compliance by merely filing a report and a number --- 2,088 --- purporting to be the number of "reports" made to ICE in 2007. We believe that merely claiming and citing a number of referrals/contacts with ICE does not by itself satisfy the law --- for Denver or any city. First the number cited must meet the "smell test”: if that number is ludicrous and misleading on its face, DOLA and the Legislative Council have a duty to investigate to determine the accuracy of the number. Second, to be in compliance, the number of contacts made with ICE must represent a substantial portion of arrests in which the duty to contact ICE would be applicable. Third, the policies and guidelines behind the numbers must be consistent with the law. Denver's reported

numbers and its Police Department guidelines for peace officers indicate that it has failed all three tests.

Inquiries to the Office of Denver City Attorney revealed that the number of ICE contacts claimed by Denver on its DOLA reporting form --- 2,088 --- is a combination of two other numbers: Denver claims 109 contacts with ICE by the Denver Police Department and

1,979 contacts with ICE by the Denver Sheriff's Department, which operates the jails. We believe neither of the two numbers satisfies the requirements of SB 06-90 for reasons outlined below.  

The law as written requires law enforcement personnel to contact ICE when there is probable cause to believe that a person arrested for a criminal offense is in the country unlawfully -- whether the arrested person is taken into custody ("custodial arrest") or not. In fact, CRS 29-29-103(2)(a)(1) explicitly makes a distinction between arrestees "held at a detention facility" and others not held at a facility. The law clearly applies to both kinds of arrests, not merely to arrestees taken to a detention facility.

All available evidence indicates that Denver is not observing the law. 

FACT # 1. Denver Police are not making ICE referrals on 99% of routine arrests. This is demonstrated both by official statements and by the low number of ICE contacts ---109 --- made over a full year when encountering over 49,000 arrestees who were booked into the jail and additional thousands who were stopped and cited for crimes not requiring custodial arrest. 

FACT # 2.  The Denver Sheriff's Department is not using the probable cause standard to refer inmates to ICE. Instead, it merely sends to ICE each day a roster of self-identified foreign-born inmates then in custody at the jail. It is ludicrous and insulting for the Denver Sheriff's Department to say that all foreign born persons by definition meet the probable cause standard in the law, since "foreign born persons" include naturalized citizens, legal permanent residents, tourists and others who are in the country lawfully.

FACT # 3: Denver falsely claims to have made 2,088 referrals to ICE in 2007 whereas the true number is only 109, the number of "refer to immigration" notations on arrest reports. The other 1,979 reported contacts do not meet the “probable cause” standards set in the law. In effect, Denver padded its numbers by a factor of 2000% (109 versus 2,088).  

FACT # 4. Denver has not complied with CRS 29-29-103 requiring notification to all peace officers of their duty to notify ICE in any instance where an arrested person meets the probable cause standard. In fact, Denver misinforms its peace officers that the obligation to contact ICE can be met by writing a "refer to immigration" note on the arrest

report. By this instruction, conveyed to its peace officers by a Police Department Training Bulletin datedSeptember 6, 2006, Denver encourages and allows its peace officers to avoid contacting ICE.

FACT # 5. Each year Denver has a much lower percentage of its illegal alien jail population identified for immigration detainers and picked up and deported by ICE than either ArapahoeCounty or Jefferson County. In 2005 and 2006, Denver was reimbursed

a total of $2,249,339 by the federal State Criminal Alien Assistance Program (SCAAP) for incarcerating over 2,900 illegal aliens, yet only 18% of those illegal aliens were tagged with detainers and subsequently deported by ICE.  That compares to 44% for the

ArapahoeCounty jail and 39% for the Jefferson County jail. This means that the Denver jail is recycling over twice as many illegal alien criminals back into the metro community --- over 2,400 over those two years --- as are neighboring counties. They are not being identified as illegal aliens while they are in custody, which is mainly due to the fact that they are not being referred to ICE in the first place.  (SCAAP data for each Colorado county is available on the U.S. Department of Justice website at http://www.ojp.usdoj.gov/BJA/grant/scaap_site.html.)

FACT # 6. Denver did not change its policies or police procedures in any way to comply with the law after it was enacted in 2006. It merely reiterated and repromulgated existing policies found in the Denver Police Operations Manual. Denver has not offered any guidance to peace officers as to what behavior and circumstances meet the probable cause standard with regard to unlawful presence.

A September 2008 report by the Maricopa County (AZ) Attorney Andrew Thomas revealed that 22% of all persons convicted of felonies in that county in 2007 were illegal aliens.  (See www.mcaodocuments.com/press/20081002_a-whitepaper.pdf.) If DOLA and the State of Colorado accept Denver's ICE referral numbers as reflecting a good faith effort at compliance, we would have to conclude that less than 1% of all felony arrestees in Denver in 2007 were illegal aliens. This can be true only if Denver has a crime rate among illegal aliens one-twentieth that of Phoenix.

Even if the percentage of crimes committed by illegal aliens in Denver is only half the rate in Phoenix --- 11% instead of 22% --- we would expect to have over 5,300 arrests of illegal aliens -- 11% of 49,746 total arrests in 2007 (15,580 felony arrests and 34,166 misdemeanors). Yet, acting under the policies and guidelines set by the City Attorney's office, Denver police referred only 109 arrested individuals to ICE over the course of a full year. The other 1,979 "referrals" by the Sheriff's staff at the jail were merely self-identified foreign-born persons, a category that does not meet the probable cause standard set forth in SB-06-90.

Denver has failed to make a good faith effort to implement CRS 29-29-101. Denver police are not subjecting most arrested persons to the test set forth in the law--- neither the persons arrested during routine police work nor the persons booked into jail. 

In light of these facts, the appropriate penalty should be applied to Denver: 

                        "A local government that violates Section 1 or Section [29-29-103(2)(b)] ...shall not be eligible to receive local government financial assistance through grants administered by the Department of Local Affairs...."

You should direct DOLA to immediately cut off all grants and financial assistance that passes through that agency. In fact, arguably Denver owes the state treasury and Colorado taxpayers a full reimbursement for funds received through DOLA in 2007 and 2008 after the effective date of CRS29-29-101. If you need to conduct a further investigation into the matter, we ask that the investigation be bipartisan, transparent and open to public observation and comment.

Second, we ask that you direct DOLA officials to revise its annual reporting requirements

to facilitate adequate compliance reviews. It is frankly unacceptable that DOLA has not conducted a single compliance review or a single investigation of any city's reported "self-certification."  There are simple steps that can be taken to improve the process, beginning with better data collection. For example, the reporting form used for SB 06-90 compliance (published on the DOLA web site) should be amended to require that the number of reports to ICE be divided into two numbers: (1) reports by peace officers at the time of arrest, and (2) reports by jail staff on persons booked into jail. Additionally, the mandated annual report by cities should require that the following information be included:

·                     the number of felony arrests for the year;

·                     the total number of all arrests;

·                     the number of foreign-born persons booked into jail during the year;

·                     the number of calls placed to foreign consular offices for foreign nationals in custody in compliance with treaty obligations;

·                     the number of illegal alien jail inmates for whom incarceration costs were reimbursed by the federal SCAAP program (26 Colorado counties participated in that program in 2007 and received over $3,700,000 in reimbursements);

·                     the number of jail inmates released to the custody of ICE; and

·                     the number of jail inmates with ICE detention holds on them at the end of the reporting period.

Third, we recommend that you direct DOLA to drop its "self-certification" model for determining compliance and develop new and more rigorous standards combined with annual compliance reviews. Cities should be considered as applicants for certification, with the certification granted after a performance review, a process that would be open to public hearing and comment.  Allowing Colorado cities to self-certify their compliance with CRS29-29-101 is like allowing the fox to certify the safety of the henhouse.

Colorado law can deal only with the duty of local peace officers to communicate with ICE, not with the response made by ICE to such contacts. Everyone recognizes that ICE

(and especially its Office of Detention and Removal Operations, which covers the local

jails) needs to greatly increase its manpower, detention space and other resources.  We will continue to ask the Congress and the Department of Homeland Security to provide the funds necessary to achieve effective immigration law enforcement in Colorado. However, this deficiency in federal performance must not be used as an excuse to avoid compliance with state law. 

We look forward to your timely response to this letter.  Denver's disregard of the law should be answered by applying the penalty set by law, the denial of state grants and

financial assistance administered by DOLA.  If you do not invoke the penalty provisions

of the law in the face of Denver's demonstrated non-compliance, you are in effect saying the law is unenforceable. In that case, the law is worse than meaningless; it is a bad joke played on the citizens of Colorado.

Joining me in this letter are the following eleven members of the General Assembly:

Sen. Greg Brophy                   Rep. Cory Gardner                 Sen. Ted Harvey        

Sen. Mike Kopp                       Rep. Kent Lambert                 Rep. Kevin Lundberg 

Rep. Frank McNulty               Sen. Josh Penry                     Sen. Scott Renfroe    

Sen. Dave Schultheis             Rep. Jerry Sonnenberg

Sincerely,

U.S. Rep. Tom Tancredo                  

cc:       Mayor John Hickenlooper

            Denver Chief of Police Gerald Whitman       

Denver City Attorney David R. Fine

Attorney General John Suthers                      

Susan Kirkpatrick, Director of DOLA

            Mike Mauer, Colorado Legislative Council     

Peter Weir, CDPS

            Sally Symanski, State Auditor            

Senate President Peter Groff

            House Majority Leader Andrew Romanoff

            James E. Kerr, Legislative Audit Committee 

Sen. Ken Gordon

            Sen. Tom Wiens                                            

Rep. Mike May

            Sen. Ken Gordon                                           

Sen. Andrew McElhaney

            Rep. Steve King

            John Longshore, Denver ICE-DRO               

Michael Masto, Acting SAC, Denver ICE

            Arapahoe County Sheriff Grayson Robinson

            Jefferson County Sheriff Ted Mink

THE HERITAGE FOUNDATION

September 21, 2006

A NEW STRATEGY FOR CONTROL OF ILLEGAL IMMIGRATION

A Guest Lecture by Rep. Tom Tancredo

Since January of 2004, when President Bush first proposed his so-called "comprehensive immigration reform," it has become increasingly evident that there is a sharp disconnect on "immigration reform" between the political elites in the nation's capital and the values and concerns of average citizens. This disconnect is evident even in the terminology chosen to discuss our immigration and border security problems, so it should come as no surprise that an acceptable solution has proven elusive. We can't hope to find a "solution" until we have some agreement on "the problem."

• I have used the term "illegal immigration" only because in this city, it is the way people are forced to talk about illegal aliens. But traditionally and in federal law, there is no such thing as an "illegal immigrant."

• A person who is in this county legally is either here as a legal immigrant or has a "non-immigrant visa," meaning a tourist, student, or temporary worker visa.

• If someone enters by unlawful means, he is by law an illegal alien, not an illegal immigrant.

• I believe this confusion in language is deliberate: it is an effort to confuse the public and allow politicians to talk glibly about "the rights of all immigrants."

Two days ago in Denver, 600 people from 80 countries took the Oath of Allegiance in a Naturalization ceremony in front of City Hall. Those 600 people did it the right way, and until they took that oath of allegiance, their rights as green card holders were on a par with citizens with the exception of the right to vote. Illegal aliens are in a totally different category of law and their future ought not to be discussed under the umbrella of “immigrant rights.”

• We ought to be able to agree that the heart of the problem is the continued flow of illegal aliens into our country.

• We ought to be able to agree that whatever other immigration problems we face, they cannot be addressed until we have an answer to these questions: How do we control our borders so we know who is entering our country and how can we stop uninvited persons from entering—both across our borders and through our ports of entry?

This problem of unlawful entry into our country is intellectually, morally and politically separate from other issues related to immigration. I believe the President's attempt to roll these separate problems into one so-called "comprehensive plan" has caused much confusion and needless delay in fixing our broken borders.

It is one of the great misfortunes for the nation and the Republican Party that over the past three years, the White House has proven to be tone deaf on border security and immigration reform.

• The President continues to repeat the same red herring argument, which he used again recently in his August 5 weekly radio broadcast, that the nation needs to find a "rational middle ground" between the "two extremes of mass deportation and amnesty."

• Bush further confuses the debate by insisting that amnesty is "automatic citizenship," and that nothing else can be called amnesty. The fact is there is no such thing in history or in immigration law as "automatic citizenship," and HR 4437 does not propose "mass deportations." Yet neither fact deters the President and his army of propagandists from repeating the same non sequiturs month after month.

• The interesting question for Washington policy wonks to study is whether the intellectual confusion preceded the political confusion or was in fact a deliberate tactic to advance a political agenda.

• The American people want clarity, not confusion, and wrapping a half dozen different immigration-related problems into one bundle of proposals is not the way to address any of them.

It has been the White House that has been out of step with the mainstream of the Republican Party, not Tom Tancredo.

• For example, it was Representative Duncan Hunter who first introduced legislation in 2005 to build 700 miles of fence on our southern border.

• I was flattered that the Wall Street Journal called the idea “Tancredo’s Wall,” but  the reality is that the mainstream of the Republican Party wants border security now and consideration of other matters afterwards.

I am attempting to fix the most urgent problem connected to immigration policy and suggesting that the other problems can wait. That approach does not make me "anti-immigrant." This approach is in keeping with the old adage that when you find yourself in a hole, the first thing to do is -- stop digging. The Wall Street Journal seems to think the hole is a tunnel to globalist prosperity, but in truth, it is just a hole and we need to stop digging.

• Whether or not we have a new guest worker program, we first need secure borders.

• Whether we have increased or decreased legal immigration, we first need secure borders.

• Whether we decide to allow some illegal aliens in the country to stay or not, we first need secure borders.

Debate on other proposals makes no sense unless we first have secure borders. It has been a mystery to many observers why so many smart people do not see our broken borders as a barrier to immigration reform yet, on closer examination, the reason for this confusion is not hard to see.

• There has been a deliberate effort by many to obfuscate the matter and to tell the American people they cannot have border security without a guest worker program, without an increase in legal immigration, and without granting amnesty to all or most of the illegal aliens who have come across our borders without our permission.

• I submit that the only reason we do not have a solution to the problem of illegal immigration is that the majority of American people feel insulted by that argument. The need to fix the borders first is so obvious that ordinary citizens suspect the motives of politicians who do not want to do that. And they are right to have such suspicions.

The Minutemen patrol on the Arizona-Mexico border in April of 2005 demonstrated to the world that the flow of illegal aliens across the border can be controlled by a physical presence on the border.

• That Minutemen project was the turning point in the national debate over illegal immigration -- not some policy paper published in Washington, DC, nor any speech by any politician.

• The action of citizens themselves tore down the wall of denial that policymakers and bureaucrats had so carefully constructed. The reality could no longer be hidden from anyone, and the debate has never been the same since the Minutemen turned the media spotlight on the border.

Once citizens understood that the border can be made secure by the simple addition of adequate manpower, the debate changed. Citizens will not trust leaders who insult their intelligence by claiming we have to provide additional ways to enter the country legally before we can stop illegal entry.

• I believe leaders in Washington must chart a new course by admitting to the American people that we can fix our broken borders and that we will do so BEFORE attempting to sell something called "comprehensive immigration reform."

• I believe that all parties and factions can and should come together to do this for the good of the nation, and that all other proposals be put aside until we can demonstrate to citizens that we have actually achieved secure borders-- not talked about them, not promised them, not adopted a plan for them, but actually ACHIEVED SECURE BORDERS.

You will notice that I have not once framed this issue as a Republican vs. Democrat problem, because it is not, or at least it need not be. If the Democrat leadership in the House came forward tomorrow with a border security plan that made sense, I would welcome it and support it.

• Our national security and our national sovereignty should not be a matter of partisan maneuvering, and I am dismayed at those in my party who try to frame this issue in strictly partisan terms.

• For example, we have heard that unless the President's proposal or some similar amnesty plan is adopted quickly, the Republican Party will lose the Hispanic vote.

• I reject such thinking and I will reject any legislation that is predicated so blatantly on pandering to activist groups based on ethnicity or race rather than sound policy for all Americans. I think it is a measure of the bankruptcy of their proposals if groups stoop to such narrow and insulting appeals based on race or national origin.  I hope the Republican Party will always resist such divisive appeals.

I do not need to spend time today telling the story of what has transpired since the President's January 2004 proposal. 

• That plan was never presented in legislative form, but a similar proposal was introduced in the U.S. Senate by Senators McCain and Kennedy, and that plan ultimately was passed in May of this year as SB 2611.

• The House Leadership calls it the Reid-Kennedy bill, but it ought to be called the Bush-Kennedy-McCain bill.

• I will only point out that after two years of constant drum-beating and cajoling from the White House, the managers of that bill, Senators Frist and Hagel and McCain, still could not get a majority of Republican Senators to vote for it.

• That Senate bill was dead on arrival in the House because it was totally out of touch with the reality of the problem, not to mention the small constitutional problem of containing revenue provisions that can only originate in the House, not the Senate.

• The House Leadership made wise decision to not seek a conference committee compromise between SB2611 and the bill enforcement and border security bill passed by the House in December of last year, HB4437.

The House bill passed last December has been widely called the "enforcement first strategy," to distinguish it from the so-called "comprehensive approach" touted by the proponents of a mass amnesty as found in SB2611. I think this name is accurate so far as the original intent of its sponsors, and it is a sound strategy as far as it goes.

The House is now proceeding to consider and pass many of the principal parts of HB4437 as separate bills in order to allow the Senate to consider them and hopefully enact them expeditiously.

I stated at the outset my belief that there are simple solutions to the problem of illegal immigration, if we have the honesty and the courage to adopt them. The proponents of the "comprehensive reform" approach have failed to make their case, and the American people do not trust any plan that promises to secure our borders as merely one part of a larger plan.

• The Congress and the American people have good reason to be wary of any such plan which merely promises border security in exchange for another amnesty.

• We learned from the disaster of the 1986 amnesty that both border security and interior enforcement must be clearly demonstrated, not merely promised.

The unfortunate truth is that the executive branch of our government is dead set against having genuinely secure borders-- and I mean not only the White House but also the State Department, the Justice Department, the Commerce Department and sadly, the Homeland Security Department. This political fact of life means Congress must not only enact a plan for secure borders but must also monitor and oversee the implementation of that plan at every stage until it is fully achieved.

A Trojan Horse Compromise

 This past summer a proposal was floated which supposedly combines the need for secure borders with the presumed need for a guest worker program. That idea is a key feature of the widely discussed Hutchison-Pence plan. Yet as attractive as it may look at first reading, it is fatally flawed.

• The "sequencing" of border security, interior enforcement and guest worker plans is valid in principle -- in fact, I included it in my own proposal in HR3333 in 2005.

• However, to be viable in practice, the various stages of the sequence must be separated by years, not by weeks or months, and each stage should involve separate legislation that can be debated and examined in great detail, then enacted as our experience, our knowledge and our confidence in enforcement grows. They cannot be enacted as elements of a single plan.

• If anyone doubts that it will take years and not months to achieve real border security, they need only look at the plan announced by the Bush administration this past month. It is a six-year multi-billion dollar contracting program to use the latest technology to build effective barriers. It will take six years to complete the construction project. If we take DHS at its word, we need a six-year "trigger" for any "sequencing plan," not a two year trigger.

There are at least three things fundamentally wrong with the Hutchison-Pence plan.

• First, it is not a true compromise. Proponents of a general amnesty for all 12-20 million illegal aliens still get all they want with only a two year delay, whereas proponents of border security get only a promise of what they want-- halting all illegal entry into the country and serious enforcement of immigration laws.

• The second thing is that the proposal is dishonest about the matter of offering a path to citizenship for the “temporary workers” authorized. Unless his plan explicitly amends the INA, any temporary worker with a temporary visa can petition for a green card at any time. The Hutchison-Pence proposal is silent on this matter and thus allows for this petition to a green card at any time-- not merely at the end of the period as many assume.  These workers are not going to be “temporary,” and for the proponents to lead the public to believe they are temporary is dishonest.

• The other thing wrong with the plan is naive or shallow thinking about "triggers" and “sequencing.” The real issue is not two years versus three years or even six years for the waiting period between enactment of border security plans and implementation of a guest worker program. The real problem is that there is no trigger that cannot be sabotaged by open borders advocates within the bureaucracy.

I can give you an example from within the Border Patrol itself.

• In theory, secure borders can be achieved next month by effective use of the military.   In reality, the "trigger-certification" proposal in the Hutchison-Pence plan does not envision or require genuine border security, only a pale imitation called "operational control," which is to be certified by the Border Patrol and then announced by the White House.

• This term “operational control” is a term used throughout the Border Patrol’s "Strategic Plan" published in 2005 by the Bureau of Customs and Border Protection. It was cited frequently by its author, former Border Patrol Commissioner Robert Bonner, and is now also by the current Commissioner, David Aguilar.

• The inconvenient truth is, "operational control" can mean anything the Border Patrol and the White House want it to mean. The one thing it has never meant in any Border Patrol mission statement is preventing all illegal entry into the country.

• The idea that President Bush would fail to “certify”  border security in two years even if secure borders were only "substantially achieved" --- the phrase used in Rep. Pence's earlier draft legislation --- is either embarrassingly naive or deceptive by design.

This is not a disagreement over semantics. To understand the significance of this distinction between real control of our borders and "operational control," imagine that border security had been “certified” as 90% effective in 2005.

• That would mean that 90% of the three-to-four million attempted border crossings were stopped. Unfortunately, it would also mean that 10% or 300,000 to 400,000 illegal aliens entered our country successfully after “operational control” had been certified.

• This is certainly a dramatic improvement, but can we say we have secure borders if 300,000 unidentified persons are still entering our country annually?

Unfortunately, history shows that the Border Patrol brass cannot be trusted to achieve and maintain genuine border security without continual, vigorous congressional oversight. The same bureaucratic complacency and laxity with regard to enforcement is also seen in the Border Patrol’s sister agencies, ICE and USCIS.

• What this means politically is that at a bare minimum, any “trigger plan” involving a “certification” of border security by DHS or the President must require a vote of acceptance by both houses of Congress following hearings in which Border Patrol managers answer questions under oath.

A New Strategy: Enforcement Works

If the Congress does not enact key enforcement provisions to achieve border security and immigration law enforcement, proponents of the enforcement strategy will carry the battle to all 50 states and into a thousand local communities. Illegal aliens will begin to self-deport as more and more states adopt measures to discourage residence and the employment by illegal aliens.

If the Senate rejects the "enforcement first" approach by refusing to enact serious enforcement legislation this year, advocates of border security and immigration law enforcment should move to a new strategy, a strategy aimed at local initiatives in lieu of federal action.

This new strategy will be called, simply, “enforcement works."

Serious enforcement and border security have not been attempted in 40 years, so there is no basis for creating new amnesty plans until enforcement has had a chance to show its real-world impact. Enforcement is a common-sense approach that the American people understand and support.

The new factor that will change the political dynamic is expanded and coordinated grassroots citizen activism to pass and enforce laws at the state and local level, which will simultaneous put increasing pressure on Congress to mandate the enforcement of existing federal immigration laws.

Among the main policy goals of this local effort would be the following:

• Mandates in state law for employment eligibility verification through the Basic Pilot Program and denial of business licenses to effectively turn off the jobs magnet;

• Requirements that all companies doing business with state or local governments verify employment eligibility;

• Requirements that all local law enforcement agencies identify and turn over to ICE all criminal aliens who pass through local jails and state prisons;

• Prohibition of access to social services not mandated by federal law;

• Requirements for proof of citizenship to register to vote and a photo ID for voting;

• Document by state audits and publicize the true taxpayer cost of all services provided to illegal aliens, including the services mandated by federal courts -- health care, K-12 education, and all the benefits bestowed by "birthright citizenship" on the children of illegal aliens;

• Petitions by local officials for federal reimbursement of costs associated with illegal aliens (the main value lies not in the federal reimbursement but in the process of documenting the actual costs);

• Requirements for judges to deny bail to illegal aliens charged with DUI or any serious crime;

• Outlawing of "sanctuary cities" through penalties in state funding to localities;

• Mandates that all local law enforcement agencies cooperate with federal immigration agencies.

Georgia, Colorado, and Arizona have enacted some of these proposals, and more will be enacted soon if Congress fails to fulfill its responsibilities. Success at the local and state level will build more pressure for action in Congress.

Pursuing these goals through a coordinated program of citizen activism will lead to the election of pro-enforcement public officials --- from city hall to the statehouse, as well as Congress and the White House.

• This new strategy builds on the grassroots citizen activism that blocked the Kennedy-McCain and SB2611 amnesty proposals from enactment in 2006. It will energize and employ a nationwide network of citizen activists to hold public officials at all levels accountable.

• It does not accept as inevitable an amnesty that undermines our nation's sovereignty, our workers’ jobs, our communities’ hospitals, or our children's schools.

• It does not accept a need for increased legal immigration as a prerequisite to stopping illegal immigration.

In the process of pursuing the "enforcement works" strategy across the nation, pro-enforcement citizens are building a grassroots political movement.

• That citizens’ movement can not only force Congress to enact needed enforcement provisions, it can also help elect a new President committed to the control of our borders and the rule of law.

• The current President missed his opportunity to provide leadership on this issue. The next President must be someone who listens to the American people and chooses to uphold his oath to defend this nation and its borders.

"Enforcement works" is not a slogan. It reflects what we must do as a first step to get control of our nation's immigration system. The entire system is broken, including the management of our 322 Ports of Entry.

• Over two million foreign nationals enter the U.S. each month as tourists or on other temporary visas.

• There are over 4,000,000 aliens now in illegal status, people who entered legally as tourists or students or temporary workers but did not leave when their visa expired.

• Our government has no reliable way to track our visa arrivals, to know when they leave or don't leave, or to find them and deport them if they don't leave.

• The US VISIT program enacted by Congress in 2002 is still not implemented five years after the 9-11 attacks. Yet some supposedly serious lawmakers want to burden the USCIS with ten to twenty million additional background checks and visa applications in a new guest worker program. That is a recipe for catastrophe.

Effective control of our Ports of Entry is of equal importance to control of our borders-- because our Ports of Entry ARE our borders. The problems plaguing our entry-exit procedures are related to our problems on the border—they illustrate a complacent attitude toward enforcement of the law that cannot be tolerated any longer.

The lack of serious commitment to enforcement permeates our entire immigration system, not only our physical borders with Mexico and Canada. Until we can get agreement that enforcement of our laws is a serious task requiring serious measures and dedicated resources, all other reforms are futile.

• The place to start is with border security, because secure borders are a precondition for control of immigration at all levels.

• Once we have achieved that and demonstrated a commitment to immigration law enforcement, we can move on to more complicated problems.

Enforcement -- and the enforceability of any proposal -- will be the key issue on many fronts, because our whole immigration system is burden by a history of incompetence, corruption, and failed management systems.

The sooner we can demonstrate the ability to enforce our immigration laws effectively, the easier it will be to move forward with a meaningful overhaul of a broken system. That's why I see enforcement not as a delaying tactic, not as a short-term, half-way solution to a larger problem, but as the key to addressing all of these problems.

I call immigration enforcement a "new strategy" because it has never been tried; it has only been given lip service.  In the 1986 amnesty legislation, we tried amnesty without enforcement. I think it's time to try enforcement without amnesty.