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Reading The Fine Print, Part 1: Does The First Exception Swallow The Triggers Whole?

Saturday, May 19, 2007  |  posted by Hugh Hewitt
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The draft of the immigration bill was released just before midnight last night, and I have now printed off all of its 326 pages and have begun reading it.

The obvious injustice of demanding a fast track to a cloture vote is the complexity of this law.  Page 1, paragraph one, for example, purports to establish the much acclaimed “triggers,” but begins with a cross reference to an exception to the trigger:

SEC. 1 EFFECTIVE DATE TRIGGERS

(a) With the exception of the probationary benefits conferred by Section 601 (h), the provisions of Subscetion C of Title IV, and the admission of aliens under Section 101(a)(15)(H)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)), as amended by Title IV,

(i)the programs established by Title IV of this Act; and (ii)the programs established by Title IV of this Act that grant legal status to any individual or adjust the current status of any individual who is unlawfully present in the United States to that of an alien lawfully admitted for permanent residence,

shall become effective on the date that the Secretary submits a written certification to the President and the Congress that the following border security and other measures are funded, in place and in operation:

Translation: Except for those illegal aliens qualifying under Section 601(h), no illegal aliens can obtain new status until the Secretary of Homeland Security sends the president and Congress a letter saying all triggers have been met.

The proposed bill goes on to detail the triggers which include the  hiring of Border Patrol agents until 18,000 are on staff, the construction of at least 200 miles of vehicular barriers and 360 miles of fencing, the end of  “catch and return,” the establishment and use of new enforcement tools designed to keep illegals from working, and the processing of applications of aliens for Z status.

The unreasonability of the schedule for debate on this bill is exemplified by the citation to Section 601(h), which begins on page 260 of the draft bill.  Thus to even begin to review the draft bill you have to know how to read such a provision and be able to print off the bill or how to work the unwieldy online draft at NationalReview.com.

When you find Section 601(h), you may be surprised to read that the exception to the triggers appears to be  enormously large:

Section 601(h) Treatment of Applicants

(1)IN GENERAL —An alien who files application for Z-nonimmigrant status shall, upon submission of any evidence required under paragraphs (f) and (g) and after the Secretary has conducted appropriate background checks, to include name and fingerprint checks, that have not by the end of the next business day produced information rendering the applicant ineligible

(A)be granted probationary benefits in the form of employment authorization pending final adjudication of the alien’s application;

(B)may in the Secretary’s discretion receive advance permission to re-enter the United States pursuant to existing regulations governing advance parole;

(C)may not be detained for immigration purposes, dteremined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alient isdetermined to be ineligible for Z nonimmigration status; and

(D) may not be cosndiered an unauthorized alien (as defined in Section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))) unless employment authorization under subparagraph (A) is denied.

Section 601(h)(2), (3), (4), (5), and (6) lay out additional provisions concerning this huge –indeed almost certainly 90% plus?– portion of the illegals currently in the country that are not subject to the “triggers,” and even notes in subparagraph (5)  that if an illegal is arrested or detained prior to filing hisor her application for Z permit status, “the Secretary shall provide the alien with a reasonable opportunity to file an application under this section after such regulations are promulgated.”  Unless the computer spits out a no within 2 days of submitting the application, the illegal gets probationary Z status –before even one more mile of fence is built or a workplace verification system is constructed.

Perhaps I am wrong, but I can only read Section 601(h) as a massive undercutting of the entire concept of “triggers,” an undercutting which various talking points have not underscored or quantified, which points to why the jam down demanded by Senator McCain is so reprehensible.  Ordinary citizens have almost zero chance of figuring out what this bill intends and how its provisions will interact, and the proxies on whom they might rely will hardly have any opportunity to fully vet the language.

As I noted below, the president and the GOP Senate leadership need to postpone any cloture vote until the law is examined, debated and amended. 

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