More From Cornyn: What Harry Hacked From Immigration 'Compromise'

As I mentioned earlier today, Sen. John Cornyn (R.-Tex.) promised to deliver installments of Senate Minority Leader Harry Reid’s (D.-Nev.) obstructionism during the immigration reform debate. I posted the first installment earlier today.

Part two addresses Reid’s objection to closing a loophole that allows criminal aliens to work in the United States and prevents the Department of Homeland Security from deporting them.

Here’s the breakdown from Cornyn’s staff:


The compromise bill includes language that would prevent the Department of Homeland Security (DHS) from detaining or deporting any alien who files an application with the government. The “safe harbor” provisions would apply even if the alien was ineligible for the amnesty because of prior criminal violations.  Moreover, DHS would be required to issue the alien a secure travel and work authorization document while the application was pending.

This language is broader than the text of the 1986 amnesty, which required the alien to establish a prima facie case for eligibility, did not limit DHS’s ability to detain the alien, and did not require DHS to issue a travel document. This loophole, though, is easy to fix.

THE SOLUTION (blocked by Sen. Reid):

The Cornyn amendment would simply close the loophole and strike the safe harbor provisions in the bill that would allow ineligible aliens—including criminal aliens—to work and travel before while their applications are pending. Unfortunately, this commonsense, national security amendment was apparently deemed by the Minority Leader to be “an effort to denigrate” the bill—so he blocked it from getting a vote.


  • The compromise bill even protects illegal aliens before DHS has implemented the program by restricting DHS’s ability to deport any alien “who is apprehended before the beginning of the application period.”

o       In simple terms, immigration enforcement would stop upon enactment of the bill.  Every single alien who is apprehended—and there were more than a million apprehended along the southern border last year alone—could easily establish prima facie eligibility for the amnesty and DHS would be prohibited from deporting the alien. 

o       This could be particularly problematic because of the “rush to the border” that would inevitably occur between date of enactment and close of the application period.

The Hagel/Martinez bill states that any alien who files an application for amnesty:

o       “shall not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application. . . unless the alien commits an act which renders the alien ineligible.”

o       “shall be granted employment authorization pending final adjudication…”

o       “shall be granted permission to travel…”

  • The carve-out from criminal activity would only apply to criminal activity going forwards (“unless the alien commits….”).  Any criminal illegal alien who is in jail right now could file an application for amnesty and DHS might be prohibited from taking the criminal alien into custody upon completion of his jail sentence and deporting the alien.
  • With upwards of 12 million illegal aliens eligible to apply for the amnesty, it could take many years to adjudicate all of the applications.  Yet the bill would grant all those individuals all of the benefits of legal status – e.g. travel and work authorization – before they establish eligibility.
  • There is no explicit requirement that all background and security checks are completed before DHS issues the interim work and travel documents. 
  • Aliens who are not eligible would have an incentive to file frivolous applications just to obtain the interim benefits and/or to lengthen the amount of time it takes to adjudicate their applications.
  • Consider the potential for the following: a dangerous criminal alien is in jail at the time DHS implements the amnesty program.  His appeals have been denied at every level and DHS is days away from deporting the alien.  All the alien would need to do is file an amnesty application and DHS would not only be prohibited from deporting the criminal alien, but DHS would be required to issue him a secure travel document.  That criminal alien could then appeal the denial of his amnesty application all the way up the judicial chain, and during that multi-year period DHS could not detain the criminal and he would be eligible to work and travel internationally.
  • The 1986 amnesty contained almost identical language, but Congress in 1986 required the applicant to establish prima facie eligibility before obtaining the work documents (there was no requirement to issue travel documents) and Congress did not limit DHS’s ability to detain a criminal alien pending adjudication of the application. 
  • This overly broad safe harbor is not necessary because DHS has prosecutorial discretion.  DHS attorneys and/or Immigration Judges already have discretion to stay deportation proceedings if appropriate, yet this bill would remove any discretion of the government.


There is another way, a better way. The Cornyn/Kyl bill (The Comprehensive Enforcement and Immigration Reform Act of 2005, S.1438) will dramatically strengthen enforcement, bolster border security, and comprehensively reform our immigration laws. The key components of the bill include enhanced border security and interior enforcement, employer accountability, and reform that addresses temporary workers and the current illegal population—without amnesty and loopholes for fraud and abuse.