Authorities Get a Lot of Leeway in New Immigration Reform Law

In writing the new immigration reform law, Congress could have defined a requirement that illegal aliens applying for amnesty prove “continuous residence” in the United States since before Jan. 1, 1982.

Instead, lawmakers left it to the U.S. attorney general to decide how many days or weeks of absence from the country applicants will be allowed without losing the right to legalization.

Congress also granted the attorney general--and through him the Immigration and Naturalization Service--power over other key questions, including what will prove U.S. residence and what will disqualify an applicant who is likely to become a “public charge.”

During the multiyear history of the bill there were suggestions for more specific rules. But as the law took its final shape, legislators focused on broad compromises rather than precise answers on these issues.

“Clearly there’s a lot of leeway or discretion given to the executive branch, primarily the INS, as it goes about trying to implement (the law),” said Norman J. Ornstein, a congressional scholar at the American Enterprise Institute in Washington.

“Almost any major piece of legislation has a very substantial role . . . for regulation writers,” Ornstein added. “Congress always leaves a lot of specific questions unanswered. But in most areas, there’s a background and a set of precedents, issues that have been grappled with before. This immigration bill, more than most others, gets into uncharted waters. That has the effect of giving considerably more clout to those people who will be either writing regulations or making implementation decisions.”

That is exactly what worries many immigrants-rights activists.

Linda Wong, an attorney with the Mexican American Legal Defense and Educational Fund, said she believes that Congress “has abdicated its responsibility” by leaving “the hard-core decision-making up to the attorney general and INS.”

Many of those involved in writing the bill, however, say it is appropriate for some important decisions to be left to the executive branch.

“We got as detailed as I think lawmakers should,” said Richard Day, staff director and chief counsel of the Senate subcommittee on immigration, who helped draft the 82-page law. “The ones who think it’s not clear are the ones who are saying, ‘It’s not yet clear that the INS is going to be as generous as I’d like them to be.’

“In passing the law, Congress develops a policy, but the Administration has to determine the best, most feasible way to carry it out. . . . There’s no way we in Congress can sit down and identify every possible document that might be useful in establishing residency in this country.”

Rep. Daniel E. Lungren (R-Long Beach), a member of the House immigration subcommittee, said the bill is more detailed than many laws, but that “there will be some interpretations, and those interpretations will be important.”

Lungren cited Congress’ decision to grant the attorney general authority to define “continuous residence” as an example of how the law was affected by the need for political compromise. “Frankly, we might have gotten into more fights on the floor of the House and Senate had we been more definitive about the number of days or weeks (of absence) allowed,” he said.

Joshua Koltun, a legislative assistant to Rep. Barney Frank (D-Mass.), stressed that the House and Senate immigration subcommittees will exercise an oversight role as INS moves forward with regulation writing and implementation.

“Congress doesn’t wash its hands of the bill once it’s passed,” Koltun said.

A national ad hoc coalition of immigrants-rights, Latino and church groups has announced that it too will seek to influence the writing of regulations.

The courts also are likely to play an important role in how the law is implemented. Immigrants-rights advocates have already won an initial victory in federal court in Sacramento in a case challenging some INS rules for implementation of the law. The plaintiffs expect that case to provide a forum for further challenges in the months ahead.

While immigrants-rights advocates have focused attention on amnesty-related issues, how INS chooses to enforce sanctions against employers who knowingly hire illegal aliens will also be important.

“There are going to be so many violations the INS cannot possibly prosecute them all,” said Maurice A. Roberts, editor of Interpreter Releases, a Washington-based immigration law weekly.

INS will probably target “bigger game”--those employers who engage in a “pattern or practice” of hiring illegal aliens, Roberts said. “This is what you might call ‘prosecutorial discretion,”’ he added.