How border security 'trigger' could stop immigration reform

Congressional negotiators say immigration reform will need a border security 'trigger' to pass. But agreeing on what counts as 'border security' won't be easy, and could determine whether reform happens.

Immigration reformers want to bring the more than 10 million undocumented immigrants out of the shadows. Border security hawks want assurances that if they go along with that plan, they won’t be back in 10 years deciding whether or not to legalize 10 million more.

What’s Congress to do?

Figure out a “trigger,” where advances in border security are deemed sufficient to trigger the beginning of the journey to citizenship for the undocumented already in the country.

As immigration reform negotiations continue, determining just what counts as a “secure border” and how to link that to plans for the undocumented will be crucial. Indeed, finding an answer could determine whether a bipartisan immigration reform measure reaches President Obama’s desk or if 2013 is yet another disappointment for reformers.

Historically, those on Capitol Hill have tried to craft a delicate balance between border security and a path to legal status for the undocumented. For example, the comprehensive immigration reform legislation of the George W. Bush years, which ultimately failed, had a series of triggers. In 2009, Sen. Chuck Schumer (D) of New York proposed more broadly that “operational control” of the border “must be achieved within a year of enactment of legislation.”

But those triggers aren't helpful anymore. Most of the benchmarks for border security established in 2007, for example, have been met today, according to an analysis by the pro-reform advocacy group America’s Voice.

Border patrol staffing north of 20,000? Check: there are more than 21,000 agents on the border at present. Requirements for unmanned drones and a variety of other observation methods? All are at or above the 2007 requirements today. Fencing? Within eight miles of the 2007 target.

Department of Homeland Security Secretary Janet Napolitano said on Tuesday that while the department lacks a single measure on which to base a trigger – and that a trigger based on any single measure would be a bad idea – all the data DHS collects point to a border safer than ever before.

Some Democrats and immigration reform advocates take this to say that the border is secure already and should not stand in the way of the undocumented becoming US citizens even if further border security measures are needed.

Republican reformers like Sen. John McCain of Arizona have a slightly different view, holding that while the southern border certainly is far improved from nearly a decade ago there’s still plenty of room for improvement.

“There's no question there's been a significant reduction in illegal crossings over the past five years…. But that work is not yet complete,” Senator McCain said in January at the press conference announcing a bipartisan Gang of Eight’s principles.

Other Republicans, like Sen. Jeff Sessions (R) of Alabama, are skeptical of such claims and believe figuring out just what constitutes a secure border should be among the goals of a lengthy series of hearings around immigration reform.

So what do lawmakers propose to do this time around? Mr. Obama’s answer appears to be scrap the trigger altogether.

His immigration statements have notably left out any linkage between border security and permanent legal status for the undocumented, noting in his immigration reform plan that if an undocumented person meets certain criteria including paying fines, learning English, and waiting until all other current prospective immigrants have passed through the immigration system, “there will be no uncertainty about their ability to become US citizens.”

However, White House spokesman Jay Carney told reporters something far short of “no triggers” when asked directly about the subject on Tuesday: “There are a variety of metrics by which you can measure, and we do measure, progress on border security.… We're working with Congress on this, with the Senate on this. Progress has been made.”

In the Senate, the Gang of Eight requires that a future group of Southwest border leaders, including governors, attorneys general, and community figures, would certify that the border is secure before any undocumented immigrants could receive green cards. Essentially, the undocumented would, after meeting eligibility steps similar to the president’s, be allowed to receive legal status in the country. Then, when the group of border leaders certified the border secure, those immigrants could begin the path to citizenship.

The reform outline of Sen. Rand Paul (R) of Kentucky calls for a Capitol Hill-based verification scheme that would require Congress to certify that the border is secure for five consecutive years but would begin offering temporary work visas to the undocumented in the second year after enactment.