Critics say background check provision protects illegal immigrants with rap sheet

With more than 11 million illegal immigrants living in the so-called "shadows," immigration reform supporters say legalizing the group will make America safer. But opponents of the current Senate bill claim a provision requiring background checks for those illegal immigrants is so weak that it would actually protect criminals and gang members.

Their concern is with a clause that would, during the background check process, prohibit immigration officials from forwarding criminal histories to law enforcement for deportation purposes.

"The idea is we are supposed to be weeding out the bad apples," said Steven Camarota, of the Center for Immigration Studies. "But the big problem with the bill is it does not require those denied the amnesty to leave the country. In fact, a confidentiality provision in the bill prevents law enforcement from using information in the application to go find you."

That means felons and fugitives -- particularly those with three or more misdemeanors, who are not supposed to be eligible for legal status -- can remain in the shadows, in the U.S. Critics also say the check is no more than a rubber stamp, with no personal interview, reference check or state-issued identification required.

"I don't mean to be flip," Center for Immigration Studies Executive Director Mark Krikorian told a Senate panel recently. "But this section could have been subheaded 'no illegal alien left behind.' The goal seems to be get amnesty for as many people possible."

Those who favor reform contend the Senate bill isn't amnesty, since illegal immigrants must pay a fine. They admit the bill isn't perfect and allows those with minor crimes in their records to stay -- especially if deporting them would generate a hardship on their family. But they argue the confidentiality clause was necessary to draw as many applicants as possible.

"We're a better nation when we have 11 million coming forward," said Sen. Dick Durbin, D-Ill., a member of the Senate Judiciary Committee.

Supporters acknowledge that document fraud will happen but the legislation, they say, makes today's broken system better.

"If we can have mandatory e-verify where an employer can tell if somebody presenting themselves for work is the person they say they are; if the Social Security number that they carry is valid, that'll be a huge advance from where we are right now," said Sen. Jeff Flake, R-Ariz., a member of the "Gang of Eight" lawmakers who wrote the bill.

Other controversial provisions allow some illegal immigrants already deported to come back, if they are a spouse, parent, or child of a U.S. citizen. The Senate bill also effectively halts deportations during the legalization process by allowing illegal aliens apprehended before or during the application process to be provided an opportunity to apply for provisional status. This means they cannot be removed until their application is adjudicated.

Republicans may try to toughen or amend the bill. However, the legislation is so tightly negotiated, any substantive change could imperil it.

Immigrant rights supporters argue people with small offenses on their record who are otherwise qualified to immigrate to the U.S. should not be excluded, and that those with children or spouses in the U.S. should not be sent home because of an old felony or gang affiliation.