Comprehensive Immigration Reform Defined
A comprehensive immigration plan should avoid the extremes of an amnesty or draconian removal. It should break down the problem into manageable pieces and see how we can solve each piece with a view to what's best for America.'Reform' means to alter or change. Let's be careful what we change until we're sure that the change is for the better. One side of the immigration debate has defined 'comprehensive immigration reform' to be an amnesty in disguise. By repeating this over and over again many observers have accepted this view. It is just one view and not necessarily the best one. An amnesty, no matter how we disguise it, is a simplistic approach that might sound good to those in the press or the public not educated in the details of our system. It would be better to call it 'visa, immigration and nationality reform'. It is better called this because that more completely explains the areas under which any comprehensive plan needs to touch. Too many lawyers have forgotten the distinction between advocating for their clients and good policy for America. Are there any criminal attorneys who advocate freeing and pardoning all convicts? I suspect there are many who would advocate changes in the criminal law and procedure with a view towards more just outcomes. The immigration bar needs to get there if they are to have any meaningful impact on the negotiations in Washington. I would also argue that any comprehensive plan that is simply a draconian deportation and removal plan is equally simplistic and also equally as bad for America as the amnesty plan. By using the word 'comprehensive' we mean 'complete', 'inclusive' and 'through'. Starting from that more grammatical definition we can begin to construct a better way to approach the problem. That better way will look to break the problem down into manageable parts and seek to determine what parts should be changed and what parts should be left alone. If we include enough parts we can call it 'comprehensive reform', but we should not be in a rush to do too much just so that we can use the word 'comprehensive'. Any comprehensive approach needs to leave alone that part of the law that works, and I would argue that most of it works, albeit slow and inefficiently. For example: our criminal removal system has gotten to a point that it functions well. Where it doesn't function well is in the Immigration Court stage where overworked judges postpone cases for years while they deal with smaller matters that should never have come before them in the first place. The last 'comprehensive' plan was the Simpson-Mazzolli bill: (Pub.L. 99-603, 100 Stat. 3359, enacted November 6, 1986) which gave us an amnesty, farm worker program, and employer sanction plan. It failed on all three counts. The amnesty legalized two million aliens and encouraged another twelve million to enter the United States without documentation. The farm worker program had easily a ninety percent plus fraud rate and employer sanctions were never really enforced because every congressperson made sure that employers on their districts were left alone. The definition of insanity is doing the same thing over and over and expecting different results. I fear that our leaders in Washington don't understand this definition. Draconian enforcement will also not work. Under President Obama's first term enforcement was increased. Some would argue that illegal immigration is down because of this but I would argue that any decrease is due to the economy and the lack of jobs. In any event, not many people are leaving either because many have roots here including family or have little to go back to. Draconian enforcement will cause economic dislocation for American employers and hardship to aliens residing here for long periods of time and who often support American families. There are political considerations when sending back people to countries that cannot absorb them. We would have to significantly increase the size of our enforcement bureaucracy to accomplish increased enforcement at a time when we seek to trim government spending. We need an approach in between these extremes. I will mention some ideas here, but each of these ideas is easily the topic of an additional article. We need an approach that allows more immigrants to come here under an orderly plan in which each must wait their turn. We need a plan under which more educated young people can remain here while they continue their studies or begin their carriers. We need a plan that allows Immigration Judges more authority to use their judgment (or why have judges at all) and to allow certain aliens to remain here, under liberalized standards of hardship. We might consider a western hemisphere work program similar to the Bracero Program that ended in 1964, in order to recognize the economic reality on the ground, monitor, tax and control it. We want increased visa numbers for H-1 specialized workers to allow American companies to bring workers here and conduct operations here. It is also good for America to encourage investors to establish businesses here under liberalized standards. We need to add a provision to make DACA a statutory non-immigrant visa program with an end. It would do no good to have an open-ended provision that encourages people to bring their minor children to the U.S. indefinitely. Too many loopholes make the law simply a game to be played. There are too many loopholes in our federal statutes like that now. There is also plenty of room for humanitarian concern and assistance. The United States has always been generous in helping others and integrating them into our population. There is no reason for this to change. We must determine who we want as Americans. With whom should we share our nationality? This is a much more difficult question, but there are some parameters. We don't want everyone. We don't want to open our doors no matter what criminal history a person has or what diseases they might bring. We also should not want anyone who does not buy onto the American vision of America as a republic based upon democratically elected representatives and a nation that respects the rights of it's citizens including religion, speech and property. We don't want people who disrespect our laws, but we at the same time don't want to exclude those who have unintentionally disobeyed obscure or complicated laws or regulations. Not every benefit needs to lead to American nationality. We might have longer periods of legal residence for some aliens before they are eligible to apply for naturalization. We can't allow whole nations to come to the United States no matter how horrific conditions are there. We cannot allow millions of workers to come and compete with Americans at a time of high unemployment. No congressperson could explain this to those out of work Americans in their districts and the American labor unions would never allow it. Doing things correctly is more important that doing things fast and we need to consider each piece of the puzzle independently and without the pressure of completing some 'comprehensive' approach quickly to satisfy some ones political agenda. I would also argue that getting some of it right, now, and postponing some of it for later might better suit any long-term improvements in our visa, immigration, and nationality situation. It might be wise to fix some parts now and wait a couple of years to see how those fixes work. Just because the term 'comprehensive' sounds good politically doesn't make it the right thing to do.
Harry DeMell is an Attorney practicing exclusively in the area of Visa, Immigration and Nationality Law since 1977.