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  • Article: Republicans Will Continue To Reject Comprehensive Immigration Reform Bills Until These Problems Are Resolved by Nolan Rappaport

    Republicans Will Continue To Reject Comprehensive Immigration Reform Bills Until These Problems Are Resolved.

    by


    Thirty years ago, Republican President Ronald Reagan signed the last immigration reform bill that had a legalization program, the Immigration Reform and Control Act of 1986 (IRCA).  At the signing ceremony, he said, “IRCA was the product of one of the longest and most difficult legislative undertakings of recent memory.  It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.” 

    IRCA met the political needs of both parties, which is something that no comprehensive immigration reform bill since then has done.  On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, and on June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744.  They were written by members of both parties, but neither had the support of a majority of the Senate Republicans.  Consequently, it should not have been a surprise that both bills were dead on arrival when they reached the Republican controlled House of Representatives.  The most obvious problem was that neither bill provided for effective interior enforcement of our immigration laws.  That problem should not be hard to resolve when both parties are ready to make the necessary compromises.  But legalization presents a few problems that will be difficult to resolve. 

    Donald J. Trump addressed one of these problems in a news release on December 7, 2015, in which he made a campaign promise to order “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Unfortunately, this was so badly stated politically that even fellow Republicans attacked him for saying it; and the Democrats launched an angry ad hominem attack against him that is still going on, calling him a racist, accusing him of hating Muslims, and claiming that he is discriminating against Muslims on the basis of their religion.  This could have been avoided if he had had a staffer with immigration expertise writing his talking points.  It became apparent later that he just wanted aliens who are coming from countries that terrorists work out of to have background investigations before they are allowed to come to the United States.  With the exception of the Visa Waiver Program, which is a glaring weakness in our border security even with the recent changes following the Paris terrorist attacks, Republicans have always insisted on a background check of some kind for aliens coming to the United States, and that was not possible in every country Muslims would be coming from when Trump made his unnecessarily inflammatory statement.

    Top U.S. counterterrorism officials had been saying that it was not possible to confirm that Syrian refugees were who they claimed to be or to determine whether they had ties to terrorist organizations.  For instance, U.S. Citizenship and Immigration Services official Mathew Emrich said that the government did not have access to any database in Syria that could be used to check the backgrounds of incoming refugees against criminal and terrorist groups.  According to FBI Director James Comey, “We can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.”   FBI assistant director Tom Fuentes, explained the problem this way, “Our human sources [in Syria] are minimal, and we don’t have a government we can partner with, and that’s a key thing.”  National Counterterrorism Center Director Nicholas Rasmussen stated that, “the intelligence picture we’ve had of this [Syrian] conflict zone isn’t what we’d like it to be... you can only review [data] against what you have.”  DHS Secretary Jeh Johnson added, “It is true that we are not going to know a whole lot about the Syrians that come forth in this process.”  And it seems unlikely that such difficulties did not exist to some extent in other middle eastern countries as well.

    What does this have to do with getting the Republicans to agree to a legalization program?  It is a problem with legalization applicants for the same reason that it is a problem with refugee applicants.  Unlike the situation in which a U.S. Consulate Office does a background search on a visa applicant in his own country, legalization applicants and refugees are outside of their countries, and it can be virtually impossible with current screening methods to determine who they really are or where they are really from, which makes a meaningful background investigation impossible.        

    When I was an immigration counsel on the House Judiciary Committee, I responded to this conundrum with the claim that a legalization program will bring the undocumented aliens out of the shadows so we can find out who they are and make a biometric record of their identities.  Once we have established their identities (real or otherwise) with biometric and other data, we at least will be able to track them moving forward.  That argument is still being used, but not by me.  I stopped using it when I read the 9/11 Commission’s report. According to the 9/11 Commission, being able to travel freely in and out of the United States is a powerful tool for terrorists, as is being free remain here to conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, make contacts in the United States, acquire necessary materials, and execute attacks.  Moreover, terrorists are not the only criminals who would come out of the shadows to apply for legalization.  We also would be giving legal identities and lawful presence to other types of criminals.  And unfortunately, the screening difficulties and the risks would be increased exponentially with a legalization program having more than 11 million applications.   

    Such a massive legalization program also would need funds for start-up costs before it could begin to process millions of applications.  It would have to hire and train additional personnel, purchase or lease additional office equipment, design software applications systems, lease additional office space, and so on.  And neither of the Senate immigration reform bills has provided a way to confirm an applicant’s claimed identity and nationality or do background investigation that would have acceptable reliability.  Furthermore, such a program would require years to complete the processing of 11 or more million applications.  We would need a way to prevent aliens who could establish eligibility for legalization from being put in removal proceedings while their applications are being processed without having to completely shut down immigration enforcement while the legalization program is being implemented.

    I worked out a solution to some of these problems nine years ago with Greg Siskind.  We proposed supplementing the legalization program with a pre-registration program that would provide modest interim benefits and also raise funds for the start-up costs of the larger legalization program without requiring an appropriation.  Pre-registration would be done online in order to quickly register the expected mass number of applicants, and the pre-registration fee would be a partial prepayment for the anticipated cost of processing their legalization applications.  

    Applicants who pre-register for the legalization program would receive a temporary, very restricted form of lawful status. A status document with a short expiration date (perhaps thirty or sixty days) would be downloaded and printed, and then later a more secure card that could be renewed periodically would be mailed to the registrant.  This would provide temporary lawful status and work authorization and eliminate the fear of deportation to encourage people to “come out of the shadows” and register for the program.  Immigration restrictionists still might object, but the reality is that most of the undocumented aliens who would benefit from this program already are living and working in the United States.  They would not be provided with the other benefits of a legalization program, such as being able to travel in and out of the United States, until their claimed identities and nationality have been confirmed and they have passed a background investigation.  

    The pre-registration program would be coupled with severe penalties for fraud and willful misrepresentation to discourage individuals who know they are ineligible for the program from registering for it.

    I am sure that a way also can be found to confirm an applicant’s identity and nationality and do an adequate background investigation too, but only if those problems are recognized and an effort is made to resolve them.   

    This article is reprinted with permission from the author. It was originally published by the author on Huffington Post


    About The Author

    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 8 Comments
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      There are many sincere,responsible and respected Republicans who are genuinely worried that Donald Trump will turn America into a fascist dictatorship and who are refusing to support him for that reason. Aren't their goals and objectives worth respecting too?

      Fifty Republican national security experts have signed a statement saying that Trump would be a risk to America's security and the most reckless president in America's history. Aren't these Republican objectives worth "accommodating"?

      Everyone who cares about this country's national security, and the survival of our democracy, should be voting for Hillary Clinton this fall. There is no other choice.

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Two former Republican Secretaries of State, Henry Kissinger and George Sholtz, are both considering endorsing Hillary Clinton for president, according to The Hill. How about that for "Republican political objectives"?

      See: September 2:

      Kisssinger, George Shultz, mull Clinton endorsement


      http://www.thehill.com/blogs/ballot-...ndorsement-god

      And see also:

      Salon.com, March 15: It's already happening here: Donald Trump and America's creeping fascism

      http://www.salon.com/2016/03/15/its_...scism_partner/

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      And when is America finally going to start living up to its humanitarian responsibilities? See:

      Washington Post Editorial, September 2: America has accepted 10,000 Syrian refugees. That's still too few.

      The link is:

      http://www.washingtonpost.com/opinio...253_story.html


      Roger Algase
      Attorney at Law
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Quote Originally Posted by ImmigrationLawBlogs View Post
      There are many sincere,responsible and respected Republicans who are genuinely worried that Donald Trump will turn America into a fascist dictatorship and who are refusing to support him for that reason. Aren't their goals and objectives worth respecting too?

      Fifty Republican national security experts have signed a statement saying that Trump would be a risk to America's security and the most reckless president in America's history. Aren't these Republican objectives worth "accommodating"?

      Everyone who cares about this country's national security, and the survival of our democracy, should be voting for Hillary Clinton this fall. There is no other choice.

      Roger Algase
      Attorney at Law
      I don't understand what your comments have to do with my article. As for the 50 experts, I made a list of their claims in the letter you keep mentioning, and they all looked like unsubstantiated conclusions to me. And many of the conclusions were on topics that their "expertise" would not include. I sent the list to you and asked if you could point out any conclusions that were substantiated and you didn't respond. I am not a fan of Trump, but I am quite weary of the ad hominem and straw man arguments you and others are using against him instead of responding to what he says on the merits. And I am particularly tired of the character assassinations. Incidentally, you are among the critics who claim that his plan to build a wall across the border with Mexico is based on hatred, racism, and .... I don't actually remember the derogatory terms being used. In my article on his ten-point immigration plan, I pointed out that a majority of the Senate democrats, including Hillary Clinton, voted for the secure Fence Act of 2006, which authorized the building of 700 miles of physical barriers along the border with Mexico. Why aren't you using the same derogatory terms on Hillary? What is the difference between her wall and the one Trump wants to build?

      I don't see the relevance of your other two comments either.

    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      A July 20 Gallup Poll report says that more Republicans favor a path to citizenship for unauthorized immigrants than favor a Wall with Mexico. Isn't it time for Donald Trump to get in tune with the immigration objectives of a majority of Republicans since he is their party's standard bearer? Or does Nolan think that the Gallup organization is also just making "straw man arguments" and ad hominem attacks against Trump?

      Nolan's lengthy article claims that the Democrats need to take Republican political objectives into account in achieving immigration reform. He doesn't say that those objectives necessarily have to be justified or correct, just that accommodation is necessary.

      But when 50, yes, fifty, distinguished Republican former national security officials issue a statement saying that Donald Trump is a danger to America's national security, then Nolan doesn't seems to think that their Republican objective, namely protecting America from potentially "the most reckless president" in our history is worth anything.

      Instead, Nolan tries to argue with them, even though they obviously have no partisan motives for opposing their own party's candidate, and with all due respect to Nolan's distinguished record of immigration law scholarship and Congressional staff service dealing with national security, among other issues, he cannot claim to have national security expertise equal to or greater than these fifty distinguished Republican former national security officials.

      Is Nolan really contending that all Republican immigration-related objectives need to be respected and accommodated, or only those which he happens to agree with?

      Nolan also argues that Hillary Clinton once voted for a fence along a comparatively small part of the Mexican border. He could have also argued with justification, but did not, that President Obama has actually engaged in mass deportation - two million people so far - that Trump is only just talking about, since Trump is not the president (and many present and former Republican elected officials hope that he never will be, according to news reports too numerous to mention).

      Does that justify Trump's proposals to build a much longer and bigger wall and to deport at least six times as many people (if not 30 million, a number that Trump also raised as a possibility in his latest speech)? That would leave other famous practitioners of the "Art of the Mass Deportation" such as Stalin, Mao Zedong, and Pol Pot far behind, biting the dust.

      But Hiilary's vote for a fence and Obama's large scale deportations do tell us one thing - that Trumps' claim that they support "open borders" and are helping to flood America with "illegal" immigrants are a total lie, like so many others, such as the lunatic claim that Hillary Clinton and Barack Obama were "founders and MVP's of ISIS", that Trump has told during his campaign.

      For the full Gallup poll report, see:

      http://www.gallup.com/poll/193817/re...?version=print

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      And when I point out, as i have above, that two of America's best known Republican former Secretaries of State, Henry Kissinger and George Shultz, are reportedly refusing to back Trump and are considering announcing support for Hillary Clinton, what is Nolan's response (so far)? Total silence - a little unusual for Nolan.

      Roger Algase
      Attorney at Law
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Nolan's lengthy article claims that the Democrats need to take Republican political objectives into account in achieving immigration reform. He doesn't say that those objectives necessarily have to be justified or correct, just that accommodation is necessary.

      Roger is right. I didn't say that the republican objectives have to be justified or correct, just that accommodation is necessary. That is the essence of a democracy. Roger is advocating a political system in which only the needs of the party he agrees with count. And he seems to be overlooking the proverbial elephant in the room, that there is no other way to get a comprehensive immigration bill through the legislative process.

      But when 50, yes, fifty, distinguished Republican former national security officials issue a statement saying that Donald Trump is a danger to America's national security, then Nolan doesn't seems to think that their Republican objective, namely protecting America from potentially "the most reckless president" in our history is worth anything.

      Instead, Nolan tries to argue with them,

      No, Roger, I have not tried to argue with them. I would have to know the reasons for their opinions to be able to argue with them.

      Is Nolan really contending that all Republican immigration-related objectives need to be respected and accommodated, or only those which he happens to agree with?
      I am saying that the parties have to get together and work out an agreement that would accommodate the "essential" needs of both parties.

      Nolan also argues that Hillary Clinton once voted for a fence along a comparatively small part of the Mexican border. He could have, but did not, also argue, with justification, that President Obama has engaged in mass deportation - two million people so far.

      Does that justify Trump's proposals to build a much longer and bigger wall and to deport at least six times as many people (if not 30 million, a number that Trump also raised as a possibility in his latest speech)?

      Hillary voted to authorize the construction of a wall 700 miles long. The border is only 2,000 miles long and a significant portion of it has terrain that would not accommodate a wall. I doubt that the additional wall Trump would build would be much longer than the one Hillary authorized, particularly if you limit the number to what he would be able to succeed in building.

      Roger, can you quote the sections of Trump's ten-point immigration plan speech where he says that he still intends to deport the 11 million undocumented aliens who are here already? My recollection is that he is going to concentrate on criminals and securing the border, etc., before deciding what to do with the undocumented aliens who are not criminals. He did say they won't get a path to citizenship, but there are other possibilities that would allow them to remain in the US lawfully.

      But Hiilary's vote for a fence and Obama's large scale deportations do tell us one thing - that Trumps' claim that they support "open borders" and are helping to flood America with "illegal" immigrants are a total lie, like so many others, such as the lunatic claim that Hillary Clinton and Barack Obama were "founders and MVP's Of ISIS", that Trump has told during his campaign.

      Roger, is that really all you see in her vote for a 700 mile fence? But yes, I do agree with Trumps' claim that Hillary supports "open borders" and are helping to flood America with "illegal" immigrants. In fact, I was saying that before Trump was on the scene. But I am not saying that she is an open border advocate in the sense that she wants an open border. The open border would be an unintended consequence of her policy to limit deportation to undocumented aliens who have been convicted of serious crimes. That means that no other undocumented aliens will be deported. Don't you see that this would be a magnet to illegal immigration? She is telling the world that an undocumented alien who manages to reach the interior of the country is safe from deportation unless convicted of a serious crime.

      I am not going to respond to your other comments. I'm not being paid to defend Trump's views. My only personal interest is to encourage a rational debate over immigration issues. The ad hominem and straw man argument and character assassinations are preventing that from happening.
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