Immigration Reform - Part 1-The Waiver

by Dan Vara

Immigration reform is much needed because what we have today does not work.

Finally, it appears to have a credible chance of taking place.

The “Group of Eight” has done an admirable job of creating what seems to be a reasonable mix of benefits versus enforcement in their proposed legislation.

How do we know that? Because both sides of the issue are critical of the effort and the specifics.

The Left is beside itself that Congress might actually require foreign nationals illegally present in this country to undergo security checks, to wait for any real status, to pay money for the privilege of attaining immigration status, and to have been in the United States by a date certain in order to qualify for any of the potential benefits that the new law provides.

The Right is incredulous that Congress cannot see that without provisions that guarantee enhanced border enforcement that, in summary, involves an army of new immigration Agents and high-tech resources closing off our borders , all we are doing is abdicating our national security and granting amnesty to those who have flaunted our laws.

Both viewpoints are acutely ignorant of the issue or, in some instances, are the exemplification of political rhetoric unencumbered by the facts or knowledge of the real issues.

The Problem

The problem is not what we ask of aliens who seek to come to or remain in the U.S.

The problem is not our lack of enforcement laws or troops in the field.

Anyone who is a true immigration professional—meaning somebody who has spent real time in the trenches actually involved in the process—knows that the current system does not work because of one reason and one reason alone.

The problem is inefficiency.

In short, the problem is and has been that the way the laws have been implemented, and the way that U.S. immigration procedures have evolved, have no relation to efficiency.

Setting eligibility criteria and putting anyone who legally wants to obtain a benefit through a qualification process and making them, as opposed to everyone else in society, pay for it is proportionately no more onerous than it is for those who legally come to this country.

What is onerous is the failure of the U.S. Citizenship and Immigration Services (USCIS) to provide timely and meaningful service in a large number of cases, and the maddening uncertainty that has on an applicant’s life for the duration of the significant wait that they are certain to experience between the time they apply and the date they learn whether they are approved or not.

Effective enforcement laws are already on the books. But, for the most part, they are enforced only against, as one very astute Immigration and Customs Enforcement (ICE) Assistant Special Agent-in-Charge once said, the “low-hanging fruit.”

Numbers dictate. Quantity versus quality rules.

The problem is with high-volume numbers, you can only process or detain so many at a time. No matter how significant your resources are.

No detention facility, even a “super-facility,” will work. That is because you cannot hold a person who is not a threat to the community indefinitely. Especially if you are holding the person because your system is so inefficient that you cannot get them through their immigration “due process” for years to come. Even if you can claim the person is a potential flight risk.

Ask any government attorney in any jurisdiction, even the most conservative, if they have any sense of whether that is a defensible position before a federal district court judge.

We also have the “army.” Yet, and for the most part, they are not well-equipped, they are not supported the way they should be, and, in some cases, they lack the senior leadership capable of or willing to engage in the political battles that would allow the troops the opportunity to do their jobs.

The Fix

So what changes can be made to the proposed immigration legislation to appease those on the left and those on the right who oppose reform and still get what is needed?

That’s easy.

One fix, and one fix alone, is all that is required.

Modify the new legislation to require every applicant for immigration benefits to execute a Waiver.

A waiver of their right to contest their deportability, a waiver of their right to hearing regarding other relief, and a waiver of any right to appeal the final decision of the Department of Homeland Security on their application for benefits other than on the basis of misidentification.

This waiver concept is not new. It exists in current immigration law for Visa Waiver entrants who enter the U.S. as temporary visitors from certain countries; allowed to do so without visas but required to waive their rights to removal hearings and appeals if they violate their status in the U.S. It also exists in the arena of federal employment law in the form of “Last Chance Settlement Agreements,” where federal employees accused of misconduct waive their rights to an appeal for future instances of alleged misconduct in return for the agency agreeing to keep them on the job in relation to the currently alleged misconduct which the agency might have had difficulty proving in litigation.

Used wisely, such waivers work.

The Left

Those on the left will, at first blush, be appalled and cry foul at the mere thought of such a thing.

Yet, on reflection, they should be appeased.

Such a waiver will ensure that a large majority of those thinking about applying “just because I might get it” will be deterred.

As such, those who do apply will be those who are most certain of their eligibility and should be approved in record time since those who should not apply will not bog down the system like they have in every other category of immigration benefits.

USCIS can then, finally, and in at least one category, be efficient and produce timely and significantly accurate results.

More importantly, they can be held accountable if they do not.

Any potential applicant who knows that he or she qualifies, who has reasonable expectation of being approved, and who wants to attain legal status will apply and gladly sign the waiver. How do we know?

Remember who a majority of these people are. They are doers, who are not afraid of sacrifice for the hope of a better life. If up to us, how many of us would actually cross illegally into a country, trek through deserts, and face both cops and robbers for a job? If we had a choice, how many of us would overstay our visas and work in the shadows? And if we had an alternative, how many of us could accept a life where, any day, we could be scooped up, held in a detention center , and sent back home to a place that, depending on how long we had been in this country, we might not even recognize?

Not many.

Tell an alien illegally in the United States that they can go for broke, pay a fee to the United States for an almost guaranteed immigration benefit instead of to a smuggler to bring them back if they remain illegally here and are caught and deported, potentially gain United State citizenship if they can stay clean, work hard, pay their taxes, and otherwise become a contributing member of our society, and be allowed to remain legally in a country where their kids could one day be highly successful despite where they may have started, and they will jump at the chance.

On the other hand, tell an illegal alien that they are tossing away their Holy Grail right to contest their deportability, no matter how frivolous their position might be, and the chance to remain in the U.S. and work while the system trudges along for years before a final order is issued, on what they know is the slim to no chance that they might get legalized under the Reform, and they will pass on it. If for no other reason than dollars and sense.

They will not agree to pay a large fee, apply, get denied and get deported in record time.

Instead, and as historically proven, they will take their chances, stay underground and work, get caught and work while removal proceedings churn on for years based on their right to contest charges or to apply for relief even where they have little to no chance of getting it, and appeal they lose before an immigration judge and work while their appeal is pending before the Board of Immigration Appeals, a federal circuit court of appeals, and possibly even the Supreme Court.

If they know they do not qualify for relief under the reform, and if they know that they have to waive their rights to try it, they will simply not do so.

That will clear the way for those who deserve to get the benefits of the new law to timely get their legal status.

The Right

With such a waiver, you can also appease the legitimate right, and also potentially silence those whose opposition is simple political rhetoric.

Clear the books of millions of potential immigration cases by allowing the involved foreign nationals to apply for an immigration benefit, and you open up the courts to finally get through their multi-year backlogs.

That means more removal orders, more removals, more open detention bed spaces, and a lot more human resource time to devote to actual immigration enforcement rather the immigration “game.”

As such, for the first time in many, many years, immigration enforcement might actually have some real impact on a national scale.

The Solution

We need a reasonable and legitimate fix to account for and deal with the millions of persons illegally present within our borders.

We don’t need a giveaway program that abrogates the rights of the other members of our society without checks and balances and without a measurable return.

We don’t need a bigger army of immigration enforcement personnel or the purchase and implementation of a high volume of state of the art technical resources.

We don’t need new enforcement laws.

We just need the will to pass legislation that will get us beyond the immigration morass that we have gotten ourselves into.

And we need a way to ensure that we do it to the benefit not the detriment of our country and its immigration policies and procedures.

Pass the law.

But, include the waiver.

It will work.

About The Author

Dan Vara was the INS District Counsel, United States Department of Justice, in Miami, Florida from 1990 until 2003. He was also the ICE Chief Counsel, United States Department of Homeland Security, in Orlando, Florida from 2003 until 2006. As the highest ranking federal immigration attorney in the State of Florida, he was at the forefront of many significant immigration enforcement matters involving counterterrorism and counterintelligence. He was also an instructor on such matters at INS, ICE and FBI conferences. He is now in private legal practice in South Florida.