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  1. Schumer is wrong; if Hillary Clinton is elected, immigration reform will be impossible. by Nolan Rappaport

    WASHINGTON TIMES

    In an interview with CNBC’s John Harwood, Senator Charles Schumer said that his Schumer-McCain immigration reform bill passed the Senate by a vote of 68-32. According to Schumer, in the next congress, the mainstream conservatives in the Senate and House, who are a majority, will say to the 50 congressmen on the hard right who seem to tie things in a knot, to go take a hike. Schumer, Clinton, and Ryan have all said that they will support immigration reform and some kind of international tax reform if it is tied to a large infrastructure program.

    The Senate has passed two major immigration reform bills, but both were opposed by a majority of the Senate Republicans. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Only 23 Republican senators voted for it; the other 32 Republicans and four Democrats voted against it. On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. This time, only 14 of the Republicans voted for it; the other 32 voted against it. As could have been expected, both bills were dead on arrival when they reached the Republican-controlled House of Representatives.

    I am only aware of one successful immigration reform bill that had such one-sided political support, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was an extremely harsh Republican bill. Ironically, IIRIRA was signed into law as part of a larger bill by Hillary’s husband, Bill. Bill’s formalstatement at the signing ceremony explicitly acknowledged that he was in favor of strengthening the rule of law by cracking down on illegal immigration. The pertinent part of his statement reads as follows:

    This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.

    The obstacle to comprehensive immigration reform today is that the Democrats and the Republicans have very different attitudes towards legalization. The Democrats believe that the 11 or so million undocumented aliens in the United States should have lawful status because they deserve it and it is the right thing to do. The Republicans, however, believe that the undocumented aliens are in the United States in violation of our laws and should be deported.

    But there is a way around that deadlock, the wipe-the-slate-clean deal that was the basis for the passage of the last comprehensive immigration reform bill thirty years ago, the Immigration Reform and Control Act of 1986 (IRCA). Faced with the realization that the 2.7 million undocumented aliens in the United States at that time were never going to be deported, which is just as true about the 11 million undocumented aliens we have now, the Republicans agreed to legalize the undocumented aliens who were already in the United States in return for an enforcement program and a secure border that would prevent a new group of undocumented aliens from taking their place. The Democrats got their legalization program but the promised enforcement program was never implemented and the border was never secured. By the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

    I believe that the Republicans would agree to the same deal now if they were assured that this time, they would get border security and interior enforcement before a legalization program is implemented. The problem is that the Republicans would never trust Hillary Clinton to implement interior enforcement and without interior enforcement, border security is impossible. Knowledge that an undocumented alien will not be deported once he has reached the interior of the country is a powerful magnet that will draw undocumented aliens here from all over the world. This would be particularly true of aliens who can come here under the Visa Waiver Program.

    At a Democratic Presidential Debate on March 9, 2016, Hillary Clinton said that if she is elected, she would not deport any undocumented alien children and she would only deport undocumented adult aliens who have criminal records. As president, she would enforce the immigration laws humanely by focusing resources on detaining and deporting immigrants who pose a violent threat to public safety. And she is still making these promises.

    Ironically, immigration reform would be possible if Donald Trump is elected. If he tries to carry out his promise to deport the 11 million undocumented aliens, which already has been whittled down to deporting the criminals “and then we’ll see,” he will come to the same realization that previous Republican leaders have faced. It can’t be done. The Donald, however, is a proud man and he sees himself as a great deal maker. I would expect him to view bringing the two parties together on a comprehensive immigration reform bill as a great challenge. Being an experienced businessman, as opposed to being a politician, I would expect him to look for a compromise that would meet the essential needs of both parties instead of trying to achieve an outcome that would advance the agenda of his party. And he could be counted on to implement enforcement provisions and secure the border. My prediction is that the outcome would be a second Immigration Reform and Control Act, IRCA of 2017.

    Published originally in Huffington Post
    http://www.huffingtonpost.com/entry/...=1476841945194

    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.






    Updated 10-19-2016 at 04:55 PM by ImmigrationLawBlogs

  2. Deportation Without Due Process? by Nolan Rappaport



    Our immigration court system is in the midst of a crisis. The number of cases awaiting resolution reached 496,704 as of the end of June 2016, and the flow of new cases exceeds the number of cases completed each month so that the backlog will continue to grow. The end of June figure represents an average backlog of 1,819 cases for each of the 273 immigration judges. It would take about 2.5 years to clear up this backlog even if there were no new cases coming in. The House Subcommittee on Immigration and Border Security held a hearing on this on December 3, 2015. The solution considered at the hearing was to increase the number of immigration judges. Certainly, that would help, but I do not believe that the supply of qualified lawyers is big enough to make a sufficient increase. Even if it were possible, the resulting increase in decisions from the immigration court would greatly increase the backlog at the Board of Immigration Appeals. An alien who is dissatisfied with the decision of an immigration judge can appeal the decision to the Board of Immigration Appeals, and his deportation will be postponed while the appeal is pending.
    [/SIZE]


    The Board faced a similar backlog crisis in 1999 during the Administration of Bill Clinton. Unsuccessful attempts were made to handle the backlog by adding Board members and increasing support staff. When it became apparent that a different approach was needed, Attorney General Janet Reno changed the regulations governing the Board to reduce the number of cases that would receive a full review by creating a “streamlining panel.” Cases that can be disposed of quickly are directed to the streamlining panel for expedited processing by a single Board member. The rest of the cases are directed to a merits panel where they will be reviewed by three members. On the streamlining panel, a staff attorney reviews the file, prints out a form order that affirms or reverses the judge’s decision, and then a member signs the decision or sends it back to the staff attorney for a different disposition.


    I predict that something similar will be done to reduce the caseload of immigration judges. The obvious choice would be a modified stipulated removal program. Stipulated removal permits an alien in removal proceedings who does not want to fight deportation to waive his right to a hearing. When an alien has agreed to stipulated removal, an immigration judge will sign a deportation order without a hearing if he is satisfied that the requirements for a stipulated removal order have been met.


    I asked Wayne Stogner, a retired immigration judge, about this practice. He told me that stipulated removal orders were not common in his court, but he could recall times when 25 or so stipulated removal orders would be handed to him in chambers. The aliens were not present when he reviewed the orders. He only signed stipulated removal orders when he was satisfied from reviewing the documents that the aliens knew their rights and that their agreement to stipulated removal was voluntarily, knowingly, and intelligently made.


    Stipulated removal was authorized by section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which amended the Immigration and Nationality Act (INA). Initially, the implementing regulations specified that immigration judges could only accept such stipulations from individuals who were represented. In 1997, this language was amended by the Clinton Administration to allow the immigration judge to accept stipulations from unrepresented aliens.


    Former President Bill Clinton signed IIRIRA into law. It was included in a larger bill. In those days, it was possible to oppose “illegal” immigration without being called a racist or a bigot. When his chief of staff, Leon Panetta, gave a briefing on IIRIRA, he said, “We were able, I think, as a result of this negotiation to be able to modify — eliminate the large hits with regards to legal immigrants while keeping some very strong enforcement measures with regards to illegal immigration.” Moreover, Bill’s formal statement at the signing ceremony includes the following comment.

    This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.


    The pertinent part of the stipulated removal provision, section 240(d) of the INA, reads as follows:

    (d) Stipulated Removal. The Attorney General shall provide by regulation for the entry by an immigration judge of an order of removal stipulated to by the alien (or the alien’s representative) and the Service. A stipulated order shall constitute a conclusive determination of the alien’s removability from the United States.

    The essential elements of a stipulated removal order are specified in, 8 C.F.R. § 1003.25, which provides that the stipulation must include an admission that all factual allegations contained in the charging document are true; a concession of deportability or inadmissibility; and a waiver of the right to appeal the order. The objective of the regulation is to make sure that the alien knows what he is doing when he signs a stipulated removal agreement.


    The stipulated-removal program was rarely used until President George W. Bush ramped up immigration enforcement in 2004. From 2004 to 2010, more than 160,000 aliens were deported on the basis of stipulated removal orders. I was not able to find more recent statistics.


    According to the American Immigration Council, the vast majority of the 160,000 aliens who agreed to stipulated removal orders between 2004 and 2010, were in detention and were not represented by an attorney. Consequently, it is doubtful that their agreements really were voluntarily, knowingly, and intelligently made.


    There were strong objections to the streamlining panel too.

    Published initially on Huffington Post.
    http://www.huffingtonpost.com/entry/57e01aebe4b053b1ccf2a109?timestamp=1474393272060


    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.
  3. Hillary’s immigration policies will not lead to comprehensive immigration reform.

    By Nolan Rappaport


    According to Hillary Clinton, America needs comprehensive immigration reform with a pathway to citizenship. I agree, but I do not think her vision of comprehensive immigration reform is really “comprehensive.” According to the Oxford dictionary, “comprehensive” means “Complete; including all or nearly all elements or aspects of something.” Hillary’s immigration reform policies essentially just address the problems that concern the Democrats. A comprehensive approach would have to address the issues that are important to the Republicans too, such as effective interior enforcement and a secure border. In other words, to be comprehensive, it would have to meet the political needs of both parties.

    Hillary is not alone in her approach to immigration reform. To my knowledge, the Democrats have not passed a truly bipartisan immigration reform bill in the last 30 years. They have passed immigration reform bills that they have called “bipartisan,” but I do not think they really were. For instance, the Senate has passed two major immigration reform bills and both were opposed by a majority of the Senate Republicans. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Only 23 Republican senators voted for it; the other 32 Republicans and four Democrats voted against it. On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. Only 14 of the Republicans voted for it; the other 32 voted against it. Both bills were dead on arrival when they reached the Republican-controlled House of Representatives.

    I am only aware of one successful immigration reform bill that had such one-sided political support, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was an extremely harsh Republican bill. I am very familiar with IIRIRA because I was brought to the House Judiciary Committee in 1997, as an Executive Branch Immigration Law Expert, to analyze IIRIRA and write a bill for the Democrats to fix the provisions which we believed had taken the fairness and compassion out of our immigration laws. The bill I wrote, the Restoration of Fairness in Immigration Law Act of 2000, was introduced by Congressman John Conyers, with 47 cosponsors, on July 26, 2000. It was the legislative foundation for the “Fix’96” campaign. I think these fixes should be included in a comprehensive immigration reform bill. The only current bill that provides these fixes is Congresswoman Sheila Jackson Lee’s, Save America Comprehensive Immigration Act of 2015, H.R. 52.

    Ironically, IIRIRA was signed into law as part of a larger bill by Hillary’s husband, Bill, who apparently agreed with Republican enforcement policies. When his chief of staff, Leon Panetta, gave a briefing on IIRIRA, he said, “We were able, I think, as a result of this negotiation to be able to modify — eliminate the large hits with regards to legal immigrants while keeping some very strong enforcement measures with regards to illegal immigration.” Moreover, Bill’s formal statement at the signing ceremony explicitly acknowledged that he was in favor of strengthening the rule of law by cracking down on illegal immigration. The pertinent part of his statement reads as follows:
    This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.

    The last really comprehensive immigration reform bill was passed thirty years ago, the Immigration Reform and Control Act of 1986 (IRCA). It was a remarkable accomplishment, and Republican President Ronald Reagan seemed to be very proud of it when he made his statement during the signing ceremony. He said:
    [IRCA] is 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....

    What happened after IRCA was enacted, however, is a different matter. It was supposed to permit the creation of a path to citizenship for undocumented immigrants in return for increased enforcement measures and a secure border. It was a wipe-the-slate-clean-and-start-over deal. The Republicans permitted approximately 2.7 million undocumented aliens to be legalized in return for border security and an effective interior enforcement program that would prevent the development of such large groups of undocumented aliens again in the future. But by the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens. In other words, the Democrats got their legalization program but the Republicans never got the border security or the interior enforcement program they had been promised.

    I believe that the Republicans would agree to the same deal now if they were assured that this time, they would get border security and interior enforcement before the legalization program is implemented, and such an agreement would be a solid foundation for creating a comprehensive immigration reform bill that truly would be “comprehensive.”

    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.

    Updated 09-26-2016 at 04:31 PM by ImmigrationLawBlogs

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