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  1. Give DREAMers a break, hardliners a bone with GOP immigration bill. By Nolan Rappaport


    It has been more than 30 years since the passage of the last comprehensive immigration reform bill, the Immigration Reform and Control Act of 1986 (IRCA). The main reason for this, probably, is the fact that the Democrats have refused to go along with the Republican demand for effective interior enforcement of our immigration laws.

    IRCA was based on an agreement to create a legalization program for undocumented immigrants who already were in the country in return for interior enforcement measures that would prevent a new group of undocumented immigrants from taking the place of the ones being legalized.

    The Democrats got a legalization program, but the enforcement measures the Republicans were supposed to get were never fully implemented.

    …..

    Senator Jeff Flake (R-Ariz.) has provided the Democrats with a chance to show that they are ready again to accept a bill that includes effective enforcement measures. He has introduced a bill that combines serious enforcement provisions the Republicans want with benefit provisions the Democrats want.

    To read the rest of the article, go to –
    http://thehill.com/blogs/pundits-blo...dliners-a-bone

    Published originally on The Hill.

    _____________________________________________________________________________________

    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 01-12-2017 at 09:19 PM by ImmigrationLawBlogs

  2. What immigration enforcement measures is the Senate planning to legislate in 2017? By Nolan Rappaport


    AL.COM / JOHN SHARP
    Senator Jeff Sessions

    The chairman of the
    Immigration and the National Interest Subcommittee, Senator Jeff Sessions, provides an Immigration Handbook for his Republican colleagues on his website
    . It describes immigration problems that the Senate should address and suggests the following enforcement measures.

    The Obama Administration is leaving President Elect Donald Trump with an immigration court crisis that the handbook does not address. During the month of October, the court’s backlog reached 521,676 cases, which made the average wait for a hearing 675 days. Congress needs to address this crisis or assist President Elect Trump in forcing undocumented aliens out of the country without deportation proceedings, such as with the stipulated-removal program that President George W. Bush used in 2004.

    I suggest a legalization program to reduce the number of cases in immigration court and the population of deportable aliens generally. It could be limited to undocumented immigrants who pass extreme vetting.


    • Mandatory E-Verify to protect American jobs and wages.


    While it is not possible now to deport millions of undocumented aliens, it is possible to make staying here less desirable. For instance, most of them come because employment is available here. This is referred to as “the job magnet.” Employer sanctions were established in 1986 by the Immigration Reform and Control Act to make it more difficult for undocumented immigrants to find employers willing to hire them. E-Verify is a voluntary, Internet-based system for determining whether prospective foreign employees are authorized to work in the United States. It was established originally in 1997, as the Basic Pilot Program. These programs have never been implemented on a large-scale, nationwide basis, and I doubt that they ever will be.

    Prakash Khatri and I have proposed focusing on a different magnet, the fact that it is so easy for American employers to exploit undocumented foreign workers. That’s what draws unscrupulous employers to unauthorized workers. With additional resources, the Labor Department could address employee exploitation purely as a labor issue by targeting industries that are known to exploit undocumented foreign workers using its authority under the Fair Labor Standards Act.


    • Ending tax credit and welfare payments to illegal immigrants.


    This would make it difficult for undocumented immigrants who cannot find work to stay here, but I suspect that the failure to deal with these problems is due more to lack of funding to implement current legislation than it is to a need for additional legislation.


    • Closing asylum and refugee loopholes.


    One of the problems with asylum grants is that the immigration judges are not applying a uniform standard. TRAC’s report, Judge-by-Judge Asylum Decisions in Immigration Courts FY2009-2014, shows extreme discrepancies in the grant-rates of the immigration judges. An asylum seeker might have only a 15% change of being granted asylum all the way up to a 71% chance depending on the particular judge assigned to hear the case. The Board of Immigration Appeals is supposed to deal with such problems. If Senator Sessions becomes the Attorney General, he will have authority to replace current Board members with new ones who can ensure uniformity in asylum grants.

    President Elect Trump will have sole authority under section 207 of the Immigration and Nationality Act to set the number of refugees. He will be required to consult Congress, but he will not need its approval.


    • Cancelling federal funds to sanctuary cities.


    Senator Sessions is referring to cities that have adopted measures that seek to thwart federal efforts to identify and apprehend unlawfully present aliens within their jurisdictions. Sanctuary cities face the risk of losing billions of dollars. Consequently, the Trump Administration should be able to succeed in ending this practice with support from Congress.


    • Empowering local officials to coordinate with ICE officers.


    Unless the immigration court backlog crisis is resolved, this would just increase the number of apparently deportable aliens who cannot be deported.


    • Establishing criminal penalties for visa overstays.


    This would give aliens who overstay the right to counsel at government expense, which would be very expensive. Moreover, our federal criminal court system would not be able to accommodate such a large increase in its caseload. The latest available data show that prosecutions for illegal entry, illegal re-entry, and other criminal immigration violations accounted for 52% of all federal prosecutions in FY2016.


    • Ending catch-and-release on the border with mandatory detention and expedited deportations.


    This refers to the practice of processing undocumented aliens caught making illegal entries and then releasing them if they promise to return for their hearings. This is done because ICE does not have the facilities needed to detain them. Will the Republicans provide sufficient detention facilities? They have not been willing to do this in the past, and the numbers are much larger now with the present backlog in the immigration courts.


    • Suspension of visas to countries with high overstay rates or those that won’t repatriate criminal aliens.


    Overstay rates already are a basis for participation in the Visa Waiver Program(VWP). Nationals from non-VWP countries need visas, which are issued on a case-by-case basis. Although the visa overstay rate of an alien’s country may be a factor, other factors might make overstaying too unlikely to warrant denying the visa application on that basis.

    Section 243(d) of the Immigration and Nationality Act authorizes discontinuing visas to nationals of a country that does not accept or unreasonably delays the return of its nationals, but I do not think this authority has been used yet. And I do not think it would make much difference. In FY2015, ICE released 19,723 criminal aliens who were subject to final deportation orders and only 89 of these releases were the result of countries refusing to repatriate their criminal aliens.


    • Mandating completion of the exit-entry system.


    A fully implemented entry-exit tracking system would make it possible to compile lists of overstays, and this would be useful for determining whether Visa Waiver Program countries should be allowed to remain in the program. It, however, would not tell ICE where the overstays are located.


    Published originally on Huffington Post.
    http://www.huffingtonpost.com/entry/...=1481151544811

    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 12-07-2016 at 09:32 PM by ImmigrationLawBlogs

  3. I expect our new president to facilitate comprehensive immigration reform. By Nolan Rappaport

    WIKIMEDIA COMMONS


    The last successful comprehensive immigration reform bill celebrated its 30th birthday three days ago, the Immigration Reform and Control Act (IRCA). It was signed into law by Republican President Ronald Reagan on November 6, 1986. According to the statement President Reagan made at the signing ceremony, 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.

    Since then, the Senate has passed two major immigration reform bills, but neither has been acceptable to the republicans. On May 25, 2006, the Senate passed the Reid-Kennedy immigration bill, 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.


    The House republicans conducted hearings on the problems they expected S. 2611 to cause. For instance, on July 27, 2006, the House Subcommittee on Immigration and Border Security held a hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare.” Subcommittee Chairman John Hostettler noted in his opening statement that, “In the Reid-Kennedy bill, the Senate proposes to replace our current rational immigration process with a scheme to allow an unknown number of additional aliens who came here illegally to stay forever.”


    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. It was opposed by 70% of the senate republicans. Only fourteen republicans voted for it; the other 32 voted against it. The House Committee on the Judiciary held a hearing on the bill, “S. 744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?” The opening statement of Committee Chairman Bob Goodlatte included the following reference to IRCA:

    The bill [IRCA] provided for three main reforms: legalizing the millions of immigrants already in the country, increasing border enforcement, and instituting penalties for employers who hired unauthorized workers, in order to stop the flow of new unlawful immigrants. These reforms were based on the realization that if Congress simply passed a legalization program we would simply be encouraging future illegal immigration. The Select Commission on Immigration had warned just a few years earlier that without more effective enforcement, legalization could serve as a stimulus to further illegal entry.

    Unfortunately, IRCA’s enforcement measures never materialized, and the Commission’s fears were realized. Border security barely improved. Employer penalties were not enforced. Now, 26 years later, all of us who want to fix our broken immigration system are haunted by the legacy of IRCA’s failure, and we have serious concerns that S. 744 repeats some of IRCA’s mistakes.

    I believe that if Hillary Clinton had been elected, her immigration policies would not have led to the enactment of a comprehensive immigration reform bill either. Although her heart is in the right place, her policies do not meet the political needs of both parties. President Elect Donald Trump’s policies do not meet the political needs of both parties either, but I predict that he will soon discover that his Ten-Point Immigration Plan cannot be implemented.


    For instance, consider point number 8, which is to complete a biometric entry-exit visa tracking system. Under this system, a record is made of a nonimmigrant alien visitor’s entry and again when the visitor leaves. Trump says he will ensure that it is in place at all land, air, and sea ports. This can be done at air and sea ports, but inspection-lane space and inspection time limitations make it virtually impossible at land ports. And feasibility is not the only problem. Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established the first statutory provision for an entry-exit system. I was counsel to the democrats at the hearing for consideration of implementing this provision. We blocked it with a single question, “Would the system have any enforcement value?” The answer was “no.” It would identify alien visitors who had not left the country when their authorized visits were finished, but it would not provide any information on where they are. You would not have any way of finding them. The idea was dropped until the 9/11 Commission brought it back years later.


    Consider also his promise to deport the 11 million undocumented aliens, which already has been whittled down to deporting the criminals “and then we’ll see.” It cannot be done. The republicans have never provided the funding or other resources needed for a large-scale, nationwide enforcement program, and they probably never will. Trump intends to hire more enforcement officers, but major increases in detention facilities and immigration courts also would be necessary. DHS currently detains nearly half a million people annually, and the current immigration court backlog reached 521,676 cases in October.


    When he realizes that he will not be able to implement his Ten-Point plan, I expect him to turn to the challenge of bringing the two parties together on a comprehensive immigration reform bill. Being an experienced businessman, as opposed to being a politician, I 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 can be counted on to implement enforcement and border security provisions. We may see a second Immigration Reform and Control Act, IRCA of 2017.


    Published initially on Huffington Post.
    http://www.huffingtonpost.com/entry/...=1478711913203


    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 11-09-2016 at 10:31 PM by ImmigrationLawBlogs

  4. 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

  5. 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.
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