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  1. President Elect Donald Trump will not be able to deport millions of people. By Nolan Rappaport

    11/10/2016 11:28 pm ET

    Pew Research Center (PEW) claims that the United States has 11 million undocumented aliens, but my examination of PEW’s methodology has persuaded me that its estimates of the undocumented population are unreliable. I believe that the actually number is much larger. In any case, I am sure it is at least that large.

    Will President Elect Donald Trump be able to deport 11 million undocumented aliens?

    Every alien accused of being deportable has a statutory right to a hearing before an immigration judge. The immigration courts always have had big backlogs, and the backlogs have continued to grow. The immigration court completed 181,575 cases in FY 2015, which is impressive for a court that only has 273 judges. Nevertheless, the number of cases awaiting resolution before immigration judges as of the end of October 2016, was 521,676. To put this in perspective, this was an average of 1,910 cases for each of the 273 immigration judges. The average wait time for a hearing as of the end of October was 675 days, which is a couple of months short of two years.

    If we add 11 million cases to the immigration court backlog, the new count would be 11,521,676. Even if no additional aliens enter the United States unlawfully, the average for each of the 273 immigration judges would increase to 42,204 cases, and the average wait time would increase to 14,915 days, which would be approximately 41 years. The number of immigration judges could be increased, but the increase would be limited by the availability of lawyers who are qualified to become immigration judges and willing to do so. Let’s suppose that the immigration court is tripled in size to 819 judges. The average wait time for a hearing would be reduced to 4,972 days, which would be approximately 13.6 years, still much too long.

    Right to Appeal a Deportation Order

    Aliens who have been found deportable by an immigration judge can delay the finality of their deportation orders by appealing to the Board of Immigration Appeals, and they cannot be deported while their appeals are pending. The Board, however, is not a statutory body. It was created by federal regulations, which specify its jurisdiction and powers, and the president can promulgate new regulations to eliminate the Board. But the Board is needed to reverse the mistakes that immigration judges make and to maintain consistency in the way the law is interpreted and applied. The Board received 284,667 cases in FY 2015 and completed 262,293, which is an impressive number for a Board that only has 17 members. Nevertheless, this left a pending case load of 16,945 cases. The Board’s work could be done more efficiently by replacing it with an immigration court made up of federal judges with limited jurisdiction, but that would just reduce the delay from appeals, not eliminate it, and it would take a while to establish and staff such a court.

    President Elect Donald Trump has two alternatives.

    When the impossibility of deporting 11 million undocumented aliens becomes apparent to President Elect Trump, he can press ahead anyway and fail miserably. Or, he can persuade the republican controlled congress to establish a legalization program that would reduce that number to a manageable level and foster better relations between the republicans and the immigrant community. This is the IRCA wipe-the-slate-clean and-start-over deal which was the basis for the last comprehensive immigration reform bill. The legalization program’s eligibility requirements could be drafted to exclude aliens who do not believe in our Constitution, who support bigotry and hatred, or who are undesirable in any other way he wants to specify; and make legalization available to qualified undocumented aliens who would be expected to flourish in our country and to embrace a tolerant American society. And extreme vetting could be required. Which alternative do you think he will choose?

    Start the legalization program with DACA participants.

    My suggestion is to start the program with children in the Deferred Action for Childhood Arrivals (DACA) Program. In addition to the availability of information about them in our public school system and elsewhere in the United States, they are the most sympathetic group. They are completely innocent of any wrongdoing. They did not choose to come here in violation of our laws. They were brought here by their parents. They would be the most Americanized of all of the groups of undocumented aliens. And, a bill for such a legalization program already exists that could be modified to satisfy President Elect Trump’s eligibility criterion, the Dream Act, which has had broad bipartisan support.

    Published initially 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 11-13-2016 at 09:46 PM by ImmigrationLawBlogs

  2. 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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