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 courtís 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 ďthe job magnet.Ē 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. Thatís 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. TRACís 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.
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 wonít 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 alienís 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.
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.