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

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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 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.


  • 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 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.


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.










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Updated 12-07-2016 at 10:32 PM by ImmigrationLawBlogs

Comments

  1. ImmigrationLawBlogs's Avatar
    Update, January 11, 2016:

    Should Senator (and AG designate) Sessions' 2015 immigration Handbook be seriously followed as a guide for future immigration policy?

    Sessions, in effect, on page 10 of the Handbook has nothing but support for the Coolidge era (1924) immigration law. That law closed America's gates to almost all immigrants other than ones from the Anglo-Saxon and Teutonic ("Nordic") countries of northern Europe - no Asians, Middle Easterners, Africans, Eastern European Jews or Southern European Catholics needed to bother applying.

    Supporting that Make America White Again statute (Johnson-Reed Act of 1924) alone is enough to disqualify Sessions as the nation's next attorney general, where he will have frighteningly broad, if not dictatorial, powers over our entire immigration system through control over the deportation system (immigration courts) and wide ability to use the criminal laws as a method of harassment and intimidation against non-white immigrants and their American family members, employers, advocates and supporters if he is confirmed.

    Roger Algase
    Attorney at Law

    Update, December 31, 2016.

    Definitely, this is not the above author's intention. But there are those in or close to the new president, and others in the "Alt-Right" who helped him get elected (very possibly even without Putin's hacking and despite our incoming president's having been wiped out in the popular vote by almost 3 million votes in America's less than perfect democracy) who would like to Make America White Again.

    I am sure that these people, for reasons very different from those of the above author who is only concerned with enforcing our laws, will be looking very eagerly for ways to engage in mass expulsion and ethnic cleansing of millions of non-white immigrants.

    Roger Algase
    Attorney at Law




    Update, December 26. 2016:


    Could Trump be impeached - by his own party in Congress (!) - because of his extreme immigration enforcement agenda, including the Muslim ban based on religion only which Trump has still not taken off the table. and his proposal for mass deportation of up to 3 million so-called "criminal aliens" (a much greater number than the actual number of non-US citizens in this county who have actually been convicted of serious crimes, according to the Migration Policy Institute)?

    Impeachment of Trump (who is not even the president yet) over immigration policy has already already been suggested, not by his opponents, but by one his strongest supporters, former Republican Congressman Tom Tancredo, writing in Breitbart News, which, in case anyone has forgotten, is run by Trump's pick for Senior White House Advisor, Stephen Bannon.

    While Tancredo is apparently worried that impeachment might be carried out against Trump by allegedly "disloyal" Republicans who might not hate Muslims and DREAMERS enough to satisfy Tancredo (or Breitbart News), he does not say what the grounds of impeachment might be. See:

    http://www.breitbart.com/big-governm...-trump-agenda/

    Here is a suggestion. Calling anyone who disagrees with a person's political opinion or legislative proposal, on immigration or anything else,"disloyal" (even if, in this particular case, Tancredo might have meant "disloyal" to the Republican party rather than to America in general) sounds an awful lot like a throwback to the Senator Joseph McCarthy era of the 1950's when the Wisconsin Republican called anyone who didn't support his witch hunts a "Commie" or a "pinko", destroyed the careers of many dedicated and patriotic public servants and private people and installed a climate of fear throughout America. in clear violation of the free speech guarantee of the First Amendment to the US Constitution.

    We saw the same type of threats of retaliation against political opponents coming from Trump during the campaign, and there is every sign that they will get worse, now that Trump is about to be installed in the White House with almost 3 million fewer popular votes than his opponent, Hillary Clinton and with, according to our top government security agencies, overt help from the same Russia (only with a non-Communist dictator, not a Communist one) whom Joseph McCarthy so strongly condemned. How is trashing the free speech guarantee of the First Amendment consistent with support for the Constitution?

    When a president takes the oath of office, he (or she), swears to defend and protect the Constitution. If a president goes against the First Amendment (or the Fifth and Fourteenth, which prohibit sending US citizens to Guantanamo - or the Eighth, which prohibits the use of torture against anyone) would that not be grounds for impeachment?

    Perhaps Tom Tancredo does not have such a bad idea, if for the wrong reasons.

    Roger Algase
    Attorney at Law

    Update, December 19, 2016:


    Just as the 1932 election in Germany was deemed by historians to have been open and fair, Donald Trump, who lost the popular vote to Hillary Clinton by some 3 million votes, was legally and legitimately confirmed today as America's next president in an election, which while very far from being an ideal example of democracy in action, due to Citizens United, widespread Republican minority voter suppression laws, James Comey and Vladimir Putin, and Trump's skillful and widespread use of ethnic/religious hate and the Big Lie tactic on immigration and almost every other issue under the sun, still met the requirements of our laws and constitution.

    While Donald Trump's America might not turn out to be full blown fascism, it could well be one of authoritarian rule to an extent unknown in our history. It also could be very well turn out to be an America with an immigration policy amounting to legalized ethnic cleansing of non-white immigrants by rolling back 50 years of racial equality in our legal immigration system.

    In this regard, see David Nakamura's excellent December 19, 2016 article in the Washington Post:

    After years on the outside, foes of legal immigration find a louder voice with Trump's election

    (I am sorry - I do not have a direct link to this must read article. Please go to Google.)

    Roger Algase
    Attorney at Law

    My earlier comments on Nolan Rappaport's above article appear below:

    If each one of these proposals is looked at in isolation, separate from all the others, there are legitimate enforcement-related reasons why each of them could, arguably, have some merit. Mr. Rappaport explains these merits, such as they may be, quite effectively, as befits his distinguished reputation for legal scholarship.

    But all these measures, taken together, could also be looked at together as supporting a larger goal which is certainly not Mr. Rappaport's goal, and is not necessarily the goal of all the Republican Senators who may support these measures (since, few if any Democrats are likely to do so) nor, hopefully, even the objective of Mr. Trump, though this is a question that the jury is still out on and may be out on for quite some time, considering many of Trump's hostile campaign statements about various minority immigrant groups and some (not by any means all) of his announced cabinet/adviser appointments to date.

    But it is clearly the goal of a certain segment of the voters who helped Donald Trump to become the first popular vote loser (and by a significant margin - some 2.5 million votes, according to the latest news reports!) to be elected president in 16 years. I refer to the goal of Making America White Again.

    Roger Algase
    Attorney at Law


    Updated 01-11-2017 at 10:37 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    In addition to our immigration policy being ultimately determined (for better or for worse) for the coming four (or eight) years, by a president (or the party he leads) who is being installed in the White House legally, Constitutionally, and against the wishes of the majority of American voters who participated in last month's election; the fact that (so far unproven but still plausible) suspicions that this president may have been elected with the help of an alleged corruption of our democracy by a powerful foreign dictator who is fundamentally hostile to both America and to democracy in general have not yet been put to rest, is extremely disconcerting, if not frightening.

    See, The Hill, December 7:

    Brent Budowsky: Did Putin elect Trump?

    http://www.thehill.com/opinion/opini...in-elect-trump

    Roger Algase
    Attorney at Law
    Updated 12-08-2016 at 05:15 AM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs

    But it is clearly the goal of a certain segment of the voters who helped Donald Trump to become the first popular vote loser (and by a significant margin - some 2.5 million votes, according to the latest news reports!) to be elected president in 16 years. I refer to the goal of Making America White Again.
    Roger Algase
    Attorney at Law
    I don't understand your reasoning. The people who voted for Trump did not write the immigration laws being enforced. Neither did Trump for that matter. The difference is that as the President of the United States, Trump is charged with the responsibility of implementing the immigration laws. Are you saying that only a man who wants to make America white again would carry out that responsibility? Are you drawing negative inferences from his willingness to carry out other responsibilities of the presidency, or just this one?

    Nolan Rappaport
  4. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    In addition to our immigration policy being ultimately determined (for better or for worse) for the coming four (or eight) years, by a president (or the party he leads) who is being installed in the White House legally, Constitutionally, and against the wishes of the majority of American voters who participated in last month's election; the fact that (so far unproven but still plausible) suspicions that this president may have been elected with the help of an alleged corruption of our democracy by a powerful foreign dictator who is fundamentally hostile to both America and to democracy in general have not yet been put to rest, is extremely disconcerting, if not frightening.

    See, The Hill, December 7:

    Brent Budowsky: Did Putin elect Trump?

    http://www.thehill.com/opinion/opini...in-elect-trump

    Roger Algase
    Attorney at Law
    Congress sets immigration policies by passing immigration legislation, and the president is supposed to implement the legislation, President Obama's executive discretion programs notwithstanding. So what is it that you are objecting to? Do you expect Trump to enforce policies that are not dictated by statutes? If so, please be more specific.

    Nolan Rappaport
    Updated 12-08-2016 at 05:16 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar


    Mass deportation (including millions of people leaving voluntarily because it is "less desirable" for them to stay, to quote from the above article - which proposal looks a lot like Mitt Romney's 2012 "self-deportation" plan recycled) would result in ethnic cleansing of non-white immigrants on a massive scale.


    In fact, “self-deportation” was the basis for the last comprehensive immigration reform bill, IRCA of 1986. It is the only way that the immigration laws can be enforced. I don’t know why it was fine for IRCA but ethnic cleansing now. My best guess is that Roger sees ethnic cleansing in every attempt to enforce our immigration laws.


    In addition, America is a country of respect for the rule of law - including our asylum and refugee laws, which are not "loopholes" as Mr. Rappaport argues, but an important part of our immigration system…


    I never said our asylum and refugee laws are loopholes. The Senate described them that way in the Handbook I am discussing in this article. I just pointed out that the real problem is the way the laws are applied, not loopholes in them.


    Mr. Rappaport also contends that by exercising his power to appoint immigration court judges across America, Jeff Sessions, the AG designate, will be able to "ensure uniformity in asylum grants".


    I could not possibly agree more with Mr. Rappaport on that point. Never has he been more perceptive or accurate than in that statement. Any immigration judges appointed by Mr. Sessions, who has long been one of America's strongest advocates of reducing all immigration - legal and illegal - can be sure to achieve uniformity in their percentages of asylum case approvals.


    Zero is certainly a uniform number.


    I think the technical name for this fallacious reasoning is “reducio ad absurdum.” In logic, reductio ad absurdum (Latin for "reduction to absurdity"; or argumentum ad absurdum, "argument to absurdity") is a form of argument which attempts either to disprove a statement by showing it inevitably leads to a ridiculous, absurd, or impractical conclusion, or to prove one by showing that if it were not ...


    Our deportation laws can be enforced in a focused or targeted way, one which will concentrate on the people who would do the greatest harm to our society, such as terrorists and violent criminals, which President Obama claimed he was trying to do and which even our new incoming president - elected with a minority of the popular vote and with at least some evidence of possible covert support from the Kremlin - has at times suggested, as in his latest comment that he may want to "do something" for DREAMERS and limit deportations to "criminal aliens" (however that is defined).


    On the other hand, by focusing on removing as many unauthorized immigrants as possible (except for those who might qualify for legalization through "extreme vetting" as Mr. Rappaport suggests, whatever that may mean), America could be turned into a police state where everyone who "looks" like an immigrant (i.e. fails to maintain white skin color at all times), could be stopped by federal, state or local law enforcement officials at every street corner and summarily arrested and jailed for not having the right immigration documents (or for having proper, but misunderstood or misinterpreted documents - how many state or local officials really understand our complex and intricate immigration laws?), as happened in Joe Arpaio's Phoenix, Arizona.


    Unfortunately, focusing enforcement just on violent criminals has unintended consequences. See “Hillary’s immigration enforcement policies could have unintended consequences.” (September 5, 2016), http://www.huffingtonpost.com/entry/...57k1sm2g2v5cdi


    Think of it this way. If the local police chief announced to the public that he was focusing police resources on violent crimes committed with guns and therefore that no other criminals were going to be arrested, what do you think that would do to the occurrence of nonviolent crime without guns? Think it might go up when the criminals in the city realized that they are safe from being arrested if they commit crimes without using a gun?


    In addition, as in my original comment, a mass exodus of millions of unauthorized immigrants from the US (combined with lower levels of legal immigration, which has long been the other side of Jeff Sessions' immigration coin and that of groups such as FAIR that he has had connections with - and which Trump himself advocated in his August 31 immigration speech) would without question bring about MAWA, or least some giant steps in that direction.


    That may or may not be the goal of a majority of Republican senators. It may or may not be Donald Trump's goal.


    But it is certainly the goal of the "Alt-Right" white nationalist hate groups that enthusiastically supported Trump in the election, and whose supporters may arguably have made the electoral college difference in a number of crucial states.


    Is Roger suggesting that the right to vote should be limited to people citizens who will vote for people that have immigration policies he approves?

    Nolan Rappaport

    Updated 12-08-2016 at 06:24 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    Hate, racism and Islamophobia are certainly permitted in the voting booth, but is it good for America to have them in the White House in the person of presidential appointees such as Stephen Bannon of the inflammatory, far right Breitbart News. and Muslim-hating General Mike Flynn (who denies that Islam is even a religion but calls it a "cancer" instead), not to mention Senator Jeff Sessions, who dances to the immigrant-bashing tune of groups such as FAIR, which the SPLC has identified as a hate organization?

    https://www.splcenter.org/hatewatch/...g-rubicon-hate

    We should heed a courageous and timely voice from Israel, in the form of two articles in the newspaper Haaretz which not only warn of things to come in what could well to be a potentially catastrophic administration, (based on some of the far right wing fringe billionaires and generals Trump is surrounding himself with) not only for immigrants, but even more so, for union rights, voting rights, health care, the environment, women's rights and the right to dissent - rights when many of the ordinary working class Americans who put Trump in the White House have been taking for granted and which now may be taken away from them by a president who says he likes to appoint people "who made a fortune".

    The two Haaretz articles, which describe what is happening in America better than anything I have seen in our own media are:

    1) How to oppose Trump: A guide for American progressives, from your Israeli and Palestinian peers

    http://www.haaretz.com/opinion/.premium-1.754591

    and

    2) To the AJC's David Harris: Show Jewish leadership. Speak out against Bannon and Sessions

    http://www.haaretz.com/opinion/.premium-1.754332

    Israel was founded almost 70 years ago as a beacon of freedom, hope and inspiration to all Americans, regardless of our faith or political beliefs. Never has America needed these wise and courageous voices coming from the land of Hatikvah more than now.

    Roger Algase
    Attorney at Law
    Updated 12-13-2016 at 09:13 PM by ImmigrationLawBlogs
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