Looking Beyond "Deport or Legalize" for Immigration Solutions

Looking Beyond "Deport or Legalize" for Immigration Solutions
by Dave Bennion

category: Immigration Law

Published May 21, 2009 @ 11:12PM PT

Too often when people think about immigration reform, they think about whether or not to legalize the millions of migrants living undocumented in the U.S., or whether a guest worker program will be implemented and what shape it might take. Or the focus might be on whether to scrap the current employment and family preference categories for a Canadian-style point system.

But all of these questions only deal with symptoms of deeper problems. The story of 12 million Mexicans hopping over border fences or swimming the Rio Grande is a story you'll often see on cable news. It's a simple story with simple solutions--you've got a homogenous group of lawbreakers, now deport them or legalize them, then build up the wall and stiffen penalties all around so it doesn't happen again.

But since that simple story fails to accurately assess the current problems, those simple solutions will surely fail to solve them.

The 12 million undocumented come from every country and represent every race. Many entered lawfully with valid visas, and were pushed out of status by unreasonable laws unreasonably interpreted. Some had lived here for decades as permanent residents before becoming "illegal," something that's hard to anticipate when harsh laws have retroactive effect and little flexibility. (This is the best summary I've seen of the perverse and cowardly bipartisan criminalization of immigration policy, much of which occurred on Clinton's watch in the 1990s.) Some did cross the border, but faced impossible choices at home due to forces that short-sighted U.S. policies helped unleash, and had no line to wait in to enter with authorization. Some sought refuge from persecution and instead found prison or a life in the shadows. Others were trafficked or brought as children.

After adding up all the exceptions to a norm that may exist only in the victimhood fantasies of Lou Dobbs, you may find that most of the 12 million don't fit easily into either the simple story or the simple solution. Successful immigration reform, one that won't have to be repeated in 20 years, will not fit the simple "deport or legalize" binary. A reasonable immigration system wasn't destroyed and replaced with a dysfunctional one overnight, it was gradually dismantled, piece by piece, in a coordinated, sustained effort that continues today. Reversing that process won't be easy, but little of value is gained without struggle.

These suggested reforms from AILA's Dagmar Butte represent a good starting point, and delve beneath the shallow cable news analysis and spineless poll-tested slogans that have so far dominated the field. I'll have more to add in the coming days and weeks--I hope you'll mull it over and make contributions of your own.

1. A method for families to be united in the United States without subjecting them to the lengthy or even permanent bars to re-entry that result purely from unlawful presence in the US. To do this, INA 212(a)(9)(B) and INA (a)(9)(C) must be eliminated.

2. A more sane and less arbitrary method for aliens in removal proceedings who have US citizen or LPR spouses, parents or children to remain in the US than the current Cancellation of Deportation process.

3. Restoration of due process protections for all aliens, even those who have committed serious crimes. After all, our constitution does not say every person is guaranteed due process of law “unless he or she is a criminal.” It says everyone gets due process.

4. More resources for Immigration Courts and the Board of Immigration Appeals so that they have the time to actually decide and review cases in a meaningful manner. This will relieve pressure on the Courts of Appeals and restore integrity to the immigration review system.

5. Restoration of discretion for Immigration Judges particularly in cases involving minor criminal violations where the alien either has fully reformed or the factual circumstances are such that there are substantial mitigating circumstances.

6. Making Immigration Judges truly independent so that there are free to render truly impartial decisions and so that they are not viewed – rightly or wrongly – as simply rubberstamping the policies and decisions of DHS.

7. A restructuring of the current quota system that actually considers the migration patterns of today –both in terms of family and business immigration. For example, today’s quotas were created at a time when no one anticipated large numbers of brilliant engineers coming from India and China and a time when, frankly, we did not need them. Today we do and the current nine year backlog in processing petitions for Indian born engineers who hold Masters’ Degrees (many from the US) is outrageous and stupidly shortsighted.

8. A robust program both for high skilled workers and essential workers in agriculture and other industries that have difficulty attracting a qualified workforce.