Immigration issues are certainly making headlines. President Trump has brought them to the forefront through his policy based in National Security and Public Safety. The liberal left has co-opted the immigrants and their cause to bolster support for their Resistance effort against President Trump, whom they claim should not have been elected President.
Regardless of the angle, immigrants and US citizens alike will be impacted directly by whatever legislation makes it to the President’s desk.
Lost in the rhetoric is any rational discussion pertaining to human rights, US citizens’ rights, and the rule of law already in existence, namely the Immigration and Nationality Act. Likewise there is a lack of rational discussion about human trafficking and abuse against immigrants by the criminal coyotes who prey upon them for a profit. The issue of illegal immigration involves danger to both US citizens and immigrants alike. It is a matter of the utmost importance which must be addressed and resolved at once.
As an immigration attorney for 25 years I have represented immigrants in their efforts to enter the United States legally, legalize after overstaying a visa or after illegal entry, and to defend against deportation or removal. Each case is very different one from another; As different as any person is from another. Illegal immigrants are subject to US immigration law even while unlawfully present in the United States. Illegal immigrants also have human rights afforded to them under the US Constitution including the right to Due Process of law in Deportation or Removal Proceedings. To lump all illegal immigrants into a single group is not only inappropriate, it is not truthful. Some illegal immigrants have defenses to Deportation or Removal. Others may not. Any policy aimed at an “illegal immigrant population” in such broad terms is unrealistic and will be largely ineffective.
I applaud the efforts of President Trump to directly address and propose solutions to the issue of illegal immigration. To prioritize securing our borders is not only smart, but necessary. Through our history we have learned that any action on immigration issues has worldwide ripples which produce additional illegal entrants intent on making themselves eligible for any resulting perceived immigration benefits. There is also the matter of safety and national security. Criminal aliens are appropriate targets for priority processing for Deportation or Removal. However, Criminal Aliens also have the human right to Due Process of law in Deportation or Removal. Under the US Immigration and Nationality Act criminal aliens may also have certain specific defenses to Removal or Deportation provided they are eligible.
While some immigrants have committed crimes and such persons must clearly be punished for their crimes, most immigrants are hard working people looking for a better future. It is unfortunate that the idea of amnesty and the periodic grants of amnesty over the years have encouraged so many immigrants to enter the US unlawfully. Amnesty does not truly benefit illegal immigrants. Rather, it gives an arbitrary benefit to a specific group of people during a short snapshot of time.
Educating illegal aliens about the requirements of US Immigration Law and Defenses to Removal or Deportation is the best method of addressing the issue of illegal immigration. Teaching illegal immigrants how to legalize their status under existing immigration law, or developing a plan by which these people can repatriate and make application to reenter the US legally, is giving true help to illegal immigrants. Immigration attorneys perform this function every day. If truly motivated to address the issue of illegal immigration, the Federal Government certainly could provide assistance with such immigrant education goals.
President Trump is committed to addressing the issue of illegal immigration. His policy is to provide a secure border, address public safety issues and address the plight of minor children caught in illegal status growing up in a country not their own, but bearing little to no knowledge of the country to which they rightfully belong. To address the status of persons continuously unlawfully present from a young age presumably due to actions by parents or guardians over which they’ve had no control, is a compassionate response to an outcry fueled by the liberal left for a political end. I commend President Trump for his responsiveness on these issues and for seeking real solutions in the face of political manipulation of a vulnerable class of human beings, who live as second class citizens in our midst through no fault of their own.
However generally I propose that we do not need legislative immigration reform. US Immigration Law is not broken. I recognize that left wing liberals call it “broken” because it is not written as they would write it. However, US Immigration Law does exist as the law of the land, properly promulgated by the people through their elected representatives in Congress and signed by their President. It is called the “Immigration and Nationality Act”. There is substantial case law at the Immigration Court level, at the Board of Immigration Appeals, and in nine different US Circuit Courts addressing and resolving issues which arise out of the application of that law to immigrants on a case by case basis. In my professional opinion Immigration Law in the United States is not broken. In fact, it functions very well.
There are deficiencies in administration of the law evidenced by the time it takes to process affirmative applications, and the length of time between hearings at the Immigration Court in Deportation or Removal Proceedings. These are matters which should be addressed by regulations, departmental memorandi, and appropriate directives from the Executive Branch of the federal government. No new “immigration reform” legislation is needed to address these issues.
New funding is needed to increase the numbers of personnel required to process these applications and to move court dockets more efficiently. Addressing these needs in a budget cycle should be a matter of course in Congress and could be more easily accomplished with specific direction and support from the President. These administrative actions will be more effective in addressing the issue of illegal immigration than any change in the law disguised as “immigration reform.”
Arguably “immigration reform”, a change in the law to address the plight of people unlawfully present in the United States, is akin to the arbitrary Amnesty imposed in the past, which has not truly addressed illegal immigration. To repeat the same actions over and over expecting a different result is insanity. It is certainly not sound policy.
Rhetoric showing a lack of respect for the humanity of illegal immigrants is unfortunate and un-American. Our US Constitution and current US Immigration Law requires Due Process of law in Deportation or Removal. Each person is entitled to his or her day in court. Due Process applies not only just to US citizens but even to immigrants, lawfully or unlawfully present in the US. Due Process in a foreign court of law is a human right recognized by the United States and the United Nations afforded to all persons.
In an effort to expedite Due Process for illegal immigrants in accordance with the US Constitution and US Immigration Law, the Department of Homeland Security should permit immediate affirmative application by undocumented immigrants for defenses to removal which would be permitted in the US Immigration Court. These defenses cannot presently be submitted due to ICE administrative priorities. Applications could be prepared by private legal counsel and submitted to the Office of Chief Counsel, formerly called the US Trial Attorney office. Assistant Chief Counsel could refer these cases to ICE for processing and file documents with the US Immigration Court so that defenses to removal could be adjudicated.
In some cases applications could result in consent orders filed with the US Immigration Court expediting the processing of easily approvable applications. Processing these defenses would identify immigrants illegally present in the US who have a strong defense to Removal on a case by case basis. A legal team or a panel of Assistant Chief Counsel could speed the process of addressing these applications. Presumably those undocumented aliens not having processed an affirmative defense will be less likely to have defense to removal, leading to more efficient processing toward deportation when the time is right.
For example, a defense to Removal called Cancellation of Removal already exists in the Immigration and Nationality Act for illegal immigrants who are more than 10 years continuously physically present in the United States and who have a qualifying relative who would suffer extreme and unusual hardship if a particular immigrant is deported or removed. In the past this defense was called Suspension of Deportation, and at one time affirmative application for this defense was permitted. As a matter of policy today this defense is only considered after an immigrant has been processed by ICE and placed in Removal Proceedings. ICE prioritizes only criminal aliens and aliens with prior Removal Orders or Deportation Orders. There is a large population of undocumented immigrants who may be eligible for Cancellation of Removal, but who are unable to make application unless and until they are detained and processed by ICE. I am contacted by many such immigrants every day.
The polarizing of our nation around this issue is destructive to American values and the American way of life. Each immigrant is a human being not unlike ourselves except for the fact of their birth elsewhere. The human rights asserted in our Constitution apply to them equally as they apply to us. Permitting undocumented immigrants to live within our borders as second class citizens and consequently victims of abuse and discrimination is in conflict with American values which hold that each human being is created equal.
The Human Trafficking issues associated with illegal immigration are intolerable and un-American. To permit such trafficking to continue at our borders is a contradiction to everything we stand for as a nation. Our National Guard which searched for Osama Bin Laden in the tunnels of Afghanistan could clearly close the tunnels of the criminal traffickers, called “coyotes”, if they were only permitted and ordered so to do.
No one has all the answers to the problem of illegal immigration in the US. Even a secure border may not completely eliminate future illegal entry problems. However, we have the means at our disposal today to address many immigration issues via increased funding and administrative measures without the passage of additional legislation. State governments which name themselves as “Sanctuary States” are not helping illegal immigrants, but rather perpetuating the living of these persons in the shadows, as second class citizens vulnerable to abuse by landlords, employers and other legal residents in our country.
My hope is that President Trump and Department of Homeland Security will do whatever is immediately within their power to administratively address the issue of illegal immigration without additional legislation from Congress and without further delay; And that state governments will respect the obligation and jurisdiction of the Federal Government so to do. All persons in the US must be brought into the light, living under one legitimate rule of law with liberty and justice for all.
“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me. I lift my lamp beside the golden door!” The Statue of Liberty-Ellis Island Foundation, Inc.