Originally Published in The Hill
Opinion by Nolan Rappaport - October 26, 2020
According to the PEW Research Center, 52 percent of the voters think that immigration is very important, but the presidential debates only included a few immigration questions.
And they didn’t address the issues that concern me, such as —
There are too many asylum cases
The immigration court rendered decisions on 91,391 asylum applications in fiscal 2019, which was 33 percent of the 276,821 decisions it issued that year — the second highest case completion total in its history.
In a perfect world, asylum hearings would be available to everyone who wants one, but it isn’t a perfect world, and the immigration court is experiencing a crippling backlog crisis.
Efforts to reduce the backlog by hiring more judges have failed, and restricting access to the immigration court would not work either. Even if there were no new cases, it would take more than four years to clear the backlog.
If this crisis continues unabated, really Draconian measures are going to be necessary.
It has been more than 30 years since the last legalization program
Biden has promised to work with Congress to pass a bill with a legalization program.
Barack Obama made a similar promise when he was campaigning for the first term of his presidency: He said, “I can guarantee that we will have, in the first year, an immigration bill that I strongly support.”
It would have been easy for him to keep that promise.
The Democrats could have passed any immigration bill they wanted during the first year of his presidency. From January 2009 to January 2010, they had the majority in the House and a strong enough majority in the Senate to stop a filibuster.
They chose not to take advantage of the opportunity.
It may not be possible for the Democrats to establish a legalization program now without such overwhelming control over the legislative process.
The last bill with a legalization program was the Immigration Reform and Control Act (IRCA), which was enacted in 1986.
IRCA was based on an agreement to give lawful status to undocumented aliens already here — in return for enforcement measures to control illegal immigration in the future.
The 2.7 million people who were legalized were replaced entirely by a new group of undocumented aliens by the beginning of 1997.
The Republicans oppose passage of another bill with a legalization program unless it has an enforcement program that would prevent this from happening again.
This condition can’t be met without making all undocumented aliens who are not legalized subject to deportation, and to my knowledge, the Democrats are not willing to do this.
There’s too much we don’t know
How do you decide whether to have a legalization program when no one knows how many undocumented aliens there really are?
DHS uses a process known as the “residual method” to estimate the undocumented alien population. Data from the annual American Community Surveys (ACS) is used to estimate the number of foreign-born people in the United States. Then, an estimate of the number of lawful immigrants is subtracted from the foreign-born estimate. The remainder is the estimate of the undocumented alien population.
The problem with this approach is that the ACS only questions one percent of the population.
Moreover, it asks for a person’s place of birth, his race, and whether he is a citizen of the United States. It is unrealistic to expect undocumented aliens who are trying to avoid detection to answer such questions truthfully.
A more reliable method is needed.
Congress writes the immigration laws, not the president
In his “Plan For Securing Our Values as a Nation of Immigrants,” Biden says that he intends to follow the Obama-Biden administration’s enforcement measures.
These measures violated the Separation of Powers provisions in the Constitution, and Obama knew it. He taught constitutional law at the University of Chicago Law School, and comments he made early in his administration indicate that he knew the limits of a president’s discretion in enforcing the immigration laws.
In October 2010, he said:
“If Congress has laws on the books that say that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there's a limit to the discretion that I can show because I am obliged to execute the law. That's what the Executive Branch means. I can't just make the laws up by myself.”
Several months later, he added that he couldn’t “just bypass Congress and change the [immigration] law [him]self. That’s not how a democracy works.”
But three years later, he prohibited immigration officers from apprehending or removing undocumented aliens who were not in one of his priority categories unless, “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.”
Biden says he would go even further.
At a primary debate, he said, “in the first 100 days of my administration, no one, no one will be deported at all. From that point on, the only deportations that will take place are for commissions of felonies in the United States of America.”
It’s not too late to question the candidates about these issues.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an 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 20 years.