Senators say they’re interested in bipartisan immigration plan; here are some suggestions

Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) plan to bring together a group of senators interested in trying to revive immigration discussions after the April recess. They “want to sit at a table and ask members who have immigration, bipartisan immigration bills, to come and propose those bills to us and see if we can build a 60-vote plus margin for a group of bills.”

Are they serious about immigration reform, or are they just doing this so they will be able to say in the upcoming midterm elections that they sponsored a number of immigration reform bills?

It won’t take much effort to repackage bills that have already been introduced.

In any case, they seem at least to be open to a variety of approaches to immigration reform, so I will take this opportunity to offer them a few suggestions.

Registry — The Democrats tried to include a registry provision update in a reconciliation bill in September 2021, but the Senate parliamentarian made them remove it. That was unfortunate. The registry provision has not been updated since 1986. 

The registry provision grants lawful permanent resident status to certain undocumented immigrants who have resided continuously in the United States since before Jan. 1, 1972. This means that registry currently is available only to undocumented immigrants who have lived here continuously for half a century, which greatly reduces the value of the provision.  

The Democrats went too far in the other direction with the update they put in the reconciliation bill. It would have changed this date to Jan. 1, 2011, which would make legalization available to approximately 6.7 million undocumented immigrants. 

At some point, an undocumented immigrant has been here so long that it would be unconscionable to make him leave. It’s just a matter of reaching an agreement on when that point has been reached. 

I encourage the senators to include the registry provision in their bipartisan discussion to see if there is a date that would be acceptable to both parties. 

DACA —  Some Republicans are sympathetic towards the plight of DACA participants. Even former President Trump wanted to help them. He proposed a DACA legalization program that would be a good place to start; that proposal was a four-point framework that only had one provision that was a deal-killer. He wanted to end the practice that opponents refer to as “chain migration,” the process by which legal U.S. residents may sponsor a family member for immigration to the United States.

I have proposed a compromise that would provide DACA participants with lawful status through the Special Immigrant Juvenile (SIJ) Program, which would also prevent the participant from conferring immigration benefits on his parents when he becomes a lawful permanent resident.

But circumstances have changed since then. A border security crisis has occurred under Biden’s presidency. The Border Patrol apprehended nearly a million illegal crossers along the southern border during the first six months of fiscal 2022, and DHS is expecting up to 18,000 illegal crossings per day when the Title 42 order is lifted.

The Democrats may have to stop this flood of illegal crossers if they want Republican votes for a legalization program of any kind.

Unfair labor practices — Most immigrants who enter the United States unlawfully come here to find employment. The shorthand description of this situation is that they are drawn here by the “job magnet.” 

It is easy for unscrupulous employers to exploit them because they can be reported to ICE if they complain about the way they are treated.  

The employer sanctions in INA section 1324a prohibit employers from hiring immigrants they know are not authorized to work. An employer who violates this provision is subject to fines of up to $10,000 for each undocumented employee. But this hasn’t eliminated the job magnet. 

The senators could augment employment sanctions with a bill establishing a Labor Department task force to mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants. This would take immigration status out of the picture. The  enforcement actions wouldn’t be based on the immigration status of the exploited employees.

Expanded CAM program — According to Homeland Security Secretary Alejandro Mayorkas, DHS has a plan for managing any potential increase in illegal border crossings when the Title 42 order is terminated.

The plan relies primarily on a new immigration process that will permit USCIS asylum officers to adjudicate the asylum claims of illegal crossers who establish a well-founded fear of persecution. This currently is done by immigration judges. If an asylum officers denies a claim, however, the applicant will be able to submit it again to an immigration judge.

USCIS is already struggling with a backlog of more than 9.5 million benefit applications, and this includes about 435,000 affirmative asylum applications. Asylum applications are considered “affirmative” when they are filed directly with USCIS and “defensive” if they are filed in removal proceedings before an immigration judge.

The other part of the plan is a dedicated docket for families who are apprehended after making illegal border crossings. This has been tried before by two previous administrations with much smaller immigration court backlogs, and it failed both times.

Human Rights First claims that the dedicated dockets in previous administrations led to high rates of in absentia removals, mistaken decisions that needed to be corrected on appeal, and increased backlogs. And Gracie Willis, a staff attorney at the Southern Poverty Law Center, thinks it is unfair to the individuals who have been waiting for their day in court for years to establish a “rocket docket” for families who have just crossed the border.

The senators could provide a better option with a bill to establish an expanded version of the Central American Minors (CAM) Refugee and Parole Program. The CAM program provides locations outside of the United States for screening the persecution claims of certain Central American children who have parents in the United States.  

If the CAM program is expanded to include anyone with a persecution claim, asylum seekers would not have to make the dangerous journey to the United States to seek relief and there would be fewer illegal crossings at our border.

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. Follow him at https://nolanrappaport.blogspot.com