Give Dreamers a break, hardliners a bone with GOP immigration bill

It has been more than 30 years since the passage of the last comprehensive immigration reform bill, the Immigration Reform and Control Act of 1986 (IRCA). The main reason for this, probably, is the fact that the Democrats have refused to go along with the Republican demand for effective interior enforcement of our immigration laws.

IRCA was based on an agreement to create a legalization program for undocumented immigrants who already were in the country in return for interior enforcement measures that would prevent a new group of undocumented immigrants from taking the place of the ones being legalized.

The Democrats got a legalization program, but the enforcement measures the Republicans were supposed to get were never fully implemented.

{mosads}Among other things, IRCA established section 274A of the Immigration and Nationality Act, which authorizes fines of up to $3,000 a person for employing immigrants who are not authorized to work in the United States.

This was intended to eliminate the “job magnet” that draws undocumented immigrants to the United States and keeps them here. But this employer sanctions program was never implemented on a large-scale, nationwide basis.

The following table of final orders and administrative fines makes this very clear:

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On Dec. 9, Flake co-sponsored the Bar Removal of Immigrants Who Dream and Grow the Economy Act of 2016 (the BRIDGE Act), which would provide temporary protection for undocumented immigrants who have participated in President Obama’s Deferred Action for Childhood Arrivals (DACA) program, but it does not include enforcement provisions.

After the introduction of the BRIDGE Act, Flake introduced a modified version that does include enforcement measures, the Securing Active and Fair Enforcement Act of 2016 (SAFE Act).

The SAFE Act would require mandatory detention and prompt removal of certain criminal aliens, and their removal proceedings would have to be completed not later than 90 days after they are detained.

My SAFE Act protects dreamers & expedites the deportation of dangerous criminal aliens https://t.co/Y5D0WReat7

— Jeff Flake (@JeffFlake) December 10, 2016

Obama created the DACA program to make temporary lawful status and work authorization available to certain undocumented immigrants who came to the United States as children.

The program began on Aug. 15, 2012, and four years later, there were more than 728,000 participants. This has provided President-elect Donald Trump with a list of people who have acknowledged that they are aliens and that they are living here unlawfully. The list even includes their addresses.

Will Trump terminate the DACA program, arrest the participants, rush them through removal proceedings, and deport them? He recently has indicated that he might work something out to help them.

But it does not follow that he would be willing sign the BRIDGE Act — after all, the objective of that bill is to deprive him of his authority to decide what to do with the DACA participants.

Moreover, the backlog crisis in our immigration courts has made it impossible for him to deport large numbers of aliens through ordinary removal proceedings. If he wants to keep his campaign deportation promises, he will have to look for large groups of aliens who can be deported without going through the delay of individual hearings. The 728,000 DACA participant would be ideal.

He can move them quickly through large group hearings by promulgating facilitating regulations.

Flake’s SAFE Act would make it possible for the attorney general to hire 100 emergency immigration judges for renewable 6-month terms.

This temporarily would increase the number of judges from approximately 250 to 350, but this only would be a 40 percent increase for a court that had a backlog of 526,175 cases at the end of Nov. 2016. The average wait for a hearing was 678 days.  

Also, it may not be possible to find 100 qualified lawyers to fill the additional positions.

To control immigration, Trump needs to think outside the wall https://t.co/2cZhI5NCsD

— Washington DC News (@washdcnews) December 13, 2016

In fact, an extreme discrepancy now in the handling of asylum cases indicates that the immigration court already has a significant number of judges who are not applying the law correctly. The current range of grants varies from 15 percent to 71 percent, depending on which judge handles the case.

Flake is right that criminal aliens are being released. According to statistics provided by ICE, in fiscal year 2015, ICE had to release 19,723 criminal aliens with a total of 64,197 convictions.

This included 101 homicide convictions, 216 kidnapping convictions, 320 sexual assault convictions, 352 commercialized sexual offenses, 1,347 domestic violence convictions, 1,728 assault convictions, and 12,307 driving under the influence convictions.  

The Democrats have a choice.

They can continue to oppose interior enforcement efforts, which has been an obstacle to the passage of another comprehensive immigration reform bill for more than 30 years.

Or, they can use the opportunity Flake has offered them to work with the Republicans by supporting a new approach to immigration reform that includes effective interior enforcement measures.

The Republicans also have a choice.

They can continue to pursue futile enforcement measures or work with the Democrats on a legalization program that would reduce the population of undocumented immigrants to a manageable level.

Nolan Rappaport’s immigration experience includes seven years as an immigration counsel on the House Judiciary Committee and twenty years writing decisions for the Board of Immigration Appeals.

The views expressed by contributors are their own and not the views of The Hill.