According to Marshall Fitz, a prominent immigration advocate and former advisor to the Obama White House, Trump’s ICE raids are cruel and unnecessary, will not fix the real problems in our immigration system, and are profoundly out of step with the wishes of the American people.
He also has said that while the American people may not agree with Trump’s immigration policies, they know what his policies are. But the same cannot be said for the Democrats, and research indicates that they will need to propose realistic immigration reforms if they want to remove Trump from the White House in the upcoming election.
I disagree with Marshall’s comments about Trump’s ICE raid. To my knowledge, ICE is just going to arrest aliens who appear to be in one of the classes of deportable aliens described in Section 1227 of the Immigration and Nationality Act (INA). This includes 2,000 families that are subject to final deportation orders.
If those statutory provisions are cruel and unnecessary or out of step with the wishes of the American people, the blame lies with our elected representatives in Congress who wrote and passed the provisions, not with ICE — or with Trump either, for that matter.
I agree, however, with Marshall’s point that the Democrats need to do more than just oppose what Trump is doing, which will not be easy for them. They have gotten into the habit of relying on ad hominem responses instead of addressing the merits of his positions.
The Democrats are creating problems by opposing interior enforcement that is not limited to criminal aliens.
Legalization
The Republicans won’t support a legalization program until illegal immigration is under control — and that can’t happen without unrestricted interior enforcement.
The Immigration Reform and Control Act of 1986 (IRCA) established a legalization program that granted lawful status to millions of undocumented aliens.
The legalization program in IRCA was based on a bi-partisan, wipe-the-slate-clean deal: Legalize the undocumented aliens who are already here in return for enforcement and border security measures that will prevent a new group of undocumented aliens from taking their place in five or ten years.
But the 2.7 million aliens who were legalized under its provisions in the late 1980s and early 1990s were replaced entirely by a new group of undocumented aliens by the beginning of 1997. Its strongest enforcement provision, employer sanctions, was not fully implemented, and the border was not secured.
The Republicans have not forgotten IRCA.
When the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, House Judiciary Chairman Bob Goodlatte (R-Va.) objected to it because he thought it repeated the mistakes that were made with IRCA by not adequately addressing interior enforcement.
The ‘home free’ pull factor
President Barack Obama focused his immigration enforcement program primarily on aliens who had been convicted of crimes in the United States or who had been caught near the border after making an illegal entry.
During his administration, once an undocumented alien succeeded in reaching the interior of the country, he was home free. It was extremely unlikely that he would be deported unless he was convicted of a crime.
In addition to being a pull factor that encouraged illegal immigration, this made border security more difficult by providing a strong incentive for aliens to persist in attempts to make an illegal entry.
State sovereignty
Controlling alien admissions is a core element of state sovereignty. The Supreme Court has held that Congress has absolute authority to control immigration by establishing laws governing the admission, exclusion, and deportation of aliens.
This authority is meaningless if the laws that Congress passes are not enforced in the interior of the country.
We need legal immigration
The difference between legal and illegal immigration is that with legal immigration, our elected representatives in Congress determine which aliens will be allowed to enter and remain in the United States.
With illegal immigration, that determination is made by undocumented aliens we know nothing about who enter our country and remain here in violation of our laws.
When we need more immigrants, that need should be met by an increase in legal immigration.
The threat of deportation is greatly exaggerated
No one knows how many undocumented aliens there are in the United States, who they are, where they are from, or what their intentions are.
Estimates range between 10 and 22 million. With such a large population scattered throughout the fifty states, it is extremely unlikely that any given alien is going to be arrested and placed in removal proceedings… unless he draws attention to himself by being convicted of a serious crime.
Moreover, the process for removing deportable aliens is extremely inefficient.
Aliens in removal proceedings are entitled to a hearing before an immigration judge, and as of the end of May, the average wait for a hearing was 922 days, which is two-and-a-half years.
Then, if their hearings result in a deportation order, they have a right to appeal to the Board of Immigration Appeals, which also has serious backlog problems, and they cannot be deported while their appeals are pending.
This makes the mass deportations the Democrats are afraid of impossible.
How would a Democratic president deal with these issues? Unfortunately, as Marshall has indicated, no one knows… yet anyway.
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 on Twitter @NolanR1