Five immigration questions for the presidential debates

If the debate hosts who are going to question the candidates about their views on immigration were to ask me for suggestions, I would offer the following five:

On Legalization — The last legalization program was established more than 30 years ago by the Immigration Reform and Control Act of 1986 (IRCA). It was based on an agreement between the Republicans and the Democrats to give lawful status to undocumented aliens already living in the United States in return for interior enforcement measures that were expected to prevent a new group of undocumented aliens from replacing the ones being legalized.

All undocumented aliens who were not legalized were to be subject to deportation.

Question: Would you be willing to support negotiations to establish such an agreement now?

On Employer Sanctions — The IRCA was supposed to establish employer sanctions to eliminate the job magnet that draws undocumented aliens to the United States. The fines imposed pursuant to these sanctions were expected to deter employers from hiring aliens who were not authorized to work in the United States.

Approximately 2.7 million aliens were legalized, but the employer sanctions program was only implemented on a token basis. The job magnet continued to attract, and within a decade — by the beginning of 1997 — the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

It has been more than 30 years since IRCA was enacted, and we still do not have a fully implemented employer sanctions program. It’s time to give up on that program and consider alternatives.

Undocumented foreign workers are desirable to unscrupulous American employers because they can be exploited.

The Department of Labor (DOL) could address this problem purely as a labor issue by enforcing federal labor laws that were enacted to curb such abuses. With additional funding, DOL could mount a large-scale campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants.

Question: Should employer sanctions be abandoned in favor of having the Labor Department use federal labor laws to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants?

On Cost of Interior Enforcement — Funding will be difficult in 2021. According to a recent report from the Congressional Budget Office (CBO), the federal budget deficit for 2020 has reached $3.3 trillion, which is more than triple the shortfall recorded in 2019. CBO attributes this mainly to the economic disruption caused by the Coronavirus pandemic and the enactment of legislation in response to it.

And more pandemic aid is likely to be needed.

Question: How much should the government spend on the enforcement of our immigration laws in the interior of the country, and are you willing to cut funds from other areas to cover interior enforcement costs?  If so, where would you make the cuts?

On the Immigration Court Backlog Crisis — The immigration court has a backlog of more than 1,233,307 cases, and there are only 460 immigration judges.

The average wait for a hearing is 777 days — more than two years — and the effectiveness of interior enforcement depends on being able to put deportable aliens in removal proceedings without inordinate delay. They can’t be held in detention that long, and the risk that they will abscond during a two year wait for a hearing is quite high.

Due process also is affected. Judges working under the pressure of a backlog crisis can’t be expected to spend as much time on difficult cases as they would otherwise, and having to hire more judges rapidly appears to have made it necessary to lower qualification standards.

The immigration judge vacancy announcement doesn’t even ask for immigration law experience.

According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” It’s commonly compared in level of difficulty to tax law.

It may not be possible for a lawyer with no immigration law experience to learn enough to be an immigration judge in a training program for new judges. It takes years of experience as an immigration attorney.

Question: How would you deal with the immigration court backlog crisis?

On Determining the Effectiveness of Border Security — Border security can’t be evaluated meaningfully without knowing how many illegal crossings are being made.

Congress included a border security metrics provision in the Fiscal 2017 National Defense Authorization Act. Section 1092 of that Act requires the DHS Secretary to make an annual Border Security Metrics Report to congress on the effectiveness of methods being used to secure the border.

Among other things, the report must provide an estimate of the number of undetected unlawful entries. “Undetected unlawful entries” are defined as illegal border crossings between ports of entry that are not directly or indirectly observed or detected by the border patrol — but DHS currently has no way of knowing how many crossings are made without being observed or detected.

The solution for the border with Mexico could be to install surveillance systems that would detect every crossing along the entire length of the border. This hasn’t worked in the past, but that doesn’t necessarily mean that it shouldn’t be tried again with modern surveillance technology.

Question: Would you be willing to support the installation of a surveillance system along the entire length of the Mexico border to detect illegal crossings that are not being detected by the border patrol?

Final Point — The candidates should not be allowed to use their time to say bad things about their opponents. The voters need to know how the candidates would handle these difficult issues if they are elected, not why they dislike each other.

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 or at https://nolanrappaport.blogspot.com.