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Eight Things President Obama Can Do To Reform Our Immigration System Without Waiting For Congressional Action

by Harry DeMell

President Obama has his hands full during this difficult legislative session (2009). Health care and the war in Afghanistan seem to have taken all his energy. Immigration reform has been passed over.

It seems than congress does not have the time, or the will to tackle immigration reform at this time and possibly not at all during the upcoming midyear election cycle. There are a variety of things the President can do without congressional support to begin the process and help put the system on a track towards reform. The system didn't get to this sorry state overnight and cannot be fixed overnight.

The President can take administrative steps to help correct some of these problems, reduce the number of undocumented persons in this country and make it increasingly difficult for those who remain to function outside of the system. These are eight suggestions toward this end.

The President can, through his administrative powers change regulations and definitions in the Code of Federal Regulations (CFR) than can accomplish many of the reforms that are necessary without waiting for congress to act.

Since this is a huge problem it is wise for the President to implement these reforms as a first step in a larger process. How the governmental apparatus handles these changes will be a clue to how they will react to any larger legislative changes that may come in the future.

Here are eight of those suggestions.

1. Three and Ten Year Bars: Currently there are bars that prevent persons with approved immigrant visa applications from completing their cases either within or outside of the United States. Persons who have remained in the United States without permission often cannot risk leaving the United States to complete the immigrant visa process even though they may be supporting families here, caring for children or filling jobs that the U.S. Labor Department has determined are shortage occupations. These include persons who are spouses, parents and children of Americans and legal permanent residents.

Currently these people must return to their country or origin to apply for special permission to return. This permission is based upon hardship to their American or legal resident family. They can expect to wait many months or years for an answer. There are an estimated one to two million aliens in the United States who fall into this category. These are all people who the government has decided are eligible to become lawful permanent residents.

The President can allow these people to file their applications in the United States before they return to their countries and visa process there. This regulatory change can be accomplished simply and quickly and shrink our undocumented problem by ten to twenty percent in a short time, thereby making those who remain without permission stand out. If these people are denied visas in their home country because they have other problems such as concealed criminal problems, they will already be outside the United States and deportation hearings and appeals will not be necessary.

2. Mandatory Detention: There is currently a law that requires the government to detain all aliens who are released from prison for deportation (called removal) hearings. The Department of Homeland Security enforces this provision woodenly by detaining all aliens upon release from criminal custody without regard to the seriousness of the crime or hardship to their family or the possibility of relief.

Detention is taken in the literal sense and aliens are imprisoned. There is a large body of federal law in the area of habeas corpus that defines detention more broadly and includes orders of supervision, electronic custody and other methods of constructive control.

The President can by regulation redefine custody to include other methods of control and give to the Immigration Judges the authority to release aliens from actual physical custody when the situations warrant it. Judges need to be allowed to exercise their judgment and the current system does not allow for this. This would allow for a fairer system and would remove a significant administrative burden and expense in holding aliens for little reason. It would also free up prison space for those aliens who but for this law would be held.

3.Exceptional and Extremely Unusual Hardship: There is a law that allows an Immigration Judge to grant permission for certain aliens who have been in the country for more than ten years to become legal residents if they demonstrate good moral character and can prove exceptional and extremely unusual hardship to their American of legal permanent resident family.

The standard for this hardship is often impossible to overcome even though the alien's family will suffer significantly upon the denial of such an application. President Obama can by regulation redefine this standard in such a way that spells out that two or more forms of significant hardship will met the standard. Forms of hardship might include, financial, psychological, medical, educational, career and other hardships. This will allow our Immigration Judges to use their judgment in granting some aliens the right to remain with their family in the United States. Those judges will still be expected to use their discretion to grant relief only to worth applicants.

4. Computerize list of wanted aliens: If we attempt to detain all aliens in the United States at once we would need a police force greater than all the police forces in the United States today. We would cause great hardship and there would be many mistakes.

We need a database of aliens who are wanted by DHS and have that data base accessible to all police forces in the country. Those forces should be able to detain aliens that have orders of removal or are suspect for a variety of reasons such as national security. We should not try to detain all aliens at once since we do not have the infrastructure to do it and if we try it will be at the expense of general criminal enforcement.

Currently there are a variety of law enforcement databases and it is difficult for the enforcement community to get the data they need in a timely way.

The President can use existing resources to accomplish this goal.

5. Transportation: That same computerized list can be used by the transportation community to allow the government to access bus, train and airline records to identify those illegally in the United States. In this way we make it increasingly difficult for those persons who are undocumented to remain here and function freely.

6. Redefine Shortage Occupations: Currently aliens can be sponsored for legal residence through a complicated process that demonstrates that each alien is not displacing American workers. Most of these applications are unnecessary. The process takes so long tat often the economy changes during the selection process. President Obama can change the regulations to state that occupations with a less than three percent unemployment rate are deemed shortage. This will eliminate a significant workload for the Department of Labor and employers through out the United States.

7. Redefine tax options: The tax code can be amended to deny employers the right to deduct the wages paid to undocumented aliens from their gross income after those employers have been warned about specific employees. This provision will be largely self enforcing since the national accounting community will be the primary enforcers.

8. Revalidation of visas: In almost every case aliens who seek to renew existing visas need to travel to a U.S. Embassy or consulate in their home country. We need to reinstate procedures that allow business persons, students and many other visitors to review their visas while in the United States and avoid the unnecessary cost and delay of travel involved. This would reinstate an old procedure that was cancelled some years ago and would be paid for by increased user fees. This could be done by regulatory change and like all of these suggestions is within the presidential authority.


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