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Secretary Napolitano Remarks On Immigration Reform: A Moderate Response

by Harry DeMell

On November 13, 2009 Secretary Napolitano released remarks to the Center for American Progress that contain the seeds of an administration policy that might "reform" our immigration laws and system. This is my moderate assessment of those remarks. A moderate position believes that there is a path between an amnesty and mass deportation. I will quote the secretary in italics where appropriate.

The Secretary states that the "..status quo is simply unacceptable". She is correct. We have a system that is not working well on many levels. The danger is that we may create a reform that makes the situation worse than it is now. There's an old cowboy expression that says that if you're digging yourself into a hole stop digging. We need to understand the history of prior 'reform" bills that have put us into this deep hole. Getting out of the hole requires more than an easy fix.

She states that the current system; "Is an affront to every law abiding citizen and every employer who plays by the rules." In this she is correct. We need to be sure that we encourage compliance with our laws. That will mean that those laws are reasonable, allow those people who have complied with our laws to obtain benefits in a reasonable and timely way whether they are aliens or employers. It also means that we do not reward those who break or flaunt our laws.

As the secretary states, there are "some 12 million people here illegally, living in the shadows- a source of pain and conflict." It should be recognized that the passage of the last amnesty sought to address an undocumented alien problem of some 2 million persons. The six fold increase in our illegal population should tell us that the 1986 law did not work. The definition of insanity is doing the same thing over and over and expecting a different result.

Secretary Napolitano stated "one sided reform, as we saw in 1986, cannot succeed." In that she is wrong. The 1986 legislation also incorporated employer sanctions and was a two legged plan. She was right that the enforcement part of the equation never materialized, but those laws are still on the books. The best way to encourage respect for our laws is not to pass the buck to congress and request more complicated laws. The administration needs to take the bull by the horns and use those laws that they already have. This is the fifth presidential administration that has refused to enforce the laws as they are. During this moment of high unemployment you would think that the administration would.

It is for Secretary Napolitano to act. She has the tools.

The secretary calls for a "three legged stool" approach. That includes enforcement, improved legal flows and a fair way to deal with those who are already here. Let's take each one of these items separately.

Serious and effective enforcement is in the hands of the administration. At this moment the secretary might make a case for more money to hire more investigators and prosecutors but there is little to be gained from significant changes in the law since the law as written has never been effectively implemented.

If we enforce the laws on the books as written we need to recognize the economic realities of the business world. This means that the issuance of visas needs to provide the American business community with workers, skilled or not that it needs to function and compete in this increasingly global economy. We need to make it profitable for employers to cooperate with government and sponsor their employees in an effective manner. Currently it is more profitable for many employers to ignore the law and hire undocumented aliens because they cannot get the workers they need within the existing visa system. Hyper technical and archaic laws make it impossible for most employers to obey the law, and succeed.

Some visa laws can be reformed within the existing system by simply removing numerical restrictions on temporary work visas and by changing regulations to allow more employers to qualify. The first needs congressional action and the later can be done through the president's rule making powers.

When I was a young lawyer I was taught that the goal of our immigration system was to unite families. This seems to have been forgotten. Where we can, we need to unite families within the existing structure. Wooden enforcement of our deportation laws will not do this. Each person must be looked at on a case by case basis to determine whether there is a need to keep families together.

We must not put all undocumented persons in the same category. We can break them up into categories. Those who but for some technicality of the law or quota waiting list would be allowed to become legal residents should be given rights over those with no such possibility.

Those who have broken our laws should not be put ahead of those who have been waiting patiently on our quota waiting lists. An amnesty, however it is labeled, would reward those who have broken our laws.

Many people who have remained beyond their authorized stay in the United States have approved immigrant visa applications but are unable to complete their applications for legal residence. Many have technical violations and if they travel to their home countries to appear at the U.S. Embassy to complete the residence process, will face penalties of exclusion from the U.S. for up to 10 years. We need to separate those persons from those who have no current path to legal status. These people should be on the top of our list of those we wish to assist. Those persons should be forgiven for those violations before they travel to complete the immigrant process. This alone could remove between one and two million persons from our undocumented roles. The processing of these persons could be accomplished by increased user fees.

The secretary wants "..a firm but fair way to deal with those who are already here." She then talks about "bringing the millions of illegal immigrants in this country out of the shadows". She is requiring them to pay all taxes, pay penalties and speak English. This is exactly the package put forth in the 1986 amnesty.

Let's examine how Secretary Napolitano's ideas worked in 1986. At that time the undocumented problem included some 2 million persons. Today there are an estimated 12 million. The employer sanction program was never properly enforced. Those laws are currently on the books. Why does she believe that she will enforce new laws when she isn't doing that job now? There are still many millions of persons either not paying taxes or severely underpaying.

Believing that this same old failed prescription will work is insanity.

There were unforeseen consequences to the 1986 legislation. First there were hundred of thousands and possible millions of fraudulent applications. No aliens were prosecuted for these frauds. Persons all over the world saw that those who filed these fraudulent applications were more likely to obtain an immigration benefit than those people who waited their turns and obeyed the law. This is not a message we wish to repeat.

There was also a companion farm worker bill adopted with the 1986 amnesty. Then Congressman Schumer put together that compromise. Anyone in my industry will tell you that more than ninety per cent of those agricultural worker applications were fraudulent. Today most of those applicants are United States citizens and have sponsored their families to come and live here.

There are proposals that the secretary is ignoring that might make a difference without giving away the store. There is a law on the books that allows people who have been in the U.S. since 1972 to obtain residence. That date has over the last century been adjusted forward several times. She might propose changing that date to a later one such as 1990 to allow those who have been here the longest to obtain residence.

There might be a change in the law to allow Immigration Judges to allow more persons to remain here when there is hardship. The current law places the hardship standard beyond the reach of almost all aliens.

The secretary might propose a law that allows aliens who have children who are legally here and graduate high school or serve on the military to remain. That has been discussed in congress but seems to be off the table at the moment.

The secretary might propose a new K visa that allows families with long visa waiting lists to remain together while they wait their turns on the quota list.

Our immigration debate has taken an ominous turn. We have those who wish to throw them all out and those who wish to give them all the rights of Americans.

Throwing them all out would be cruel and require an immigration police force larger than all this country's police combined because the problem is bigger than all the crime that now exists here. It would be cruel to their families here and economically disruptive.

Passing a new amnesty, no matter what it is called, will encourage another large wave of illegal immigrants and further bury the system in its own waste.

Secretary Napolitano says that the flow of illegal immigrants "has reduced significantly". This is misleading. The poor state of our economy has watered down the incentives to come here for those seeking employment.

Increased border security has discouraged those undocumented aliens already here from leaving and again returning to the United States. This cross border traffic still exists at a reduced pace but the number of undocumented persons here still grows. They just don't travel as much. They just remain and work and hide.

I agree with the secretary when she says that "we need to modernize and streamline the laws governing this process." Unfortunately my experience over thirty years in this field of law is that every time congress gets involved the system becomes more complex and less workable. In no way does it look like it will be different this time.

"Reform" means to change by redoing. Not every change is a good one but when it comes to government it seems that every change good and bad becomes another layer of bureaucracy. We must not make the mistake of re-forming it badly. There seems to be no one in congress who has an in depth understanding of the law as it is or as it should be. Sometimes when you don't know what to do the best thing is to do nothing.

Copyright 2009, by Harry DeMell

About The Author

Harry DeMell is an attorney practicing exclusively in the area of visa, immigration and nationality law since 1977. He is an active member of AILA and has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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