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Immigration Reform During A Recession

by Harry DeMell

With lobbying efforts for immigration "reform" taking a high note we should be asking whether these efforts are realistic and designed to achieve results or simply to make us feel good. It seems that there are few people who are stopping to survey the landscape to determine what is possible and what is not.

If there is to be any meaningful immigration legislation we have to have an approach that will further a limited number of objectives that can be sold as a moderate package that will improve the immigration system, make it more humane and at the same time increase the efficiency of the various agencies in handling the tasks assigned to them.

It should be noted that in recent months the restrictionists have been uncharacteristically silent. Where is the Federation for American Immigration Reform (FAIR)? They know that with unemployment hovering around ten per cent, no one in congress is willing to vote to allow millions of foreign workers to compete with Americans in the marketplace. They also know that our administration has gambled too much on health care and no longer has the ability to marshal its congressional resources in another controversial cause.

With a reelection campaign just a few months away and with the anti incumbent sentiment as it is, it is highly unlikely that congress will pick up the cause at this time. I suspect that these issues will remain dormant for several years.

Those supporting an amnesty (call it what you will), are asking too much. They are perceived as another interest group and one that does not support what is good for America or for the sitting senators and representatives.

The American Immigration Lawyers Association (AILA) has pushed for a comprehensive legalization program and as such has marginalized its efforts. AILA was once a bar association that congress could rely upon to discuss changes and the mechanics of the system. During the 1990s AILA went from a bar association to an advocacy association and took themselves out of the game to effect meaningful changes to the system. They would do the immigration community a service if they reevaluated their efforts in pushing immigration reform at this time.

There seems to be no middle ground and there is a large opening for some organization concerned with the fair and meaningful administration of justice to move into.

Some legislation would be possible if labeled an "Immigration Efficiency Bill". That bill might bring forth a limited number of changes in the name of fixing unfair or counterproductive parts of our system. We might also lobby the Department of Homeland Security to change some regulations and policies to this end.

We need to support a policy that will allow more discretionary grants of residence to those in the gray area between legal and undocumented. Allowing aliens who have waited their turns in the normal quota lists to visa process abroad without suffering penalties under the three and ten years bars will remove some two million people from the list of undocumented without giving away the show. After all, these people have approved family or employment petitions and are otherwise eligible for legal residence. This might be accomplished through legislation or regulation.

Repealing the mandatory detention provisions for many convicted aliens will allow the courts greater flexibility in controlling their case loads. Judges should also have more flexibility in granting cancellation of removal to truly deserving aliens based on a realistic determination of hardship and service to the community. These changes could also be accomplished through legislation or executive policy. Changes in the definition of aggravated felony might allow judges to grant relief in worthy cases.

Some legislation to allow children who have remained here for long periods to remain and possible to allow service in the military as possible avenues to legal status should be encouraged. A change in registry to move the date from January 1, 1972 to a more meaningful date combined with a discretionary component would also improve the system.

Congress will not pass legislation that will benefit aliens without some enforcement provisions. There is a trend for greater enforcement of our immigration laws. It is becoming increasingly difficult to remain in the United States without proper documentation. Some additional enforcement provisions will have to be included in any proposed legislation to allow some senators and representatives to claim that they too achieved some restrictive result.

There are laws on the books that would penalize employers for hiring undocumented employees. These laws are not being enforced by the current administration and were not by the past three administrations. No congress person wants these laws enforced in their districts for political reasons. Some provisions strengthening these provisions might satisfy enough members of congress to pass some corrective legislation.

Lobbying for new comprehensive legislation is not necessary and increased enforcement seems unlikely at a time when the administration is busy dealing with the economy, health care and a terrorist threat.

The way to proceed in these economically difficult times is to scale back and push a package of moderate proposals designed to assist the neediest and to reward those who have tried to abide by our system. That package should contain provisions designed to streamline the system. At the same time we need to lobby the administration to make executive changes to stop negative oriented decision making and to eliminate as much unnecessary procedure as possible.

All parties concerned should remember that in 1996 President Clinton signed into law draconian immigration legislation that continues to this day as the source of much of the inequity in the system. During that legislative process the immigration bar was excluded from participation because congress perceived that all the players were acting as advocates of one form or another and there seemed to be no bar association interested in the fair administration of justice and the good of America. Those of us who feel that the system has never worked worse should remember that lesson.

Copyright 2010, 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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