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A Republican Path To Immigration Reform

by Harry DeMell

INTRODUCTION: The Republican Party needs to present an immigration reform package that does not include an amnesty but that begins the process of increasing government control of our boarders and provides a humane lawful path to residence or work visas for those who will benefit our economy and culture.
These proposals are in keeping with Republican Party principles of limited government, creating an environment in which business can thrive and thereby create jobs and self-sustaining laws. Simple solutions will not fix a system that has become increasingly broken over many decades.
A new Republican path to immigration reform would be based on a better understanding of what is good for America. This Republican path to immigration reform will need to

  1. Decrease the pool of illegal persons in the United States in a sensible way (and without an amnesty, whatever it is called),
  2. Create incentives for aliens and their employers to comply with our laws and
  3. Make it increasingly difficult to ignore these laws or remain in the United States without documentation.
TIME TO ACT: Now that the Republican Party has control of the House of Representatives it must take the initiative in many areas. If they do not, the Republican Party will be playing defense in 2012.
One area that cries out for attention is the sorry state of out immigration and visa system.
The Democrats have dropped the ball in this area.
President Obama promised in 2008 to tackle this problem and even though the Democratic Party has had unprecedented control of our government they have failed to have any meaningful discussion or take any action. Nothing was done during the last two years. One reason for that was a lack of new ideas. Another was the economy.
It's now time for the Republicans to put up or shut up. There are those who would restrict immigration and those who support a broad amnesty. Neither position is viable. We need a new approach to our immigration problems from a new point of view that is neither anti-alien nor pro amnesty. We need a policy that is pro-American. The focus must be legal immigration and not rewards for illegal immigration. This paper proposes a new path.

REPUBLICAN APPROACH: A Republican approach should seek to encourage business to do business in the United States, thereby creating jobs, and economic activity here. It will seek to enforce the laws in an efficient and humane manner and will recognize that immigration is an important but limited part of the American growth story.
We need to look at America's economic, political, and social future and seek solutions that are good for our country. We need to break down the problem into manageable pieces, look at our labor needs and how our policies affect our neighbors. First we must ratchet up boarder protection and shrink the pool of undocumented aliens in order to allow better control of our alien population. This should be done without severely impacting the American economy and without encouraging further illegal immigration to our shores.
It is better for Congress to avoid a comprehensive plan and do what it can now with the understanding that our immigration and legal system can only digest so much at one time. Hastily conceived plans have a way of creating more problems then they solve. We need to shrink the size of our undocumented population by using a combination of restructured enforcement and by redefining classes of illegal and partially documented aliens who might be eligible for benefits.

WHY OLD IDEAS ARE WRONG: We first need to examine what is wrong with the positions being taken by those seeking some type of amnesty and those exposing complete removal of all undocumented foreigners.
Amnesty: There has been talk of a legalization program. This is just a code word for amnesty. Having had extensive experience with the last amnesty, in the 1980s, I have no doubt that this would only encourage a large influx of undocumented aliens in an attempt to qualify and a flood of fraudulent documents to that end. This is what happened in 1987 and this is one reason why our problem has gone from the 2 million undocumented alien problem then, to an estimated 12 million undocumented alien problem now.
Senator Schumer who was a congressman and a principal in the 1986 amnesty program still pays lip service to this same "solution". The Administration and many in Congress may believe that an amnesty will gain them the Hispanic vote in the next election. They are so wrong. The Hispanic community is acutely aware of how broke the system is, as many of them and their family members waited their turns on our quota waiting lists. Those who have abided by our laws appreciate them most. We must remember that in the last presidential election the candidate who supported an amnesty lost the Hispanic vote and the election.
The talk of an amnesty encourages more aliens to come here and remain without documentation. It is important and correct to let aliens know that those who have obeyed our laws and waited their turn will be given first consideration for any benefits. There was also significant fraud during the last amnesty. The message on the street became "lie and you will be rewarded". And they did and they were. To repeat these programs would be insane.
Mass removals: The anti-immigrant lobby is seeking to deport all undocumented aliens but has no idea about the scope of the problem or exactly what it would take to accomplish this, nor what this would do to the economy if actually implemented. They have no understanding of the foreign policy fallout attached to such a policy.
The recent Arizona law seeks to criminalize actions that would be better left to the federal government. That law has created rights under the U.S. constitution for aliens that up to now were available only to criminals. Those rights include Miranda warnings, trial by jury and right to counsel.
The anti-immigrant lobby is awash with the same old arguments that immigrants take American jobs, don't fit in and don't pay taxes. The truth is that some immigrants contribute much to our society and some little. In every generation, Americans have used these arguments. We seem to do on the whole very well in every generation with whatever immigrants come. Each group integrates, supports our country and becomes a net asset. There is no reason to believe that this will change.
In order to remove twelve million people we would need a huge infrastructure and a significant increase of enforcement on every level. Our immigrant enforcement budget would exceed that of our criminal justice system since the numbers of immigrants to be removed far exceeds the number of criminals and potential criminals in our society. If we are true to our promise not to expand government we need another way to tackle the problem.
A major push to round up and deport all undocumented aliens would lead to severe economic dislocation. We might find out that we threw out the baby with the bathwater. The process of removing these people to their countries of origin requires deportation hearings. This, in turn, requires an even larger bureaucracy than we have now. Just as we were unable to prevent the sale of liquor during prohibition we cannot prevent undocumented entry into the United States by enforcement alone. On the other hand the government has a strong legitimate interest in the control and protection of our borders. In this world of terrorism it is essential. There would be foreign policy problems in removing people to countries that do not want them and cannot absorb them. We risk the economic and political destabilization of our neighbors.

THE REPUBLICAN PROGRAM: A new Republican path to immigration reform should be less drastic and in some ways more complicated but would be based on a better understanding of what is good for America. This Republican path to immigration reform will need to

  1. Decrease the pool of illegal persons in the United States in a sensible way,
  2. Create incentives for aliens and their employers to comply with our laws and
  3. Make it increasingly difficult to ignore these laws.
We need to make manageable changes with the intention of monitoring the effects from year to year with a view towards increasing the effectiveness of our programs.

TEN-YEAR BAR: In order to decrease the number of illegal immigrants, we must recognize that there are illegal persons in this country that we know about but are unable to legalize or we have been unable to remove. There are somewhere between 1 and 2 million people in the United States who are eligible for immigrant visas (green cards) based upon approved family or employment applications and have waited their turn on quota waiting lists but for some technicality are unable to complete the process of obtaining their legal residence here. The vast majority are stuck because to complete the immigrant process they need to return home and that might subject them to a 10 year wait outside the United States or require them to apply for special forgiveness for their unlawful stay. This has been counterproductive and has forced people to remain here in the shadows. We could allow those aliens who return to their home countries to complete their immigrant visa applications without the threat of the ten-year bar. Another path might be to allow them to apply for a waiver of this ten-year bar before they leave the United States for their final interviews. Remember that these are aliens the government has already decided are eligible to become legal permanent residents. They should be the easiest persons to legalize. This provision alone will remove approximately two million aliens from the undocumented pool and bring them into our taxpaying and legal system.

REMOVAL OF ILLEGALS: Persons with final orders of deportation (also called removal) need to have their information placed in a national database so that the police and the many departments of motor vehicles can access the information. The immigration authorities need to be able to retrieve this information so that they can actually apprehend and remove these people. I estimate that there are at least several hundred thousand persons in this category.
We might also want to make this information available to airlines rail and bus carriers to allow them to report back to the government on the whereabouts of these aliens when that information comes to their attention. While it is inadvisable to have the many police departments enforce our immigration laws, they should have a clear mandate to detain those persons with final removal (deportation) orders in much the same way that they would have the authority to detain persons wanted in other jurisdictions. Those same agencies need guidelines to continue to assist some undocumented aliens when they are in need of legitimate police protection. No one should be afraid to contact the police when it is necessary.

VISA PROCESSING ABROAD: Aliens applying for permanent residence should be encouraged in most cases to return to their countries of origin to complete their residence where, if refused for reasons such as health or criminal grounds, they would be outside of the United States. No resources for removal hearings, detention, monitoring or deportation would be necessary. Since most immigrant visa processing is done within the United States, limited additional resources would be necessary. Those resources that need to be funded could be funded by increased user fees.
These proposals might take up to one quarter of the persons out of the pool we have to deal with. Critics will say that this is not enough but this is much more than is being accomplished now. It is a solution to part of the problem that we can accomplish with existing resources. What do the critics have to offer other than a big wall or a big giveaway?

DIFFICULT TO WORK WITHOUT PERMISSION: We also need to tighten the screws for those who work without proper documentation. Employer tax deductions: Just by disallowing employer tax deductions for wages paid to undocumented workers or to those employers who fail to in good faith document the legal status of their workers, will dry up many job opportunities for those who would work without documentation. Every accountant in the United States would counsel their clients against undocumented employment. This is for the most part self policing. Employer sanction increases unnecessary: This administration as well as the four prior administrations has had the legal tools to crack down on illegal hiring in the United States. Each administration has not done so. There is no reason to believe that some additional fines or prohibitions in any new immigration bill will be enforced. If Secretary Napolitano wanted to enforce these laws she could do it today. All congressional discussion about increased penalties have been for show. There is no will to enforce these laws because every senator and representative does not want enforcement in his or her district. They do not want the employment disruption enforcement brings and they do not want to anger their most important contributors.

VISAS FOR THOSE WHO WOULD HELP THE ECONOMY: On the other side, we need to recognize the need for many of these worker's services and expand our work visa program to accommodate those aliens who have real taxpaying work in the United States. Laws are already on the books allowing the government to issue temporary work visas. Little change is necessary except policy changes and additional visa numbers.
Not every program needs to lead to permanent residence or citizenship.
There is a current program for H-2 temporary workers. Due to numerical and draconian restrictions few employers even try to take advantage and bring workers in legally under this program.
Western hemisphere H-5 visa: This temporary work program can be expanded to allow some western hemisphere workers illegally working in the United States to apply for permission to work along with persons outside the U.S. All visas would be obtained outside the U.S. and would require yearly renewal. They would not be available to those without sponsors and would require applicants to show taxes and a lack of a criminal record. Employers would have to insure a fair wage or be subject to fines and expulsion from the program. Families must not be included and this would not be a path to legal permanent residence. Procedures would have to be significantly streamlined. It is in the American national interest to have strong neighbors both economically and politically. Stable neighbors add to our national security. Our closest neighbors are in the western hemisphere. Our very closest neighbor is Mexico.
We need a policy that gives employment preference to natives of the western hemisphere and does not have to include an immigrant component. Not every work visa must lead to permanent residence and U.S. citizenship. It could be limited to temporary work visas. Just allowing temporary workers to come to the United States to engage in taxpaying employment while allowing them to regularly visit their families abroad will allow these workers to build a stronger middle class and stabilize their economies and their governments. This is nowhere more important than in Mexico where poverty has spawned a drug war that could conceivably destabilize that government and create a massive refugee, military and political problem for us. Since most illegal immigrants are Mexican it is essential that we get a handle on this part of the problem if we are to have any hope of controlling our borders at all. There is every reason to give employment preference to nationals of the western hemisphere, especially Mexico. There is precedent for this. Before 1964, we had a temporary work program for Mexicans called the 'Bracero program'. It was cancelled because of perceived abuses in the system. The real reason was discrimination against Mexican nationals. We threw out the baby with the bathwater. This program needs to be revived. There is a fear that some aliens pose a terrorist threat. This is not an issue among Mexican and western hemisphere natives. Our concerns about the Mexican drug wars spilling over into the United States are all too real but need to be addressed differently. A western hemisphere temporary worker program will be good for the United States in another way. It would allow us to recognize the economic realities of our workforce and bring undocumented workers into the light. It will allow us to collect taxes and further shrink the pool on undocumented persons here further isolating those left undocumented. It might be limited to occupations with less than a four per cent unemployment rate.
Keep highly skilled work in the U.S.: The current H-1 visa program for specialty workers should be numerically expanded to encourage high tech companies to process their work in the United States and not have to outsource this work. It is essential to our economic and military future that we be at the forefront in technology. We should encourage the world's most skilled workers to work here.
These proposals will still leave a very large pool of undocumented persons. There are several more proposals to deal with further shrinking this pool.

FLEXIBILITY FOR THOSE WHO ARE HERE: Our laws should allow for some flexibility.
Registry: We currently have a law allowing persons who reside in the United States since before 1972 to obtain legal residence. This is called 'registry'. This law was changed in the 1980s from 1948 to 1972. Before that it read 1924. There would be precedent in moving this date to 1986, the date of the last amnesty (or some other date). While the pool remains small, it would remove from consideration those who have the longest roots in the United States without encouraging more to come in and wait another 20 years.
Modified dream act: We might allow young persons who have lived in the United States through no fault of there own for a number of years and who have graduated from high school or possibly served honorably in the military become legal residents and eventually sponsor their parents. Military service for residence has been done before and makes sense.
Humane decisions: We must recognize those instances where national conditions such as in Haiti make it impossible and cruel to deport persons to their homes or where mass deportations might destabilize our neighbor's governments or economy. Our policies should be humane but humane doesn't necessarily mean legal permanent residence and U.S. citizenship.
Judicial power: There has been a trend in this country for the executive and legislative branches of government to take judgment away from the judges. Immigration Judges need to have greater flexibility in granting relief to aliens. Judges need to be able to generally take individual hardship into account. This will encourage additional undocumented aliens to come forward rather than hide in the shadows. It is the humane thing to do.
Judges should also have greater power to grant bonds and decide detention matters. There is currently a mandatory detention statute signed into law in 1996 that creates hardship on those it shouldn't and prevents the government from using its resources in other more productive ways.

GENERAL REGISTRATION: A general registration with no immediate benefits should be considered with the knowledge that those who do not register will have additional problems obtaining any legal status in the future.
A General registration could be similar to the special registration that was in place for aliens from certain countries after September 11th. Those registrants will get no benefits other than the right to apply for some benefit in the future and only if they wait on the same visa lines and qualify according to the same rules as any other applicant. This will assist us in getting a handle on the scope of our problem and allow us to make plans for further legislation taking into account the results of these changes in conjunction with the size of the remaining problem.
This general registration will also send a message that future illegals will find it increasingly difficult to remain here. The general registration should not be used to begin removal proceedings but should also not be protection from removal should they be picked up in other ways.

Conclusion: With these reforms the pool of persons without documentation will shrink significantly and the remaining persons will further stand out and find it increasingly difficult to function in the United States. These proposals will allow the Republican Party to gain the initiative in the area of immigration reform. It is workable and will put the Republican Party in the position of pushing creative and problem solving proposals.

About The Author

Harry DeMell is an Attorney practicing exclusively in the area of Visa, Immigration and Nationality Law since 1977.

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