“As of the end of Nov. 2016, the average wait time for a hearing was 678 days. President-elect Trump will have to reduce the population of undocumented immigrants to a manageable level with a very large legalization program before he will be able to address the home free magnet.
Also, so long as immigrants who want to come here illegally think that they will be safe from deportation once they have reached the interior, they will find a way to get past any wall that he builds to protect our border.”
Nolan’s thoughtful article gives a great summary of the prosecutorial discretion (“PD”) programs put into effect by the Obama Administration. Although Nolan is is OK with the concept of PD, he believes that by formalizing and publicizing the PD program, the Obama Administration has given a “home free” signal to undocumented migrants who reach the interior of our country. Nolan believes that this acts as both a magnet for undocumented immigration and a barrier to effective immigration reform legislation.
I agree with Nolan that removal of most of those with cases backlogged on the Immigration Court dockets will prove impractical. I also agree with him that the huge backlogs and lengthy waiting times for hearings have robbed the Immigration Court system of credibilty. But, with due respect, I tend to doubt that addressing “the home free magnet” is the primary answer to a workable system.
First, I think that human migration is an historic phenomenon driven primarily by forces in sending countries which we do not control. Addressing the “root causes” of these problems has proved elusive. Efforts to provide assistance through foreign governments have been largely unsuccessful because of endemic corruption and lack of the necessary infrastructure. Efforts administered by the State Department and USAID within foreign countries have shown some promise, as described in one of my earlier blogs (12/26/16). Yet, to date, they appear to be too labor intensive and too limited in the number of individuals who can be reached to have a major effect on migration patterns.
Additionally, I doubt that migration will be controlled without legislative changes and expansion of our legal immigration system to better match supply with demand. Currently, the demand for immigration by U.S. citizen and lawfully resident families, U.S. employers, and displaced or threatened individuals in foreign countries far exceeds the supply of available visas. Continued immigration is a reality and, in fact, a necessity for our nation’s prosperity. Until there is a better balance between supply and demand, individuals will, as Nolan suggests, continue to breach any walls or interdiction systems that we can construct. And, differing from Nolan, history shows that they also will evade interior enforcement efforts which, in any event, will prove to be costly, ineffective, disruptive, and unacceptable from a civil liberties standpoint.
Yes, I know this isn’t what folks, particularly those “outside the Beltway,” want to hear. But, the fact that my message might be unpopular in today’s climate doesn’t necessarily mean that I’m wrong.
Immigration is a complicated issue that will require thoughtful, creative, cooperative, and human-oriented solutions. Merely doubling down on enforcement, whether popular or not, will not give us control over human migration.
On an historical note, I greatly appreciate Nolan’s citation and link to the July 15, 1976 memorandum on prosecutorial discretion from INS General Counsel Sam Bernsen to Commissioner Chapman, which I wrote. Go to the link and check out the initials at the end. Oh, for the “good old days” of “real” carbon copies!
PWS 12/28/16
I agree with Paul that my “home free magnet” is just one of many factors, and eliminating it would not eliminate all of the problems with our immigration system. Nevertheless, I think it is something that should be avoided in the future. I will explain with an analogy.
If a local police chief tells his officers to stop arresting shop lifters because the department does not have enough police to deal with that problem without harming efforts to control more serious crime, that is a legitimate exercise of prosecutorial discretion. But what do you think would happen if the police chief then notified the local newspapers of this change in police policy?
The larger issue is that there are so many undocumented aliens in the country now that our immigration enforcement resources can’t cope with them. President-elect Trump is going to find this out very quickly when he tries to carry out his campaign promise to deport millions of people. See “President Elect Donald Trump will not be able to deport millions of people.” (November 10, 2016),
http://www.huffingtonpost.com/entry/5824c8c5e4b0bb5f0af37f01?timestamp=14789653 34261
He is going to have to accept a very large legalization program to reduce the undocumented population to a manageable level. But a Republican-controled Congress won’t let that happen until the Democrats are willing to accept effective interior enforcement to prevent a new group of undocumented aliens in the future from replacing the ones being legalized.
That means an enforcement program that applies to all deportable immigrants who can’t get relief under the INA, i.e., another IRCA agreement. What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform? (Feb. 8, 2013), https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2013/02/08/what-is-irca-and-what-does-it-have-to-do-with-comprehensive-immigration-reform.aspx?Redirected=true
But this time, the enforcement and border security elements of the agreement would have to happen before the legalization and other benefit provisions are implemented. I don’t think there is any chance that the Republicans will risk a repeat of what happened with IRCA. The Democrats got their end of the bargain but the enforcement and border security provisions were never implemented.