A Conservative Pathway for Immigration Reform

October 30, 2014 Topic: ImmigrationDomestic Politics Region: United States

A Conservative Pathway for Immigration Reform

"The United States is both a nation of laws and a nation of immigrants. There is no need to sacrifice either of these concepts in pursuit of the other."

Luckily, just as these policies were created by the executive branch, so too can they be easily undone. The first and easiest step that any future president can and should take to restore integrity to the U.S. immigration system is to rescind every executive order, policy memorandum and other executive-branch policy directive that disregards the letter and intent of U.S. immigration laws. The president should also ensure that the policies and procedures of individual agencies are not subject to gimmicks, political pressure or fraud.

Third, beyond just undoing these policies, the United States must also commit to using the right tools to remove illegal immigrants from the United States. The Obama administration has not done so. As a result, the United States is faced with a large number of absconders from immigration hearings, widespread failure to find and remove individuals with outstanding removal orders and an overall decline in the number of cases being prosecuted.

Indeed, absconders—aliens who, after being detained and then released pending a court hearing, never show up for the hearing—are a serious problem for the U.S. immigration court system. For example, in July 2013, Juan Osuna, director of the Justice Department’s Executive Office of Immigration Review (EOIR), testified that, for illegal immigrant minors—including UACs—the absentia rate was 46 percent. Leaked information from the U.S. Immigration and Customs Enforcement agency (ICE) obtained by the Associated Press indicated that 70 percent of families released into the United States did not report to a local ICE office as required. EOIR announced in October 2014 that of the first 14,000 immigrants with their initial court hearings this summer, 15 percent of UACs and 34 percent of family units had absconded.

These percentages will likely grow, as some will not appear for subsequent hearings and some will flee after their cases have been decided. After all, why show up for a hearing or go to an ICE office when one has no legal right to be in the United States? As one retired government employee with experience in immigration administration says, “On a cost basis from the alien’s perspective, this [absconding] makes sense. If you are in proceedings and have little chance of relief, why not treat the bond money (if it’s even required) as the cost of having been caught, and then flee, hoping to stay under the radar for as long as possible, perhaps until the next amnesty?”

A related problem is the “catch and release” that occurs at the border. The U.S. Border Patrol spends a sizable amount of money to prevent illegal border crossings and arrest those who cross illegally. DHS then squanders these precious funds by releasing increasingly large numbers of detainees, rather than immediately deporting them. Not only are they released, but they are told to enter the interior of the United States, where many will never report to the local ICE office or for their immigration court dates. Even if they do, the U.S. government will then either spend large sums of money to adjudicate cases that should have been summarily handled at the border, or it will simply decline to enforce the law. Regardless, many of these illegal border crossers are essentially being given de facto amnesty by the procedures put in place for handling large loads of new unlawful immigrants. Such procedures destroy any real sense of border security and interior enforcement.

The way to undo this troubling arrangement is for the executive branch to actively and widely use its authority to quickly remove illegal immigrants who are caught at the border. The president can use expedited removal against any illegal immigrant who has been in the United States for less than two years. Using expedited removal and other swift forms of immigration enforcement will negate the need to release illegal immigrants into the interior of the United States and ensure that they are promptly removed from the United States, thus shrinking the overwhelming caseload on U.S. immigration courts and reducing the number of absconders. Expedited removal can also be used beyond the border to enhance interior enforcement efforts.

All aliens convicted of criminal felony or misdemeanor offenses in the United States should also be subject to immediate removal from the country upon the conclusion of their jail sentences. As it stands, they are uninvited guests in the United States who are already removable from the United States, and by committing a crime, they have shown further disregard for our laws. Under U.S. law, “a United States District Court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney.” Furthermore, Operation Streamline, which allows for the criminal prosecution and removal of recent border crossers, should be continued and expanded as a way to both rapidly remove illegal immigrants and deter additional acts of illegal immigration with the threat of jail time.

Additionally, the law also allows for the use of expedited removal proceedings against aggravated felons and “stipulated judicial orders of removal” without a removal hearing. All federal prosecutors should be required to seek one of these removal orders in any criminal prosecution in which the defendant is an alien. This will further reduce the workload on immigration courts and remove criminal aliens from the United States.

While detention remains the most effective way to guarantee an immigrant shows up at court, DHS has nowhere near enough resources to detain all the illegal immigrants it could catch. Faster forms of removal will lessen the backlog of cases, but there will still be more immigrants than detention can handle. To stop absconders, the administration should expand the use of electronic monitoring as a cost-effective way to ensure attendance at immigration court.

Fourth, the United States should empower state and local governments to better enforce U.S. immigration law and secure the border. States like Arizona that are experiencing significant problems with illegal immigration are trying to step up and assist in enforcing immigration law. State and local law-enforcement resources are used to combat terrorism due to the amount of state and local resources scattered across the United States, and they should be partners in enforcing immigration law as well. With approximately one million state and local law-enforcement officers serving across the nation, the United States would be foolish to not take advantage of their local knowledge and presence.

Congress has already created multiple programs to take advantage of local law enforcement including the 287(g) program, Operation Stonegarden grants, Secure Communities and BEST teams. Each of these programs serves an important purpose.

Regrettably, the Obama administration has regularly rejected, cut funding for and fought most of these cooperative programs, even as it opposed independent, state enforcement efforts. A central tenet of the Obama administration has been to centralize power within the federal government. Nowhere is this truer than in immigration policy, where the executive branch has argued that it alone can enforce, or not enforce, federal law. State and local officials are willing to volunteer to be trained to help enforce federal immigration law, but the administration has rejected their help and gone to budgetary and administrative extremes to combat local assistance in enforcing immigration law.

Rather than fight states that want to enforce the law and work to stop recent illegal border crossers, the federal government should do more to partner with these willing allies. On the other hand, the federal government should start enforcing the law against those states that blatantly ignore federal immigration law by enacting illegal policies, such as providing in-state tuition to illegal immigrants.

Fifth, it is incumbent on the president to lead meaningful international efforts to combat illegal immigration. Most pressingly, the recent wave of unaccompanied minors from Central America further proves that the Obama administration can no longer continue ignoring the issues of Central America’s Northern Triangle. High levels of crime, violence and poverty exacerbated by weak and ineffective government institutions create further incentives to migrate. Since 2009, migration flows from Mexico have decreased and, as of this year, Mexico is no longer the primary source country. Migrants are now coming predominantly from the Northern Triangle countries of Guatemala, Honduras and El Salvador.

Mexican migration was largely due to the country’s economic conditions. As the Mexican economy prospered with internal reforms and the North American Free Trade Agreement (NAFTA) and poverty levels decreased, so did the incentive to migrate. Guatemala, El Salvador and Honduras are doing much worse economically and are caught in the cross hairs of drug-trafficking organizations and the violent regional gangs that support them. The erosion of Colombia’s cartels and subsequent growth of their Mexican counterparts shifted drug-trafficking routes to the isthmus. Weak and ineffective governments have been unable to rein in the violence and promote economic prosperity.

Ensuring the stability and security of Central America is vital to U.S. interests. Supporting reforms that ensure citizen security and economic prosperity in the region should remain priorities. The ultimate goal should be to develop effective and enduring regional partners. The United States currently addresses the issues in Central America under the Central American Regional Security Initiative (CARSI). Designed to supplement Mexico’s countercrime Merida Initiative, CARSI lacks a clear objective as to what success looks like, thus reducing the ability to measure desirable outcomes. Additionally, it allows for the politicization of foreign assistance. The long-term goal of CARSI should be to build off the lessons learned from Plan Colombia, the largely successful program through which the United States provided security and counternarcotics assistance to the Colombian government, resulting in the debilitation of Colombian drug cartels.