Immigration seems to be an immutable problem that has eluded all efforts at reform — but reform it needs. Our immigration courts are years behind on their dockets, Dreamers fear the end of a DACA program and we face a Central American refugee crisis. So, with a new House poised to take on myriad challenges, these three immigration areas would be a good place to start:
1. Immigration courtrooms are not grand chambers, but relatively small rooms with limited seating. Respondents often spill into the hallways. There are not many courts in our country where judges hand out trial dates two, three, even five years in the future, but that is the case with our immigration courts.
The situation is more dire at the borders. Not too long ago, the Executive Office of Immigration Review — which is the immigration branch of the Justice Department — resorted to pulling judges from one part of the country for temporary assignments at critical border facilities, which has thrown local dockets into disarray, and left clients wondering where their judges have gone.
Immigration judges are increasingly choosing to retire, and without replacements the backlogs will only get worse. There is a mistaken perception that more immigration judges will somehow benefit immigrants, or that this will increase the rate of immigration. The opposite is true — the fewer judges, the longer it will take an immigration case to work through the system, and the longer that immigrant will have to establish a life in the United States, a family, and additional equities that will help their case.
Most migrants are permitted to stay and work during the pendency of their case. Longer wait times are frustrating for immigrants, but it invariably allows them to establish a life here. If we are serious about stemming the flow of undocumented immigrants and clearing the backlogs, we need to hire more immigration judges.
In the courtroom, the current administration has disseminated new policies to the Departments of Justice and Homeland Security to oppose, scrutinize and challenge every application for every immigration benefit at every corner. Government trial attorneys have become hamstrung and are strictly forbidden from cooperating with defense counsel for motions to reopen cases where a foreign national clearly has a path to residency.
For the most part, these new policies have not made us safer, nor have they helped to streamlines our immigration system — they have made matters worse. The top-down, partisan directives have interfered with the work of impartial immigration judges, they have left cases in limbo and they have resulted in cases where individuals have the requisite family relationships to obtain a green card, but cannot do so due to an old removal order. They are not being removed, but they are not permitted to stay.
Hiring more immigration judges and restoring a level of autonomy to trial attorneys would go a long way to alleviating the excessive immigration court backlogs.
2. With respect to the Dreamers, let’s start by defining who they are, legally. Recipients of the Deferred Action for Childhood Arrivals came to the United States before they turned 16 and have lived in the United States continuously since 2007. They are also required to have graduated high school and not to be convicted of a felony or significant misdemeanor.
Anecdotally, these are Americans in all but name, children who were brought to the United Sates through no fault of their own, and have known no other country as adults. They are 800,000 students, college graduates, working professionals, parents and every other imaginable role in our society. You may have met a Dreamer without realizing it.
DACA is a program that recognition that if our resources are limited, we cannot remove everyone who is present without documentation. The previous administration formalized a policy granting Dreamers a quasi-status. They are permitted to work, attend school and live their lives in the United States, but as soon as they depart, they cannot reenter. And if they are convicted of a crime, their status is revoked.
Revoking this program and casting 800,000 people into the shadows is as close as we will get to deporting Americans. Nevertheless, it is true that the Dreamers came about because their parents entered the United States without permission.
3. That brings me to my last point: the Central American refugees. First, I’d like to dispel some misconceptions regarding the issue. Many have argued we should have a merit-based immigration system or that immigrants should wait in line like everyone else. In fact, the Immigration and Nationality Act that governs immigration benefits and procedures includes extensive provisions for merit-based immigration. Specifically, individuals can apply for employment-based visas, which take into account work experience, specialized skills, awards and so on.
Our current approach to the refugee issue is to admit them as asylum seekers, permit them to stay while their case is processed and to largely deny their case years later.
Our laws are specifically designed to be unforgiving and unrelenting. Provisional waivers designed to address this issue take months or years to process, and they sometimes amount to a one-way ticket home. Folks don’t cross the border illegally because they don’t want to file documents with the government, it’s because for many of them, there are no documents to file.
Asylum is often the only line to stand in, and it is a process that is ill-equipped to address this problem, because it is Cold War-era system meant to provide protections Soviet defectors.
The fundamental cause of our Central American refugee crisis is the violence and instability in countries such as Guatemala, Honduras and El Salvador. No amount of incarceration or threats from our government will deter migrants fleeing danger in those countries. To address this, we will need to address the living conditions in those countries.
I am in favor of an all-of-the-above approach, including close cooperation with the law enforcement personnel of those countries, improving their domestic economic conditions through foreign investment, free trade agreements, and even volunteer initiatives such as the Peace Corps. That will require strengthening our diplomatic engagements with those countries, which is something that this administration could stand to work on.
We should establish some good-faith effort in adding to our asylum form of relief, such as perhaps establishing a nominal number of visas available to victims of drug gang violence on a yearly basis.
Part of the reason why immigration is such an intractable problem is because nonresidents cannot vote, so their voices are often ignored. But history will measure us by how we treat them.
Michael Wildes is the managing partner of Wildes and Weinberg P.C., specializing in immigration law. Wildes is an immigration attorney for first lady Melania TrumpMelania TrumpThe Hill’s 12:30 Report — Trump rips Dems as shutdown looms | Congress deadlocked | Flynn associates charged will illegal lobbying The Hill’s Morning Report — No deal in sight as shutdown looms Five things to know about the Trump inauguration investigation MORE and her family. Wildes is a former federal prosecutor and the Democratic mayor of Englewood, New Jersey. Follow him on Twitter at @Michael_Wildes.
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