Immigration Reform and Law Enforcement

With the fiscal cliff behind us, Congress and the President have begun taking steps to put comprehensive immigration reform (CIR) back on the agenda. For years, CIR has been held up by members of Congress who felt strongly that we should first “secure the borders” before reforming a broken immigration system. In response, the Obama administration has spent the last four years beefing up security along the southwestern border, pouring resources into immigration and border enforcement at an unprecedented rate, partly in the hope that this would take the enforcement issue off the table.

The cost of this buildup has been significant. A recent study from a respected nonpartisan think-tank in Washington, the Migration Policy Institute, found that the federal government now spends more on immigration enforcement than it does for all of the other major law enforcement services combined, including the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. In fiscal year (FY) 2012 alone, the federal government spent almost $18 billion for CBP, ICE, and US-VISIT. [See Immigration Enforcement in the United States: The Rise of a Formidable Machinery, by Doris Meissner, Donald M. Kerwin, Muzaffar Chishti, and Claire Bergeron, Migration Policy Institute, Jan.2013.]

MPI’s findings suggest that immigration enforcement efforts have done about as much as they possibly can, which raises the question whether we’ve passed the point of diminishing returns.

“Today, the facts on the ground no longer support assertions of mounting illegal immigration and demands for building an ever-larger law enforcement bulwark to combat it. Border Patrol apprehensions fell to a 40-year low in FY11, bringing the net growth of the resident unauthorized population, which had been increasing at a rate of about $25,000 annually, to a standstill.”

Enforcement alone, in other words, is not a viable immigration policy, MPI says, arguing that what we really need is to “better align immigration policy with the nation’s economic and labor market needs and future growth and well-being.”

While presiding over this massive increase in immigration enforcement, the Obama administration has simultaneously sought to make these efforts more focused and cost-effective, throttling back on the pace of removals (formerly referred to as deportations) and using a threat-based triage system to target dangerous criminals for deportation, instead of those arrested for minor offenses. [See Immigration and Policing, New York Times editorial, 25.Dec.2012.] Likewise, through the Deferred Action for Childhood Arrivals (DACA) program, the administration has created an interim legal status for undocumented immigrants who were brought here as children.

Most recently, the administration announced new procedures – effective 4.Mar.2013 – that will allow certain green card applicants to apply for provisional unlawful presence waivers “before they depart the United States to attend immigrant visa interviews in their countries of origin.” [See Secretary Napolitano Announces Final Rule to Support Family Unity During Waiver Process, USCIS Press Release, 02.Jan.2013.] This will reduce the amount of time that families must remain apart while seeking family unity waivers of prior unlawful presence.

All told, the administration appears to have gone about as far as it can to deal with illegal immigration and enforcement questions. The only real solutions left are legislative – not piecemeal administrative measures, but balanced and comprehensive overhaul of our immigration system. This means focusing more attention on legal immigration, and policies that will attract more of the world’s best and brightest – especially STEM grads and entrepreneurs – to revitalize our labor force and build our economy. Congress has run out of road to continue kicking this can, but it appears they are lining up arguments that now nothing can be done until the after the debt ceiling is handled. Just when was it they lost the ability – or willingness – to multitask?

Copyright © 2013, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.