Immigration Reform: Administrative Actions to Improve the System

Yesterday, I attended a conference held by the Migration Policy Institute (MPI) where they unveiled a report, Executive Action on Immigration: Six Ways to Make the System Work Better, offering six proposals that the Obama administration could implement to improve the functioning and advance the core goals of the nation’s immigration system.

The recommendations are:

• The administration and DHS define what constitutes effective border control, promoting a more informed and nuanced public debate about the effectiveness of border enforcement, especially along the Southwest land border. As part of this, DHS agencies should provide more border enforcement metrics to the public.
• DHS, in consultation with DOJ, establish uniform enforcement priorities, based on its existing guidance for exercising prosecutorial discretion, and implement them across its immigration agencies, programs and processes.
• Creation of a White House Office on Immigrant Integration led by a Special Assistant to the President, convening a Cabinet-level interagency task force and working group of state and local officials. The office would also track integration outcomes to inform immigration policymaking and to analyze the needs associated with future immigration policy proposals.
• U.S. Citizenship and Immigration Services adjudicate waivers to grounds of inadmissibility based on “unlawful presence” before visa beneficiaries must leave the country to apply for a family-based immigrant visa. Expanded use of the Section 245(i) process would provide certainty for eligible family immigrants, encouraging fuller use of established legal admissions opportunities and processing.
• U.S. Immigration and Customs Enforcement (ICE) attorneys screen all Notices to Appear (NTAs) for removal proceedings prior to their filing in immigration court to ensure NTAs adhere to DHS’s prosecutorial discretion guidelines and clogged immigration courts are not further burdened with lower-priority cases.
• DHS and DOJ’s Executive Office for Immigration Review — which oversees the immigration court system — issue guidance governing the circumstances in which due process requires the government to appoint counsel in removal proceedings. DOJ should establish a pilot program to test the benefits of appointed counsel in such cases.

The first suggestion is critically important since the call for “securing the border” has become an excuse for not advancing any sort of immigration reform package. At the same time, it is quite improbable. The concept of border security has never operated as a definable set of goals and moreover, it cannot. Security is a constructed phenomena devised as a way to define ourselves against the Other. You should just read my thesis on deconstructing the national security state. Put simply, there’s no way to determine the number of unauthorized immigrants that enter through the U.S.-Mexico border, hence there is no way to gauge an acceptable rate of permeability.  How secure should the United States make the South-West border against Mexico? Would erecting a 2000-mile wall with surveillance technologies while degrading the environment and destroying border communities be enough?

After all, guarding arbitrary geo-political lines with guns and technology to keep out people is such a 21st century novel idea. Our border communities are under so much threat that residents cannot even feel it. With surveillance drones and an additional 1000 guards, now migrants trying to cross over the border are more likely to be captured, killed, or die due to harsher terrains. We just need to build moats and put landmines around the Southwest border to make us all safer from those Mexicans trying to leave the country and contain us from the imaginary threats beyond our human-drawn lines.

(Contrary to perceptions of spillover drug violence and lurking dangers on the U.S.-Mexico border, violence along the 2,000 mile stretch has steadily declined. Enforcement is so rampant that undocumented immigrants are detained on their way back home. Tightening border security with more troops and money is a cheap political ploy that endangers more migrant lives as they cross through harsher terrains in order to avoid surveillance. There are more resources dedicated toward border security today than ever before with over 23,000 U.S. Border Patrol agents equipped with best technology money can buy and a $17.2 billion budget for FY 2010).

Moreover, I’m not sure that the creation of another bureaucracy would help with immigrant integration. It probably does not hurt but Juan Osuna from EOIR actually did point out that a real barrier to immigrant integration is legal status. Also Ken Montenegro pointed out to me that one of the prime reasons that people never come forward to naturalize is that the fees keep going up. Another reason is probably because those who do come forward get put into deportations for minor crimes ($15 drug sale, shoplifting) committed in another lifetime.

As always, the most promising idea is prosecutorial discretion for the most sympathetic cases. We know how DREAM Act students have won relief in the past and this looks like the year that we win administrative relief for bi-national same-sex couples. However, prosecutorial discretion often leaves people in limbo status. I would like to advance Attorney Cyrus Mehta’s idea on creative uses of I-130s. It’s probably a little too bold for the Migration Policy Institute to recommend that suggestion.

The biggest drawback in the policy proposal is that it completely glosses over the growing archipelago of immigrant detention policies. From Guantanamo to every state in the country, the Obama Administration seems to have no problem with the idea of indefinite detention, even when it is completely unnecessary to lock up non-violent immigrants and asylum seekers.

(During the Q & A period, Mark Krikorian from the Center for Immigration Studies (CIS) offered that the core goal of the system according to the report seemed to be to allow more immigrants into the United States. Of course, that is a real problem for the white supremacists at CIS).

Related articles

• Dems, GOP switch places on border security (cnn.com)
• “Former DHS Secretary Tom Ridge Tells Critics Of Immigration Reform To ‘Get Over It’” and related posts (wonkroom.thinkprogress.org)