Monday, April 26, 2010

The Immigration Laws, Infamous for Their Byzantine Complexity, Must Be Simplified with a Clearly Enunciated Set of Goals

Time to talk about something other than Arizona's misguided law.  Here are some thoughts about what the nation needs in an immigration reform bill.

The U.S. immigration laws have long been incredibly complex. By many accounts, only the much-maligned Internal Revenue Code rivals the intricate, lengthy, and frequently obtuse Immigration & Nationality Act of 1952, which is the centerpiece of modern American immigration law. Piecemeal reform has tended to measurably increase the complexity of the U.S. immigration laws, with the accretion of complex provisions upon complex provisions making the laws complex, obtuse, and, at times, unintelligible. In the end, such piecemeal reform has left the law overly complex and overwritten, pulling it in many different directions often with little overall cohesion and coherence.

One 2009 report on the U.S. immigration laws aptly noted that “[f]or the vast majority of U.S. citizens, employers and immigrants, the immigration system seems well-nigh incomprehensible;” consequently, the report recommended that the laws “must be reformed and simplified.” UNIVERSITY OF DENVER – STRATEGIC ISSUES PROGRAM – 2009 IMMIGRATION PANEL, ARCHITECTURE FOR IMMIGRATION REFORM: FITTING THE PIECES OF PUBLIC POLICY 16, 18 (2009).  The nation needs laws that can be explained to the public and are understandable to those beyond simply the experts.  At some point, it might be necessary to start from scratch with a new Immigration & Nationality Act rather than fool around with an antiquated law almost annually that was passed more than half a century ago, and designed with the exigencies of the Cold War—now a distant, if not uncomfortable, memory –in mind.

The areas of complexity of the U.S. immigration laws are too numerous to review here in detail. The labor certification process for certain employment visas is one of those areas. The myriad of exclusions, criminal removal provisions (and removal grounds generally), judicial review provisions, and many other rules also are incredibly complex, cumbersome, ambiguous, and obtuse. As a result of their complexity and ambiguity, the U.S immigration laws create much work for immigration attorneys along with precious little certainty for noncitizens.

One possibility is to assemble a blue ribbon commission with the task of drafting from scratch a new comprehensive immigration law. I hesitate to make this suggestion, given past shortcomings in the implementation of the careful work of previous immigration commissions, such as the Select Commission on Immigration and Refugee Policy in the 1980s and the U.S. Commission on Immigration Reform in the 1990s. However, something akin to an American Law Institute model immigration code might well help to simplify the law.

Let me be clear. I am not calling for simplicity for simplicity’s sake. Nor do I advocate the immigration equivalent of some kind of simple, if not simplistic, “flat tax” system. My point instead is that the United States would benefit from a streamlined, less complex, and clearer body of immigration laws.

Along similar lines, the United States often has been unclear in the overall goals of its immigration laws. Consider the exclusion grounds, which have grown over the years to respond to the perceived immigration demons of the day. Accretion of reforms upon reforms has made the immigration laws pull in dramatically different directions, lack any modicum of consistency, and simply have become unwieldy, cumbersome, and excessively complex.

What we need in truly comprehensive immigration reform is a clear statement of goals, and a carefully crafted bill that includes provisions directed at achieving these goals in a fair and balanced fashion. True, the immigration laws serve multiple purposes and, by necessity, reflect congressional compromises and trade-offs. However, reforms to the laws should keep the overall goals in mind and at least attempt to strike a clear and appropriate balance. After a truly comprehensive law is enacted, amendments should be approached with great care to attempt to not disturb the delicate balance.


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