Tuesday, June 23, 2015
Immigration Article of the Day: Resolute Enforcement is Not Just for Restrictionists: Building a Stable and Efficient Immigration Enforcement System by David A. Martin
Immigration Article of the Day: Resolute Enforcement is Not Just for Restrictionists: Building a Stable and Efficient Immigration Enforcement System by David A. Martin, University of Virginia School of Law June 2015 Journal of Law and Politics, Forthcoming Virginia Public Law and Legal Theory Research Paper No. 33
Abstract: This essay, part of a symposium held at the University of Virginia, defends the importance of resolute enforcement in sustaining generous immigration policy, particularly America’s singularly high lawful admission levels and relatively successful immigrant integration record. Drawing on other studies and the author’s experiences in government service, the paper explores the risks to humane policy when the public perceives that migration is out of control. The public reaction to the Mariel boatlift, Congress’s enactment of harsh enforcement measures in 1996, and the Obama administration’s stern response to the child migrant crisis of 2014 illustrate the point. Though the current period is relatively quiet on the public opinion front, that situation is fragile, highly dependent on the relatively low net inflow of unauthorized migrants.
The essay then examines specific ideas for building a truly effective and sustainable enforcement system. All would work far better if accompanied by an expansive one-time statutory legalization program – which is both a humane response to the reality of long-resident populations and a step that would empower more resolute enforcement against newer violators. (1) E-Verify holds real promise, but Congress and the executive are too complacent about its vulnerability to identity fraud. Congress should provide strong inducements for states to share driver’s license photos to be used in E-Verify’s “photo tool.” (2) Stronger enforcement against visa overstays would foster a culture of compliance with the immigration laws. It is a misconception that we need first to build a biometric exit monitoring system; existing biographic data systems, built in the wake of 9/11, are sufficient once the political will to curb and deter overstays exists. (3) Revitalized and carefully designed cooperation with state and local law enforcement agencies (LEAs) is also a crucial element. The essay recounts the history of Secure Communities (SC), a fundamentally sound and efficient program that wound up losing support through mistakes in implementation, bad timing (rolled out when it could affect many long-resident unauthorized migrants based on minimal apparent criminal violations), and skillful litigation attacking immigration detainers. The Secretary of Homeland Security terminated SC in November 2014, replacing it with a new Priority Enforcement Program. This change addressed most LEA objections but preserved key enforcement efficiencies pioneered through SC, while laying the groundwork for eventually rebuilding sound LEA cooperation. (4) Congress should restore wider versions of discretionary relief from removal available in immigration court, to provide a more professional and reliable means (as compared to prosecutorial discretion) to soften the harsh edges of enforcement and thereby foster public support.