As if the wars in Iraq and Afghanistan, our economy, and health care reform have become blasé topics, a New York Times article highlights discussions within the Obama Administration on taking on the newest of the political third-rails – comprehensive immigration reform. Based on the article, the Administration may begin sharing its views and strategy on implementing immigration reform as early as May. One can already envision the pro- and anti-immigration fronts mobilizing, in preparation for another drama-filled showing of the national divide on this issue. And as in everything else these days, our faltering economy will play a role in it with those against any form of legalization of the undocumented workers banging on the high unemployment rates across the country as the reason why this debate should not happen at this time.
No doubt, raising the immigration reform issue in an economic downturn will cost the Obama Administration more political capital. However, I pose the question, when would be the right time to fix an immigration system that almost everyone agrees is dysfunctional and broken? When the “technology” fence is up and actually helping the Border Patrol apprehend illegal border crossers? When all employers are indicted for being duped by employees presenting stolen identity documents? When CIS adjudicates all cases within a real (versus “statistical”) 6-months? The reality is that immigration reform is like moving day: There is no perfect day to move, but it has to be done at some point. And it’s often sooner than later when you are living in a dilapidated cardboard box with a leaking roof – the equivalent of our current broken immigration system.
Today, our immigration system is broken on BOTH the enforcement side and the benefits side. That means it is equally punishing on those individuals who do have legitimate claims to be in the United States and on DHS officers trying to protect our borders and national security – something that is not in the greater good. Further, the status quo over the last 23 years has not gotten us anywhere near border control, solely producing a larger undocumented population and increased frustration over immigration. Yes, I hear all those people screaming that we should not do anything until DHS deports all 12 million+ undocumented people. To this group, I introduce the principle called reality. The population has not grown due to lack of effort by the immigration officers and agents responsible for enforcing these crumbling and byzantine immigration laws. And it is not a partisan issue, as this population has grown over 20 years under both Republican and Democrat control of Congress and the White House. Even if it was a realistic goal, the same U.S. economy arguments against immigration reform would support some form of earned legalization because it would take a TARP-sized cash bailout for DHS to be able to apprehend, detain, and deport all 12 million individuals. Of course, we can always make a pack of cigarettes cost about $1500 with new taxes to finance this crusade.
The same principle of reality applies to those who believe no one should be detained or deported, that we should have open borders for all and not penalize prior transgressors, and that somehow enforcing our immigration laws is “un-American.” These views are equally unrealistic. To the “un-American” chanting crowd, I provide a bonus principle called the “rule of law” – which inherently incorporates enforcement and penalties against individuals who violate the immigration laws that Congress saw fit to pass. Further disappointing news for this crowd is that that day any reform is passed, there will be a crowd that will still need to be deported or who will be queuing up to commit an act that will render them deportable. This will require enforcement and detention. To do otherwise and ignore enforcement will doom us all to the same predicament 20 years from passage of any reform.
There will be a need to compromise and fix both sides of the equation. The future goal should be to create an “immigration equilibrium” that maximizes the positive impact of lawful immigration while maintaining control and respect for that same immigration system through enforcement. There will be a need for reasonable and logical dialogue, not emotional rants and raves based on human tragedies, propaganda, and manipulated statistics – and this applies to both sides of the debate, and more importantly, to the elected members of our Congress. Finally, there needs to be an understanding that perfection should not stand in the way of improving an immigration system that was defective from birth. The reality is that no matter what is passed, it cannot get any worse. So I say, depression or no depression, let the discussion on immigration reform begin, and let’s see where it will take us this time around.
Victor X. Cerda is a Partner of Jackson Lewis LLP in the firm’s Corporate Immigration Group in the Washington DC Region office. He focuses on advising corporations and individuals on immigration compliance and benefits strategies.