Recently diverse voices, including immigrant advocates and conservatives supporting immigration reform, converged in Washington, D.C., providing a much-needed infusion of energy to the immigration reform debate. Like many Americans, I believe that the current system has failed and, in my view, reform is essential. In looking to reform this system, we must make it easier for those who wish to come to our country legally to become productive members of society, and make removal more certain for those who choose to come here illegally.
As the former head of Immigration and Customs Enforcement (ICE), the agency charged to enforce existing immigration laws, I have an insider’s perspective of the challenges that face us. Since the 1986 amnesty, inconsistent enforcement, coupled with an inefficient and restrictive pathway for legal access to the country, have left us with a broken immigration system. Many people concluded that it is far simpler to come here illegally, get a job, and hope that the law will change to let them stay, rather than to wait in unreasonably long lines to come here legally. Many employers grew frustrated with the nearly decade-long wait for some petitions for workers with essential skills and just took their chances that enforcement would not target their business.
As President Obama and key congressional leaders develop a framework to move forward with reform, they must consider how to avoid the mistakes of previous efforts. New legislation must ensure that the next generation does not end up in the same position as ours—managing a broken system that is simply held together with band-aids.
While the reform debate involves many aspects, my experience at ICE highlighted four key elements that must be a part of a broader, meaningful debate.
First, reform must provide employers with clear guidance on who is work authorized and who is not. E-Verify provides critical assistance (and it is improving all the time), but gaps in the current program have shifted much of the de facto enforcement responsibility to employers. This has created far too many amateur document detectives, and keeps employers guessing as to whether the steps they are taking are enough to ensure compliance or leave them crossing the “discrimination” line with unintended consequences. As a result, conscientious employers are slapped with a “silent tax” to pay for immigration compliance services, diverting money that would be better spent hiring new employees.
To their credit, it appears that Sens. Schumer and Graham are focusing strongly on a biometric identifier—and making it the key point of their reform efforts. Given the failure to fully implement RealID, driver’s licenses in many states remain unsecure and a biometric component to establish identity is more important than ever. I’m hopeful that something like the Senators’ proposal, potentially used in combination with an enhanced E-Verify, will finally create a solid employment verification system. But whatever tool is ultimately given to employers—it must be mandatory, and the implementation strategy must be realistic to ensure successful adoption by all.
Second, any reform effort must clearly support and fund our enforcement agencies to ensure full compliance of our immigration laws going forward. For the last several decades, immigration agencies have been woefully understaffed, given their significant mission. ICE has only 6,000 agents, for example, far less than several city police departments, but the agency has a nationwide mission to combat immigration and customs violations. To compound the staffing challenges, if new legislation provides additional opportunities for adjustment, there will be significant attempts to fraudulently adjust. Congress must consider the necessary enforcement footprint that will be required following reform to avoid the failures of the past.
Third, the reform effort should include a serious look at ways to improve the legal system for immigrants. The Congress should consider taking steps to assist indigent aliens to retain counsel at government expense. While ICE attorneys and immigration judges routinely decipher legitimate claims by aliens who are not represented by attorneys, the system should not rely on the ability of opposing counsel or overworked judges to identify valid claims.
Fourth, once immigrants receive a final order of removal, any new legislation should build in procedures that ensure these individuals actually return home. Not surprisingly, many individuals choose to avoid these legal proceedings. Yet, under the current standards, an alien who failed to appear at a final removal hearing can make a “reasonable” claim that their case should be reopened since they were ordered deported in absentia. This makes a mockery of our system. Instead, new legislation should create incentives for aliens to obey immigration court orders. These incentives may include expanded use of alternatives to detention during removal proceedings, or even detention, in appropriate cases to ensure that the court orders are followed.
The activity this past week shows that there is potential to make progress on reform. However, as a former enforcement chief and veteran of the last debate, I can say with certainty that failure to acknowledge and address the incomplete enforcement efforts of previous legislation will do little to truly reform our laws.
This piece was originally published by The Daily Caller.