Law School Faculty Blog
15Nov/12

What is Comprehensive Immigration Reform?

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For immigrants and immigrant rights advocates, the post-election news that many Republicans understand that comprehensive immigration reform has to be tackled and that key Senate leaders such as Charles Schumer and Lindsey Graham already are working on a blueprint is splendid. The challenge will be in determining just what should go into that comprehensive package?

In many quarters, the debate over immigration reform boils down to a tug-of-war between those who want more enforcement and those who want legalization (a path to citizenship) for 11 million undocumented immigrants. But comprehensive reform requires addressing far more than these two issues. Most comprehensive proposals in that past several years would have increased border enforcement, instituted verification requirements for employers to ensure they are not hiring unauthorized workers, increased visas for high-skilled workers, and provided legalization for the undocumented immigrants here now. Over the years, narrower legalization proposals have focused on the DREAM Act for undocumented students, AgJobs for farmworkers, and a massive guest worker program that was promoted by President Bush. While I am opposed to enhanced employment verification requirements for employers because the effectiveness of employer sanctions is questionable, and I question the wisdom of a guest worker program given the exploitative circumstances under which those workers would have to operate, I understand why negotiators would want those issues on the table.

However, for many immigrants, their relatives, and their supporters, comprehensive reform entails much more. Consider the family immigration categories. The waitlist for many relative categories, particularly for those from Mexico and the Philippines, can be 10 to 20 years. Providing extra immigrant visas to clear the backlogs would do much to alleviate the pressure for some individuals to enter in violation of immigration laws. In fact, coming up with a different formula for family immigration categories that would alleviate backlogs altogether would be an important innovation.

The immigrant visa system itself is anachronistic. Those who advocate for more high-tech visas will attest to that fact. The country's outdated immigration policy is incapable of dealing with 21st century immigration patterns and economic realities. No doubt current family immigration and employment categories can be better honed to meet the types of demands of U.S. individuals and employers. However, many families, employers, and individuals need greater flexibility today, given residence and travel needs. That means that flexibility in terms of visa entries and residence requirements should be built into our current system to accommodate those needs. Movement circularity for visa holders is a feature that may accommodate working-class as well as wealthy individuals.

Our immigration enforcement regime is due for legislative reassessment as well. In the past few years, overzealous enforcement programs such as the Immigration and Customs Enforcement Secure Communities program that has swept up victims of crimes, minor offenders, and even crime witnesses have received some attention. Similar concern has been raised by the racial profiling of Muslims, Arabs, and South Asians under the U.S. Patriot Act. However, little attention has been paid to the fact that ever since 1996, lawful immigrants and refugees who have committed an "aggravated felony" are deported without a chance to introduce evidence of rehabilitation, remorse, or hardship to citizen relatives. Part of the tragedy of these laws is that the term aggravated felony includes selling $10 worth of marijuana, "smuggling" a kid sister across the border, and even some crimes like theft, burglary, perjury, and obstruction of justice that a state court has classified as a misdemeanor. There's a problem when spouses of citizens and parents of citizen children are deported as "aggravated felons" without giving an immigration judge the opportunity to decide whether the deportee deserves a second chance.

Immigration reform should include innovative thinking as well.

Given the demographic changes that have been brought about by immigrant and refugee resettlement across the country, why not promote civic engagement efforts that serve to welcome newcomers? It makes sense to reach out to immigrants and refugees as soon as they arrive so that they, too, might understand the responsibilities of being an American. Although federal, state, and local governments should lead the way, just think of the amazing things that could be accomplished if other vital institutions were to follow the government's lead and become involved: schools, daycare centers, local businesses, chambers of commerce, churches, recreation clubs, neighborhood groups, senior groups, and youth groups; they would bring rich possibilities to the enterprise.

The out-of-the box thinking on immigration reform may lead us to realize that the real solution to undocumented Mexican migration, for example, might be working more closely with our neighbor and consider making a greater effort to address Mexico's unemployment and economic needs. The point is that the binary analysis of immigration reform that is classically about greater enforcement versus legalization should only be a start. Cooler, more thoughtful heads can come up with more peaceful, meaningful ideas than militarizing the border.

Comprehensive immigration reform is the opportunity to think innovatively and expansively about the real needs of the country as well as the newcomers.

Originally posted on The Huffington Post.

Follow Bill Ong Hing on Twitter: www.twitter.com/immprof

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