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Immigration Deja Voodoo By: Bill West
FrontPageMagazine.com | Wednesday, October 12, 2005

After nearly two decades, it would seem our nation would have learned something about how to deal with its immigration problems.  Sadly, it appears we have learned virtually nothing.  Judging by the proposed immigration legislation coming from the administration and key Congressional leaders, those making and supporting those legislative initiatives all think they have “the answers” to America’s immigration ills.  There are three such primary bills, and they all have various versions of “temporary” or “guest” worker programs combined with varying degrees of law enforcement enhancements both at the border and in the interior.

One of these, the Kyl-Cornyn bill sponsored by Senators Jon Kyl (R-Arizona) and John Cornyn (R-Texas), has the toughest enforcement provisions and proposes to hire as many as 20,000 new immigration enforcement agents to get tough on employer sanctions and round up deportation case absconders.  This bill would allow for a temporary guest worker program, but “require” these workers to leave after a period of time.  Presumably, one of the duties of those 20,000 new enforcement agents would be to make sure those temporary guest workers that decide not to leave actually leave.  Well, at least to try to find them, arrest them, detain them, place them into removal proceedings and hope the Immigration Court removal system, after all those appeals are exhausted (we’ll cover that shortly), actually realizes the forced removal of those “temporary” workers.  And, allegedly, employers of illegal aliens under these bills would have much to fear since the Feds would REALLY get serious about enforcing sanctions laws against them.  Right.

Well, virtually all of this was heard before.  Nearly twenty years ago, many of the same arguments about how immigration was out of control…with then upward of three million illegal aliens estimated to be in the US…were used to support the Immigration Reform and Control Act (IRCA).  Now, of course, those estimates range to somewhere around eleven or twelve million.  In 1986, Congress, at the request of the conservative Reagan Administration, passed that sweeping immigration reform legislation that included legalization provisions and first-ever employer sanctions statutes, which under most circumstances made it illegal to employ illegal aliens. 


The 1986 IRCA concept was carrot and stick.  The legalization provisions would provide a way to bring those “undocumented” aliens who met certain requirements to “come out of the shadows” and obtain legal status and get on the path to ultimate US citizenship.  The employer sanctions laws, that were supposed to be aggressively enforced, would cut off the incentive for future illegal immigration and therefore turn off the magnet and essentially solve the illegal immigration problem.  By the way, during the work-up of the 1986 legislation, various “experts” testified that no more than 300,000 illegal aliens would qualify for and actually legalize under the new law.  The 1986 legalization process, which included something on the order of fifteen years of “me too” legislation by various special interest groups and their apologist supporters, realized more than 2 million aliens legalizing under the program.


As for the “stick,” that aggressive employer sanctions enforcement never happened.  The INS hired several hundred new investigators, but assigned them primarily to work administrative fines cases against employers who blatantly hired illegals.  Criminal sanctions cases were rare.  Over a several year period in the late 1980s, the process became almost a competitive game within INS among District Offices trying to see which office could generate the highest fines.  Arresting illegal aliens or making criminal sanctions cases was not a priority; however, generating civil fines was.  Eventually, by the early 1990s, the whole employer sanctions program essentially fizzled to not much more than a paper shuffle.


It is clear the 1986 immigration “reform” legislation was an abject failure.  It did not stem the flow of illegal aliens, since we now have many more times the number of illegal aliens in the US than we did before 1986.  The legalization process created a huge venue for fraud.  Legalization included a Special Agricultural Worker (SAW) provision that allowed illegal aliens who could establish they worked in certain types of agriculture during certain time periods to gain legalized status.  This opened the door to massive fraud. 


The legalization adjudication system, counting on the “expert” numbers in the few hundred thousands, was soon completely overwhelmed.  Temporary adjudicators were quickly hired on contract and given little training.  Documentary evidence provided by the alien applicants was given little review and analysis and sometimes none.  When aliens had no such supporting documentation, they were allowed to simply present a sworn affidavit attesting to their work background, along with an affidavit of another “witness” and these affidavits were accepted as the totality of their supporting evidence (what, an illegal alien lie to get an immigration benefit?).  As noted, fraud was rampant and there were few investigative resources to pursue it.


Even when solid criminal fraud cases were made, few US Attorneys offices were inclined to prosecute such cases.  Very few perpetrators went to jail over legalization fraud.  Few even had their applications denied.  Over the years, the legalization system basically became a sad joke, and the United States saw a massive influx of illegal aliens who became lawful permanent resident aliens as a result.  Very many of those people obtained that status by committing fraud.  Many of those persons later went on to petition for alien relatives to immigrate to the US.  Many then became naturalized United States citizens.  The “legal” chain migration that resulted from this process was easily in the millions.


So now various political leaders say things are different.  Their proposed legislation, to give a legalization process to those “undocumented” workers already here so they can legally work, to crack down on employers who don’t abide by the rules, to hire more enforcement agents, will solve the problems.  Of course, they haven’t explained how and why their proposals are really so different from things in 1985/1986…beyond, of course, there being maybe 8 or 9 million more illegal aliens in the country than there were back when the politicians last passed a law to solve the immigration problems.


Even the Kyl-Cornyn bill, with its seemingly tough enforcement provisions, falls short.  Here are a few reasons why none of these bills will really work.


Employer sanctions:  The 1986 law proved that American business, with its close relationship to government no matter which political party is in power, will never tolerate being aggressively policed concerning alien employees.  That’s not to say investigating and targeting the aliens is a problem, but targeting the employers is.  The Feds can arrest and deport illegal workers all day and night long, and businesses will barely raise an eyebrow, so long as they can replace those workers.  But, arrest a business owner for hiring those aliens and see how fast the Chamber of Commerce, the local City Council, the Mayor and other community leaders rally around that business owner.  It wouldn’t take too many such cases before enough Congressmen and Senators started getting into the rallies, and then it’s over.  That’s why it didn’t happen after 1986.  The fines eventually generated enough of a hassle and even those civil enforcement procedures ended.


Guest workers:  This is essentially the same as legalization, with the provision of the alien needing to prove they have a waiting job.  Just one more item of fraud for the applicant to plug into their application.  Even the legitimate alien applicants who swear they only intend to remain in the US for whatever temporary period the law will say they are allowed to stay will, for the most part, be on the very edge of making a false statement.  Consider that once such a “temporary” worker has his/her legal status, is working legitimately, has put down some roots in the promised land, is perhaps sending their kids to school without fear of looking over their shoulder, has bought a car, maybe gets a promotion at work, and then a couple of years later the US Government sends them a form letter that says, “Time to go home.”  How many will really pack up and leave? 


Remember, these are people with a history of once living in the shadows.  And when those huge numbers fail to report their departure…via whatever “foolproof” mechanism the Government will create for that purpose…then what?  Even those 20,000 new agents in the Kyl-Cornyn bill won’t be able to find and arrest all of them, because they’ll likely still be busy detailed to the Adjudications Branch of US Citizenship and Immigration Services trying to wade through the backlog of millions of legalization…sorry guest worker…applications that have befallen an already overwhelmed agency.  That’s the other part of this equation.  Just what Federal bureaucrats are supposed to process all those hundreds of thousands…and more likely millions…of legalization applications that will surely come into the system in very short order? 


The US Citizenship and Immigration Services (CIS) agency presumably will be responsible for this.  It adjudicates immigration benefits.  Its first director publicly stated that reducing backlogs was a higher priority than national security, so what would that mean for ferreting out fraud in any guest worker/legalization program?  If history nearly two decades ago were any indicator, it would not be good.  Also remember, CIS is primarily managed by the leftover immigration benefit managers from the old INS.  And recent Congressional and news reports indicate CIS may have large-scale internal corruption and continued mismanagement problems.  This agency cannot properly handle its existing workload.  It could not possibly deal with the results of a new legalization program.


Enhanced enforcement:  A quick lesson in the immigration removal (deportation) process.  This is not a criminal court proceeding.  It is civil/administrative in nature, but occurs in an administrative hearing court setting before an Immigration Judge.  The rules of evidence, while somewhat similar to those in criminal court, are more lax and more generally favor the Government.  However, the alien “respondent” does have the right to legal representation and the right to contest the Government’s case against him/her.  Both the alien and the Government may appeal the Immigration Judge’s decision to (1) the Board of Immigration Appeals [BIA]; (2) Federal Circuit Court; (3) US Supreme Court.  The alien, if detained, may seek release from via a Habeas Corpus action in US District Court.  The alien may also file Motions to Reopen before the Immigration Judge and the BIA virtually at anytime.  The appeals process can often take many months and even years to complete, even in relatively simple removal cases, if the alien chooses to contest their removal. 


Mexican aliens caught at the border almost always choose return to Mexico via something called “Voluntary Return” by waiving their right to formal removal hearings.  By doing this, there is no formal removal, or deportation, on his or her records.  Of course, they are simply put back across the border, to try to sneak back into the US again, and again, and again until they finally succeed…and they know it.  Think for a moment, if those many hundreds of thousands of illegal Mexicans captured at the border suddenly chose to have formal removal hearings, as is their legal right under US law, instead of Voluntary Return.  What little there is that passes for border control would quickly collapse.  There would be no detention space for those Mexicans seeking such hearings and they would be issued Notices to Appear (Notices to Disappear as the Border Patrol despairingly calls them) as most non-Mexican aliens caught at the border are issued and then released.  Ironically, they would be in a form of quasi-legal status until their court hearing dates, wherein of course they would fail to appear and become immigration fugitives, to be found by the Kyl-Cornyn bill 20,000 new agents, perhaps?


Another bill, arguably a non-legalization piece of legislation, sponsored by Congressman J.D. Hayworth (R-Arizona), which links to a bill introduced by Congressman Tom Tancredo (R-Colorado), may be a step in the right direction.   The Hayworth bill would grant illegal aliens 30 days to leave the US and then subject them to a potential felony criminal charge.  The bill would also stiffen penalties for employers of illegal aliens, including criminal penalties.  The Tancredo version would only allow a guest worker program to occur after key strict immigration law enforcement goals were met.  As laudable as these bills might be, they would still face the nearly overwhelming obstacles noted previously concerning even the stricter enforcement efforts.


Is the illegal immigration problem in America hopeless?  Not if America and its political leadership are willing to make tough and truly meaningful changes in the way the Government deals with immigration matters, and while these measures would surely be tough, they would not be draconian and could still be administered with fairness.  In a nutshell, here’s how it can be done:


1)      Secure the border.  This can be done without a two thousand mile wall or an armed soldier every hundred yards.  Ironically, as much as the Feds may not like it, the Minutemen demonstrated how.  The key is having sufficient and effective surveillance capability at the right locations all along the border combined with sufficient and effective response and arrest capability combined with sufficient and effective detention and removal capability (more on that later).  Surveillance capability can be a combination of cameras and remote sensors, but must also employ human observation capability.  This is where properly trained personnel manning fixed observation posts along key border locations are critical.  If active duty Border Patrol Agents are not available, alternative manpower sources should be considered.  Such personnel might be National Guard soldiers, or some form of Border Patrol Auxiliary or Reserve Homeland Security Force composed of retired law enforcement officer volunteers who are already trained, experienced and cleared for such duty.  The active duty Border Patrol needs to be staffed adequately to provide for that effective response and arrest capability.  Observing and reporting illegal crossings and swiftly and effectively responding to those observations will result in apprehensions. 

2)      Detention capability.  Arresting and processing illegal aliens is nearly meaningless if most cannot be detained and of those released some 85% fail to appear for court appearances, therefore becoming fugitives from the immigration justice system.  That is the situation for non-Mexican aliens caught at the border, and it is estimated that only one in two are caught.  In reality, it is likely that far more get through.  Assuming enhanced border interdiction is put into place as noted in #1, above, such actions would be pointless unless those aliens could be detained.  Historically, the key to successful and effective deportation is detention during the removal process.  It almost really is that simple.  When illegal aliens are caught, processed and released, they are seldom ever forced to eventually leave the US.  Even those relative few who choose to engage the full panoply of legal appeal rights they have under the law, if they are not detained, manage to tie the system up for years and then often simply disappear when they ultimately lose their cases.  Legally, border interdiction cases are almost never resolved in favor of the illegal entrant alien, and therefore those aliens should almost never be released from detention until they are deported.  This effort may require the conversion of existing military facilities, to immigration detention centers, much as was done during temporary mass immigration emergencies of the past, and could include using military security personnel as immigration detention officers.  


3)      Change in “due process.”  This is the Big One.  As noted previously, immigration deportation/removal cases are administrative in nature.  They are not criminal proceedings.  While they should be fair, they should entirely be stacked in favor of the American people and their representative in such matters, the US Government.  This does not mean aliens should be mistreated.  All persons deserve to be treated humanely, with respect and given the opportunity to present their case before a fair decision-maker when an adverse decision might be made against them…that is the American way and the Constitution, under the 14th Amendment, requires such fairness.  But fairness in immigration proceedings should be considerably limited.  For an alien presenting him/herself at the border, it is incumbent on them to prove they are legally admissible and if they cannot, they should be detained until they can be removed.  For aliens found within the interior of the US who are suspected to be illegally present, the Government must establish (a) they are aliens and (b) they are in the US in violation of law.  Once the Government establishes those elements, the alien should be detained, with only very few exceptions (such as extreme humanitarian reasons or the public benefit) until the completion of the deportation proceedings.  A suspected illegal alien should be entitled to one hearing before an Immigration Judge with one appeal to the Board of Immigration Appeals, such an appeal to be completed within a strict time limit.  There should be no other judicial review in deportation cases.  There should be very limited relief from deportation, such as genuine political asylum, extreme humanitarian hardship and exceptional public benefit (such as critical informants).  The legal defense bar would, of course, hate all this.  Why?  Altruism aside, mostly because reduced immigration litigation would mean reduced revenue for them.  This approach might even require the repeal of various Federal statutes.  Imagine that concept…Congress actually getting rid of laws to make things better.


4)      Interior enforcement.  The Kyl-Cornyn bill provision of 20,000 new Special Agents would be very helpful in this.  In the early 1980s, the old INS Investigations Division once had only 600 agents nationwide.  Today, US Immigration and Customs Enforcement (ICE), the interior immigration (and customs) enforcement agency for Homeland Security that replaced INS, has about 5500 agents, less than 2000 of which came from INS.  The number of law enforcement personnel to investigate and enforce violations of immigration law in the interior of the US has always been disastrously under-resourced.  The 20,000 agents would be the minimum effective number to accomplish the kind of tasks required to begin getting illegal immigration under control, and that would only be if the other reforms noted above were implemented.


However, with those reforms and additional resources, what appears to be a hopeless and uncontrollable situation with illegal immigration could be turned around.  As large numbers of illegal aliens are routinely detained and quickly removed from the United States, both at the border and from within the interior, it would soon become known within illegal immigrant populations that America is a hostile environment.  Many would simply leave on their own.  This actually happened in certain illegal alien Middle East and Arab populations within the US after heavy, but limited and narrowly focused, immigration enforcement crackdowns post-9/11 (something actually decried by various immigrant rights activists and certain others who, for whatever reason, believed enforcing immigration laws is a bad thing).  Many aliens outside the US considering making an attempt at illegal entry won’t, knowing they would likely be caught, detained and deported.  Again, these measures may seem harsh by today’s enforcement standards, but they are not mass roundups and summary deportations (the “draconian” measures dreaded by many).  They would be increasing existing enforcement operations by expanding resources, implementing nearly mandatory detention in removal proceedings, and significantly streamlining the legal removal process while retaining an adversarial and appellate structure within that system. 


What is the alternative?  The guest worker and legalization proposals are fantasies that will lead only to massive failure, fraud and a total collapse of an immigration system that is virtually there already.  If Americans want to have any hope of bringing order to their current immigration system of law and disorder, they had better tell their so-called political “leadership” of both parties, who have failed miserably for decades at this critical issue, to get their collective act together before it is too late.  It almost is.

Bill West is a retired INS/ICE Supervisory Special Agent who ran organized crime and national security investigations.  He is now a counter-terrorism consultant and freelance writer.

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Bill West is a retired INS/ICE Supervisory Special Agent who ran organized crime and national security investigations. He is now a counter-terrorism consultant and freelance writer.

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