What Republicans Should Ask for in the Upcoming Immigration Negotiations - Hint, It is Not More Black Steel

May 17, 2021

CNSI Blog

With a frequency slightly more often than the cicadas appear, negotiations are underway in the Senate to pass major immigration reform. Democrats have coalesced around two significant bills that would legalize Dreamers, holders of Temporary Protected Status, and agricultural workers. Republicans are coming to the table arguing for enforcement reforms to fix the Southern border ‘crisis.’  With Majority Leader Chuck Schumer threatening to add legalization measures to large budget and tax bills being developed, now is a critical time for thoughtful policymakers to find the ‘deal’ that has eluded Congress for over thirty years.

One prominent pollster is reported to be telling Republican lawmakers that the main ‘ask’ is to “Complete the building of a physical barrier between the U.S and Mexico to ensure border security.” However, as easy as this structure is to visualize for voters, it should not be anywhere near the top of policy demands for members focused on immigration security. Rather than have Republicans push for total completion of a physical wall or barrier the length of the US-Mexico border, any immigration reform legislation that includes new provisions aimed at better enforcement and border security should focus on the priorities below. These concepts would be coupled with the House-passed provisions related to legalization.

• Reviewing and adjudicating asylum cases – The current asylum backlog of close to 400,000 claims is unacceptable. Handling asylum cases in a fair, just, and swift manner is imperative. The American people should trust that migrants petitioning for asylum are reviewed with careful consideration by immigration judges, with both relief and denials based on individualized review of the facts and the law. As one element of this improvement, Congress should appropriate funds for additional immigration judges to address the backlog and reprioritize newer arrivals first.  Pending bipartisan legislation from Senators Kirsten Sinema and John Cornyn and Representatives Henry Cueller and John Katko would be good starting points in this regard.

• Employment enforcement – Unless there is consistent enforcement against employers who hire undocumented migrants and a means to detect those posing as legal workers, it is just reality our economy will continue to be a magnet drawing undocumented immigrants to communities across the country. Therefore, it is essential that once the legal status of long-term undocumented migrants has been resolved, the E-Verify employment check program should be required for nearly all employers, with a phased in approach, to protect employment opportunities for citizens, legal permanent residents and non-immigrant guest workers.

• Entry/exit and visa overstays – A significant percentage of individuals who are unlawfully present in the U.S. arrived legally on a visa or on the Visa Waiver Program but failed to depart. While the number of new overstays has fallen and compliance has improved, the completion of the biometric entry-exit program, especially at air and seaports of entry, is a realistic goal. If coupled with an enforcement campaign against overstaying individuals and public education campaigns in countries with high percentages of overstays, legal travel would no longer be a significant contributor to the long-term undocumented population.

• Domestic enforcement – If the current undocumented population is largely regularized, an enforcement agency for new undocumented entrants and migrants with criminal records who do not qualify for relief will still be necessary.  A refocused, and perhaps renamed, ICE should be tasked with the exclusive authority for domestic enforcement based on criteria aimed at criminal aliens, national security threats, and post-legalization unlawful entrants.

• Recalibration of personnel to facilitate legal travel and trade – Once the legal status of the undocumented population has been addressed and the surge of those seeking to unlawfully cross the southern border has been resolved, the buildup of the Border Patrol should be allowed to return to more normal levels. Budgets should be strategically refocused on CBP officers at ports of entry to facilitate the expected rebound of travel post-COVID, with additional investments in effective counter-terrorism programs such as the airport preclearance program, the Visa Security Program, and a renamed Visa Waiver Program as the Security Partnership Program.

• Identity documents – The recent additional delay in the enforcement of the REAL ID program until 2023 is another blow to an important program meant to leverage the existing state-based identity document system to ensure that employers, law enforcement, alcohol sellers, and others can trust an identity document when presented. Whatever funds are needed to ensure that state DMV’s are able to meet the new deadline should be a priority.

• Safe international travel – The administration’s review of terrorist travel designations is an important project that needs to produce evidence-based decisions on the risk profile of travelers from each country based on law enforcement cooperation, identity document standards, and intelligence. At the same time, building in appropriate health screening measures related to COVID-19 is an urgent priority – the shutdown of international travel from the EU and other markets has had a devastating economic impact that needs to be reviewed urgently as vaccinations ramp up quickly.

Republicans need to recognize that there is no foreseeable political future where the bulk of the undocumented population is going to be deported, even if doing so would make good economic sense or would contribute our social fabric, which it would not.  They should focus on negotiating for good enforcement policies going forward that will help create a credible immigration system for the next decade. The wall, while easy to portray in a campaign ad, should take a back seat to real enforcement priorities that can only be achieved by bipartisan negotiations with the Biden Administration and their Congressional allies.