November 4, 2014 | Commentary on Immigration, Amnesty, Border Security

A Conservative Pathway for Immigration Reform

President Obama’s executive amnesty policies and failure to enforce immigration laws give conservatives an opening to unite on immigration in a way that appeals to all Americans. By holding to the principles of rule of law and fairness, immigration policy can be firm, fair and in the best interests of citizens and immigrants alike.

Comprehensive Immigration “Reform” Under Obama

President Obama failed to pursue any immigration reform while his party had a commanding majority in both houses of Congress. Following the 2012 election, many Republicans reached for the panic button and concluded that immigration reform (including amnesty) had to be done to increase support among Hispanic voters.

Liberals took notice when a Republican National Committee report called for “comprehensive” immigration reform. The president and his allies used it as a classic wedge issue to split conservatives. Pro-comprehensive immigration reform Senate Republicans teamed up with every Democrat to support S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act. The bill, which became known as the “Gang of Eight bill,” increased legal immigration limits threefold, created a guest-worker program and granted amnesty to some 11 million illegal immigrants. The measure passed the Senate with sixty-eight votes.

Rule-of-law conservatives opposed the measure. A majority of Republicans in the Senate had opposed the bill, and the Speaker of the House pledged that the bill would not come up for a vote unless a majority of Republicans supported it. It turns out that support for the measure was very shallow, even if it appeared widespread.

Almost immediately, conservatives aimed their attacks at President Obama and his unwillingness to enforce the law with respect to Obamacare, the WARN Act and immigration itself. Mistrust of the president was enough to deny the pro-comprehensive forces a majority within the Republican conference in the House.

Facts on the Ground Change: Influx Dooms Amnesty

In spring 2014, a mass of adults and children, including many unaccompanied minors, flooded across the U.S. southern border. Rule-of-law conservatives won the public debate about the cause of this influx, tracing it in large part to lax enforcement of existing law and talk of amnesty by President Obama. Polling on immigration showed a major increase in intensity as the issue dominated the news for weeks. And those who cared shared the right’s view.

The American people are increasingly wary of any amnesty policy. Candidates for office in the 2014 elections are using their opposition to the president’s policy in their campaigns. Those who ignored these trends did so at their own peril, and even prominent political leaders were not immune. Rep. Eric Cantor, then the House Majority Leader, found himself ousted in a June primary where immigration was a central issue. President Obama has postponed his executive action until after the 2014 elections. The tables have turned.

Conservatives Should Stand Their Ground, United

This is not to say that policies exemplified by the Gang of Eight bill and the president’s unilateral executive amnesty are dead in the next Congress. House Republican leadership’s statement of principles released in early 2014 shows they ultimately wanted amnesty with little guarantee of greater enforcement or border security. Supporters of amnesty know that there is very limited time after the election to pass any reform. That is because prospective conservative presidential candidates will take a hard line to build support among base voters.

A comprehensive bill that includes amnesty is precisely the wrong approach. Conservatives will reject it, meaning that it will have to draw liberal support to pass, thereby ensuring that the bill will be further left than it needs to be.

Instead, elected leaders in the House should acknowledge that our immigration system is broken, but put the blame where it belongs—on the executive branch’s failure to enforce the law. The first steps to fixing the system must be taken by the president: securing the border and enforcing current laws.

Reform Is Up to the President: The Executive Must Take the First Steps

The president has the resources needed to secure the border and enforce immigration law. He just needs to do it. Americans of all backgrounds want to see our laws enforced firmly and fairly. The influx on the southern border is likely to increase again with cooler weather, and even it if it does not, the images of the spring and early summer are still very much in the minds of American voters.

A united conservative front on immigration will put nationally prominent conservatives running for president in a position to outline their own agendas. They should pledge to reverse all of President Obama’s anti-enforcement policy memorandums, including his executive amnesty. These are bad policies—increasing illegal immigration and eschewing the rule of law. Then they should promise to take the following necessary steps to properly administer the U.S. immigration system: secure the border, enforce immigration law, improve the legal immigration system, support citizen security and economic freedom in Central America and the rest of Latin America and publish honest statistics that prove the success of these policies. These are the first steps in a true step-by-step process.

A president who respects the law—President Obama with a change of heart, or a new president starting in January 2017—is necessary for these first real steps toward real immigration reform. Here is a checklist of policies that the executive branch should and must tackle first and foremost.

First, the United States must be able to control its borders. While the United States has dramatically increased spending on border security over the last decade and a half, smarter investments in infrastructure and technology are needed. For example, adding more secure fencing to the southern border would make illegal entry more difficult.

In addition to physical fencing, the Department of Homeland Security (DHS) should fully implement a “virtual” fence—i.e., use cameras, sensors, drones and other surveillance technologies to give Border Patrol agents better situational awareness and, thus, the ability to respond more efficiently and effectively to illegal border crossings. This idea of a virtual fence is not new; the U.S. military used similar technologies to great effect in Iraq and Afghanistan. President Bush began the first virtual fence effort, known as the Secure Border Initiative Network (SBInet). But this program was cancelled in 2011 for running over budget and experiencing technical difficulties. Despite SBInet’s failings, the concept remains a sound one. The government should implement an integrated system of surveillance technologies with better oversight and acquisitions management.

Rather than reinvent the wheel, DHS should borrow from the experiences and technologies of the U.S. military and its need for persistent, wide-area surveillance technologies in Iraq and Afghanistan. These systems are already in production, so DHS could use and adapt them, thereby skipping the expensive development of new systems. With troops and their surveillance systems returning home, DHS may even be able to make use of surplus systems that the military no longer needs. The military would likely be able to train and support DHS in setting up and operating these systems effectively. DHS already has the authority to do so and can better secure the border if it is properly prioritized in the president’s budget and its activities are competently executed and overseen.

Second, the United States needs to do a better job enforcing its laws. As mentioned earlier, many of President Obama’s anti-enforcement policies must be scrapped. Right now, “enforcement priorities,” “prosecutorial discretion” and other policies that disregard large sections of immigration law allow the vast majority of illegal immigrants to escape legal consequences. Deferred Action for Childhood Arrivals (DACA) and President Obama’s forthcoming executive action on immigration (now delayed until after the 2014 elections) will likely provide temporary administrative amnesty to as many as 6 million unlawful immigrants. DHS Secretary Jeh Johnson has stated that he “[does not] understand those who say we are not enforcing the law; we are enforcing the law every day.” Perhaps what the Secretary does not understand is that choosing to enforce the law with respect to only a tiny fraction of the people who have broken the law does not count as faithfully enforcing the law.

Indeed, DHS is not only failing to enforce the law, but it is actively working to provide illegal immigrants with amnesty. Within DHS, pressure is applied to employees of U.S. Citizenship and Immigration Services (USCIS) to rubber stamp DACA applications with background checks and other security measures being left by the wayside. If DHS can’t properly administer temporary amnesty for fewer than 1 million individuals, one can only imagine what will happen if President Obama administratively expands amnesty to another 6 million illegal immigrants or if Congress ever passes a bill amnestying even more. Similarly, fraud in asylum applications is rampant, with as many as 70 percent of asylum cases having at least one indicator of fraud in 2005. Sadly, more recent studies are not available, because, according to Louis Crocetti, a former head of Fraud Detection at USCIS, the Obama administration has all but ceased doing assessments of fraud within the U.S. visa system.

Luckily, just as these policies were created by the executive branch, so too can they be easily undone. The first and easiest step that any future president can and should take to restore integrity to the U.S. immigration system is to rescind every executive order, policy memorandum and other executive-branch policy directive that disregards the letter and intent of U.S. immigration laws. The president should also ensure that the policies and procedures of individual agencies are not subject to gimmicks, political pressure or fraud.

Third, beyond just undoing these policies, the United States must also commit to using the right tools to remove illegal immigrants from the United States. The Obama administration has not done so. As a result, the United States is faced with a large number of absconders from immigration hearings, widespread failure to find and remove individuals with outstanding removal orders and an overall decline in the number of cases being prosecuted.

Indeed, absconders—aliens who, after being detained and then released pending a court hearing, never show up for the hearing—are a serious problem for the U.S. immigration court system. For example, in July 2013, Juan Osuna, director of the Justice Department’s Executive Office of Immigration Review (EOIR), testified that, for illegal immigrant minors—including UACs—the absentia rate was 46 percent. Leaked information from the U.S. Immigration and Customs Enforcement agency (ICE) obtained by the Associated Press indicated that 70 percent of families released into the United States did not report to a local ICE office as required. EOIR announced in October 2014 that of the first 14,000 immigrants with their initial court hearings this summer, 15 percent of UACs and 34 percent of family units had absconded.

These percentages will likely grow, as some will not appear for subsequent hearings and some will flee after their cases have been decided. After all, why show up for a hearing or go to an ICE office when one has no legal right to be in the United States? As one retired government employee with experience in immigration administration says, “On a cost basis from the alien’s perspective, this [absconding] makes sense. If you are in proceedings and have little chance of relief, why not treat the bond money (if it’s even required) as the cost of having been caught, and then flee, hoping to stay under the radar for as long as possible, perhaps until the next amnesty?”

A related problem is the “catch and release” that occurs at the border. The U.S. Border Patrol spends a sizable amount of money to prevent illegal border crossings and arrest those who cross illegally. DHS then squanders these precious funds by releasing increasingly large numbers of detainees, rather than immediately deporting them. Not only are they released, but they are told to enter the interior of the United States, where many will never report to the local ICE office or for their immigration court dates. Even if they do, the U.S. government will then either spend large sums of money to adjudicate cases that should have been summarily handled at the border, or it will simply decline to enforce the law. Regardless, many of these illegal border crossers are essentially being given de facto amnesty by the procedures put in place for handling large loads of new unlawful immigrants. Such procedures destroy any real sense of border security and interior enforcement.

The way to undo this troubling arrangement is for the executive branch to actively and widely use its authority to quickly remove illegal immigrants who are caught at the border. The president can use expedited removal against any illegal immigrant who has been in the United States for less than two years. Using expedited removal and other swift forms of immigration enforcement will negate the need to release illegal immigrants into the interior of the United States and ensure that they are promptly removed from the United States, thus shrinking the overwhelming caseload on U.S. immigration courts and reducing the number of absconders. Expedited removal can also be used beyond the border to enhance interior enforcement efforts.

All aliens convicted of criminal felony or misdemeanor offenses in the United States should also be subject to immediate removal from the country upon the conclusion of their jail sentences. As it stands, they are uninvited guests in the United States who are already removable from the United States, and by committing a crime, they have shown further disregard for our laws. Under U.S. law, “a United States District Court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney.” Furthermore, Operation Streamline, which allows for the criminal prosecution and removal of recent border crossers, should be continued and expanded as a way to both rapidly remove illegal immigrants and deter additional acts of illegal immigration with the threat of jail time.

Additionally, the law also allows for the use of expedited removal proceedings against aggravated felons and “stipulated judicial orders of removal” without a removal hearing. All federal prosecutors should be required to seek one of these removal orders in any criminal prosecution in which the defendant is an alien. This will further reduce the workload on immigration courts and remove criminal aliens from the United States.

While detention remains the most effective way to guarantee an immigrant shows up at court, DHS has nowhere near enough resources to detain all the illegal immigrants it could catch. Faster forms of removal will lessen the backlog of cases, but there will still be more immigrants than detention can handle. To stop absconders, the administration should expand the use of electronic monitoring as a cost-effective way to ensure attendance at immigration court.

Fourth, the United States should empower state and local governments to better enforce U.S. immigration law and secure the border. States like Arizona that are experiencing significant problems with illegal immigration are trying to step up and assist in enforcing immigration law. State and local law-enforcement resources are used to combat terrorism due to the amount of state and local resources scattered across the United States, and they should be partners in enforcing immigration law as well. With approximately one million state and local law-enforcement officers serving across the nation, the United States would be foolish to not take advantage of their local knowledge and presence.

Congress has already created multiple programs to take advantage of local law enforcement including the 287(g) program, Operation Stonegarden grants, Secure Communities and BEST teams. Each of these programs serves an important purpose.

Regrettably, the Obama administration has regularly rejected, cut funding for and fought most of these cooperative programs, even as it opposed independent, state enforcement efforts. A central tenet of the Obama administration has been to centralize power within the federal government. Nowhere is this truer than in immigration policy, where the executive branch has argued that it alone can enforce, or not enforce, federal law. State and local officials are willing to volunteer to be trained to help enforce federal immigration law, but the administration has rejected their help and gone to budgetary and administrative extremes to combat local assistance in enforcing immigration law.

Rather than fight states that want to enforce the law and work to stop recent illegal border crossers, the federal government should do more to partner with these willing allies. On the other hand, the federal government should start enforcing the law against those states that blatantly ignore federal immigration law by enacting illegal policies, such as providing in-state tuition to illegal immigrants.

Fifth, it is incumbent on the president to lead meaningful international efforts to combat illegal immigration. Most pressingly, the recent wave of unaccompanied minors from Central America further proves that the Obama administration can no longer continue ignoring the issues of Central America’s Northern Triangle. High levels of crime, violence and poverty exacerbated by weak and ineffective government institutions create further incentives to migrate. Since 2009, migration flows from Mexico have decreased and, as of this year, Mexico is no longer the primary source country. Migrants are now coming predominantly from the Northern Triangle countries of Guatemala, Honduras and El Salvador.

Mexican migration was largely due to the country’s economic conditions. As the Mexican economy prospered with internal reforms and the North American Free Trade Agreement (NAFTA) and poverty levels decreased, so did the incentive to migrate. Guatemala, El Salvador and Honduras are doing much worse economically and are caught in the cross hairs of drug-trafficking organizations and the violent regional gangs that support them. The erosion of Colombia’s cartels and subsequent growth of their Mexican counterparts shifted drug-trafficking routes to the isthmus. Weak and ineffective governments have been unable to rein in the violence and promote economic prosperity.

Ensuring the stability and security of Central America is vital to U.S. interests. Supporting reforms that ensure citizen security and economic prosperity in the region should remain priorities. The ultimate goal should be to develop effective and enduring regional partners. The United States currently addresses the issues in Central America under the Central American Regional Security Initiative (CARSI). Designed to supplement Mexico’s countercrime Merida Initiative, CARSI lacks a clear objective as to what success looks like, thus reducing the ability to measure desirable outcomes. Additionally, it allows for the politicization of foreign assistance. The long-term goal of CARSI should be to build off the lessons learned from Plan Colombia, the largely successful program through which the United States provided security and counternarcotics assistance to the Colombian government, resulting in the debilitation of Colombian drug cartels.

Congressionally imposed withholding requirements against Honduras and Guatemala, however, continue to undermine regional-security efforts. Since fiscal year (FY) 2012, Congress has withheld a minimum of 20 percent of security assistance from Honduras because of human-rights concerns. In FY 2014, it increased the hold to 35 percent, despite the country’s great strides in both human rights and democratic governance. Additionally, U.S. defense cuts have directly impacted regional-security efforts. Reduced naval and personnel assets have diminished U.S. Southern Command (SOUTHCOM) capability to interdict illicit drugs and to conduct joint operations and trainings.

Much like Mexico’s embrace of free trade pushed the country toward economic prosperity, so, too, should economic freedom be an essential element of U.S. policy in Central America. Capitalizing upon the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), the United States should press the region toward greater economic freedom. In addition to countercrime programs, creating long-term economic prosperity will move the region’s economy and society forward. According to the Heritage Foundation’s “Index of Economic Freedom,” restrictions on labor, monetary and business freedoms, as well as high levels of corruption keep the region from advancing.

While the other efforts are focused on improving the U.S. immigration system domestically, the executive branch must lead on foreign policy. Congressional restrictions and withholding on aid do not help, but an administration that is serious about combatting illegal immigration should take a lead in engaging with other nations and building more effective mechanisms and initiatives to improve the security and economic freedom of Central America.

Sixth and last, the executive branch must commit to using honest statistics to determine how well enforcement is—or is not—reducing the number of illegal immigrants in the United States. Currently, DHS manipulates statistics to feign enforcement. In reporting deportations, for example, it considers only one kind of deportation, called removals, which reached record highs in 2013. However, total deportations—including the other kind of deportation, called returns—were actually at their lowest level since 1973. While information is not fully available for FY 2014, leaked documents point to even lower levels of deportations this year. The number could fall as low as 500,000—the lowest since 1972, when the illegal-immigrant population was only a fraction of what it is today. The administration also seeks to hide the fact that interior enforcement of U.S. immigration laws has been consistently falling.

The United States needs honest statistics to track and measure enforcement of U.S. immigration laws. Increased enforcement activities and better administration of our immigration system (as laid out in the preceding points of this checklist), should produce a decrease in the flow of illegal immigrants into the United States and a decline in the total number present in the United States, according to U.S. census data. By providing this proof, the executive branch can assure Congress and the American people that it is fulfilling its duties and enforcing the law properly.

Legislative Reform: The Right Reforms at the Right Time

Once the president has completed this checklist, then, and only then, should Congress begin legislative reforms. There is a good rationale for this order of events: If current laws are not enforced, there is no reason to believe that new laws will be any better enforced. Indeed, there are important reforms that Congress should make, but they will be effective only if the executive branch is committed to their enforcement. After the executive checklist is completed, Congress has its own list of reforms that should be pursued. These include: strengthening border security and enforcement, further empowering states and local governments, supporting security and economic freedom in foreign countries and making reforms to the legal immigration and visa system.

First, while there is much that the administration can do on its own to improve immigration enforcement and border security, support from Congress is needed for greater reforms. On the border, Congress should support and oversee the development, funding and implementation of additional border infrastructure and technology. Similarly, Congress should recapitalize the Coast Guard, which patrols America’s coastlines to interdict illicit materials and illegal immigration.

To better enforce U.S. immigration law, Congress could expand the mechanisms for removing illegal immigrants, so that more illegal immigrants are removed more efficiently. Congress can also mandate and support higher levels of detention or alternatives to detention that compel attendance at immigration proceedings and reduce the number of absconders.

Enforcing the law against unauthorized labor will also require additional DHS resources to investigate and prosecute those companies that hire illegal immigrants. Improving E-Verify and cracking down on identity fraud requires using Social Security Administration (SSA) data to find suspicious uses of Social Security numbers—e.g., a number is being used in multiple places, a number belongs to a child not old enough to work, etc. While the president could do this himself, Congress should also mandate coordination on immigration issues between various government agencies including DHS, SSA, the State Department and others. Finally, Congress should work to combat visa overstays by redirecting funds from DHS’s biometric exit efforts and using them to actually find overstays and remove them from the United States.

Second, Congress should support state and local law enforcement by reorienting homeland-security grants to focus more on communities at higher risk and with greater needs, such as jurisdictions at greater risk of terrorism or those near the border that face challenges arising from illegal immigration and drug-cartel activities. At the same time, Congress should restrict federal security grants from going to sanctuary cities that flout federal immigration law. Municipalities may wish to welcome illegal immigrants, but the federal government doesn’t have to pay for it.

Congress should also support the expansion of the 287(g) program that trains and deputizes local and state law-enforcement officers to enforce U.S. immigration law. One interesting proposal is to require DHS to enter into 287(g) agreements with any law-enforcement agency that wants to participate in the program. Regardless, more cooperation with and empowering of state and local governments is a critical and cost-effective way to multiply immigration enforcement efforts and resources.

Third, the United States must remain committed to citizen security, economic freedom and democratic governance in the Western Hemisphere. Currently, restrictions on security assistance to nations like Honduras and Guatemala undermine regional-security efforts, thus encouraging emigration from the region and illegal immigration into the United States. Similarly, cuts to U.S. military funding harms security cooperation in the region. Congress should remove these restrictions and cuts and support improvements to initiatives like CARSI. A more stable and prosperous Latin America is in the best interests of all of the Americas.

Fourth, Congress should consider reforms to the immigration system. This starts with changing how USCIS operates, including better integration with enforcement and border-security efforts, updating and digitizing its provision of services and making some of its funding appropriations-based, so that Congress can more effectively oversee and direct projects like the long-overdue updating of the way it provides its services. After all, if the United States is going to make changes to its legal immigration system, USCIS needs to be able to handle this change.

With a reformed USCIS, Congress should then turn toward making changes that refocus the immigration system to better serve the U.S. economy. Human capital has long been America’s greatest resource. For all of its history and long into the future, some of these resources have been and will continue to be imported. America is a free-market society, and labor is part of that market. The government’s job is to facilitate the movement of labor in a manner that keeps America free, safe and prosperous. Equally as important, for the free-market exchange of labor to work, the United States must become and remain an “opportunity society,” rather than a magnet for trapping low-skilled labor in a cycle of poverty and impoverishment without the opportunity for social mobility or patriotic assimilation.

As such, the United States should seek to attract high-skill labor, both through the immigration and nonimmigration systems. Higher levels of employment-based visas or new visas based on individuals’ skillsets would attract the highly skilled to come and work in America, and eventually become Americans. Nonimmigrant visas like H-1Bs should have a higher cap, enabling more skilled workers to benefit the U.S. economy. Of course, higher levels of skilled workers would also generate additional net tax revenues because these experts are generally well paid.

The United States also needs an effective temporary worker program that supports seasonal and lower-wage industries. Such a program could take many forms, but in its essence, it would harness the power of the free market while also protecting the United States from the fiscal costs of mass immigration. A temporary worker program should not be a pathway to amnesty; rather, it must be truly temporary. It must ensure that guest workers actually return to their home countries at the end of their work periods—using methods like delaying full payment of wages until the workers have returned home.

A Conservative Vision for Immigration Reform

The United States stands at a critical crossroads. One path is amnesty, the “easy” solution that kicks the can down the road, avoids meaningful solutions and weakens U.S. security, fiscal stability and the rule of law. Another path is restrictionism and protectionism, policies that ignore much of the economic benefits of immigration and the free movement of labor. The third and wisest path is one in which Americans enforce their laws, secure their borders, work with other countries to combat illegal immigration and create a legal immigration system that is easier to use, brings in more high-skilled immigrants and creates well-functioning, temporary worker programs to improve the economy.

The first steps on this path start with the president, whose constitutional duty it is to “take Care that the Laws be faithfully executed,” not just when he agrees with them. Once President Obama, or a future president, proves his dedication to enforcing the law, then, and only then, should Congress act to make further reforms.

The United States is both a nation of laws and a nation of immigrants. There is no need to sacrifice either of these concepts in pursuit of the other. By fulfilling its duty to uphold the rule of law, the executive branch can allow the legislative branch—the branch entrusted with “establish[ing] a uniform rule of naturalization”—to properly debate reforms to the U.S. immigration system, trusting that the executive branch will carry out and administer U.S. laws with fidelity and alacrity.

This is the vision that conservatives should rally around for immigration reform. It is fair, upholds the rule of law and supports the U.S. economy. Now is the time for real leadership on immigration. It is time for conservatives to seize the mantle and articulate a fair, just and constructive vision for the future of the U.S. immigration system.

 - Derrick D. Morgan is the Vice President for Economic Freedom and Opportunity at The Heritage Foundation.

 - David Inserra is a research associate in The Heritage Foundation’s Allison Center for Foreign and National Security Policy.

About the Author

Derrick Morgan Vice President for the Institute for Economic Freedom and Opportunity

David Inserra Policy Analyst, Homeland Security and Cybersecurity
Douglas and Sarah Allison Center for Foreign and National Security Policy

Originally appeared in The National Interest