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December 01, 2008

Immigration and American Values: Some Initial Steps for a New Administration

by Lucas Guttentag

The treacherous debate over immigration was remark ably muted during the presidential campaign. But the system’s failures are unchanged, and the need for reform more urgent than ever.

Today’s dysfunction has multiple causes exacerbated by three seismic developments over the last twelve years. First, enormous changes to the immigration statute enacted in 1996 by IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) fundamentally altered deportation, detention, judicial review, and other core elements of the system. This legislation, adopted with virtually no debate or scrutiny, caused lasting damage to fairness, flexibility, and due process.

Second, in the aftermath of 9/11, the conflation of every immigration issue with national security inhibited nuanced debate and precipitated the expenditure of massive funds for enforcement. The invocation of security overwhelmed questions raised by those who wanted hardheaded assessments of whether particular policies or programs actually achieve greater security or spend money wisely.

Third, the collapse of the complex and controversial congressional efforts to enact “comprehensive immigration reform” in 2006 and 2007 triggered skepticism that significant federal reform to address endemic problems would ever be achieved. The failure underscored the complex politics of immigration, gave disproportionate prominence to hostile voices, and encouraged a flurry of state and local laws targeting immigrants and immigration.

We now confront a sclerotic system that tolerates indefinite delays; denies eligible immigrants legal status; imposes massive detention under inhumane conditions without adequate release hearings; compels deportation with virtually no con sideration of individual equities; limits judicial oversight while overwhelming an overburdened federal judiciary with cases of flagrant error that the administrative process ignores; incites cities and states to intrude into immigration lawmaking out of misguided frustration with failed federal efforts; and prioritizes federal and local enforcement practices that impose huge costs while sacrificing fairness and constitutional protections.

Major legislation to restore fairness, credibility, and accountability is essential. But given the array of daunting challenges facing the administration and Congress, few observers believe that a major overhaul is imminent. Yet, most would agree that many key domestic initiatives are intimately intertwined with immigration reform.

But regardless of the prospects for legislation, executive action and policy changes are essential to address systemic failures that cry out for immediate attention. Strategic and targeted measures––often highly technical––can begin the process of implementing key reforms, suspending disastrous last-minute Bush administration initiatives, and laying the foundation for more comprehensive change.

The following are some steps that your administration should pursue. They are not exhaustive and reflect only my view of some areas where urgent action is paramount and immediate improvement achievable.

Midnight Regulations

Most immediately, the Bush administration attempted to cement into place two new rules that would punish American workers and hurt U.S. businesses in a time of economic crisis. The proposals––widely condemned by civil rights groups, labor unions, and business associations as misguided, costly, and discriminatory––should be abandoned.

A pending Department of Homeland Security (DHS) rule––temporarily enjoined by the courts––would rely on the flawed Social Security database to threaten immigration penalties again workers and businesses that receive so-called “Social Security no-match” letters. These letters are based on computerized data never designed for immigration en forcement. The rule would punish citizens, penalize companies, cause discrimination against legal workers who look or sound “foreign,” and cost the economy an estimated one bil lion dollars. DHS is rushing to try to vacate a federal court injunction before your administration can conduct a deliberate and comprehensive review.

The Bush administration also tried to ramrod through a new rule to force all federal contractors to enroll in a voluntary electronic worker verification system that ignores the system’s gross deficiencies and lack of safeguards and is contrary to Congress’s clear directive. The new rule, also subject to a pending legal challenge, was scheduled to go into effect literally days before the Inauguration; it should be reviewed and revoked.

Fairness and Justice

For many years, the Justice Department has recognized and reaffirmed that due process entitles immigrants to pursue “ineffective assistance of counsel” claims when incompetent lawyers miss filing deadlines, fail to assert bona fide political asylum claims, or otherwise commit inexcusable errors. But Attorney General Michael Mukasey announced in August that he was formally reconsidering that principle and the Bush Justice Department had urged courts to reject it. Your new attorney general has the authority to terminate this reconsideration and to enshrine the principle of effective legal representation into a formal rule and policy.

Attorney Generals John Ashcroft and Alberto Gonzales together devastated the administrative process for adjudicating immigration cases. In addition to the notorious appointment of immigration judges based on ideological bias and political ties, the appellate review body, known as the Board of Immigration Appeals (BIA), was compromised by selectively eliminating BIA members and truncating the admin istrative appeals process. Your attorney general can restore credibility and fairness by immediately appointing a large complement of qualified and diverse BIA and immigration court judges and by restoring plenary administrative review.

Since 1996, there has been protracted litigation over judicial review of immigration orders. That was further complicated by the REAL ID amendments of 2005. Respect for the rule of law and for the essential protection of the great writ of habeas corpus should compel the Justice Department to abandon attempts, through litigation or interpretation, to weaken judicial oversight of the immigration process and of removal orders. Instead, judicial review should be strengthened by providing that the courts review immigration adjudications for abuse of discretion and arbitrary agency action.

In addition to undermining core principles of fairness and due process, the 1996 law also enacted penalties and prohibitions that have had the perverse effect of inhibiting eligible immigrants from obtaining legal resident status. Adopting new administrative procedures and standards could ameliorate that damage and allow qualifying immigrants residing in the United States to obtain legal residence without facing a punitive ten-year penalty against return that is triggered by the requirement of traveling abroad to obtain a green card. These irrational effects have caused immigrants to remain in unlawful status rather than take steps to regularize. Other administrative reforms to govern adjudication of statutory waivers and to require meaningful exercise of prosecutorial discretion would help restore a measure of flexibility and fairness to the system.

End Inhumane Enforcement Practices

Immigration detention has grown exponentially in the last eight years at a huge cost to taxpayers and without employing reason able alternatives that would allow release of those who need not be detained. In place of case-by-case assessments, the Bush administration adopted blanket detention rules, resisted court rulings that authorize individual consideration for rele ase, sought funding for constructing even more detention facilities, and refused to impose effective rules governing detention conditions on all immigration facilities, including those that are part of county jails or run by private, for-profit corporations.

Your administration should adopt release policies and procedures that require individualized hearings, ensure humane conditions through legally enforceable federal standards, faithfully enforce the Supreme Court’s limit on indefinite detention, and facilitate fair procedures and legal representation for those who remain detained.

Recent mass immigration raids, overzealous criminal prosecutions, and allegations of constitutional violations have raised charges of racial and ethnic profiling, resulted in transfer of arrested immigrants to remote detention centers far removed from lawyers and families, and increased the concern of religious and humanitarian groups that families and children are improperly traumatized and denied basic rights. These tactics should be abandoned and renounced.

The Bush administration systematically encouraged local police departments to engage in federal immigration enforcement through a variety of cooperation agreements and memoranda of understanding. This has led to an upsurge in racial profiling, improperly mingled crime-prevention with investigation of immigration status, and undermined public safety. Until recently, most police leaders avoided involvement in immigration law recognizing that the support of communities whose cooperation is essential for effective policing depended on avoiding immigration screening or enforcement.

Your administration can restore the confidence of communities that now feel under siege by suspending exist ing cooperation agreements, initiating federal civil rights inves tigations of discriminatory police practices, and rejecting any new agreements with local police until the real cost and consequences of these initiatives are fully assessed.

Some states and localities are also enacting their own immigration laws to deny housing or employment to those who are deemed “illegal aliens” under idiosyncratic local procedures. While many places have rejected these proposals as divisive measures that exacerbate racial and ethnic stereotyping, ignore the uniform federal scheme for regulating immigrant employment, and hurt economic prosperity, the initiatives nonetheless proliferate. The courts are grappling with whether state and local enactments conflict with federal law and violate due process. The Justice Department should oppose such measures as preempted by federal law, reject them as a matter of policy, and prevent further balkanization of immigration regulation.

Protect Labor and Workplace Rights for All Workers

Instead of relying on flawed databases, conducting raids, and turning local police officers into Immigration and Customs Enforcement agents, your administration should mobilize government resources to protect American workers by safe guarding all employees against exploitation and abuse. Enforcing effective remedies for wage violations, interference with union organizing, unsafe work conditions, illegal discrimination, and other abuses is an essential and effective tool for penalizing and deterring unscrupulous employers who hire immigrant workers in order to exploit them.

The steps outlined here are a beginning; many others are equally urgent and possible. Immigration is undeniably complex. But the difficulty of achieving consensus on major legislation should not become an excuse for delay or inaction. Your administration can take crucial steps through executive action and policy reforms that will enhance procedural fairness, protect the lives of deserving immigrants, and begin to move us toward a system that serves the national interest and reflects our constitutional values.

Lucas Guttentag

John Shattuck is CEO of the John F. Kennedy Library Foundation and a lecturer on U.S. foreign policy at Tufts University. He is the author of Freedom on Fire. He served as Assistant Secretary of State for Democracy, Human Rights and Labor from 1993 to 1998, and Ambassador to the Czech Republic from 1998 to 2000.