While both sides agree that the immigration system is broken, there is disagreement about where reform should start. The Democrats want to take 11,000,000 undocumented immigrants out of the shadows and put them on a track to citizenship. The Republicans want to secure the southern border before they discuss what to do with those now in the country.
The ABA Commission on Immigration convened the panel “Controversy Delays Progress: Prospects for Immigration Initiatives” to discuss the often contentious issues of immigration at the ABA Annual Meeting in San Francisco.
Presenter Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, noted that there was unprecedented support for President Obama’s exercise of executive authority in the Deferred Action for Unauthorized Immigrant Parents program, which offered protections to undocumented parents of U.S. citizen children, and the expanded Deferred Action for Childhood Arrivals program, which would delay for at least two years deportation proceedings for people in the United States brought in as children.
Referencing the U.S. Supreme Court’s deadlock on the executive action in United States v. Texas, Saenz said that the High Court, through its inaction, left in place a preliminary injunction resulting from politicized litigation involving state governments, most led by Republican governors.
Saenz believes that a new U.S. president will be challenged to get government agencies to act on his or her views in this area, and that whomever is elected in November will have limited resources for immigration enforcement.
Panelist Denise Gilman, a law professor at the University of Texas, spoke on the recent resurgence of immigrants surging across the U.S.-Mexico border.
“Unfortunately, over the past several years, the U.S. government has responded with a security and law-enforcement-approach to children and families arriving at our southern border after fleeing horrific human rights situations in Central America,” she said.
“The U.S. can and must do better by these refugees, relying on this country’s deep expertise in protecting refugees, in guarding the best interests of children and in working with survivors of sexual violence and other trauma,” Gilman urged. "History will look shamefully on this period....The rule of law is broken in the countries they [the immigrants] are coming from."
Of particular concern to Gilman are immigration detention facilities run by private companies submitting low bids to obtain the government contracts. She wants the United States to move away from an incarceration model to a civil-detention model, and wants more resources for immigration courts.
Gilman has written and practiced extensively in the international human rights and immigrants' rights fields, and directs the immigration clinic at the University of Texas School of Law.
Presenter Jennifer Shih spoke from her perspective as a partner with Simmons & Ungar, an immigration and nationality law firm in San Francisco, where she advises on the immigration consequences in mergers and acquisitions, and performs I-9 compliance audits.
“The employment-based immigration system does not meet the needs of U.S. companies and businesses or the foreign national talent that these companies seek to hire and retain," Shih said. "Although there is widespread support among companies and business leaders for high-skilled immigration reform, improvements remain out of reach."
“Common sense solutions, including providing accurate published data on processing time backlogs, allowing for early filing of adjustment of status applications for family- and employment-based Green Card applicants, and restoring domestic visa revalidation would go a long way toward improving the user experience for U.S. companies and their foreign national employees—until we get comprehensive immigration reform.”
Shih asserted that, in a strong economy, immigration can add to that strength.
Shih predicted that there would be no chance for comprehensive immigration reform under a President Donald Trump. She said that it would be interesting to see if a President Hillary Clinton would keep Obama's immigration executive actions in place, or substitute ones of her own. New executive actions from a President Clinton would presumably go before a judge other than Andrew Hanen, the district court judge who initially ruled in United States v. Texas.
Gilman noted that the number of immigrants entering the United States over its southern border has decreased from 1.5 million per year in 2000 to 300,000-400,000 in 2014. She also pointed out that only 2 percent of world's population migrates from one country to another.
ABA member Robert Juceam of New York City, in the audience, repeatedly tried to pin Gilman down on a maximum number of immigrants the United States could feasibly add to its population, but was unsuccessful.