I recently interviewed Harry DeMell, an immigration lawyer and member of the American Immigration Lawyers Association, about states taking immigration policy into their own hands.
Schupak: There seems to be some movement by the administration in the area of immigration reform.
DeMell: With the election coming up, the administration is finally taking some action in favor of undocumented immigrants. Up to now, the trend was for hyper-enforcement of the immigration laws: Deportations are now at an all time high, and denials of visa applications on technical grounds are also up. The government has been starting deportation cases for even the most minor offence.
Schupak: So what's going on?
DeMell: Basically two things.
Currently, many undocumented immigrants can apply for forgiveness so they can remain in the U.S. without documentation. But there is the danger of denial. This risk has created a class of possibly a million people who would rather stay here in illegal status than take the chance of having their application denied. A proposed law would allow undocumented immigrants with green card applications to finish those applications without the threat of punishment for minor immigration offences.
Schupak: With the new changes, will all these people be forgiven?
DeMell: Just some. Under the proposed guidelines, only a small percentage of undocumented immigrants who are married to U.S. citizens, or who are children of U.S. citizens and between 18 and 21, can apply in the U.S. prior to their departure. The advantage for them is they can apply for forgiveness here before they leave, if they can show the proper level of hardship. Since these are people we have agreed to allow into the country anyway, they should be the first to get some relief. Because this is a proposed rule change, I expect it to be implemented just before the elections.
Schupak: What about the rest?
DeMell: Nothing for the rest.
Schupak: Why the 18 to 21 limit for children?
DeMell: The opening is for children of U.S. citizens, but children under 18 are not covered by the problem in the first place.
Schupak: What's the second change?
DeMell: The other change has to do with terminating deportation cases for some undocumented immigrants who have an otherwise clean record. It's called prosecutorial discretion. It isn't clear who will qualify for this, but it's expected that about one out of six cases will be affected. Maybe less. Only the cleanest cases can qualify. It seems that some children will benefit, but beyond that, every district will have to create their own guidelines. This might differ from place to place. It will take some months to see how this plays out. We'll be getting into election mode by then and enforcement still remains high.
Schupak: This seems to help many people.
DeMell: In practice, the relief is being offered to deportation cases that might be granted relief by the Immigration Judge anyway. If they get prosecutorial discretion, they get no legal status, only a closed case. It leaves the undocumented immigrant in limbo.
Schupak: It seems that enforcement minded Republicans should support these measures.
DeMell: Call me a cynic, but I believe that no one really wants immigration reform.
DeMell: In this time of high unemployment, no Congressperson wants to go back to their constituents and say that they're allowing some eleven million undocumented immigrants legal status to compete with them in the job market.
Schupak: Didn't the Democrats push immigration reform a year ago?
DeMell: Not really. The Democrats had majorities in both houses, and I don't believe they couldn't pressure a couple of Republican Senators to make it happen. They waited until the Republicans were about to take over and then made a show of it for the audience.
Schupak: So who really wants immigration reform?
DeMell: It seems that all the major players would say that they want it. I would say that no one does. Each player has a separate agenda and is holding the immigrant community hostage to further their ends.
Both major parties are split on the area of immigration reform. Both want the restrictionists and the immigrant community to believe that they are on their side. Pro-business Republicans want an increasingly international labor force, while restrictionist Republicans want greater enforcement. Ethnic Democrat party supporters call for amnesty in the name of comprehensive immigration reform, while pro-union Democrats fear that their members might be displaced by immigrant workers. Those pro-union Democrats have been very effective in complicating the visa process for undocumented workers.
Schupak: That's not what the parties would say.
DeMell: Actions speak louder than words. Part of the problem is that everyone takes extreme positions that they know will lead nowhere, and then they blame others when nothing happens. The press is also guilty of this, because all you hear is either 'throw them all out' or 'make them all citizens'. There is no effort to come to a middle ground that might lead to some concrete action that both parties can agree upon, such as expanded work visas or giving immigration judges more discretion to allow people to remain here when there's family hardship. The judge's discretion was for a large part taken away in 1996. We need to give it back.
Schupak: You would think there would be some action, since the Hispanic vote is so important.
DeMell: If you remember, the last major presidential candidate who supported an amnesty was McCain, and he lost the Hispanic vote and the election. Don't think this has gone unnoticed by people running for election.
These hard positions have made immigration reform impossible unless an extreme position is taken. Rather than a give and take to fix part of the problem now, each side has made illegal immigration its rallying cry. Neither side is willing to acknowledge that much of the problem can be fixed now without giving away their position completely. Neither side has declared that the goal of any new legislation should be to further what legal immigration should be and what visas make sense for America.
Schupak: Where do you think the debate should go?
DeMell: It should begin as, what's good for America, and not what will get the most votes. Sometimes doing the right thing needs to be explained to the American people, and if the positions are correct, the people will come along. We should first discuss what legal immigration is, and which temporary visas are in the best interest of the United States and then discuss how to tackle the part that is excluded. It's not an all or nothing proposition, immigration policy needs to be molded to the needs of America.
Schupak: What about comprehensive immigration reform?
DeMell: That's just a code word for 'amnesty'. By taking that position, many organizations killed the deal. Those organizations should have known that by asking to make all illegals citizens, they were just trying to make people feel good without any result. By holding this open, they've created a situation that prevented realistic reform that might have helped a large part of the illegal population.
Schupak: I hear aliens called 'illegal' and 'undocumented'. When you say 'illegal' do you mean 'undocumented'?
DeMell: These are code words. Restrictionists call them 'illegals' and pro-alien amnesty supporters call them 'undocumented'. Most of the aliens are no more criminal than someone who has gotten a speeding ticket. That doesn't mean we shouldn't enforce the laws.
Schupak: So, who is there that's representing the American people in this area?
DeMell: There seems to be no one. We need some honest politicians who call it as it is, and then have the compassion to help some aliens, the wisdom to recognize that our economy needs some aliens as legal workers, and the foresight to understand that if we have reasonable laws, they will be easier to enforce. Only then will we be able to get a handle on out illegal population.
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