02/27/2013 11:54 am ET Updated Apr 29, 2013

Border Security: Building a Bridge, Not a Wall to Legal Status

The Gang of 8's framework for immigration reform mostly deserves praise. It seeks to fill gaps in immigration enforcement, make the legal immigration system more responsive to U.S. economic and labor needs, and create a path to lawful permanent resident (LPR) status for unauthorized immigrants. As a first step in the legalization process, it proposes a "registration" program that would remove the threat of removal from the unauthorized, and allow criminal and security checks to be run against persons who -- while less likely than the native born to be public safety risks -- have nonetheless been largely invisible to the government. The plan would also expedite the path to LPR status for three deserving groups, agricultural workers, persons brought to the United States as children, and graduates of U.S. universities with advanced degrees in science, technology, engineering and math. However, the plan also includes three provisions that could indefinitely delay, if not permanently block, LPR status for most unauthorized immigrants.

The first would require that visa backlogs be eliminated before the unauthorized can obtain LPR status. In fact, hundreds of thousands of unauthorized persons are themselves "waiting in line" for a visa based on a qualifying family relationship to a U.S. citizen or LPR (See "Immigration Reform for U.S. Families: Not a Special Pathway, Just a Better One" at ). Clearance of current visa backlogs -- due to caps by nationality and category of family relationship -- could delay the legalization process by decades. Reform legislation must provide additional visas and ensure that unauthorized persons do not lose their place "in line."

Second, the plan provides that the United States would need to complete a national entry/exit system for persons with temporary visas before "registrants" could begin the process of earning LPR status. An entry/exit system has been legislatively mandated since 1996 and repeatedly affirmed by Congress in the interim. Yet the United States still does not track departures: it mostly relies on airline departure records for this information. Thus, if history is any indication, this "trigger" could delay the onset of an earned legalization program for many years.

The plan also provides for an increase in agents at and between ports-of-entry (POE). POEs suffer from outdated physical infrastructure that stymies economic growth. They also represent the entry point for 90 percent of illegal narcotics smuggled to the United States. In addition, the Border Patrol's Tucson sector reportedly remains more porous than other sectors. That said, proposed increases in enforcement funding should be considered in light of the dramatic growth in spending over many years, unprecedented reductions in illegal crossings, competing federal spending priorities, and a budget crisis that may make additional spending unlikely or even impossible. The Migration Policy Institute recently reported that funding for Customs and Borders Protection (CBP), Immigration and Customs Enforcement (ICE), and the US-VISIT program -- the Department of Homeland Security's primary enforcement data base and identity assurance program -- now exceeds the combined budgets of the Federal Bureau of Investigation, the Drug Enforcement Administration, the Secret Service, the U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. While some level of CBP and ICE funding also supports non-enforcement functions, MPI did not count immigration enforcement spending by many other federal agencies with significant programs and responsibilities in this area or by the federal court system whose resources have been severely taxed by zero-tolerance immigrant prosecution policies.

Third, the plan would task a commission comprised of Southwest border governors, attorneys general, and community leaders with recommending when border security has been achieved. Of course, politicians that have long espoused enforcement-only strategies, defined border security as the prevention of all illegal entries, and exploited fears of mayhem on the border would be unlikely to make such a recommendation. If this group is not to become a source of indefinite delays, it must either be advisory not mandatory, or be constrained by objective evidence.

The plan's proposal to create "a meaningful opportunity" for border communities to critique and share input on enforcement strategies holds greater promise. In El Paso, a group of this sort has recently begun to take shape. The Council for Border Security, Development and Human Rights is comprised of border residents from law enforcement, local government, business, labor, faith communities, community-based agencies, the media, academia and other sectors from across the length of the border. Based on the Council's early discussions, border residents strongly support border security. They also support long-term investments in POEs and believe that inefficient POEs damage local economies and the environment. They argue that the Border Patrol's presence has reached saturation levels in many communities and they report that many agents privately complain of inactivity. They take pride in the fact that border communities have been found to be among the safest in the nation, and they note that this has resulted, in part, from a carefully designed wall between local law enforcement and federal immigration enforcement. They raise concerns over stops and searches of border residents that would be unthinkable (and unconstitutional) in the rest of the country. Most of all, they argue that the well-being of their communities should not be ignored or sacrificed in the legislative process, but should be a centerpiece of reform.