AILA Doc. No. 17101000 | Dated October 11, 2017
On October 8, 2017, the White House released several documents outlining its immigration policy priorities. The Executive Summary and a detailed outline of the principles are divided into three categories: (1) Border Security; (2) Interior Enforcement; and (3) Merit-Based Immigration System. While the documents do not refer to specific legislation, the substance of the White House priorities closely track several bills introduced during the 115th Congress, including appropriations bills that would skyrocket enforcement spending and increase immigration detention and the number of enforcement agents, and fund the president's border wall. The "merit-based" reforms run parallel to the RAISE Act, introduced earlier this year by Senators Cotton (R-AR) and Perdue (R-GA), which would drastically cut legal immigration levels, while the enforcement provisions can be largely tied to H.R. 2431, an enforcement-only bill introduced by Rep. Labrador (R-ID) that would dramatically expand immigration enforcement, criminalize undocumented immigrants, and result in mass deportations nationwide.
The principles were sent to Congressional leadership with a cover letter explaining that all of these reforms must be included as part of any legislation addressing the status of Deferred Action for Childhood Arrivals (DACA) recipients. Taken together, the package amounts to a laundry list of enforcement-only and restrictionist proposals that is not a workable solution for America's immigration system or the large undocumented population living and working here. The White House plan, if enacted, would do terrible damage to our economy and result in the deportation of hundreds of thousands of undocumented immigrants, including many Dreamers and their families. AILA is opposed to each of the bills from which the White House drew its plan. AILA's analysis and public positions on these proposals are summarized and listed on this webpage.
For information on congressional efforts to protect Dreamers, see AILA's Featured Issue Page: Legislative Efforts to Protect Dreamers
The White House principles on border security include:
Fund and Build the Border Wall.
The White House continues to propose the construction of an unnecessary and operationally ineffective wall along our southern border. A layered system of physical barriers and border security technologies already exists at our southern border, and recent apprehension numbers have been at the lowest point when compared to the past four decades. Customs and Border Protection (CBP) patrols every mile of the U.S. border daily, and in many places, can view nearly all attempts to cross the border in real time. Any additional construction of a wall or fencing system across the southwest border will likely be in remote areas, which will cost more to construct and yield fewer apprehensions.
No evidence has been presented that demonstrates why constructing additional wall is necessary. The President is committed to throwing millions of dollar to solve a problem that does not exist. The President is also functionally requiring a 100 percent seal of the 2,000-mile southern border by using the term "operational control"-an extreme standard that even totalitarian regimes like North Korea cannot achieve. Chairman McCaul himself does not think achieving the 100-percent seal is possible: In 2013 he criticized a similar proposal, stating, "Putting a 100 percent number in there makes it not only unachievable but unrealistic, and I believe, less credible." Last year, an aide for McCaul provided the following statement for The National Review: "The 100-percent standard in the Secure Fence Act is not realistic. This is like a mayor asking his police chief to prevent 100-percent of crime in his town."
Implement Restrictions on Unaccompanied Alien Children:
The White House principles on unaccompanied children (UACs) closely track the provisions set forth in H.R. 495, the Protection of Children Act. AILA opposes H.R. 495, which would amend the Trafficking Victims Protection Reauthorization Act (TVPRA) to undermine the fundamental principles governing the care and protection of unaccompanied children that have been developed over the past two decades. H.R 495 lowers due process standards for unaccompanied children by subjecting all unaccompanied children to expedited screening by Border Patrol rather than the Office of Refugee Resettlement (ORR). Moreover, H.R. 495 changes the eligibility criteria in the Special Immigrant Juvenile Status definition by granting protection only to children who suffered abuse, neglect, or abandonment at the hands of both parents and who cannot be reunified with either one. If Congress passes the provisions contained in H.R. 495, children who are eligible for, and desperately need, humanitarian protection in the U.S., would be sent back to the violence they escaped. The current legal standards protecting unaccompanied children are among the most carefully developed in the world and we urge Congress and the administration not to scale back its protections for vulnerable children.
Implement More Restrictive Asylum Policies:
The White House principles on asylum reform are closely aligned with H.R. 391, Asylum Reform and Border Protection Act. AILA opposes H.R. 391 which would dramatically alter U.S. asylum and humanitarian protection law in a manner that would subject asylum seekers to grave harm. This bill heightens the credible fear screening requirement, requiring individuals to not only prove a "significant possibility of establishing eligibility for asylum," as current law requires, but also prove that it is more likely than not that their statements are true. This heightened standard would deny many bona fide asylum seekers protection from violence and persecution and would result in many being sent back into harm's way. Furthermore, this bill imposes sweeping language that precludes a large number of individuals from accessing protection if they were persecuted on account of their membership in a social group. This requirement is contrary to guidance from the U.N. High Commissioner for Refugees and fundamentally redefines U.S. asylum law protections. H.R. 391 curtails fundamental due process and betrays America's proud tradition of welcoming those who are fleeing persecution.
Expand the Number of Immigration Judges, ICE Attorneys and Officers.
The White House proposes to ensure swift border returns by providing additional resources for 370 more immigration judges and 1,000 ICE attorneys, among other things. In addition, under the interior enforcement principles, the White House proposes the hiring of an additional 10,000 ICE officers, and to implement procedures to expedite the addition of ICE personnel.
Immigration Judges: Immigration court reform that includes the hiring of additional immigration judges will improve the system’s ability to ensure that due process is provided to all persons and each case is reviewed in a fair and meaningful manner. However, an increase in funding or judges without broader reform efforts will do nothing to address the chronic and systemic problems that have resulted in a severe lack of public confidence in the immigration court system’s capacity to deliver just and fair decisions in a timely manner. In certain jurisdictions, immigration court practices and adjudications have fallen far below constitutional norms.
In light of the ongoing failures and dysfunction in the immigration court system, additional funding must be tied to a credible plan to advance reforms that address EOIR’s structural problems, support the independence of the court system, build due process and fairness norms into the adjudication process, and adhere to transparent decision-making.
Immigration and Customs Enforcement (ICE) Agents. The White House principles call for dramatic increases to the number of ICE agents, without any justification of need. In fact, apprehensions have plunged 75% since October 2016. While the White House principles do not specifically address border patrol staffing, current White House budget proposals call for hiring 500 more border patrol agents. Historically, the number of agents has already seen incredible growth: Border patrol agents doubled from FY 2003 to FY 2016, from approximately 10,000 to 21,000; and the number of ICE agents focused on removal operations nearly tripled in that same time frame. As of January 2017, CBP had approximately 19,600 border patrol agents and ICE had approximately 7,995 enforcement and removal officers.
In the past, hiring surges of the kind the White House now proposes have had disastrous consequences. In 2010, CBP rushed agents and officers through training and into the field, resulting in members of drug cartels becoming employees of CBP. As a result mandatory polygraph testing was put in place for all applicants. The Administration is also looking to ramp up the hiring of ICE immigration enforcement officers, who undergo no polygraph testing before being handed an ICE badge and gun. For years, CBP has struggled with low morale and cannot find candidates who can pass a polygraph. It is unlikely CBP or ICE could hire more agents without severely compromising the hiring criteria and candidate screening protocols.
The dramatic increase in the number of ICE officers will result in more deportations of children, Dreamers, family members, asylum seekers and long-time residents who pose no threat to public safety. Currently ICE officers are instructed to take action against all undocumented immigrants they may encounter, without regard to personal circumstances or the individual equities in each case.
The White House Principles on Border Security also propose the following reforms, most of which are included in the "Davis Act" H.R. 2431, described in the Interior Enforcement section, below.
Expand Inadmissibility Grounds.
Expand the grounds of inadmissibility to include gang membership; those who have been convicted of an aggravated felony; identity theft; fraud related to Social Security benefits; domestic violence; child abuse; drunk driving offenses; failure to register as a sex offender; certain firearm offenses; certain former spouses and children of individuals engaged in drug or human trafficking.
Increase Penalties for Immigration Violations.
Increase penalties for repeat illegal border crossers and those with prior deportations.
Facilitate the Removal of Illegal Aliens from Partner Nations.
Authorize DHS to provide foreign assistance to partner nations to support the removal of individuals from third countries whose ultimate intent is to enter the United States.
Expand Expedited Removal.
Expand the grounds of removability and the categories of aliens subject to expedited removal.
The White House principles on interior enforcement include:
End Sanctuary Cities and Compel State and Local Cooperation on Immigration.
Severe penalties for state and local jurisdictions that refuse to cooperate with federal authorities on immigration enforcement, as well as the implementation of laws to compel and/or incentivize state and local law enforcement agencies to comply with detainers and cooperate with DHS on enforcement matters.
End Visa Overstays.
Drastically increase the penalties for those who overstay or violate the terms of a visa, including barring visa overstays from immigration benefits for a set time period with no waiver.
Expand Detention Authority.
Implement a legislative fix to retain custody of those whose home countries will not accept their repatriation beyond six months (Zadvydas); and require detention of aliens who entered without inspection or failed to maintain NIV status and have been charged with a crime that resulted in the death or serious bodily injury of another person.
Expand Deportation Grounds.
Expand grounds of deportability to include gang members, those convicted of multiple drunk driving offenses or a single offense involving death or serious injury, and those who fail to register as a sex offender; expand the definition of "aggravated felony" by referring to "an offense relating to" each of the categories of crimes.
Additional Visa Security.
Expand the Department of State's authority to use fraud prevention and detection fees to combat all classes of visa fraud; ensure funding for the Visa Security Program and facilitate its expansion to all high-risk posts; strengthen laws prohibiting civil and criminal immigration fraud and encourage the use of advanced analytics to proactively detect fraud in immigration benefit applications.
Most of the White House principles on interior enforcement can be tied to H.R. 2431, the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act ("Davis Act"). The Davis Act is an expensive bill that would enable President Trump to implement an immigration agenda that is singularly focused on punitive enforcement and on the mass detention and deportation of undocumented people, with no regard for the harm it would do to American communities. In addition to more personnel, the Davis Act will facilitate a force multiplier effect by giving additional authority to and encouraging local police and sheriffs to engage in immigration enforcement. Specifically, the bill authorizes police to arrest and detain anyone based solely on suspicion of being unlawfully present in the U.S. The Act requires compliance with detainers and prohibits localities from restricting their personnel from engaging in immigration enforcement in concert with ICE. Under this act, states and localities can adopt their own immigration penalty schemes like Arizona's SB1070 law, key provisions of which were struck down by the Supreme Court. The Davis Act also proposes a radical departure from existing immigration law by criminalizing unlawful presence and permitting the prosecution and incarceration of every undocumented individual at immense cost to American taxpayers. Mothers and fathers of the 4.5 million U.S. citizens who have at least one undocumented parent, would be subject to arrest, criminal prosecution, and removal under this Act, tearing apart families and achieving no legitimate law enforcement purpose. The Davis Act includes several provisions that deprive people of liberty and undermine due process and fairness. Additional mandatory detention categories are proposed, and the bill makes it difficult, if not impossible, for individuals to obtain release on bond. The Davis Act includes a number of provisions that would erode due process for individuals who have already been screened and admitted to the United States, and creates costly and burdensome vetting procedures in the adjudication of visas and immigration benefits.
The White House principles on the legal immigration system would establish a "merit-based" immigration system that prioritizes skills and economic contributions over family connections; end so-called "chain migration" by limiting family-based green cards to spouses and minor children; eliminate the "Diversity Visa Lottery"; and limit the number of refugees admitted to the U.S. These principles are closely aligned to S.1720, the Reforming American Immigration for a Strong Economy (RAISE) Act introduced on August 2, 2017, by Senators Cotton (R-AR) and Purdue (R-GA), with the support of President Trump. The RAISE Act is an attack on legal immigration as the bill seeks to eliminate the legal immigration system as we know it and replace it with a points-based system that ignores the benefits of family unity and the needs of U.S. businesses. AILA strongly opposes the RAISE Act as it does nothing to reform our outdated immigration system, yet seeks to dramatically reduce the number of immigrants the U.S. welcomes each year. Among other things, the RAISE Act seeks to cut our legal immigration system by at least 50% over the next decade without a reasonable correlation to family reunification or the economic needs of our nation. The bill would eliminate all family-based immigration categories, except for spouses and children (under the age of 18) of U.S. citizens and permanent residents. The RAISE Act would also completely replace the employment-based immigration system with a narrowly focused and rigid points-based system that fails to take into account the business needs of U.S. employers. Furthermore, the bill would eliminate the Diversity Immigrant Visa Program and reduce the number of refugees admitted to the U.S. to just 50,000 per year, contrary to our nation's proud tradition of serving as a beacon of hope for people fleeing from violence and persecution.
Cite as AILA Doc. No. 17101000.