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Coming Out of Hibernation on Immigration

Neema Singh Guliani,
Former Senior Legislative Counsel,
American Civil Liberties Union
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January 31, 2014

Spring is not quite yet in the air (especially if you live in Atlanta), but happily, the House Republicans have come out of hibernation when it comes to immigration.

Yesterday, the House of Representatives released their standards for immigration reform, which provide a broad outline for the chamber’s approach to immigration reform (our statement on them is here). The standards, though including legalization for some aspiring Americans (definitely a big step forward for Republicans), may ultimately place significant obstacles in the way of a successful legalization program. That’s because they set increased enforcement as the necessary price of legalization for the undocumented and contain overbroad categorical exclusion to legalization for undefined “criminal aliens.”

In the House GOP’s own words:

Border Security and Interior Enforcement Must Come First

It is the fundamental duty of any government to secure its borders, and the United States is failing in this mission. We must secure our borders now and verify that they are secure. In addition, we must ensure now that when immigration reform is enacted, there will be a zero tolerance policy for those who cross the border illegally or overstay their visas in the future. Faced with a consistent pattern of administrations of both parties only selectively enforcing our nation’s immigration laws, we must enact reform that ensures that a President cannot unilaterally stop immigration enforcement.

The standards go on to tie any legalization package to meeting “specific enforcement triggers.”

The standards ignore an obvious contradiction: you cannot bring people out of the shadows while engaging in aggressive enforcement that promotes fear among immigrant communities. Put differently, a legalization program won’t work if families are afraid that contacting the government or law enforcement agents will subject them to detention or deportation, or that overbroad exclusions mean their families will be torn apart. An enforcement-first approach effectively shoots a legalization program in the foot before its first step forward. Moreover, the term “zero tolerance” for visa overstays and border-crossers – borrowed from the failed drug war and school-to-prison pipeline contexts – is also anathema to due process and individualized consideration of cases that frequently involve compelling family and other equities.

The standards also suggest that undocumented individuals will have the opportunity to access existing paths to citizenship while simultaneously suggesting that these avenues may be severely curtailed. The standards heavily criticize the current legal immigration system’s focus on extended families, which could be a viable avenue for many of the current undocumented.

It’s bad enough that the “no special path to citizenship” approach currently advocated by the GOP will likely leave millions of individuals in legal purgatory as an permanent underclass. Such a result is offensive to American values by preventing those millions from becoming full members of our society. But what’s even worse is that this approach, coupled with the elimination of some existing avenues to citizenship and increased enforcement, could leave millions more in the shadows and exacerbate the disastrous, abusive effects of current record-level border enforcement on border communities. Any GOP legislation that emerges must address these concerns, or risk the creation of a legalization program destined to fail.

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