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Obama Administration Takes on Immigration Reform

Lucas Guttentag,
Senior Staff Attorney,
ACLU Immigrants' Rights Project
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April 15, 2009

(Originally posted on Daily Kos.)

Last week, a front page New York Times story reported that the Obama Administration is getting ready to address immigration reform. Yesterday, the Times followed up that organized labor had reached a new consensus in support of reform.

That’s great news for immigrants’ rights advocates. We desperately need to reform our broken immigration system. So far, the White House has provided few details about what its reform agenda will be. But we know from past experience that this will be a volatile and highly contentious issue. President Obama will not speak publicly about it until May. However, officials said the plan would include a pathway to citizenship for undocumented immigrants who are already living and working in the U.S., increased border enforcement, and the creation of a national system for verifying workers’ eligibility for employment in the U.S.

As the debate begins, the focus will be on how and whether to provide a path to citizenship for the estimated 12 million undocumented immigrants who are already living and working in our country, and what the trade-offs will be to achieve that goal. Hot-button issues will be how to balance new border and workplace “enforcement” measures, what to do about eligible immigrants who are languishing in an endless family visa backlog awaiting their turn, whether to allow temporary workers into the country, and how the current economic climate affects the way we think about immigration reform.

Access to the Courts
There is one fundamental due process principle that is usually forgotten and will get lost in the shuffle unless we put it front and center. That issue is the role of the courts and judicial review.

What does that mean? It means that every person, including immigrants, must have an absolute right to go to court to enforce the law and the Constitution.

How does that relate to immigration reform? Here’s how — and it’s critical. The path-to-citizenship program that the Obama administration has in mind and that advocates seek will be governed by myriad rules, eligibility requirements and restrictions.

As a result, the actual effect — and success — of any program will depend on implementationby the Department of Homeland Security (DHS). And that will depend on how DHS interprets the law, what rules it applies and how it decides individual cases.

In other words, the devil is in details. Even the most well-intentioned legalization program cannot fulfill its promise unless the rules, regulations and practices that DHS adopts reflect the goals of the law and the intention of Congress.

But sadly, we know from long experience that our immigration agencies — now known as Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (CIS), both under the DHS umbrella — are more likely to restrict or even undermine a legalization program than implement it generously and fairly. Whether by instinct, or because it is overwhelmed, incompetent or downright hostile, we cannot depend on DHS to police itself.

In 1986, the last time Congress passed a ‘legalization’ program, the immigration bureaucracy adopted rules, regulations and practices that would have gutted the program, denied legalization to hundreds of thousands, if not millions, of eligible immigrants, and denied basic due process to those who applied. Advocates objected in vain. Despite innumerable meetings, consultations and deliberations, the then-called Immigration and Naturalization Service ran roughshod over the law and adopted rules that were illegal.

In response, a series of class-action lawsuits were filed in federal courts (including the ACLU’s involvement and support) around the country challenging the government’s policies and practices. In virtually every case, the courts ordered the government to abandon its practices and regulations. And after the initial court rulings, the government retreated from its positions. In other words, once the lawsuits were filed, they were almost uniformly successful, the government gave up its defense, the rules were changed, and the program ultimately legalized millions of eligible immigrants.

None of that would have been possible without judicial intervention and the ability of immigrants and their advocates to file class-action suits. But for the litigation, the government would never have changed its policies and would have been free to eviscerate the program.

Now here’s the critical point: those lawsuits would be difficult or impossible today. The courts are absolutely essential to police the government, enforce the law and fulfill the promise of any legalization program. But the authority of the courts has been steadily attacked and eroded since 1986. After losing cases, the government has tried to escape judicial oversight by stripping the courts of jurisdiction to hear cases and grant effective relief by amending the immigration laws and urging the courts to adopt technical barriers to immigration lawsuits. After 1986 — under the Clinton and both Bush administrations — the government didn’t just move the goal posts: it wanted to tear them down.

The response we need today is essential and straightforward: Restore and guarantee the power of courts to promptly review the actual practices and the rules, regulations and policies governing implementation of whatever law Congress ultimately enacts. Give back the historic authority that has been essential to protecting rights, enforcing the Constitution and overseeing agency abuses.

Of course, there are many other looming issues about what an immigration bill might contain, wholly apart from restoring the authority of the courts. Let me flag just a few.

Mandatory Employment Verification
The fundamental trade-off in any bill with legalization is likely to be a mandatory computerized employment verification system for every worker in the United States. That may sound appealing in theory, but it fails to consider the critical issues of privacy, accuracy, abuse and discrimination.

The current, voluntary employment verification system, E-Verify, relies on the notoriously flawed Social Security Administration database, where 70 percent of the errors are in records of U.S. citizens. No other adequate database exists, none is forthcoming and the costs and complexities of establishing a new database are hard to fathom. And fixing the system means tracking everyone from cradle to grave, adopting biometric identifiers, maintaining massive records on all Americans and imposing the equivalent of a national identity card, which the ACLU has long rejected.

More immediately, a flawed verification system means that countless Americans are at risk of losing jobs, will be trapped by a flawed system, denied jobs and subjected to discrimination if they look or sound “foreign.” That means Latinos, workers with accents, union activists whom an employer wants to harass and others will be especially vulnerable.

Is there a better way? Yes, enforcing the workplace wage and hours laws, safety rules, minimum wage and union organizing protections. If all workers can effectively enforce their existing legal rights, unscrupulous employers would not have the incentive to hire vulnerable undocumented immigrants in order to exploit them. Congress can achieve that and protect American workers by enacting critical fixes to our labor and workplace laws.

Fairness, Detention and Discretion
Other fundamental problems must also be addressed — and could be remedied today even without massive legislation. For example, the administration could adopt rules that put a measure of fairness and discretion back into the immigration system, end unnecessary and inhumane detention, protect the right to effective legal representation, repeal last-minute “midnight regulations” adopted by the Bush administration and adjudicate individual cases quickly and fairly.

Immigration is a controversial and complex issue. We applaud President Obama for getting ready to address it and leading the public debate. As that process begins, we must remember that the words of the Constitution guarantee fundamental fairness and equal protection to every “person” — not just citizens. Our goal is an immigration system that furthers American values, enhances our national interest, and protects constitutional rights.

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