To control immigration, Trump needs to think outside the wall

Illegal crossers climb over high fences on U.S. borders too. A video clip taken by a television film crew shows two suspected drug smugglers climbing over the border fence between Mexico and Nogales, Ariz., with large packs on their backs.

When they noticed that they were being filmed, they ran back to the fence and climbed back over it to the Mexican side of the border.

Illegal crossings are made under border walls too. Federal agents in California recently discovered an 874-yard-long tunnel beneath the border between the U.S. and Mexico. This was the 13th time a sophisticated tunnel had been discovered along California’s border with Mexico.

{mosads}The tunnels usually are about 60 feet under the ground and between three and four feet in width. According to Mike Vigil, the former head of international operations at the Drug Enforcement Administration, the “US-Mexico border is literally riddled with tunnels.”

The impenetrable physical wall Trump is talking about will take years to complete, and illegal crossers will be going around and through gaps in it while it is being constructed. Moreover, it is far from certain that the project will ever be completed.

On Sept. 21, 2006, the Department of Homeland Security awarded a contract for the construction of a virtual fence along the entire length of the border with Mexico, a project known as the Secure Border Initiative Network (SBInet). When the program was terminated four years later, it had cost taxpayers almost $1 billion and had just covered 53 miles of the 2,000-mile border.

Border security is not just a matter of putting a wall in the way of illegal crossers. If they have a strong enough incentive, they will find a way to get past the wall.

Something also has to be done to reduce the power of the magnets that draw them to the United States, the “job magnet” and, what I call, the “home free magnet.”

Under the enforcement policies of the Obama administration, an alien who makes an illegal crossing is “home free” once he has reached the interior of the United States because it is extremely unlikely that he will be deported then unless he is convicted of a significant crime or he has been deported previously. Drug smugglers, of course, have other motivations.

The job magnet was addressed by the Immigration Reform and Control Act of 1986 (IRCA). IRCA added section 274A to the Immigration and Nationality Act, which provides fines for employers who hire immigrants who are not authorized to work. That was 30 years ago, and the employer sanctions program still has not been fully implemented.

Section 274A requires employers to find out whether prospective employees are aliens, and, if so, to determine whether they have been authorized to work in the United States. These determinations have been problematic and they would not be necessary if attention were to be placed on employee exploitation instead of immigrant status.

Many American employers hire undocumented foreign workers because it is easy to exploit them. The Department of Labor (DOL) can address this problem purely as a labor issue. DOL enforces federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, and other employment standards. DOL’s Wage and Hour Division (WHD) enforces these provisions.

With additional funding, WHD could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants. In addition to discouraging unscrupulous employers from hiring undocumented immigrants, this would reduce the exploitation of American workers.

The home free magnet is more difficult to address.

The Obama administration has left President-elect Trump with an immigration court crisis that severely limits deportations. If this crisis is not resolved, it is unlikely that his deportation record will differ much from Obama’s record.

Every alien accused of being deportable has a statutory right to a hearing before an immigration judge. The immigration court completed 181,575 cases in FY 2015, which is impressive for a court that only had 273 judges.

Nevertheless, the number of cases awaiting resolution before immigration judges as of the end of October 2016, was 521,676. This was an average of 1,910 cases for each of the 273 immigration judges. The average wait time for a hearing as of the end of October was 675 days, and aliens who appeal deportation orders to the Board of Immigration Appeals cannot be deported while their appeals are pending.

The population of undocumented immigrants can be reduced to a manageable level by establishing legalization programs. This could start with children in the Deferred Action for Childhood Arrivals (DACA) Program. The availability of information about them in our public-school system and elsewhere in the United States makes it possible to screen them with extreme vetting, and they are completely innocent of any wrongdoing.

They did not choose to come here in violation of our laws. They were brought here by their parents. Other groups could be formed on the basis of such factors as family unity or American employment needs.

So when the president-elect goes to implement his border security policies as early as January, he should keep in mind physical barriers aren’t the only solution to our nation’s immigration crisis.

Nolan Rappaport’s immigration experience includes seven years as an immigration counsel on the House Judiciary Committee and twenty years writing decisions for the Board of Immigration Appeals.