Crafting an immigration bill that could pass in Congress

Congress hasn’t succeeded in passing a comprehensive immigration reform bill since the Immigration Reform and Control Act (IRCA) of 1986, 36 years ago. 

The main reason seems to be that Republicans and Democrats have different immigration priorities. Republicans emphasize border security and the removal of migrants who are in the country illegally, while Democrats emphasize paths to legal status for the migrants who are here illegally.

The sponsors of IRCA were able to obtain bipartisan support by reconciling these conflicting priorities with what they referred to as a “three-legged stool.”

• Leg one was securing the border and eliminating the job magnet that attracted illegal border crossers;

• Leg two was an H-2A temporary worker program to meet the need for agricultural workers; and

• Leg three was a legalization program that would allow undocumented immigrants who were living and working here to regularize their unlawful status and begin a long process to earn temporary residency and, eventually, permanent residency and citizenship.

According to the Migration Policy Institute, IRCA was supposed to be a one-time measure that would deal with illegal immigration by “wiping the slate clean” and implementing border security and enforcement measures to prevent a new group of undocumented migrants from taking the place of the ones who were legalized.

It didn’t work. Approximately 2.7 million undocumented migrants were legalized in the late 1980s and early 1990s, but the employer sanctions and border security provisions were never fully implemented. Ten years after IRCA was enacted, there were 5.8 million undocumented migrants.

It is not surprising, therefore, that Republicans have opposed legislation without measures ramping up border security and interior enforcement.

Is another three-legged stool agreement possible?

Frankly, I don’t think Republicans want legalization or the other measures Democrats include in their immigration reform bills; nevertheless, the fact that they supported IRCA indicates that they were willing then to accept such measures in return for substantial improvements in border security and interior enforcement, and the need for such a deal is greater now than it was then.

Biden has released more than a million undocumented migrants into the country already, and there are two years left in his presidency. I think the Republicans are ready to do almost anything to stop this tsunami of illegal crossings.

But do the Democrats really want comprehensive immigration reform?

They could have passed comprehensive immigration reform without a single Republican vote when Obama was president: From January 2009 to January 2011, they held the majority in the House, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a Republican filibuster. And then they only needed one Republican vote

They chose not to do it. 

And why do they introduce bills that are virtually certain to be unacceptable to Republicans?

The American DREAM and Promise Act of 2021 provides a good example. It would make legalization available to migrants who have been physically present in the United States continuously since Jan. 1, 2021, and were under the age of 19 when they entered the United States. Approximately 2.7 million undocumented migrants would be able to meet this age at entry requirement. 

They also included provisions that would make lawful status available to 393,000 Temporary Protected Status or Deferred Enforced Departure participants, and 190,000 “Legal Dreamers.”  

Why didn’t they make the bill more attractive to Republicans by limiting it to a DREAM Act for migrants who were brought here when they were very young and consequently know no country other than the United States? 

The Republican support they needed for such a bill was available. A PEW Research Center poll indicates that 54 percent of the Republicans support legalization for immigrants who were brought here illegally as children.   

And why didn’t Democrats include any border security provisions?

Republican Sen. Chuck Grassley has said that, “If we want to provide legal status for Dreamers, we must secure our border, so that we don’t find ourselves in the same situation again, 20 or 30 years from now.”

Comprehensive immigration reform may not be possible, but a DREAM Act should be.

First — Limit the program to migrants who were brought here by their parents when they were very young.

Second —The DREAM Acts the Democrats have been introducing would make it possible for participants to confer legal status on the parents who brought them here illegally, which would reward parents for making a DREAM Act necessary.

Former president Donald Trump addressed this issue when he proposed a legalization program for DACA participants by requiring an end to chain migration.

A more reasonable approach would be to create a place for the migrants in the Special Immigrant Juvenile (SIJ) program.  DREAMers don’t fit in that program as it exists now, but it could be changed to include them. The SIJ program makes lawful permanent resident status available to undocumented migrant children in the United States who have been abused, abandoned, or neglected by one or both parents and therefore should not be returned to their own countries.

It also prevents the parents who mistreated these children from using them to legalize their own status. 

Third — Include substantial statutory enforcement and border security provisions — and find a way to ensure that the administration will not ignore them.

DHS Secretary Alejandro Mayorkas is carrying out the administration’s current enforcement policies which ignore the statutory deportation grounds. He expressed the essence of these policies when he said, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”

The administration also is ignoring the statutory admissibility provisions. Other than migrants who are expelled under the Title 42 order, the Border Patrol is only denying entry to a very small percentage of the illegal crossers. The rest are being released into the country after a 72-hour screening at overcrowded Border Patrol holding facilities.

The approach I am proposing may not work. But what is the alternative? 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.