Immigration problems our president will face in 2021

Whoever is president the day after inauguration 2021 is going to face serious immigration issues, and he may not be able to get the funds needed to deal with them.

How large is the undocumented alien population, really?

The president should establish a more reliable method for estimating the size of the undocumented alien population.

Pew Research Center’s (PEW) estimates of the undocumented alien population are highly respected — even the Congressional Research Service relies on them. PEW uses a process known as the “residual method,” an approach also used by the Migration Policy Institute (MPI), and the Federation for American Immigration Reform (FAIR).

The problem is it doesn’t produce reliable results.

The residual method uses data from the Census Bureau’s annual American Community Surveys (ACS) to estimate the number of foreign born people in the United States. It subtracts an estimate of the number of lawful immigrants in the United States from the foreign-born population estimate, and the remainder is the estimate of the undocumented alien population. 

The ACS surveys are taken from 1 percent of the population, which isn’t a statistically significant percentage. Moreover, it asks about a person’s race, place of birth, whether he is a citizen of the United States, and other questions that undocumented aliens might not be willing to answer truthfully.

A more reliable method for estimating the size of the undocumented alien population is needed for enforcement purposes and to estimate how many undocumented aliens would participate in a legalization program.

There is also a challenge in trying to track the performance of border security measures, specifically how many aliens successfully cross the border illegally each year. Section 1092 of the Fiscal 2017 National Defense Authorization Act requires the DHS Secretary to make an annual Border Security Metrics Report to Congress on the effectiveness of methods being used to secure the border between ports of entry.

The report must include estimates of the number of undetected unlawful entries; “Undetected unlawful entries” are illegal border crossings between ports of entry that are not directly or indirectly observed or detected by the Border Patrol.

The problem is that DHS can’t count crossings that are not observed or detected.

The solution may be to install a surveillance system that would detect every crossing. This hasn’t worked in the past, but that doesn’t mean that it shouldn’t be tried again with modern surveillance technology.

Immigration court backlog crisis

The backlog was only 542,411 cases in January 2017, when President Donald Trump took office. As of the end of July 2020, it was up to 1,233,307 cases.

The average wait for a hearing is 777 days, which makes meaningful interior enforcement impossible, and it is more difficult to secure the border when undocumented aliens know that they aren’t likely to be deported once they have reached the interior of the country.

Due process also is affected. The need to hire more judges has made it necessary to lower qualification standards. The immigration judge vacancy announcement doesn’t even ask for immigration law experience.

The immigration court is adjudicating more cases, however. In fiscal 2019, it completed 275,552 cases, the second-highest completion total in its history — but at that rate, it would still take four and a half years to clear the backlog, even if no new cases were put on the court’s docket.

Comprehensive immigration reform

It has been more than 30 years since the passage of the last comprehensive immigration reform bill with a legalization program, the Immigration Reform and Control Act of 1986 (IRCA).

IRCA was supposed to establish an interior enforcement program to eliminate the job magnet that draws undocumented aliens to the United States. It was thought that this could be accomplished by establishing sanctions to punish employers that hire immigrants who are not authorized to work in the United States.

Approximately 2.7 million aliens were legalized, but the employer sanctions program was only implemented on a token basis. By the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

We still do not have a large scale, nationwide employer sanctions program.

We need to fund a program to make it more difficult for American employers to exploit undocumented foreign workers. That’s what draws unscrupulous employers to unauthorized workers. The Department of Labor (DOL) could address this problem purely as a labor issue by enforcing federal labor laws that were enacted to curb such abuses.

With additional funding, DOL could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented immigrants.

Funding

The country is having serious financial difficulties that may make it difficult for the president to get funding to deal with these problems.

According to a Sept. 2, 2020, report from the Congressional Budget Office (CBO), the federal budget deficit for 2020 has reached $3.3 trillion, which is more than triple the shortfall recorded in 2019. CBO attributes this mainly to the economic disruption caused by the 2020 coronavirus pandemic and the enactment of legislation in response to it.

CBO expects the Federal debt held by the public to reach 98 percent of the gross domestic product (GDP) in 2020.

Maybe the best we can hope for is that the president won’t make the immigration problems any worse than they already are.

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. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.