Table of Contents
D. The Rule of Law: Mutual Responsibility
The Immigration Act of 1990 rewrote the exclusion (hereinafter, "inadmissibility") and removal grounds, and established provisions for the removal of non-citizens with certain criminal convictions. 228 In the latter half of the 1990s, rule of law priorities culminated in 1996 with the enactment of the Antiterrorism and Effective Death Penalty Act 229 (hereinafter, "AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act 230 (hereinafter, "IIRAIRA"). In both AEDPA and IIRAIRA, Congress streamlined and accelerated the removal of non-citizens with criminal records (v. current criminal activity) as the standard for considering removal, severely restricted judicial review of administrative removal orders, substantially limited avenues of relief from removal, and implemented "expedited removal" 231 (removal without a hearing before an Immigration Judge, also known as "drive-by deportations" 232). The REAL ID Act 233 expressly limits federal habeas corpus review and certain other non-direct judicial review for certain matters relating to the removal of aliens under INA §242, while permitting appellate court review of constitutional claims and questions of law. These measures appear to be in response to Supreme Court jurisprudence, which had previously interpreted the general limitations on judicial review contained in INA §242 as not precluding federal courts from exercising their habeas corpusjurisdiction review over removal-related decisions concerning aliens who had been detained pending removal. Both the House and Senate bills would require use of expedited removal for migrants who are apprehended within 100 miles of the border within 14 days of entry and permits the use of expedited removal on aggravated felons. The Senate bill also permits the use of expedited removal on incarcerated aliens. 234
The expedited removal and indefinite detention of migrants should be eliminated as they are in direct conflict with the market and democratic rights-based tenets upon which a distinct American ideology is founded. The rule of law must be enforced but not at the expense of civil liberties, as originally defined and periodically re-defined through an evolving polity. These procedures should be replaced with an appropriate level of constitutionally protected due process, inclusive of a right to a trial before an Immigration Judge and a right to post a meaningful immigration bond for release from detention ("meaningful" in the sense that the bonds set are large enough to prevent abscondence though not so large as to reinstitute indefinite detention). As a result of the 1996 legislation referenced supra, incarcerated migrants (inclusive of adult and children detainees) total more than 200,000 and are held at over 900 facilities nationwide, the majority of which are local jails. Their detention lasts for months on average, and sometimes for years, while their cases are on appeal. Immigration proceedings are administrative and adversarial, pitting the migrant detainee (often with limited education and English skills) against trained attorneys representing the federal government. Without the right to government-appointed counsel, only 10 percent of these individuals secure legal representation in their cases, which most often include legitimate claims for legal protection as permanent residents, refugee status or other forms of relief from removal. Legal representation is an obvious right that can significantly affect the outcome of these proceedings. For example, according to a recent Georgetown Center for Migration study, a migrant who receives legal representation is more than six times as likely to be granted asylum from an Immigration Judge as someone who is unrepresented. 235 Therefore, due process rights must be inclusive of a right to counsel - either private (whether for a fee or pro bono) or court-appointed - for all incarcerated migrants.
The INA, and the legislative, regulatory and administrative texts surrounding it, must be dramatically re-written in a spirit of simplification. The rule of law, as administered by the state and respected by the people, maintains the necessary social order required for democracy and capitalism to flourish. It is a mainstay of the American experiment and has served the country well by providing substantial personal and collective freedoms upon which the nation’s entire socio-economic existence rests. Thus, the INA, as revised herein, must be regarded and upheld albeit in a simplified manner that is more readily accessible to those who are most affected by it. The establishment of an "Immigration Law Clarification Committee," staffed by government attorneys and policy-makers with expertise in the field of immigration law, and with substantial input from the immigration bar, should be immediately put to task. Moreover, all federal immigration agencies, in addition to federal courts with jurisdiction over immigration matters (inclusive of the country’s 52 Immigration Courts, the Board of Immigration Appeals, and the Federal Circuit Courts of Appeal), must institute a cross-agency information-sharing procedure whereby the law can be more uniformly interpreted and applied. At the same time, it is imperative that the separated branches of government maintain their separate institutional cultures along Madisonian lines. Through implementation of this separate-but-equal clarification doctrine, jurisdictional contradictions will be eliminated that have resulted in a prolific array of arbitrary decision-making, inconsistent interpretations of the law, unequal distributions of discipline, and resultant legal challenges by the immigration bar.
The substantial freedoms provided by the rule of law require equally substantial responsibilities that are defined, defended and upheld. Therefore, the rule of law must continue to be respected and adhered to by citizen and migrant alike as facilitated through more diligent enforcement of equitable moderate immigration laws and regulations. Therefore, harsher penalties for substantive immigration law violations, in light of liberalized modifications easing the path to legally obtaining immigration benefits, must be implemented for the sake of order and in defense of a meaningful rule of law. The Senate bill would include turning some civil status violations under current law into criminal misdemeanors, and certain criminals would be subject to prolonged detention if deportation is not immediate. Finally, failure to depart the U.S. after being ordered to do so could result in imprisonment. 236
Migrants should be held responsible for complying with the immigration, civil and criminal laws of its host country. However, they should be held to the same standards and subject to the same types of penalties as natives are for their criminal behaviors. Therefore, when punishing or disciplining migrants for such behaviors, the harsh extra penalty of a removal from the United States should be eliminated from the law and replaced with applicable fines and jail or prison sentences. The United States does not send natives into exile for committing crimes and migrants should not face an equivalent fate for their illegal behaviors. Any public expenses incurred for jail or prison time imposed on a migrant for violating U.S. laws should be deducted from the migrant’s escrow account.
United States employers must also be held responsible for complying with the law. The 1986 IRCA imposed penalties on employers who hire undocumented workers and protected citizens and permanent residents from employment discrimination through the authorization of employer audits and sanctions. 237 However, the major mechanism for enforcing these provisions is the I-9 form, which employers keep in their records, but do not file with the government. Employer sanctions have therefore not been effective in curtailing the job market for undocumented immigrants. Despite harsh penalties for document fraud, which were expanded again in 1996, many immigrants find employment by using false documents. In other cases, employers bypass the provisions of the law by hiring contract workers who are not technically their employees. This has helped create the situation in which we find ourselves today, with a sizeable undocumented population within the workforce. Reforming our immigration system will require a comprehensive approach, including smarter enforcement at the worksite and a new worker visa system that will realistically meet U.S. labor needs.
The House bill would require a mandatory verification of all employees and all "previous hires" and would increase civil penalties for employers who hire illegal aliens. The first offense would be increased from $250.00-$2,000.00 to $5,000.00-$7,500.00; the second offense would be increased from $2,000.00-$5,000.00 to $10,000.00-$15,000.00; and the third offense would be increased from $3,000.00-$10,000.00 to $25,000.00-$40,000.00. The bill reduces civil penalties for businesses depending on size: penalties for those with an average of 25 or less employees are reduced by 60 percent; those with an average of 26 to 100 employees are reduced by 40 percent; those with an average of 101 to 250 employees are reduced by 20 percent. The House bill would increase the criminal penalty for a pattern of hiring unauthorized aliens from a fine of $3,000.00 and up to six months imprisonment to a fine of $50,000.00 and not less than one year imprisonment. 238
The key worksite enforcement provisions of the Senate bill would involve increased penalties against the employer, and mandatory participation in an electronic verification system for new hires. The bill would increase the penalties for hiring authorized workers to as high as $20,000.00, and purely administrative or "paperwork violations" can result in a fine of up to $6,000.00. Criminal penalty may be as high as $20,000.00 and up to three years of imprisonment for a "pattern or practice of knowing violation." An employer could be held liable for the actions of a subcontractor. Also, employers who hire 10 or more undocumented workers within the past year can be prosecuted criminally even if the errors were due to recklessness and not with criminal intent. Within 18 months of enactment, all U.S. employers will be required to participate in an electronic verification program for all new employees. Employers in industries deemed critical to national security must re-verify existing employees, as do employers who have violated immigration laws in the past. 239
Calculated audits of employment records should replace arbitrary ones through upscale investigation capacities rooted in repeated allegations of law violations and other "reasonable cause" standards. Upon a finding of immigration violations by a U.S. employer, that employer should be subjected to heavy fines and/or jail time, depending upon the level of severity and repetition involved. However, the need for such audits would be greatly diminished, if not done away with altogether, through the implementation of the equitable moderation visa expansion programs recommended supra as well as a permanent electronic employment eligibility database that provides immediate online verification of an employee’s eligibility or lack thereof. This system would require U.S. employers to enter verifiable data from an intending employee’s identification documents into an online form, which would then be submitted online and instantaneously certified or rejected based upon government database records verifying eligibility to legally work in the United States. This method would protect U.S. employers from immigration law violations as well as from discrimination lawsuits as each job applicant, without regard to citizenship and nationality, would be required to submit to said online verification. At the same time, employers should not be made to play an enforcement role of any kind but rather a compliance role through a refusal to hire an undocumented migrant. Employer responsibility for reporting to the government a negative "hit" in the online system should therefore be withheld from the new verification program.
231 Demetrios G. Papademetriou, "The Shifting Expectations of Free Trade and Migration," in NAFTA’s Promise and Reality(Washington, DC: Carnegie Endowment for International Peace, 2004), 40.
232 Aliens Act of June 25, 1798 (1 Statutes-at-Large 570).
234 Immigration Act of August 3, 1882 (22 Statutes-at-Large 214).
235 Increased to one dollar in 1894, two dollars in 1903, four dollars in 1907, and eight dollars in 1917. The head tax was later abolished by the INA.
236 U.S. Citizenship and Immigration Services, "An Immigrant Nation" (citing Immigration Act of August 3, 1882, 22 Stat. 153).
237 Quota Law of May 19, 1921 (42 Statutes-at-Large 5).
238 Immigration Act of May 26, 1924 (43 Statutes-at-Large 153).
239 Immigration and Nationality Act Amendments of October 3, 1965 (79 Statutes-at-Large 911).