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The prospects for meaningful immigration reform couldnt be bleaker. Policy failure or inaction is the rule in almost every area of immigration policy, the only arguable exception being anti-terrorist legislation. In Congress, immigration reform has been pretty much a dead letter since the Obama administrations failed effort. President Biden and Senate Majority Leader Chuck Schumer are not eager to invest much of their political capital, and the two parties couldnt be further apart on most aspects of the issue.

But the case for enacting reform that balances effective enforcement and humanitarian concerns remains urgent. Illegal entries have reached unprecedented levels. The government just reported that 1.7 million illegal entrants arrived in the last year, the highest number since 1960, when the government began counting. These new figures, which seem unlikely to decline anytime soon, should deepen support for more effective enforcement measures, as well as reforms to the asylum system to prevent economic migrants from circumventing it.

But the system requires fixing for those already here, too. For almost a decade, the Deferred Action for Childhood Arrivals (DACA) program has authorized temporary relief from removal for almost 2 million Dreamers (minors who entered the U.S. illegally with their parents), and roughly 800,000 have actually received it. The program, however, was invalidated this summer by a federal district judge in Texas and is not taking new applications, pending appeal. When President Obama created DACA in 2012, I published a New York Times op-ed arguing that the program, though justified as policy, was created by an illegal procedure. Still, the legal status of these families is now in peril. The Biden administration can help them only by slow-walking their removals, an evasive tactic that inevitably undermines the credibility of the nations larger immigration-enforcement effort. A permanent resolution is essential.

Meantime, the number of mixed-status familiesthose headed by unauthorized adults but that also include U.S. citizens under 18probably exceeds 6 million and is steadily growing. The notion that ICE can remove these adults without causing immense harm, not only to their unauthorized family members but also to their U.S. citizen (or noncitizen) children and communities, is wildly unrealistic.

In total, an estimated 11 million illegal immigrants live in the U.S. If past is prologue, ICE will remove only 1 percent of them (185,000 in 2020, itself a large decline from 2019). Moreover, millions of illegal immigrants are long-term residents; the Migration Policy Institute reports that almost two-thirds of them have lived here for more than a decade and 22 percent for more than 20 years. Federal law has long recognized the difficulty of removing long-settled illegal residents. The 1986 immigration statute legalized those who had lived here with good moral character since before 1972. Were Congress to apply the same logic and time frame now, it would extend the same relief to otherwise law-abiding illegal residents settled here since 2007. This would better focus ICE enforcement resources, recognize that assimilation occurs over time, and relieve the deportation anxiety of millions of families. Amnesty for the more-recently-arrived immigrants must be very carefully designed to minimize perverse incentives and moral anomalies.

An overlooked keystone of immigration enforcement is the system of courts through which virtually every contested removal case must pass. Despite a large increase in recent years in the number of immigration judges, to approximately 500, their backlog of cases grew by 50 percent in June alone and now approaches 1.5 million. Detention facilities for those awaiting court hearings have been expanded but are still so limited that the vast majority of detainees must be released pending their long-delayed hearings. This inevitably results in much absconding, illegal work in the U.S., and a sense of futility on the part of ICE, the judges, and the public. Sharply increasing the number of immigration judges would reduce the case backlog and the need for long periods of detention.

Every administration directs enforcement resources and attention on the long southern border and our ports of entry, fortifying the impression among Americans that the problem of illegal immigration is primarily one of border enforcement. But the Center for Migration Studies estimates that almost half of illegal immigrants enter the U.S. at the legal ports of entry with valid documents and then overstay or otherwise violate the terms of their visas. Still, enforcement resources largely neglect workplaces, residences, and other venues where these and other unauthorized congregate and would be easier to apprehend.

This neglect of interior enforcement is easy to explain. Employers, a powerful political and economic force in their communities, bitterly oppose ICE raids on their workplaces due to uncertainties about workers immigration status, interrupted production, unionization incentives, and public criticism. But such employer objections can be more easily addressed through the improved, faster E-Verify system that ICE has installed and that should be made mandatory.

Bipartisan criticisms of our immigration system abound. On October 30 alone, the New York Times ran three long articles focused on controversial migration policies and programs. Yet the prospect of common ground between the two parties on immigration seems remoteeven as the conditions and challenges grow more urgent.

Peter H. Schuck is Baldwin Professor of Law Emeritus at Yale Law School and Distinguished Scholar in Residence at NYU Law School.

Photo by Yasin Ozturk/Anadolu Agency via Getty Images

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The Continuing Need for Immigration Reform - City Journal