Keith Mack
America's immigration system has long been a contentious issue, with calls for reform from both sides of the political aisle. The last comprehensive immigration reform was enacted during Ronald Reagan's presidency, almost four decades ago. Since then, immigration laws have been amended piecemeal, with the last major overhaul occurring over 30 years ago with the Immigration Act of 1990. The current system is widely regarded as broken, with a growing backlog of immigration cases and a surge in illegal border crossings. As Congress grapples with this complex issue, here's an overview of the steps they can take to address the shortcomings of America's immigration system and pave the way for much-needed reform.
| Characteristics | Values |
|---|---|
| Last comprehensive immigration reform | Almost four decades ago, during Ronald Reagan's presidency |
| Current status of the immigration system | Broken and in need of serious reforms |
| Number of illegal immigrant encounters | Over 10 million |
| Number of violent, illegal criminals encountered | At a record high |
| Immigration courts backlog | Over 3 million cases |
| Solution | Common-sense solutions to address the border crisis |
| Suggested changes | Curtailing sanctuary policies, enabling deportations, and addressing illegal immigration |
| U.S. Visa cap | 10,000 per year |
| U.S. Visa waitlist | 300,000 applicants |
| Suggested changes | Raise the yearly U visa cap |
| Suggested changes | Amend Section 249 of the INA by passing a stand-alone bill |
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What You'll Learn
Reforming asylum and detention policies
The asylum and detention policies in the United States have been criticised for being difficult to navigate and lacking in transparency. Reform in this area should focus on making the process clearer and more accessible for asylum seekers, as well as addressing the prolonged detention of individuals.
Firstly, Congress should work to simplify the asylum process and ensure that all relevant information is communicated effectively to asylum seekers. This includes notifying them of important deadlines and establishing a uniform procedure for submitting applications. For instance, in 2018, a class-action lawsuit challenged the government's failure to provide asylum seekers with adequate notice of a one-year deadline for filing their applications. As a result, the federal district court ruled that the DHS is responsible for notifying individuals of this deadline and that a uniform process should be established to facilitate timely submissions.
Secondly, Congress should address the issue of prolonged detention for asylum seekers. While U.S. law provides arriving asylum seekers with the right to remain in the country during their claim for protection, the government has argued for its right to detain these individuals. Some courts have rejected this interpretation and held that asylum seekers have a right to a bond hearing, which could result in their release from detention. Congress should ensure that all asylum seekers are provided with a meaningful opportunity to seek parole and challenge prolonged detention, particularly for those who have experienced trauma and persecution.
Thirdly, Congress should recognise the importance of legal representation for immigrants navigating the complex immigration system. Research has shown that immigrants are more likely to win their cases with a lawyer by their side, yet very few can access attorneys. Therefore, increasing free legal services for immigrants can help ensure that their voices and experiences are heard and considered in policy-making.
Additionally, Congress should consider amending Section 249 of the INA (Immigration and Nationality Act) to update the registry's eligibility date. By moving up the registry date, millions of noncitizens living without legal status in the United States would be able to apply for relief, undergo background checks, and obtain residency. This would also enable the CIS (U.S. Citizenship and Immigration Services) to identify and deport individuals who pose a threat to public safety or national security.
Finally, Congress should eliminate the three-year and ten-year bars or provide reasonable waiver procedures for noncitizens facing removal. These bars have not effectively reduced illegal immigration but have instead compelled noncitizens to remain in the United States out of fear of being unable to return. By addressing these issues, Congress can work towards creating a more just and humane asylum and detention system that upholds the rights and dignity of asylum seekers.
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Addressing illegal immigration
One area requiring attention is the backlog of immigration cases, which has steadily increased over the years, with over 3 million cases pending by the end of 2023. This has resulted in a crisis at the southern border, with a record number of violent, illegal criminals encountered across the nation. To address this, Congress should prioritize allocating resources to tackle the crisis and work on common-sense solutions.
Congress can also take small but significant steps to reform the system. For instance, amending Section 249 of the INA (Immigration and Nationality Act) by passing a stand-alone bill to change the registry's eligibility date. This would allow millions of noncitizens to apply for relief, be vetted through background checks, and obtain residency. It would also enable the deportation of individuals who pose a threat to public safety or national security.
Another area of focus is the U visa, which was created to provide a pathway to permanent residency for crime victims. However, with over 300,000 applicants on the waiting list, the process is highly inefficient. Congress should consider raising the yearly cap to address this backlog and provide relief to those in need of protection.
Additionally, Congress should examine the "exceptional and extremely unusual hardship" clause in the law, which lacks a clear definition. This ambiguity has resulted in a lottery system in immigration courts, with judges interpreting the law differently. Providing clearer guidelines would ensure fair and consistent rulings.
In conclusion, addressing illegal immigration in the United States requires a comprehensive approach, including legislative reforms and practical solutions. By taking these steps, Congress can work towards fixing the broken immigration system and securing the southern border while recognizing the contributions of legal immigrants to American society.
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Amending the INA
Firstly, Congress should address the issue of the three-year and ten-year bars, which have been ineffective in lowering illegal immigration and have instead compelled noncitizens to remain in the country out of fear of being unable to return. Congress should amend the INA to eliminate these bars or provide reasonable waiver procedures, similar to those that exist for other immigration offences.
Secondly, Congress should address the U visa backlog. The U visa, created to provide a pathway to permanent residency for crime victims, currently has a cap of 10,000 visas per year, resulting in a 30-year waitlist. Congress should raise this cap to a more realistic number that reflects the demand for such visas.
Thirdly, Congress can amend Section 249 of the INA by passing a stand-alone bill. Changing the registry's eligibility date would allow millions of noncitizens to apply for relief, be vetted, and obtain residency. It would also enable the CIS to deport individuals who pose a threat to public safety or national security.
Additionally, Congress should provide clarity on the vague language surrounding "exceptional and extremely unusual hardship" in the context of cancellation of removal. Currently, the lack of clear definition results in a lottery system, with judges having discretionary power to interpret the law, leading to inconsistent grant and denial rates.
Finally, Congress should also address the backlog of over three million cases in America's immigration courts, which has been exacerbated by the recent surge in illegal border crossings. This requires proper allocation of resources and a focus on common-sense solutions to address the border crisis.
In conclusion, while amending the INA is a challenging task, there are several steps Congress can take to reform America's immigration system and bring about meaningful change. These changes should be complemented by broader bipartisan efforts to address the complexities of immigration reform.
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Increasing the U visa cap
Congress created the U visa in 2000 with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act). The U visa is a nonimmigrant visa given to those who are victims of certain crimes, including domestic violence, sexual assault, and trafficking of aliens. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of such crimes while offering protection to victims.
The issue, however, is that the rate of crimes against noncitizens outpaces the number of visas available. There is a huge backlog of applicants waiting for a U visa, with more than 300,000 applicants currently waiting. This means that someone placed on the U visa waiting list today will have to wait 30 years to be granted one. The annual cap on U visas has remained at 10,000 since at least 2008, with around 30,000 applications per year.
The long wait times for a U visa can revictimize those who have already suffered, creating a disincentive for immigrant victims to step forward and report crimes. This undermines the purpose of the U visa and reduces its efficacy in helping law enforcement. For example, a client of the National Immigrant Justice Center with pending U visa application struggles with anxiety and depression due to the abuse she experienced, and her separation from her children has increased her sense of hopelessness.
Congress should raise the yearly U visa cap from 10,000 to a number that takes into account the stark number of noncitizen crime victims in need of protection. Increasing the cap would help eliminate the disincentive to reporting crimes, making people safer. It would also allow law enforcement to better serve victims of crimes and foster cooperation between law enforcement and immigrant communities.
One proposal is to increase the U visa cap from 10,000 to 30,000, which was included in the Senate's S.744 immigration bill.
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Providing a pathway for parole recipients to remain in the country
Parole in the immigration context is distinct from its meaning in criminal justice. In immigration law, parole allows certain individuals to enter and temporarily remain in the United States. It does not provide them with an immigration status or formal admission into the country.
The Immigration and Nationality Act (INA) authorises the Secretary of Homeland Security to exercise discretion in granting parole to certain noncitizens. DHS may only grant parole if it determines that there are urgent humanitarian or significant public benefit reasons for a person's presence in the United States, and that the person merits a favourable exercise of discretion. Parole is typically granted for limited periods, and individuals are expected to depart when the authorised period expires unless another form of status or relief is granted.
Parole recipients can apply for work authorisation and, if approved, become eligible to work in the United States. Certain Afghan and Ukrainian parolees are authorised to work without needing to file a separate application. Work authorisation lasts for the duration of the parolee's parole status.
To remain in the country beyond the authorised parole period, parole recipients may need to apply for a separate form of relief or change their immigration status. This could involve applying for a visa or another form of legal status. If a parolee wishes to travel abroad and return to the United States, they must file a separate application for advance parole before their departure.
Congress can play a role in facilitating the process for parole recipients to remain in the country by amending the INA to eliminate barriers to legal status and providing reasonable waiver procedures for immigration offences. Additionally, Congress could increase the yearly cap on U visas, which provide a pathway to permanent residency for crime victims.
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Frequently asked questions
The US immigration system has been described as broken and in urgent need of reform. The last comprehensive immigration reform was enacted during Ronald Reagan's presidency almost four decades ago. The last time immigration law was overhauled was more than 30 years ago with the Immigration Act of 1990, which focused on work-based migration. Many other border security policies date back to the Immigration and Nationality Act (INA) of 1952, which is still in use today, albeit heavily modified.
Congress has the power to make laws concerning aliens that would be unconstitutional if applied to citizens. Small steps Congress can take include amending Section 249 of the INA by passing a stand-alone bill to change the registry's eligibility date, allowing noncitizens without legal status to apply for relief and be vetted through background checks. Congress should also address the backlog of immigration cases, which stood at over 3 million at the end of 2023, and eliminate or provide waivers for the three-year and 10-year bars that have been ineffective in lowering illegal immigration.
Congress can introduce bills focused on known criminals, curtailing sanctuary policies, and enabling deportations. Border security has been a priority for some, with efforts to secure the southern border, restart construction of the border wall, and pass the Securing the Border Act of 2023, which includes critical asylum and detention reforms.
