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EXECUTIVE ACTION on IMMIGRATION: Six Ways to Make the System Work Better

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EXECUTIVE ACTION on IMMIGRATION: Six Ways to Make the System Work Better EXECUTIVE ACTION ON IMMIGRATION: Six Ways to Make the System Work Better By Donald M. Kerwin Doris Meissner Margie McHugh US IMMIGRATION POLICY PROGRAM EXECUTIVE ACTION ON IMMIGRATION Six Ways to Make the System Work Better By Donald M. Kerwin, Doris Meissner, and Margie McHugh March 2011 Acknowledgments The authors wish to thank the Open Society Foundations, the Ford Foundation, and the 21st Century ILGWU Heritage Fund for supporting this project; Migration Policy Institute (MPI) President Demetrios Papademetriou and MPI Nonresident Fellow Charles Wheeler for their insightful comments on the report; the participants in the MPI roundtable on executive action for their superb ideas and input on how to make the immigration system work more effectively; and Burke Speaker for carefully editing the report. © 2011 Migration Policy Institute. All Rights Reserved. Cover Photo: Wikimedia Commons, public domain use. Cover Design and Typesetting: April Siruno, MPI No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopy, or any information storage and retrieval system, without permission from the Migration Policy Institute. A full-text PDF of this document is available for free download from: www.migrationpolicy.org. Permission for reproducing excerpts from this report should be directed to: Permissions Department, Migration Policy Institute, 1400 16th Street, NW, Suite 300, Washington, DC 20036, or by contacting [email protected]. Suggested citation: Kerwin, Donald M., Doris Meissner, and Margie McHugh. 2011. Executive Action on Immigration: Six Ways to Make the System Work Better. Washington, DC: Migration Policy Institute. Table of Contents Executive Summary..........................................................................................................................1 I. Introduction...................................................................................................................................2 II. DefiningWhat Constitutes Effective Border Control.................................2 A.. Issue...................................................................................................................................................2 B.. Recommendations..........................................................................................................................3 C. Background.......................................................................................................................................3 III. Creating a White House Office on Immigrant Integration.....................6 A.. Issue...................................................................................................................................................6 B.. Recommendations..........................................................................................................................7 C. Background.......................................................................................................................................7 IV. Facilitating the Legal Admission of Eligible Family Members...............9 A.. Issue...................................................................................................................................................9 B.. Recommendation..........................................................................................................................10 C. Background.....................................................................................................................................10 V. Exercising Prosecutorial Discretion across the System .........................14 A.. Issue.................................................................................................................................................14 B.. Recommendations........................................................................................................................14 C. Background.....................................................................................................................................15 VI. Alleviating Burdens on Clogged Courts................................................................19 A.. Issue.................................................................................................................................................19 B.. Recommendations........................................................................................................................19 C. Background.....................................................................................................................................20 VII. Testing Legal Representation in Removal Proceedings............................22 A.. Issue.................................................................................................................................................22 B.. Recommendations........................................................................................................................23 C. Background.....................................................................................................................................23 VIII. Conclusion...................................................................................................................................25 Works Cited..........................................................................................................................................26 About the Authors...........................................................................................................................31 MIGRATION POLICY INSTITUTE Executive Summary In the absence of new legislation, the locus for immigration policy action resides in the executive branch and the ways in which the nation’s existing immigration laws and policies are administered. It is imperative that the administration exercise its authority to field policies, programs, and procedures that are effective and fair in advancing the core goals of the nation’s immigration system. This report suggests six discrete ways that executive action could be used to improve and strengthen the performance of the nation’s immigration system. None requires new legislation: all build on policies and operations already established within and among the principal executive branch immigration agencies. They are: The administration and the US Department of Homeland Security (DHS) should define what constitutes effective border control and promote a more informed public debate and broader consensus about the effectiveness of border enforcement, especially along the Southwest land border. The administration should create a White House Office on Immigrant Integration led by a new Special Assistant to the President and convene a Cabinet-level interagency task force and working group of state and local officials that would set immigrant integration goals and targets and develop policy and funding mechanisms to meet them. The office would also track integration outcomes in order to inform immigration policymaking and to analyze the needs associated with future immigration policy proposals. DHS’s US Citizenship and Immigration Services (USCIS) should adjudicate waivers to grounds of inadmissibility based on “unlawful presence” before visa beneficiaries must leave the country to apply for an immigrant visa at a US consulate abroad. Such a procedure would provide certainty for eligible family immigrants, thereby encouraging fuller use of established legal admissions opportunities and processing. DHS, in consultation with the Department of Justice (DOJ), should establish uniform enforcement priorities, based on its existing guidance for exercising prosecutorial discretion, and implement them across the immigration system in all of its immigration agencies, programs, and processes. US Immigration and Customs Enforcement (ICE) attorneys should screen all Notices to Appear (NTA) for removal proceedings prior to their filing in immigration court to ensure that NTAs adhere to DHS’s prosecutorial discretion guidelines and that clogged immigration courts are not further burdened with lower priority cases. DHS and DOJ’s Executive Office for Immigration Review (EOIR) — which oversees the immigration court system — should issue guidance governing the circumstances in which due process requires the government to appoint counsel in removal proceedings. DOJ should establish a pilot program to test the benefits of appointed counsel in such cases. Executive Action on Immigration 1 MIGRATION POLICY INSTITUTE I. Introduction It is now commonplace to describe1 the nation’s immigration system as broken. The presence of 11 million unauthorized residents — almost 30 percent of the nation’s foreign-born population — vividly illustrates the problem. Congress has failed in successive efforts over several years to enact reforms. Whether reform initiatives move ahead or stall in this new Congress, a wide body of immigration law is on the books, executive-branch agencies administer and enforce those laws daily, and approximately 1 million people immigrate legally to the United States each year. In short, current laws and actions taken by immigration officials affect millions of lives annually. In the absence of legislation, the locus for policy action increasingly resides in the executive branch, intensifying the imperative for policies, programs, and procedures that are effective and fair in advancing the
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