What Would an Unbroken Immigration System Look Like?

Source: David A. Martin, Virginia Public Law and Legal Theory Research Paper No. 2014-25, October 11, 2013

From the abstract:
This paper, which was delivered as the keynote address at the Miller Center’s immigration reform conference in 2013, surveys the obstacles to immigration reform and argues for specific steps forward. The key principles underlying the analysis are sustaining and expanding legal immigration and commitment to future law compliance through a mix of well-designed deterrents and more focused direct enforcement.

The paper urges the House to accept a capacious legalization of long-time de facto residents, as provided for in the Senate’s 2013 immigration reform bill. The House should see such a step (counterintuitively) as a long-term immigration enforcement measure – because it would reduce key obstacles to vigorous interior enforcement in the future and also help enhance the legitimacy of important programs now under severe challenge, such as Secure Communities, by minimizing their use against long-term well-anchored residents. The 1986 IRCA experience, wherein legalization was successful but the associated enforcement measures largely failed, should not count against this approach, because the United States now has extensive enforcement tools and resources not at all available in 1986 – though they need to be deployed intelligently in order to achieve full post-reform success. E-Verify, which provides for a speedy computer check of the employment authorization of new hires, is a highly promising deterrent. Nonetheless, it remains vulnerable to identity fraud and identity theft. Congress needs to assure more vigorous and well-funded measures to fight such fraud, either through biometric systems at hiring sites (politically unlikely) or through much greater inducements to states to share their driver’s license photos for use in E-Verify’s “photo tool.” Congress should also shed its fixation on deploying a biometric exit system as a way of enhancing enforcement against visa overstays; the paper explains why such a system at this point is a wasteful exercise. Congress instead should provide for enhanced action against overstays that would use biographic information already available in existing Homeland Security data systems. It should also enact streamlined procedures, with focused safeguards, to enable speedy issuance of a removal order against overstays. The Senate bill lavished unnecessary billions on expanded border enforcement; most of those new resources should be applied instead to enhanced interior enforcement.