Attorneys Want Fixes to Legal Immigration System

The debate over what to do with the estimated 12 million people living in the country illegally has dominated the discussion on comprehensive immigration reform. But attorneys say key fixes are needed to the legal immigration system as well.

David Leopold, the general counsel and past president of the American Immigration Lawyers Association, said Congress needs to address a subpar visa system and the backlog in immigration cases to avoid the same surge in illegal migration that took place after President Ronald Reagan’s immigration reform effort almost 30 years ago.

“People talk about the Reagan amnesty of 1986 and how it was a dismal failure because it led to illegal immigration,” he said. “What led to the illegal immigration and the problem we find ourselves in now is that they completely failed to account for future flow and future economic needs.”

For starters, Leopold said, the country issues 140,000 employment-based visas a year — and each country receives the same number of slots.

“We have the same quota for China as we do for Iceland, and yet there is higher demand from China,” he said. 

The second problem, Leopold said, is the way those visas are counted. Right now, for example, the spouse and children of a female employment-based immigrant who comes to the U.S. to work as an engineer are also counted toward that 140,000 limit.

“It’s very easy to eat up 140,000 employment-based visas when you’re not really getting 140,000 employment-based immigrants,” he said.

Changing those rules would allow not only more visas for STEM fields — science, technology, engineering and mathematics — but also supply a workforce for the majority of professions that employ unauthorized workers, like the construction, agriculture and hospitality industries.

While a draft copy of the White House’s immigration proposal, leaked to USA Today last weekend, offers detailed insight about the president’s plan to deal with people currently here illegally, it did not hint at what an overhaul of the current visa system could look like. Leopold said he and his colleagues are confident such a plan will emerge soon.

What the draft does contain, however, is language that would add 140 additional immigration judges to alleviate the backlog in the current system. Data obtained through open records requests filed by the Transactional Records Access Clearinghouse at Syracuse University shows that almost 324,000 immigration cases are currently awaiting a resolution. The caseload in Texas courts is the third-largest in the country, with about 41,760 outstanding.

That translates into an average wait time of 393 days before detainees in Texas immigration courts see a judge, an increase of 24 days from fiscal year 2012. In Houston, El Paso and Dallas immigration courts, however, wait times are significantly higher than the state average. Detainees in Houston and El Paso wait an average of 490 and 472 days, respectively. In Dallas they wait approximately 396 days, according to the TRAC.

Leopold advocates for judges to have the flexibly they had before 1996, when the Clinton administration passed a series of laws affecting illegal immigration. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped decision-making responsibilities for immigration judges, Leopold said, and added to the list of offenses that made deportations mandatory. The act also created the three- and 10-year bars — the amount of time applicants for legal status must remain outside of the U.S. before they apply for re-entry, depending on how long they were in the country illegally.

“You can have a theft offense that is considered an aggravated felony that may be a misdemeanor in state law,” Leopold said. “And that precludes the person from even getting in front of an immigration judge to ask for relief.”

While attorneys wait to see what is in store for the current legal immigration system, the border security component of immigration reform is being thoroughly debated. Democrats and Republicans have both called for an increase in border-security expenditures, despite the $18 billion currently spent on the effort annually. The talk that “more must be done” on the border has irked elected officials in those communities, who say the area is more secure than ever. They cite the record dip in the U.S. Border Patrol’s apprehensions of would-be illegal crossers as proof that fewer migrants are entering illegally.

The debate has also intensified the lobbying efforts of immigrant rights groups and opponents of the private prison industry.

On Wednesday in Austin, a coalition of 11 faith-based and civil rights groups delivered a letter to Texas’ congressional delegation asking for an end to Operation Streamline, an effort born in 2005 near Del Rio that mandates criminal prosecution of most illegal immigrants caught in certain Border Patrol sectors.

Immigration violations are a civil offense, the group argues, and initiatives like Streamline have served to disproportionately swell the ranks of Latinos in the criminal justice system at a high cost to taxpayers. They ask members of Congress and the state’s U.S. senators to end the program.

Citing data from TRAC, Amelia Ruiz Fischer, an attorney at the Texas Civil Rights Project, told reporters that 77 percent of the immigrants apprehended under immigration enforcement programs like Operation Streamline or Secure Communities, which uses fingerprint matches to identify deportable aliens, had no previous criminal records.

It also erodes trust in immigrant communities, she said, because residents there are less likely to cooperate with law enforcement agencies out of fear of deportation.