“We don’t have to choose between border security and immigration reform,” Sen. Ruben Gallego (D-Ariz.) recently said. “We can and should do both.” And he has unveiled a five-pillar plan for doing so.
I am encouraged by the fact that a Democratic senator is making a genuine effort to put together an immigration reform bill that would appeal to both parties, but I think he needs to go a little further if he wants his proposal to have real appeal for Republicans.
Pillar 1. Border security and interior enforcement
The first pillar calls for more resources at the border; building more barriers; improving port infrastructure; and other changes that would make it easier to apprehend illegal border crossers. It also would prioritize Immigration and Customs Enforcement’s “finite resources on identifying, arresting, and deporting convicted criminals, known gang members, and other violent individuals who jeopardize Americans’ safety.”
The border resources Gallego is offering would certainly make it easier to apprehend illegal border crossers, but he also needs to do something about the magnets that attract illegal immigration. The main one is the job magnet.
Forty years ago, Congress established employer sanctions for knowingly hiring unauthorized foreign employees; yet even today, the sanctions still haven’t been fully implemented.
Former Citizenship and Immigration Services Ombudsman Prakash Khatri and I have proposed a different approach: Require the Department of Labor’s Wage and Hour Division to fine employers who are violating labor laws in industries known to hire unauthorized foreign workers. This division enforces federal labor laws that were enacted to curb such abuses, including the Fair Labor Standards Act, which established a minimum wage, overtime pay and more.
This should discourage employers who currently hire unauthorized foreign workers because they tend to work for lower wages and under less desirable conditions than American workers.
Additionally, the interior enforcement guidelines in Gallego’s plan would create what I call the “home-free magnet.” Illegal border crossers who reach the interior of the country would not have to worry about being deported unless they appear to jeopardize Americans’ safety. This encourages illegal border crossers who think they can avoid problems with the law to to keep on trying until they succeed in reaching the interior of the country. For when they succeed, which is likely if they are persistent, they will be home-free.
Pillar 2. Reform the asylum system
This pillar would take asylum applications away from the immigration court and have asylum officers adjudicate them. It also would limit access to asylum during serious border emergencies to prevent the border and nearby communities from being overwhelmed.
But asylum officers are not a magic bullet for eliminating backlogs. The Citizenship and Immigration Services use asylum officers to adjudicate affirmative asylum applications, and it had a 1.3 million case backlog at the end of fiscal 2024. The estimated wait time for a decision was more than six years.
Part of the problem is not having enough asylum officers. The plan can facilitate hiring more officers by providing congressional funding. The Asylum Division currently is funded entirely by fees collected from operations in other parts of the agency.
And some asylum applications do need the additional expertise of an immigration judge.
The proposal to limit access to asylum is a good idea, but it should be based on whether the court backlog is at a manageable level. It was at 3,629,627 cases as of the end of March. And there are only 700 immigration judges. This is an average of 5,185 cases per judge; the average wait-time for a hearing is 658 days.
Pillar 3. Increase visa availability
Pillar 3 would increase annual visa quotas, ease per-country caps and create new visa categories. It also would increase refugee admissions and expedite the naturalization process for immigrants who have served in the U.S. armed forces.
I would expect President Trump to veto a bill that has the increases Gallego’s plan proposes. Trump reduced legal immigration during his first term, and he is doing it again now. Gallego should probably consider less ambitious increases.
Pillar 4. DREAM Act
This pillar would provide DREAMers — immigrants who were brought here by their parents when they were young children — with a pathway to citizenship. Democrats already have introduced 20 versions of a DREAM Act, but none has gotten the support needed from Republicans to get through the legislative process.
Gallego should consider substituting a modified version of the bill Trump offered in his first term to help DREAMers who are participating in the Deferred Action for Childhood Arrivals program, which, among other things, includes legal status for DREAMers who are DACA participants and limiting family-based visas to spouses and children. I would expect Trump to be receptive to such an approach; he said in a recent “Meet the Press” interview that he still wants to help the participants in that program. The plight of the DREAMers is sympathetic because they didn’t intentionally violate our immigration laws. Their parents brought them here illegally.
It wouldn’t make sense to let parents profit from the legalization of the children they brought here in violation of our laws. But chain migration doesn’t have to be eliminated to prevent this from happening — just include DREAMers in the Special Immigrant Juvenile program instead of establishing a new legalization program for them. The provisions of the program already prohibit participants from conferring immigration benefits on their parents.
Pillar 5. Root causes
This pillar would create a Western Hemisphere engagement strategy; promote the sharing of refugee-asylum resettlement responsibility with other countries; fund regional enforcement efforts; and do other things that would make our refugee/asylum policies more desirable.
These are good ideas, but Pillar 5 also calls for eliminating the root causes of illegal migration. I think the Republicans would be more likely to support a program for eliminating the magnets that attract illegal migration.
The takeaway is that Gallego has developed an impressive plan for combining border security and immigration reform, but it needs a few changes to increase the likelihood that Republicans will support it.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
