Mandating E-Verify and ending visa overstays will do more good, more quickly.
EDITOR’S NOTE: The following article first appeared in the December 19, 2016, issue of National Review.
Ironically, Donald Trump’s marquee immigration proposal — a border wall, which Mexico will pay for — is the part of his immigration platform least likely to make much difference. This is not to say it’s infeasible or even ill advised. Only about one-third of the border with Mexico has any kind of fencing, and half of that consists merely of low-rise vehicle barriers intended to stop truck traffic; anyone can easily climb over or under them (as I myself have done on many occasions). And the president doesn’t need further authorization from Congress to build a physical barrier, although he would eventually need additional funding.
As to Mexico providing that funding, the campaign said this could happen through higher visa fees or a tax on remittances. The latter is long overdue regardless and already in place in Oklahoma, which taxes all personal out-of-state wire transfers but refunds 100 percent of the tax to those who file their annual tax returns, thus levying the tax only on illegal aliens. A national version of this fully refundable payment would be a fitting way of making illegal aliens help pay for immigration enforcement.
All that said, the problem at the border isn’t so much physical as political. While incremental improvements are needed in infrastructure, technology, and personnel, the Obama administration has rendered the long buildup at the border through the Clinton and George W. Bush administrations moot by simply waving illegal aliens across and letting them stay. This is no exaggeration; Brandon Judd, head of the Border Patrol agents’ union, testified before Congress last year that 80 percent of apprehended illegal aliens are being released into the United States. Ending this catch-and-release approach to border enforcement (item No. 2 on Trump’s ten-point list) is probably more important than the wall, and quicker to implement.
The other immigration initiative on the incoming administration’s to-do list that has drawn a lot of attention is Trump’s pledge to deport 2 to 3 million criminal aliens. This represented a move toward realism, away from his comments early in the campaign that all illegal aliens would have to be deported; Trump realized that, as Andrew C. McCarthy has written regarding immigration violations: “Our goal is never to extirpate crime problems. . . . Crime problems are managed, not eradicated.”
But deporting criminal aliens neglected under President Obama’s laxity is an essential part of such management. And the figure of 3 million is probably an undercount: Immigration and Customs Enforcement itself estimated several years ago that there were 1.9 million deportable aliens with criminal convictions. Add to that close to a million people who were ordered deported but absconded, plus other alien criminals who weren’t convicted only because they jumped bail or were released by sanctuary cities, and there will be plenty to do with the enforcement resources now underutilized because of the huge decline in interior deportations under Obama.
There are two parts of any effective immigration-enforcement plan that are more important than either the Mexican border or criminal-alien removals: turning off the jobs magnet and ensuring that lawful foreign visitors actually go home when their authorized time is up. Both are included in the president-elect’s enforcement outline, but they need more attention — and administrative focus — than they have received.
Making legal status a labor standard, through rules such as those that provide overtime pay and prohibit employing child labor, is the most important single thing that can be done to reduce the incentive to immigrate illegally. Practically, that means requiring use of the free online system E-Verify for all new hires. E-Verify enables employers to check whether the ID information provided by their new hire is authentic. It is now voluntary; about half of last year’s new hires were screened through E-Verify. Making it mandatory will require an act of Congress. E-Verify is not a silver bullet — despite continuous improvements, some illegals still slip through, and a significant share (though a minority) of illegals work off the books. But any immigration-enforcement overhaul must include mandatory nationwide use of E-Verify if it is to have any chance of success.
No new exit-tracking law is needed — only consistent attention and pressure from the White House, Congress, and outside groups.
The second enforcement initiative, policing visas and the visitors who use them, isn’t the arcane issue some may think. The old rule of thumb used to be that 60 percent of the illegal population snuck across the border and 40 percent overstayed visas, making visa-tracking important but secondary. New research from the Center for Migration Studies (no relation to my Center for Immigration Studies) found the reverse — now close to 60 percent of the 1,000 new illegal aliens settling in the U.S. each day are believed to be visa overstayers.
This needs to be addressed at both the front end and the back end. That is to say, the State Department needs to reduce its issuing of “nonimmigrant” (i.e., temporary) visas to people who are likely to stay here illegally in the first place, and the Department of Homeland Security needs to implement a check-out system for foreign visitors so we can know in real time who didn’t leave when he was supposed to.
Our nation’s visa officers abroad are America’s other Border Patrol, but State Department leadership views them more as travel agents. As with the actual Border Patrol, this is a problem mainly of management and policy, not resources. The relevant law clearly says that every applicant for a temporary visa is to be assumed to be an intended illegal alien until he proves otherwise. In practice, the burden of proof is often reversed. Since 9/11, security screening has been taken more seriously, but preventing non-terrorist or non-national-security-related visa overstays is simply not a priority. In fact, an earlier version of the Foreign Affairs Manual, the body of regulations that govern the State Department, included this quote from a Truman-era immigration commission:
Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States.
This perspective must change if immigration laws are to be enforced. Every visitor who overstays a visa represents a mistake by the State Department. If you think of the visa process as a “decision factory,” the decisions that result in overstays are analogous to products with manufacturing defects. And the defect rate is quite high; a long-awaited DHS report released in January found that more than half a million foreigners didn’t leave when they were supposed to in 2015, and even using DHS’s deceptive math (it inflated the denominator), that represents a defect rate of 10,000 parts per million, or 1 percent, which would be unacceptably high in any manufacturing process.
#related#But even if State wanted to adopt a data-driven approach to reducing visa defects, getting data is hard, which is one of the chief reasons to push for the completion of an exit-tracking system for visitors. The DHS report on overstays is notable in part because there’s no routine source of such information; DHS itself admitted that “the process of matching data to determine overstays has been extremely difficult.” A fully functional exit-tracking system is essential. Congress first mandated such a system in 1996 and has re-mandated it seven times since. Janet Napolitano, Obama’s first DHS secretary, was openly disdainful of exit-tracking, and only in the past few years has the process of development even begun. No new law is needed — only consistent attention and pressure from the White House, Congress, and outside groups.
A comprehensive immigration-enforcement program would have many additional elements: restarting routine enforcement at the workplace and elsewhere by canceling Obama’s unilateral edicts that gut the law; reining in sanctuary cities; pressuring recalcitrant countries to take back their own citizens when deported; ending tax subsidies that effectively pay illegal aliens to stay here; and more.
But as important as those measures are, two tasks must take pride of place: denying illegals jobs and making sure visitors go home. Without significant progress on those two fronts, we cannot prevent illegal immigration.
— Mark Krikorian is the executive director of the Center for Immigration Studies.