No one who pays even passing attention to the media—social or legacy—can have failed to notice how the Trump Administration’s enforcement of US immigration laws in certain cities, mainly those declaring themselves sanctuary cities, has roiled those cities and sparked heated discussions throughout the country about the enforcement of our country’s immigration laws.
Much of the hue and cry has been directed at ICE’s tactics, but the din has been so great that it has been nearly impossible to have a thoughtful, civil discussion about the law, possible legal reform, and what policies are in the national interest. The side issues, from ICE agents wearing masks and whether the National Guard should be used, to the tragic shootings of protesters, divert our attention from the most fundamental issues we should be asking ourselves.
Q. So, what should we be asking?
Much of the sound and the fury that surrounds immigration enforcement, at its core, stems from two notions that have made America great: (1) we are a nation of immigrants, and (2) our belief in the rule of law. Our nation’s ability to legally welcome and absorb immigrants from all over the world, in numbers and in ways unrivaled by any other nation on earth, has given America an advantage and a dynamism no other nation has. But while Americans welcome legal immigrants, most Americans do not favor illegal migrants, those who have come here in violation of US law.
Q. What is federal law?
The law, as enacted by Congress, is clear. A foreign national who crosses our border without authorization has committed a federal crime punishable by up to one year in prison. That person is here illegally. So too are people who overstay a student or tourist visa. I know of no country in the world that does not enforce its immigration laws and remove foreigners who are in its country illegally. Why would the US be an exception to this?
Q. Should we be concerned only because it is unlawful?
It is not just that. It is potentially dangerous to allow millions of foreign nationals who have not been vetted for national security, criminality, or health concerns to cross our border and remain here. It is also fundamentally unfair to allow persons who illegally enter the US to jump the queue when there are an estimated 4 to 5 million people, most of whom are outside the US, who have applied to be legal, permanent residents, waiting and doing it the right way. In addition, the large number of illegal migrants reduces the number that the US allows in legally, including reducing the number of vulnerable, vetted, and legitimate refugees. When the number is uncontrolled, it also places significant burdens on local education and healthcare systems, often degrading both.
One of the principal responsibilities of ICE, and the INS which preceded it, is to locate and deport those unlawfully in the US. The federal agency charged with enforcing the law is not at liberty to ignore it. So, those who say that ICE should not enforce the law or should not enforce the law in certain cities or states that arguably do not want federal law enforced need to go to Congress and get the law changed.
Q. So, why are we seeing protests, some that impede ICE from doing its job?
One wonders whether some basic civic lessons would help. Protesters certainly can protest the law and demand that the law be changed. That is their First Amendment right. But they are not at liberty to interfere with or obstruct ICE doing its job, any more than interfering with any other law enforcement officer carrying out her/his duties. If a protester obstructs an ICE enforcement action, that is a serious federal crime. So is an assault on a federal law enforcement officer.
Under our Constitution, federal law is supreme. It trumps, no pun intended, state laws that are in conflict with it. Moreover, in our federal republic, it has been the norm for over two centuries that local and state law enforcement cooperate with federal law enforcement authorities. In my experience, this happens in all areas of the country, except in cities and states with sanctuary laws, regarding ICE and federal immigration enforcement.
This is unfortunate, as it has led to a much larger federal presence, and even the National Guard, to protect ICE agents and facilities. Ordinarily, federal agencies like the FBI and DEA rely on local law enforcement for crowd control and the like. Indeed, part of the recent problem has been that ICE and other federal law enforcement agencies, such as the Border Patrol, have been thrust into the role of crowd control for which they receive precious little training.
Q. How many people are residing in the US unlawfully?
Good question. The number of persons unlawfully residing in the US is unknown. The estimates range from 14 million to 23 million people. It is probably around 20 million, or about 5 percent of the total US population. The sheer enormity of the number requires that ICE prioritize its enforcement actions. This is true even with an increase in the number of ICE removal officers and detention facilities.
Nearly all agree that ICE should locate and remove persons unlawfully in the US who have committed serious or violent crimes. Much of ICE’s efforts, including its highly visible enforcement efforts in LA, Chicago, and Minneapolis, have been aimed at such criminal aliens. But while ICE enforcement efforts haven’t come anywhere close to mass deportations, some of ICE’s enforcement efforts, such as appearing at Home Depot parking lots to interview day laborers, have gone beyond apprehending criminal aliens. And there can be little doubt that some persons here unlawfully, who have not committed crimes, are being swept up in ICE enforcement actions.
It should be recognized that some of this is the result of sanctuary cities and counties not notifying ICE when convicted aliens in the US are being released from county jails and state prisons.
There is no doubt there are some American citizens—I believe they are in the minority—who do not want to see any person unlawfully in the US removed and deported. Such a view, if implemented, invites the type of mass unlawful migration that we saw during the Biden administration, and which causes substantial disruption to our local education and healthcare systems. Moreover, all Western nations need to be mindful that they are democracies and, as such, ought not allow so much migration that it causes serious and rational political backlash.
Because unlawful migration is dynamic, it is necessary for the US government to remove those who have unlawfully migrated here, lest human smugglers be able to credibly tell would-be migrants that once they have made it into the US, they are home free. Unless we are willing to live with the consequences of mass migration, a serious level of interior immigration enforcement is necessary and appropriate.
Q. But does that mean that there should be no prioritization?
No. Given the numbers and the resources necessary to locate and remove those here illegally, there needs to be prioritization of immigration enforcement efforts. This does not necessarily mean limiting such efforts to criminal aliens, though. For example, there are an estimated 1.6 million aliens who are subject to final orders of deportation. They invoked a time-consuming judicial process and, after several years, were ordered deported by an immigration judge. Not surprisingly, few show up to court when, after all appeals have been exhausted, these orders of deportation are entered.
In addition, around 10.5 million people unlawfully entered the US in the last 4-5 years. It is hard to see why there should not be an enforcement effort directed at removing these relatively recent unlawful migrants.
That said, most Americans are of the view, which I share, that it does not make sense to deport persons who, albeit illegally here, have been residing in the US for a substantial number of years, who are employed, have committed no crimes, and are not on welfare. We should permit them to legalize their status. Not only does this make sense and serve the best interests of our country, but it is the right thing to do.
Q. Is there a precedent for doing this?
We’ve done it before. In 1986, President Reagan signed the Immigration Reform and Control Act (IRCA), which essentially said that if a person here, albeit illegally, had lived continuously in the US prior to 1982, they could apply for and become lawful residents of the US. Under IRCA, we legalized about 3 million people. But part of the deal was that Congress would provide the resources needed to control the border so that we didn’t have to face this issue again. It did not do so.
The Border Patrol remained feeble and small, with fewer than 10,000 Border Patrol Agents for a 2,000-mile border with Mexico, not to mention Canada. The Border Patrol also lacked sophisticated detection technology. The immigration “control” part of IRCA was a broken promise, and it is one of the main reasons that achieving an IRCA 2.0 has been so politically difficult. Serious efforts by Presidents George W. Bush and Barack Obama at immigration reform were stymied, in part because many Republicans insisted that the border be secured first.
Q. What are the issues for getting immigration reform through Congress?
Giving this group of illegal migrants legal status requires Congress to act. Of course, there is an issue of what the length of time in the US should be, say, 4, 5, or 7 years, or perhaps even longer. But like IRCA, this should and can be subject to rational debate and resolved.
Aside from the porous border, which is no longer an issue, the other issue was and is whether anyone coming here illegally should have a path to citizenship, over time. This was allowed under IRCA. But ever since then, opponents of immigration reform have mistakenly characterized this as “amnesty” and opposed it, sometimes mindlessly.
Calling immigration reform that allows, eventually, for citizenship a form of “amnesty” is not only misguided, but it defies logic. Amnesty generally means immunizing a person, or a group of people, from the risk of criminal prosecution. There is almost zero risk of prosecution for just being in the US illegally. A path to citizenship, whatever it is, is not amnesty.
Unless we want a permanent subgroup of non-citizens (like the Turks in Germany) who are not fully invested in America and its future, it makes sense to provide a path to citizenship, perhaps after paying a fine so that it cannot be said that they got off scot-free. This might take ten years or more, but it would be wise to allow it.
Q. Two presidents have failed to achieve immigration reform. Is there any reason for optimism for immigration reform any time soon?
The good news—and perhaps you will be surprised to hear this—is that the actions of the Trump administration have laid the foundations for immigration reform. First, the administration has secured the border. Amazingly, this was done within the first few months of the administration without new legislation. To the extent that control of the border was a prerequisite for immigration reform, and it was, it has been fulfilled. The border is secure against large-scale illegal migration.
Second, I chalk this up to the principle that a law is not changed unless it is enforced. You can quote me on that. Whatever else may be said, under the Trump administration, ICE is enforcing the law. And it is enforcement that, if sustained, will add momentum to immigration reform. Probably not in this Congress, but perhaps in the next.
Hope springs eternal.
Former US District Judge Robert C. Bonner has served as Commissioner of US Customs and Border Protection, Administrator of DEA, and Member of the Homeland Security Advisory Council.
