Restoring the Rule of Law Through a Fair, Humane, and Workable
By Tom Jawetz
Continued legislative inertia leaves only two flawed options
The current U.S. immigration system is fundamentally unable to operate on its own terms. It has long depended on the extralegal immigration system
continuing to exist and be tolerated, on workarounds and safety valves. In the absence of substantial legislative reforms to this system, there are only two
options left, both of which are deeply flawed: counting on discretion alone to save the system, or maximizing enforcement and disappearing discretion.
Counting on discretion alone to save the system from itself
As with any enforcement system, prosecutorial discretion exercised in both individual instances and across categories of cases to reflect shifting priorities
has long played an important role in the administration of U.S. immigration laws. But in the face of protracted congressional inaction to address major
deficiencies in the immigration system, the Obama administration made significant use of discretion—particularly in its latter years—by adopting a series of
policies to rationalize the safety valves and workarounds and, in some instances, to create new workarounds for intractable challenges. The most prominent
of these policies pertained to a series of prosecutorial discretion memoranda, which provided general guidance regarding the prioritization of limited
resources in the enforcement of civil immigration laws, as well as specific guidance deprioritizing enforcement against defined classes of people.
Memoranda issued in 2011 and 2014 by ICE and DHS, respectively, are clear examples of the former, and they built upon a long history of agency guidance
on the use of prosecutorial discretion dating back to at least 1976.
In part because of the inability of relatively small-bore efforts to address the magnitude of dysfunction in the system, however, DHS created DACA in 2012,
which has today allowed more than 800,000 young immigrants to remain in the country and lawfully work for renewable, two-year periods of time. In 2014,
DHS attempted to expand DACA to apply to individuals within a broader class of people that came to the United States as children; it also tried to create the
DAPA initiative to provide similar protections to an estimated 3.7 million undocumented parents of U.S. citizens and lawful permanent residents who had
themselves long resided in the United States.
But neither of the 2014 efforts ever went into effect, as Texas led a number of states in filing suit in the U.S. District Court for the Southern District of Texas to
block them. The states obtained a preliminary injunction that was upheld by a divided U.S. Court of Appeals for the 5th Circuit panel and left undisturbed by a
4-4 split in the U.S. Supreme Court. While Texas did not challenge the legal authority of the administration to create DACA at the time, the state has since filed
such a suit, which is currently pending before the same federal judge that blocked DAPA and the expansion of DACA. In its challenges to both DACA and
DAPA, Texas has argued that the Obama administration violated the Administrative Procedure Act in two ways: by creating the initiatives without going
through the notice-and-comment rule-making process and by allegedly exceeding the statutory and constitutional authority of the executive. The state also
has argued that the broad use of deferred action under the initiatives constitutes a dereliction of the president’s duty under Article 2, Section 3 of the
Constitution to “take Care that the Laws be faithfully executed.” Similar arguments were raised frequently in Congress during hearings on DACA and DAPA
and as part of legislative efforts to end DACA and block DAPA that passed the Republican-controlled House of Representatives. While it is true that both
initiatives, though not unprecedented, were robust exercises of prosecutorial discretion, the substantial magnitude of the deferred action initiatives can only
be understood as a function of the scope of the problem faced today by immigrant communities, immigration enforcement agencies, and the country.
Importantly, as right and significant as both DACA and DAPA were, neither was intended to be a permanent solution, and legalization paired with legislative
reforms to build a functioning immigration system clearly would be far preferable. That is not to say that prosecutorial discretion can or should be eliminated;
in all enforcement settings, it is critical that prosecutorial discretion be maintained to avoid manifest injustices and to set sensible priorities. But
prosecutorial discretion always will be dependent on the prosecutor. The fragility of Obama-era programs, when left in the hands of the Trump administration,
has made it perfectly clear that such an approach to address inherent statutory failings is insufficient and necessarily impermanent. By building a legal
immigration system that can bring immigration that has long existed outside the law within a well-functioning legal framework, and by making necessary
reforms to the enforcement mechanisms of that system that are required to maintain its integrity, the appearance—though unwarranted—of lawlessness from
robust uses of prosecutorial discretion could better be avoided.
Maximizing enforcement and disappearing discretion
The Trump administration has adopted a dramatically different approach to the immigration system, which has long been favored by restrictionists who mask
their mass deportation, nativist agenda behind calls to simply enforce the laws as written. One of President Trump’s first acts in office was to issue an
executive order calling for the “faithful execution of the immigration laws of the United States against all removable aliens” and directing immigration
officers to treat virtually everyone as a priority for removal. By eliminating policy-level prosecutorial discretion guidance, as well as protections for more
than 1 million people with DACA, TPS, and DED, the administration has decentralized discretionary decisions to individual ICE, U.S. Customs and Border
Protection, and U.S. Citizenship and Immigration Services (USCIS) line officers and agents. Not only has this move made exercises of discretion less
transparent, consistent, reliable, and accessible—key factors in a system that upholds the rule of law—but it has also effectively shielded discretion from
public scrutiny and allowed the administration to maintain its false but clear message that it is honoring the rule of law by once more enforcing the laws on
As a result of this approach, under the Trump administration, more than one-third of all arrests by ICE have been of undocumented immigrants who have no
criminal histories; indeed, the civil immigration detention of people with no criminal history has increased by nearly 40 percent. At the same time, the
detention of people with the most serious criminal convictions has decreased by 17 percent. In 2017, ICE’s then-acting director, Thomas Homan, explained to
Congress why the agency as a matter of policy has moved away from a focus on apprehending people convicted of serious crimes, saying that every
undocumented immigrant “should look over [their] shoulder,” as the agency “shouldn’t wait for them to become a criminal.”
An important explanation of why this sudden shift in enforcement policy has been met with such fierce popular resistance is that it signaled a dramatic
change in the tacit agreement that had long held, more or less. In Immigration Outside the Law, Motomura speaks of this in terms of fairness: “[W]hen a
government changes laws or policies, fairness requires that it consider how those changes adversely affect anyone who acted in reliance on the prior state
of things.” That notion of reliance and predictability is equally central to the rule of law, a core tenet of which is that individuals should not be punished after
the fact for conduct that was permitted previously.
According to Gallup, as far back as 2006, three-fifths to two-thirds of adults in the nation have consistently supported creating a path to citizenship for
undocumented immigrants then residing in the country. And according to CAP analysis, the average undocumented immigrant in the country today has lived
in the United States for nearly 15 years. Considering these two data points, it is clear that many of the individuals with no or relatively minor or old criminal
convictions who have been arrested or deported in recent years are likely the same people whom the public believed more than a decade ago should be
given the chance to gain legal status and remain here permanently. In the intervening years, these individuals only increased their ties to this country and to
their communities—buying homes, building families, starting businesses—gaining greater equities to remain.
Previous sections of this report reviewed some ways in which the Trump administration has undermined the rule of law by so frequently breaking the law.
However, a more important point may be that by increasingly threatening the arrest and deportation of long-residing and well-settled individuals that many in
society simply do not think should be deported, the Trump administration is jeopardizing the normative content that gives laws their power in a society that
values the rule of law. In doing so, even when the law is not violated, one can observe a degradation of respect for the law itself, as well as for the
institutions and individuals charged with administering and enforcing laws. Similarly, by replacing clear and transparent policy-level exercises of discretion
that are tailored to address obvious holes in the current system with ad hoc, private, and largely inaccessible exercises of discretion by line personnel, the
administration is no longer exercising discretion in a manner that comports with rule of law principles or that helps maintain fairness and functionality in the
system as a whole.
In many ways, the call to “Abolish ICE” last year emerged both as a response to and as a result of this growing degradation of the rule of law by the Trump
administration. For a period of months in 2018, Abolish ICE seemingly came out of nowhere and suddenly was everywhere. But it is worth noting that this
movement bears similarities to previous campaigns more grounded in traditional grassroots advocacy communities. For instance, the #Not1More
campaign—which began as a project of the National Day Laborer Organizing Network in 2013 and became independent in 2015—calls for “not one more
family destroyed, not one more person left behind, not one more indifferent reaction to suffering, not one more deportation.”
Some of the so-called sanctuary policies promoted through campaigns such as #Not1More have secured some genuine protection from deportation for many
longtime residents of certain states and communities. They have also successfully combated unlawful efforts by the federal government to coerce state and
local jurisdictions into participating in civil immigration enforcement efforts. Interestingly, the notion of sanctuary itself grew out of a similar period of time in
the 1980s, when federal authorities were bending and breaking laws to deny protections to individuals seeking asylum.
The growth of an effort such as #Not1More—even after the Obama administration’s executive action efforts on immigration, which included the creation of
DACA and the promulgation of an initial memorandum on the exercise of enforcement discretion—illustrates the inadequacies of such prosecutorial
discretion in the face of a much larger system of dysfunction. It should therefore come as no surprise that during the Trump era, when many people view U.S.
immigration enforcement practices as increasingly characterized by senseless cruelty, the cries to end deportations and “Abolish ICE” have become louder.
Degrading the rule of law through official acts of cruelty
In furtherance of the administration’s campaign of fear over the past 2 1/2 years, immigrants have been arrested when they:
• Faithfully appear for a regularly scheduled check-in with ICE. For five years, Jose Escobar and his wife, Rose, regularly checked in with ICE’s Houston
office as part of the agency’s previous decision to stay his deportation. Although Jose complied with the agency’s requirements and should have been a low
priority for removal—he came to the country years ago as a child and had no criminal history—he was arrested at a check-in weeks into the Trump
administration, separated from his wife, and deported to El Salvador soon thereafter.
• Attend a routine green card marriage interview with USCIS. Oscar Hernández and his wife, María Eugenia Hernández, a U.S. citizen, went to a USCIS
office in Miami for a standard marriage interview as part of the process of obtaining a green card. But partway through the interview, María was asked to
leave the room and only learned later that ICE officers had arrested her husband on a 14-year-old deportation order. Oscar is the family’s breadwinner,
supporting his wife and their son, both of whom suffer from multiple sclerosis.
• Go to court to request a protective order as a domestic violence survivor. Irvin González, a transgender woman, went to the El Paso County
Courthouse to request a protective order against her abusive ex-boyfriend. But shortly after the hearing ended, Irvin was arrested just outside the courtroom
by an immigration enforcement officer who had sat through her hearing and who may have been tipped off to her whereabouts by her abuser.
• Travel through a Border Patrol checkpoint in an ambulance en route to a hospital for emergency surgery. Rosa Maria Hernandez, age 10, was in the
back of an ambulance en route to Driscoll Children’s Hospital in Corpus Christi, Texas, for emergency gallbladder surgery when her ambulance was stopped
at a Border Patrol checkpoint. After concluding that Rosa Maria, who has cerebral palsy, was undocumented, agents followed the ambulance to the hospital,
waited outside of her room, and arrested her after just two days of recovery.
• Seek shelter from dangerously cold temperatures. At the end of a dangerously cold night, Oscar Ramirez was leaving a hypothermia shelter located at
Rising Hope United Methodist Mission Church in Alexandria, Virginia, when ICE agents surrounded him and a group of other Latino men. Although Oscar, a
green card holder, was allowed to leave, several other men who had sought refuge in the church shelter were arrested.
• Speak out publicly against efforts to rescind DACA. Minutes after speaking at a news conference in Jackson, Mississippi, about her fear of being
deported, Daniela Vargas, a DACA recipient who came to the United States 15 years earlier at the age of 7, was arrested by ICE officers. Just two weeks
before that, Daniela’s father and brother were arrested at their home by ICE, but Daniela was permitted to remain free because of the pendency of her DACA
• Bring their children to school. As Syed Ahmed Jamal, a chemistry instructor at several Kansas City-area colleges, prepared to take his daughter to
school, ICE agents arrived at his home and arrested him. Syed’s three children—ages 14, 12, and 7—are all U.S. citizens, and he is an active member of his
community who had been checking in regularly with ICE for more than five years.
News stories are written regularly about communities that are shocked when one of their own—certainly not one of the “bad hombres” then-candidate Trump
talked about—is arrested and deported, ripped away from family and the community that they helped build and sustain. While a number of these enforcement
actions may not themselves be illegal, there is no question that they have been harmful and corrosive to America’s social fabric and ideals. The same is true
of the emerging reports of children and families being forced to endure dangerous and unsanitary conditions in Border Patrol facilities, which appears to
have contributed to the deaths of multiple children. There is a reason that so much of Adam Serwer’s influential essay on the cultural and rhetorical
significance of the Trump administration’s policies, “The Cruelty Is the Point,” centers around the cruelty at the heart of the Trump’s administration’s anti-
Guiding principles and policy proposals: Building a fair and humane immigration system that works
It is long past time to recognize that the dysfunction of the current immigration system only begets further dysfunction. The intolerable cruelty of today’s
immigration enforcement policy choices and machinery lay bare just how wide the gap is between the law on the books and the reality that exists in
communities, workplaces, schools, and households all over the country. But the formal and informal workarounds used by the Obama administration and
previous administrations to paper over that gap—while themselves largely insufficient for the task—now have been shredded. This is a problem yearning for
a real solution.
The nation must move to a system that meets the actual needs of Americans and that can meet those needs by operating as designed. Recognizing that
legislative reforms of immigration laws appear to be generational affairs at best, the system must be generous in anticipation of a growing need to welcome
more immigrants into the country. It also must be responsive to the nation’s needs as they change. Such a reform would include four parts: changes to the
legal pathways for entry into the United States; a return to sensible and humane refugee and asylum policies; a restoration of due process in the immigration
enforcement system to achieve fair and just outcomes; and legalization of those here without status.
Changes to the legal pathways to enter the United States
The United States should have realistic, evidence-based avenues for legal immigration that allow families to reunite and businesses to get the workers they
need while protecting all workers’ rights. The U.S. immigration system should recognize and reward the kind of entrepreneurial spirit that has long helped
build this country—what Rep. Zoe Lofgren (D-CA) frequently refers to when she talks about immigrants as people who “have enough ‘get-up-and-go’ to get-up-
Although the latest White House plan for a so-called merit-based immigration system is short on details, one virtue is its call for a dramatic increase in the
number of green cards available each year for certain people looking to come to—or permanently remain in—the United States for work or to start a
business. Unfortunately, the plan achieves these increases only by slashing or eliminating entirely other existing avenues for people to enter the country
lawfully, including those that allow U.S. citizens to reunite with close family members abroad. It also appears to do nothing to expand migration opportunities
for traditionally considered lesser-skilled individuals who nonetheless play an essential role in the U.S. workforce. Additionally, the plan fails to
acknowledge that many skilled and highly educated immigrants already come to the country through both family-based and diversity channels.
Rather than be beholden to an artificial and inflexible position that rules out numerical increases in immigration and opens new avenues only when existing
ones are closed, policymakers should adopt a plan sufficiently robust and flexible to meet the actual needs of the country and the economy—one that
recognizes that merit comes in many forms. More than 10 years ago, the Migration Policy Institute (MPI) recommended that Congress create an independent
and permanent Standing Commission on Labor Markets, Economic Competitiveness, and Immigration to make recommendations about adjusting
employment-based immigration pathways based upon real data and analysis. In 2009, an Independent Task Force on U.S. Immigration Policy—convened by
the Council on Foreign Relations and chaired by Jeb Bush and Thomas F. McLarty III—endorsed the MPI proposal and praised the idea that the president be
authorized to make adjustments based upon the recommendations of the standing commission, subject to the possibility of congressional override. That
year, Ray Marshall at the Economic Policy Institute proposed a similar idea to create an independent Foreign Worker Adjustment Commission. Beyond
flexibility to respond to the types of workers needed in the labor market, a recent study finds that family networks promote successful integration and the
economic and social well-being of new immigrants, bringing their own inherit merit. The central role that family unity has long played in the immigration
system both sets America apart in the world and connects it to the global community, strengthening the country through diversity. Given ample evidence that
Congress is incapable of making timely changes to immigration policy in response to the changing needs of the country, serious consideration should be
given to the creation of an independent and data-driven entity to help guide evidence-based policymaking regarding the U.S. immigration system.
Creating a functioning legal immigration system would uphold the rule of law both by channeling future immigration through an effective regulatory system
and by allowing enforcement resources at the nation’s borders and in the interior to be used to maintain the integrity of that system and U.S. borders. They
would also be better able to focus their efforts on promoting national security and enhancing public safety. Testifying before the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International Law of the House Judiciary Committee in 2007, then-Border Patrol Chief David Aguilar
explained that fixing the U.S. legal immigration system to reduce irregular migration across the country’s borders would “allow our enforcement officers to
concentrate on the threats coming at this country from the perspective of people wishing to do us harm … [and] be a tremendous force multiplier for the men
and women of the Border Patrol to continue protecting this country.”
Sensible and humane refugee and asylum policies
America, both as a country and as an idea, has long played an outsize role on the global stage. For years, the country stood as a leader in the protection of
refugees worldwide, partnering successfully with nonprofit organizations around the country to successfully resettle refugees and integrate them into U.S.
communities. The refugee admissions target, which exceeded 100,000 each year throughout the first half of the 1990s and averaged 76,000 from fiscal years
1999 through 2016,1grew by the end of the Obama administration to 110,000 for fiscal year 2017. The Trump administration’s decision to slash refugee
admissions—lowering the fiscal year 2018 target to 45,000 but falling more than 50 percent short of that in terms of actual admissions and lowering the fiscal
year 2019 target still further to 30,000138—has eviscerated much of the refugee reception infrastructure around the country,139 harmed communities that
have flourished by offering safe haven to refugees,140 and failed to encourage other countries to resettle more refugees themselves. America’s retreat from
the world stage places a strain on its allies and countries of first reception, only increasing the risk of greater instability around the world. America must
once again lead by example and increase refugee admission targets in response to the growing need for resettlement around the world.
The country similarly needs to restore its commitment to protecting refugees who arrive at its doorstep to request asylum. A mainstay of congressional
debates dating back to at least 2014—when the number of unaccompanied migrant children arriving at the southwest border markedly increased—and a
constant refrain of the current administration, is that the asylum laws are merely a “loophole.” But far from being loopholes, the country’s system of asylum
protections is essential in order to meet legal obligations under U.S. and international law to offer protection to those facing the threat of torture, persecution,
This is not to say that every person who requests protection must be allowed to remain in the United States indefinitely, nor does it mean that the country’s
sole response to the extreme violence, poverty, and climate dislocation happening in the Americas—most notably, in the Central American countries of
Guatemala, Honduras, and El Salvador—should be through the immigration system. But a basic premise of U.S. asylum laws should be that people in need of
humanitarian protection must receive fair and efficient adjudication of their claims without sacrificing due process. And while a discussion about what an
adequate and durable response to the migration challenges in the Americas would look like is beyond the scope of this report, it has been discussed in
greater detail elsewhere. One proposal that could uphold America’s commitment to protect refugees and ease much of the burden currently being felt along
the southwest border would be to create a Central American Refugee Program, such as the one described in H.R. 3524, the Northern Triangle and Border
Stabilization Act, introduced last month in the House. Another recommendation would be to consider complementary humanitarian protections that could be
offered to individuals fleeing life-threatening dangers who would not qualify for protection under U.S. asylum law, such as severe food insecurity resulting
from climate change.
Due process, proportionality, and accountability in enforcement
An important goal in reforming the U.S. immigration system—and a key aspect of restoring the rule of law in such a system—should be to design a system
that people widely believe can and should be followed. But that is not enough. In order to build a system that reflects rule of law principles, the rules that
defend that system must support clear, consistent, and fair enforcement. It can be challenging in the current social and political environment to have a rich
discussion about what immigration enforcement should look like, largely because the current system is one that many people think is not worthy of defense.
Moreover, the mechanisms for enforcement that exist today frequently provide little due process and no consideration of proportionality in the imposition of a
sanction. Nevertheless, enforcement is essential to defending the integrity of any system. The following paragraphs lay out some initial steps to reform
enforcement and increase accountability in agencies such as ICE and Customs and Border Protection that are on the front lines of this enforcement.
First, U.S. immigration laws must make available a range of possible sanctions that can be doled out to people who run afoul of the law. In the immigration
system today, there is no opportunity to consider the concept of proportionality—that is, whether the punishment fits the offense. In every immigration court
hearing, the first question an immigration judge must resolve is whether or not an individual is removable from the country. If the judge finds this to be the
case, banishment, and all of the consequences that flow from that, is the only option on the table despite being the harshest, most existential punishment
conceivable in such a proceeding. Only after the finding of removability can an individual request whatever form of relief from removal may be available to
them. Over the years—and especially as a result of the 1996 immigration laws—the circumstances in which an individual might have grounds for relief from
removal have narrowed considerably.
Because the stakes for immigrants in removal proceedings—which are, essentially, deportation proceedings—are so high and the opportunities for
immigration judges to mete out just and proportionate outcomes are so low, the system places an unsustainable amount of pressure on discretionary
decisions by immigration enforcement personnel about whether to place a person in removal proceedings in the first place and, when a final removal order
is issued, whether to execute it. Again, discretion is necessary at each stage of every law enforcement system, but when the system routinely relies upon
discretion to mitigate its obvious failings, unjust, unpredictable, and inconsistent outcomes will proliferate, and public confidence in that system will
Immigration courts should be given a range of sanctions that they can issue short of removal from the country. Where removal may be an appropriate—
though harsh—sanction, immigration judges should be empowered to do justice by considering the individual equities of each case. A decade ago,
professor Juliet Stumpf wrote on this topic in a law review article titled “Fitting Punishment.” She argued that:
[A] proportionate system of sanctions for immigration violations should consider: (1) the gravity of the violation, taking into account the nature of the violation
and any consequences, (2) the benefit to the United States of imposing the proposed sanction and, conversely, any harm to the United States, the noncitizen,
or others resulting from its imposition, and (3) the stake that the noncitizen has in remaining in this country.
While deportation would remain a potential sanction in such a system—particularly for criminal convictions evidencing a disregard for the general public
order or repeat or flagrant violations of U.S. rules—the government’s interest in promoting lawful conduct and preserving the integrity of the immigration
system often could be served through more well-tailored punishments. To name just a few, laws should empower immigration judges to impose terms of
probation or supervision; monetary fines; or penalties that suspend or delay privileges afforded under immigration laws, such as forcing a lawful permanent
resident to restart the clock on continuous residence before filing a naturalization application or temporarily suspending an individual’s ability to file
immigrant visa petitions for a family member.
Second, much like in the U.S. criminal justice system, in which legislatures regularly impose statutes of limitations to promote justice, finality, and clear
expectations and as a check against unreasonable prosecutorial delays, immigration laws generally should be subject to statutes of limitations. Because
these are almost entirely absent from U.S. immigration law, ICE last year was able to arrest, detain, and nearly deport Dane Foster—a 36-year-old father of
four who is married to a disabled U.S. Army veteran and who received his green card at the age of 11—based upon two simple marijuana possession
convictions from the 2000s and one from four years earlier in 2014.
This idea is not new in immigration law: In the Registry Act of 1929, Congress created a provision known as registry, which allowed immigrants who have
been in the country for a certain number of years—originally those “honest law-abiding alien[s] who may be in the country under some merely technical
irregularity” since 1921—to come forward, pass a background check, and adjust to lawful permanent residence. Congress has advanced the registry date—
that is, the date before which an individual has to have lived in the country in order to be able to adjust their status under the provision—multiple times over
the years, though it has been stuck at January 1, 1972, since the passage of the Immigration Reform and Control Act of 1986. It is time to update the registry
date and modify the provision so that it can serve the salutary functions that statutes of limitations serve in the criminal justice system. It is also time to
create proper statutes of limitations for potentially deportable offenses, such as those arising out of old or lower-level criminal convictions.
Finally, in order to restore respect for the rule of law in the U.S. immigration system, which necessarily must involve restoring respect for the enforcement of
the rules of that system, the immigration court system must be reformed to operate more like a true court and imbue immigration judges with the same kind of
independence and commitment to delivering justice as true judges. At present, when people go to immigration court, they appear before immigration judges
who answer directly to the U.S. attorney general, thus lacking the most basic elements of impartiality and judicial independence. Under the current
administration, immigration judges face the constant threat of disciplinary action if they do not maintain unrealistic case completion goals that necessitate
giving short shrift to the due process rights of individuals who appear before them.
Additionally, though every person in immigration court is entitled to due process under the Fifth Amendment to the U.S. Constitution, current law allows even
a 3-year-old child to appear without counsel unless that child can secure an attorney—by him or herself—at no expense to the government. Of immigrants
who have never been in detention, one-third have no representation—despite the fact that those with attorneys are five times more likely than those without
to win their cases. Just 14 percent of immigrants in detention obtain legal representation, even though immigrants with representation are four times more
likely than those without representation to be released from detention following a custody hearing, as well as more than twice as likely to secure relief from
Indeed, the way in which counsel is now secured by many people in immigration court is an example of the workarounds currently employed to shield the
public, policymakers, and the system itself from the fundamental unfairness at the heart of the immigration court system. Today, counsel is frequently
provided to immigrants in removal proceedings only by virtue of nonprofit providers; extensive pro bono and so-called low bono networks; and
representation initiatives funded by state and local governments. These initiatives and networks do their work in order to ensure that when an individual
appears in a federal immigration court before a federal immigration judge and against a federal ICE trial attorney, that person has a trained attorney by their
side, prepared to defend their basic legal rights and ensure they are not torn away from their family or returned to face persecution, torture, or even death. But
civil society should not be required to shoulder the burdens of due process in a just society governed by the rule of law. All immigrants appearing in
immigration court should be guaranteed the right to counsel—appointed at the government’s expense, if necessary. And given the important liberty interests
at stake, the system also should rely far less heavily on final orders of removal issued by enforcement personnel without meaningful court involvement.
A path to citizenship for those in the country without status
There are today an estimated 10.5 million undocumented immigrants in the country who have been here, on average, for nearly 15 years; are themselves the
parents of 6.7 million U.S.-citizen children; and pay, together with other members of their households, $125.5 billion annually in federal, state, and local taxes.
For the many reasons discussed above, because the legal immigration system for many years has provided inadequate opportunities for people looking to
come to the United States or remain here, an extralegal system has evolved that consists of both unauthorized migration itself and formal and informal
policies to not disrupt a generally mutually beneficial arrangement.
Replacing this extralegal immigration system with a legal system that truly works as designed is necessary to restore respect for the rule of law, but it will
never be sufficient if it leaves millions of American residents in a second-class status. Undocumented immigrants in the country today must be given the
opportunity to come forward, register with the government, pass a background check, and be put on a path to permanent residence and eventual citizenship.
Passing H.R. 6, the American Dream and Promise Act—which would put 2.5 million Dreamers and holders of TPS and DED on a path to citizenship—would be
a good first step,166 but restoring the rule of law requires extending a path to citizenship for the broader undocumented population.
America is a nation of immigrants and a nation of laws, and it needs a system that reflects that reality. It is not sustainable to have a legal immigration
system that is not well tailored to the country’s needs and values and that predictably drives people to come to the country, or remain here, in violation of the
law. It is not sustainable to have an immigration enforcement apparatus that lacks popular support; operates without the most basic features of fairness,
accountability, and proportionality; and increasingly exposes to the threat of detention and deportation people who have been part of U.S. communities for
decades and who the large majority of Americans have long believed should be afforded the opportunity to remain here permanently.
Because of the significant and protracted failings in the U.S. immigration system, policymakers have long been forced to rely exclusively on exercises of
discretion to address the worst injustices and to avoid disrupting the tacit understanding that the extralegal immigration system strengthens the country,
even though it comes at considerable expense to immigrant families, communities, and society at large. But it is also not sustainable—after decades of
legislative inaction—to continue to rely on enforcement discretion alone as the magnitude of the challenges grow and people on all sides of the issue
become increasingly distrustful of the system. The country cannot wait any longer to reform America’s immigration laws, because only through reform can
faith in the system be rebuilt and respect for the rule of law be restored.
About the author
Tom Jawetz is vice president of Immigration Policy at the Center for American Progress. Prior to joining the Center, he served as chief counsel on the
Immigration Subcommittee of the House Judiciary Committee. In that capacity, Jawetz devised and executed strategies for immigration-related hearings and
markups before the House Judiciary Committee as well as legislation on the House floor. Prior to his time at the Judiciary Committee, Jawetz worked as the
immigration detention staff attorney at the National Prison Project, a part of the American Civil Liberties Union. He previously represented asylum-seekers in
judicial and administrative proceedings with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and served as a law clerk to U.S. District
Judge Kimba M. Wood of the U.S. District Court for the Southern District of New York.
|Overview: Policymakers must
break free of the false
dichotomy of America as
either a nation of immigrants
or a nation of laws, and
advance an immigration
system that is fair, humane,
and actually works.
New U.S. citizens gather at a naturalization ceremony, March