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Posted by Matthew Green | Jan 13, 2018 | 0 Comments

You'd be hard pressed to find a more beautiful stretch of backpacking terrain than the 38 mile Paria Canyon route from Buckskin Gulch to Lee's Ferry.  Or, so I've heard.  I don't know for sure.  I almost did it once in the first days of October in 2013.  But after Congress failed to pass legislation appropriating funds for the next fiscal year, the U.S. government shut down.  Most “routine operations” were curtailed, such as paying the Bureau of Land Management personnel, who hand out the mandatory backcountry permits for thru-hikers, to show up to work.  No permit, no hiking, no happy camper. 

 If Congress can't compromise on immigration in the coming days, there's bound to be more unhappy campers when we have our next government shutdown.  But compromise really shouldn't be difficult if our elected leaders simply focus on the issues that are actually the most important, and least controversial, to the American people.  This is actually what the Senate did a few months before my ill-fated backpacking trip in the summer of 2013, when it passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, by a 68-32 margin, on June 27, 2013. 

 The 2013 Senate bill addressed three primary aspects of immigration reform: (1) increased border security and increased interior immigration law enforcement; (2) comprehensive reform of the green card and visa systems, which would shift the emphasis from family-based immigration (although not eliminate it) to so-called merit-based immigration; and (3) enactment of a Registered Provisional Immigrant (RPI) program, that included passage of the DREAM Act. 

 So, what's so different four and a half years later?  The White House is demanding increased border security.  The Senate signed off on that in 2013.  The White House is demanding a shift in emphasis from family-based to merit-based immigration.  The Senate signed off on that, too, in a reasonable manner in 2013.  And the White House says it has no interest in resuming, or commencing, removal proceedings against the 800,000 non-citizens who have been awarded deferred action under the DACA program.  Yep, the Senate green lighted that as well in 2013. 

 In 2013, the Senate bill would have authorized the building of over 700 miles of a border barrier, which is less than what the White House wants.  But it also authorized the employment of 19,200 additional border patrol agents, compared to the 5,000 additional agents that the White House currently proposes.  The point is, it was hardly light on enforcement.  And it took a more realistic approach to effective enforcement, by acknowledging that in some places along the border, the construction and maintenance of a physical barrier will result in more effective enforcement.  In other locations, deployment of human resources makes more sense.  And, just as importantly, the bill addressed interior enforcement by authorizing desperately needed funding of the woefully backlogged, understaffed, and antiquated immigration court system. 

 According to a post-2016 election report by the American Enterprise Institute, which drew from numerous polling results from diverse sources, a clear majority of Americans believe that we should have stricter border security and immigration enforcement and that we should also allow undocumented immigrants who came to the U.S. as children to remain here and apply for legal status.  And this sentiment has only increased, year by year, for the past 5 years. 

 To be sure, the 2013 Senate bill was a very comprehensive piece of immigration reform.  I don't dare to hope that such sweeping change can be accomplished in the days to come.  But there is so much low hanging fruit there, still ripe for the picking, which should allow reasonable compromise.  The easiest fix is to finally, after more than 15 years of avoiding the inevitable, pass the DREAM Act in exchange, of course, for a reasonable amount of fiscally-responsible investment in border security and interior enforcement. 

 Allocating $18 billion for a border wall is not currently a fiscally-responsible approach to border security (and probably not a particularly effective approach, either).  Assuming, however, that border security requires an investment of $33 billion, which is what the White House has requested, there are certainly ways that creative immigration reform can more than pay for itself.  According to the Congressional Budget Office (CBO), enactment of the 2013 Senate bill would have helped reduce the federal budget deficit by approximately $1 trillion over 20 years, would have boosted the U.S. economy as a whole without negatively affecting U.S. workers, and would have greatly reduced future undocumented immigration.

 Many anti-immigration reform hardliners are fond of asking why undocumented immigrants don't just get in line to immigrate legally.  Understand this: for most of them, there is no line.  The 2013 Senate bill came close to, in very thoughtful and responsible ways, creating a line (or more accurately, a series of lines).  One of the main reasons the CBO was able to score the Senate bill so highly is because it would have costed a lot of money for undocumented immigrants to pay for the opportunity to get into those lines.  Moreover, during, and after, their time spent standing in line, those immigrants would be drastically more valuable to our economy. 

 Those resistant to immigration reform also often decry the injustice of allowing undocumented immigrants to jump to the front of the line when others have spent years waiting their turn.  They're right.  It is an injustice that so many people have spent so long, waiting in line for their visas to become available in our nation's scandalously backlogged visa processing system.  In this respect, even the 2013 Senate bill failed to adequately address this serious problem.  This is, however, another ripe area of possible compromise, and it could generate a significant amount of revenue, which in turn could justify increased, responsible border security and enforcement. 

 There are over 4 million of these people who have been waiting in line.  About half of them are spouses and children of U.S. citizens or green card holders, and the other half are siblings of U.S. citizens and lawful permanent residents.  For years, the Department of Homeland Security has successfully operated a program for certain employment-based immigrants called “premium processing.”  Under that program, immigrants could pay a premium (over $1,000) for faster processing of their visa applications.  The same concept applies under other programs known as “245(i) adjustment of status,” and “provisional waivers,” where certain immigrants must pay similar fees for being able to process their green card applications stateside, rather than through a consulate abroad.

 To be clear, immigrants already pay substantial government costs for their visas.  But by instituting a premium processing program to expedite the backlog of visa applicants who have been waiting in line for far too long, we could score a win in the column of immigration justice, while also raising billions of dollars in increased revenue. 

Again, this is hardly a controversial idea, because it makes sense.  It makes sense because it's fair.  And we know it's fair, just like passing the DREAM Act, and just like enacting reasonable and proportionate border security, because the majority of us say so, again and again, year after year. 

Our elected leaders have no excuse not to compromise in the short term, and over the long haul, on immigration reform.  And the simplest part of the process should be the beginning.  Their options are literally staring back at them, from the pages of a bill that passed with overwhelming bipartisan support, only a few short years ago.

About the Author

Matthew Green

Managing Partner. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...


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