Legal processes are an essential component of U.S. immigration laws. There are rules covering everything from the admission of legal immigrants to enforcement against alleged violations of immigration laws, adjustment of status, and applications for protection from persecution.
The processes are often slow and cumbersome. Many are out of date, given the speed of today’s world. But all of them are important to protect the safety, security, and legal rights of everyone already in this country as well as those seeking to come here.
The last decade-plus of immigration policy has shown that these processes need an overhaul by Congress. Humanitarian protection is secure but incredibly slow. Refugees wait years to restart their lives. Asylum seekers get to resettle faster, but they live with the uncertainty that their cases can be denied, even after they establish themselves, find work, and form attachments in the United States.
Immigrants with family sponsorships often wait decades. Employment-based immigrants can also wait years for a permanent spot in the United States. These long wait times benefit no one.
With few and often cumbersome legal immigration processes, foreign-born workers attracted to America’s freedom and opportunity have arrived in droves, stressing an asylum system that was never intended to be the single portal through which would-be economic migrants have access to the United States. Indeed, exit polling demonstrated that this apparent flouting of process was a decisive factor in the voting booth during the last presidential election. Americans disliked what they perceived as migrants cutting in line – accessing the country without going through an appropriate process.
Removing these immigrants – who often have overstayed visas or run out of appeals on their asylum claims – is also slow and bureaucratic. There are legal and diplomatic roadblocks that frustrate the United States’ ability to swiftly deport people.
The executive branch is doing all that it can currently to challenge these roadblocks. A country won’t take its citizens back? El Salvador will, for a small amount of foreign assistance funding.
Young working age men have pending asylum cases? Declare them invaders and use the Alien Enemies Act to try to curtail their legal right to challenge removal.
Few immigrants are safe from this flouting of process, including many people admitted to the United States via legal processes such as the green card system or student visas.
As we’ve seen over the last several years, the judicial branch is the backstop for this lack of process, holding the executive branch accountable when its policies don’t respect legal process – regardless of which party is in the White House. Last November, a federal judge ruled the Biden Administration overstepped its authority with the Keeping Families Together initiative, designed to provide some relief to undocumented spouses of U.S. citizens. Just this week, the Supreme Court ruled 9-0 in favor of due process for immigrants the U.S. government was seeking to remove under the Alien Enemies Act. Those immigrants have the right to challenge their removal despite the broad authority that that law provides.
What’s been missing in this immigration conversation for too long is the third co-equal branch of government: the legislative one.
Unlike the executive and the judiciary, Congress has the power to actually change these processes rather than just enforce or interpret them. And yet for decades now we’ve seen the legislature take a hands-off approach, demanding the executive branch enforce the laws Congress passed in the last century – laws whose built-in processes make it difficult to quickly remove the immigrants who didn’t qualify.
At the moment, Congress seems content to leave immigration law as-is, while watching the executive branch abandon the pretense of process when enforcing those laws. In fact, Congress is trying to pass additional funding for the executive branch to continue its current enforcement policies. That legislative energy would perhaps be better used on solutions that focus on creating an immigration system that instead ensures America’s prosperity, vitality, and security.
Frustration with an inadequate immigration system isn’t sufficient reason to abandon the legal rights and due process of the immigrants among us. These enforcement tactics will continue to invite legal challenges, setting up the judicial branch to be the primary maker of immigration policy for another four years.
Changing the rules means following yet another mundane process – drafting and passing bipartisan legislation. That is the only way to get the immigration system America needs.
