A Vital Change Needed In Immigration Law -- Shorten The Time An Illegal Alien Must Wait Outside the U.S. Before Applying To Return Lawfully.

The current 5-10 year waiting period is a significant disincentive for illegal aliens to self-deport under the program created by the Trump Administration.

Two things can be true at the same time:

1. Lawless and unchecked illegal immigration represents a threat to our national security, economic prosperity, and the traditions, cultures, and values upon which this country was founded and build; and

2. The community of residents in the country who came here illegal including large numbers who enhance our joint enterprises and endeavors, and have demonstrated by their conduct that they can be law abiding and productive members of the populace.

The dilemma we face is to find a solution to the problem reflected in (1) while at the same time preserving as much of the benefits that are reflected in (2) in a way that doesn’t at the same time reward law-breaking.

I heard Mike Rowe — of “Dirty Jobs” fame — on a podcast recently state that we have 500,000 unfilled manufacturing jobs right now, and we have 8.5 million adult men who are not employed and not looking for a job. This “out of the labor force” number has grown steadily over the past decade, at the same time the labor force is shrinking due to Boomer retirements and a falling birth rate.

Unchecked illegal immigration is not an acceptable solution to that problem. But indiscriminate mass deportations have a “throw out the baby with the bathwater” aspect to them that we should probably try to minimize because it is not necessarily intuitive to conclude that those 8.5 million available workers are going to step forward and fill newly created job openings when they don’t seem to interested in filling the ones that exist now — much less the ones that will be created by an expanding economy with increased supply-chain manufacturing at home.

What I suggest below has two main driving factors:

1. All illegals get deported — but it provides an incentive for self-deportation, and

2. We vet and control who it is that comes back through legal channels, while taking steps to minimize the unnecessary disruption to those we want back.

One of the main focuses of the changes in immigration enforcement policy that the Trump Administration has brought about is to encourage self-deportation by those here illegally. A significant aspect to those changes is to disincentivize the option of remaining in the United States until caught by promoting the “sob story” consequences of unknowingly becoming targeted by removal by DHS/ICE, then being suddenly taken into custody and shipped to a far-away DHS holding facility while you INA proceedings play themselves out.

Title 8 of the United States Code contains most of the immigration-related laws passed by Congress. There is a massive Title 8 of the Code of Federal Regulations that has hundreds of pages of rules and regulations about how the immigration laws are to be handled through the Immigration Courts created by Congress. But there is one particular provision of the Immigration laws passed by Congress that, in my opinion, is a huge disincentive for illegal immigrants to voluntarily deport as they are being encouraged to do by the aggressive enforcement policies of the Administration.

Below is the text of subpart of a very long and complicated immigration statute, 8 U.S.C. Sec. 1182. This is Sec. 1182(a)(9)(A-B). The portions of the text that are bolded are important for the reasons I explain below. This statute addresses how illegal aliens who leave the U.S. can then attempt to apply for lawful readmission. It is important to understand that the process for applying for lawful admission to the United States from a foreign country starts in State Department Offices in that foreign country. That is why an illegal alien — under established federal laws that the Obama and Biden Administrations ignored — must first go home before they can apply to come back into the United States in a legal manner.

(9) Aliens previously removed

(A) Certain aliens previously removed

(i) Arriving aliens

Any alien who has been ordered removed under section 1225(b)(1) of this title or at the end of proceedings under section 1229a of this title initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens

Any alien not described in clause (i) who-

(I) has been ordered removed under section 1229a of this title or any other provision of law, or

(II) departed the United States while an order of removal was outstanding,

and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(B) Aliens unlawfully present

(i) In general

Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,

is inadmissible.

The upshot of the above provisions of Sec. 1182(a)(9) is that an illegal alien who is removed or leaves the United States must, depending on the details, remain outside the United States for 3, 5, or 10 years before they can be considered for lawful readmission. The 3 year sit-out period only applies to illegal aliens in the United States for between 180 days and 1 year. For every other illegal alien the waiting period is going to be 5 or 10 years.

Other parts of the statute make certain individuals inadmissible without any time limit — they can never come back legally.

Those periods are simply too long when applied to aliens who can objectively show through their conduct while in the United States the benefits of having them here as resident aliens and potentially naturalized citizens. There is no question that they all must leave — you cannot reward unlawful “line-jumping” through any kind of amnesty plan that would allow them to remain while others who have lawfully applied to immigrate to the U.S. wait their turn outside the country.

But that doesn’t mean that, as a country, we cannot recognize the value that would be realized by allowing some number to return — even large numbers. The decision to do so would be made based on overall immigration and amnesty programs. Illegal immigrants who leave voluntarily and then seek to come back into the country, and who can demonstrate they already integrated themselves as productive members of their communities, have a very high success in reestablishing themselves if their time outside the country wasn’t needlessly extended as punishment. The longer they are outside the country, the more that success rate is likely to fall — and the less likely they are to self-deport, which is what we want.

The documentation provided when applying for readmission would need to be robust — a complete history of the immigrant’s life while illegally in the United States. Addresses, jobs held, businesses started, schools attended, community contacts, lawful resident/citizen relatives, etc., all would need to be disclosed and verified. Untruthful information, or concealing negative information would be a basis to deny the application.

Applicants who were on government assistance for extended periods of time while in the U.S. illegally would not be looked upon favorably, but those who held long-term employment or started their own businesses would be.

Those seeking to rejoin legal family members left behind, as opposed to single adults without significant skills or an eduction, would be treated more favorably.

A myriad of other factors to be considered would be developed through INA Regulations, to be applied either by the State Department as it does now, or a new office in DHS given the number of applicants who would hopefully apply.

Again — this program would only be available to illegal immigrants who report themselves to ICE and voluntarily deport within the required time period — no one else.

Keeping the more severe waiting periods for those who leave only after removal proceedings would continue to disincentivize the decision to stay until getting caught by ICE. The bigger the difference there is in treatment of those who self-deport and those who remain and are caught, the more attractive the self-deport option becomes. But I’m not sure the 5 and 10 year periods are most appropriate — especially if the individual removed and then subject to those long waiting periods was a productive member of the community before removal. Employed, established ties to the community, presence of family legally in the U.S. — those kinds of considerations probably warrant some consideration on the question of how long a person in that circumstance must wait.

Shortening the time period for voluntary deports to remain outside the country would — hopefully — encourage more voluntary deports. But that is only half of the benefit. The other half is that by having them apply for readmission in the lawful manner — where the waiting period for that class of immigrant is shortened — allows DHS/ICE to know who these people are before allowing them to come back into the country. That is a HUGE improvement over the information deficit on the illegal alien community that the Biden Administration left behind.

So, what waiting periods would be better than those set forth above?

• If illegally in the U.S. for less than 2 years, no wait period. Apply immediately and wait in line like everyone else, but the fact that the alien voluntarily deported after being unlawfully in the United States cancel each other out, and the unlawful presence will not be penalized nor be a negative factor in the readmission process.

• If in the U.S. illegally more than 2 years but less than 6 years, the wait period could be 1 year.

• If in the U.S. illegally for more than 6 years, the wait period could be 18 months or 2 years.

The waiting period would not begin to run until the illegal alien arrives back in his/her own country and goes to the US Embassy or Consulate and registers to for readmission. Prior to departing from the United States the illegal alien would need to register with ICE, admit they were in the United States illegally and have opted to voluntarily deport and apply for readmission from their home country. They would have a period of 60 days from the date of registration to then register back in their home country. This would document both that they left the United States and acknowledged their illegal presence, and that they are back in their home country — or whatever country would accept them after leaving the United States.

The end of the sit-out period would be the first day the alien would be eligible to lawfully return to the United States — not the day they have the right to return. There is no right to return — only a right to be part of the lawful immigration without their prior illegal entry being counted against them.

Any authorized return could only happen at a Port of Entry. Any alien authorized to return who does not go through a Port of Entry is — once again — illegally in the country and subject to deportation.

None of this applies if the illegal alien an “undesirable.” The alien seeking readmission after being in the country illegally and then self-deporting would still need to document the objective facts about his/her time in the U.S. that justifies lawful readmission as a benefit to the United States. This will likely be a very large number of aliens — but that large number of aliens are exactly those about whom there is the most heartburn over mass deportations. They are also the most likely to gum-up the normal deportation process if they don’t self-deport because they aren’t criminals and gang members who can’t ever establish a lawful basis to stay.

This kind of process will require a robust bureaucratic infrastructure — it is an entirely new legal immigration process targeted and built to address the problem created by the Democrats — removing and readmitting desirable aliens where appropriate. But in addressing that problem in this fashion, it also is a concession to the reality that mass deportations of 20 million or more people by the bureaucratic processes we now have is functionally impossible.

The problem with the statute’s language now is the huge disincentive for long-term illegal aliens to voluntarily deport. For long-term illegal aliens — the kind most likely to have established themselves with either employment or a business they created, and developed family and community ties that integrate them into the U.S. — telling them they will have to remain outside the U.S. for 5 or 10 years is too big of a price to pay because of fear they will lose everything over such a longer period of time. For them, the risk of staying is the least bad of the two options.

When that is combined with the disincentives that attach to having DOJ initiate removal proceedings against you and only then do you leave — or end up with an Order of Removal actually issued — self-deportation and the meaningful opportunity to return lawfully becomes far more attractive. But, if the cost of remaining outside the country is too great, that can lead to the decision to stay, hide, and hope for the best.

Nothing about this proposal minimizes to the degree that the U.S. would control who is allowed to lawfully return. The admission that the person illegally entered in the first instance, followed by a voluntary deportation documented with ICE, serves as the “due process” that person would be entitled to if caught illegally in the United States again, and summary deportation and/or prosecution would be warranted.

The problem we need to recognize and address is that telling an illegal alien who is a long-term resident in the United States, with a job/business and family, ties to their community, that they should leave on their own and wait 10 years before applying to return, is not any real encouragement to leave.

That is a dark tunnel. The brighter a light we give them — the light being lawful readmission — the more likely they are to enter that tunnel on their own accord.