Must We Really Deport All of Our Undocumented?  The U.S. Supreme Court Is About to Weigh In

By:  Richard Hanus, Esq.

Published December 6, 2022

Homeowners are a lot like governments.  Both must give attention to the imperfections before them.  In a house it might be broken windows, chipped paint, or even termites.   In a government, it might involve a nation facing excessive corruption, broken highways, or even broken borders.  Time and money, among other factors, will typically limit a homeowner or government’s ability to fix every problem it faces.  Thus the only practical way forward in either situation, is to prioritize, with some imperfections being tolerable for a period of months or perhaps eternity, and others requiring immediate attention.

In recent days the U.S. Supreme Court heard oral arguments in the case of U.S. v. Texas, on this very issue of prioritization and whether immigration law enforcement against some, but not all, violators is permissible.  The Biden’s interior immigration enforcement agenda is a lot like most of his recent predecessors, focusing on noncitizens with serious criminal records or who pose a threat to national security.  That means, for better or worse, those otherwise law abiding foreign nationals who have simply violated their visa status or entered without a visa are mostly left alone.  The dispute before the court focuses on how much, if any, discretion our immigration laws allow the Biden Administration, or any administration, to pick and choose the immigration law violators it prosecutes.

The issue has come to a head as of late with thousands of foreign nationals from Mexico, Central America and elsewhere coming to our southern border to seek asylum.  That reality along with the continued decades long presence of more than 11 million undocumented foreign nationals in the U.S. makes for incendiary politics and a contentious, sometimes nonsensical, national conversation.    Between federal court litigation, and more recently, cruel publicity stunts like bussing asylum applicants to northern cities, our nation’s immigration blemishes have been brought to the forefront, for both political and practical purposes.  Maybe, just maybe, some good will come from the discussion.

Keep in mind firstly, that without an unprecedented, exponential increase in funding and workforce expansion, our immigration enforcement infrastructure will never come anywhere close to zero tolerance.    That is not to say, we could not try, but our nation has neither the political will nor the popular support to accomplish such a goal.  Rather, the exercise of prosecutorial discretion is and has always been a part of our law enforcement agencies playbook, including for our immigration laws.

Solicitor General Elizabeth B. Prelogar, the attorney representing the Biden Administration before the Supreme Court, advised the justices of the harsh reality that, “(t)here are more than 11 million removable noncitizens in this country, and Department of Homeland Security has about 6,000 interior enforcement officers,” and the federal government is otherwise without adequate resources to take measure to deport all unauthorized immigrants.  This perspective does not even begin to factor in the reality that the vast majority of these undocumented have the right to fight their deportation in “removal proceedings”.

Substantively, the lawsuit before the Supreme Court focuses on complex legal issues relating to the permissibility of enforcement priorities in the federal immigration context and a state’s right to sue to block such an approach.  Since it is universally understood that a perfect enforcement scenario will never happen, the lawsuit, it seems, is in reality a scream for political and budgetary attention.

With immigration and border functions falling within the purview of the Executive branch of our government, the question of enforcement goals and priorities is typically not a topic presented for debate before our courts.  That has all changed in recent years, ever since the Trump administration made our immigration system and border a central theme of his political campaigns and governing agendas, regardless of whether the issue truly merits such outsized attention.

How the U.S. Supreme Court rules on the complex legal issues presented by these southern state plaintiffs is anyone’s guess.  An equally important conversation though has to do with the fact that so many problems at play before the court are indeed fixable.  More specifically, there is significant room for improvement when it comes to making our immigration laws more user friendly, and less about political weaponization and grievance.    In other words, our broken immigration system can become significantly less broken by making it more accessible and practical for the individuals and businesses looking to use it.

A genuine and honest conversation on this topic will acknowledge the following facts:

1) the 11 million undocumented in the U.S. are mainly comprised of foreign nationals who cross the border without a visa OR who remain in the U.S. beyond the terms of their visa status and who have not violated criminal laws.  By and large, these individuals are drawn to the U.S. for work opportunities to better support themselves and their families and pursue educational and professional ambitions.   In many ways, a de facto amnesty has been in place for more than the past 2 decades for this segment of our undocumented population.

2) “lines” or “right ways” are not available to the vast majority of foreign nationals and companies looking to access our legal immigration system, including the 11 million undocumented, as legal avenues to immigrate to the U.S. are exceptionally narrow, at least as compared to the level of foreign national interest and our nation’s labor needs,

3) asylum seekers at our border are literally running for their lives, and when they are processed to enter the U.S. to have their claims heard they are indeed in the U.S. legally.   Our nation, however, needs better ways of screening and processing asylum seekers and overall, making our system one that caters to the needs of freedom seeking, ambitious foreign nationals – the very kind of immigrants that have made our nation great.

When these realities are accepted, the shortcomings our nation faces at the border and with regard to interior enforcement become far less complicated and daunting.   When options to immigrate legally, along with our immigration processing infrastructure, are expanded, the pressure at the border will decrease significantly.

Regarding our nation’s undocumented, a plan to deport all 11 million of them is certainly viable assuming we have the will to carry one out.   But again, our nation does not have such a will, and never has – although the previous administration’s oft repeated illusory promise of mass deportations played effectively to certain segments of its base.  For starters the toll such a plan would pose for our nation’s economy, labor market and families would be devastating.

Further, that mantra we all hear in the context of this conversation – that we must first “secure the border” – is disingenuous and an ever changing goal post, since “securing the border” can mean a lot of different things, depending on the standards used and the time of day it is uttered.  No matter what you want to call it – legalization, a path to citizenship, or amnesty – an eventual systematic and legal absorption of this segment of our population, including those covered by DACA, will undoubtedly be the ultimate answer to this part of the problem.

In sum, regardless of how the U.S. Supreme Court rules, immigration law enforcement will always involve some level of discretion and prioritization.   More importantly though, I hope the Supreme Court ruling and the national conversations on this topic, lead to meaningful improvements to our system, improvements we have been waiting on for more than 2 decades.

PUBLISHED December 6, 2022 – “IMMIGRATION LAW FORUM” Copyright © 2022, By Law Offices of Richard Hanus, Chicago, Illinois

By |2022-12-10T17:27:41-06:00December 8th, 2022|Categories: DHS / Immigration and Customs Enforcement (ICE), Amnesty for Immigrants in the U.S.|
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