Reform plans neglect three areas of system

The need to make fundamental and comprehensive changes to our dysfunctional immigration system has been obvious for decades, but the political will and courage to do so have been lacking. Elections do have consequences, however, and there now seems to be significant wind in the sails of the reform movement.

The so-called “big-ticket” items that are included in comprehensive immigration reform (CIR) — enhanced border security, earned legalization and a path to citizenship for undocumented immigrants, flexibility in the visa system to reflect demand for needed workers, the plight of children brought to the United States by their parents who entered illegally (Dreamers), mandatory employment verification, and tracking the entry and exit of visitors to the United States — have been the subject of daily commentary.

Little attention has been paid to three less visible, but no less important, areas that should be addressed in any immigration reform package. 

The first is refugee policy. Refugees are immigrants — immigrants in special need. They are survivors of war and genocide, victims of torture and brutality, people persecuted because of their race, religion, politics, beliefs or sexual orientation — vulnerable people seeking the freedom that we have afforded to so many before them. But our “beacon of freedom” has dimmed in recent years. All too often, our immigration system treats refugees almost as criminals, and an array of policies and laws make it difficult, sometimes impossible, for many legitimate refugees to receive asylum from persecution. 

For example, since 1996, refugees can be denied asylum if they do not apply within one year of arrival. While this might seem like a reasonable requirement, it does, in fact, create a serious human-rights dilemma. Refugees fleeing persecution are often traumatized, stigmatized, isolated and unable to speak English. Some don’t know about the availability of asylum. As documented in a recent Human Rights First report, this time limit has denied asylum to thousands of refugees with well-founded fears of persecution. This deadline also creates significant expense by diverting finite government funds to adjudicate issues relating to the deadline in individual asylum cases. The abuses in the asylum system that prompted the addition of this provision in 1996 have long since been resolved, but the costly burdens to asylum seekers and the government continue.

A second less visible area that needs addressing is our immigration detention system. The government spends billions of dollars detaining immigrants in federal, state and local jails and jail-like facilities, when it could use more cost-effective alternatives to detention in many cases, such as electronic monitoring. Immigration detention is a civil matter, not a criminal jurisdictional issue, and yet in many cases, immigrants and refugee detainees are treated as harshly as convicted criminals. Congress needs to mandate the establishment of consistent standards and conditions appropriate for civil immigration detention. 

The U.S. Commission on International Religious Freedom, the American Bar Association, the Council on Foreign Relations’s Task Force on Immigration Policy, Human Rights First and other experts have studied the immigration detention system and recommended extensive reform. Congress also should allow limited judicial review of immigration detention decisions. Coupled with effective immigration reform that will dramatically reduce the number of immigration detainees, these changes will reduce the cost to taxpayers and provide a fairer and more just immigration detention system.

Finally, a reform package should enable the streamlining of the immigration court system. At the moment, the immigration courts are so overburdened that many asylum seekers and other immigrants wait more than two years for their hearing, and about 50 percent have no choice but to navigate these complex proceedings without the assistance of a lawyer. Congress should adequately fund the system so that it can handle cases in a timely manner, and make more legal information available to detainees. At least in situations involving children and people with disabilities — and where justice otherwise might require — lawyers should be made available to immigrants who are involved in immigration proceedings.

The three issues outlined above are not the hot topics of the day in the immigration debate, but they are tremendously important to protecting our immigration heritage and our culture of fair play and due process. In particular, our treatment of refugees strikes at the heart of America’s moral conscience. Most Americans want the U.S. to be a safe haven for the persecuted.

Immigration reform that doesn’t provide relief to refugees and doesn’t reflect our commitment to fairness and justice isn’t comprehensive.

Ziglar was commissioner of the U.S. Immigration and Naturalization Service (INS) under former President George W. Bush. He is a member of Human Rights First’s Board of Directors and is a senior fellow at the Migration Policy Institute.