Congress unlikely to pay for border wall, but Trump has other options
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President’s Trump appears willing to risk a government shutdown this fall in order to secure funds for his promised wall on the United States-Mexico border. His prospects are slim, considering Republicans lawmakers need the support of Democrats to pass a bill to fund the government.

Trump has other options, however.

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If the president is unable to get funding for the wall, he will need another way to improve border security that Congress could agree to fund. An enforcement program to reduce the number of people making illegal crossings is a viable alternative.   

The program should include measures to prevent the removal of aliens who would benefit our national interests if they are allowed to remain. An enforcement-only approach would be counterproductive.  

Mexico certainly won’t pay for the wall. In a leaked phone conversation Trump had earlier this year with Mexican President Enrique Peña Nieto, Nieto said, “I have recognized the right of any government to protect its borders as it deems necessary and convenient.  But my position has been and will continue to be very firm saying that Mexico cannot pay for that wall.”

And Congress may not pay for it either.

The House recently approved a spending bill that includes $1.6 billion towards building the wall, but it has stalled in the Senate. Senate Republicans apparently want to avoid the very same spending showdown with the Democrats that Trump is willing to cause.  

But funding is not the only problem for the administration. Trump’s wall would take years to build, and it might never be completed.

In 2006, DHS awarded a contract for the construction of a virtual fence along the entire length of the border with Mexico, the Secure Border Initiative.  When the project was terminated four years later, it had cost taxpayers almost $1 billion and had just covered 53 miles of the 2,000-mile border.

Furthermore, walls make illegal crossings more difficult, not impossible. A 2016 video clip taken by a television film crew shows how easily suspected drug smugglers can climb over a high border fence with packs on their backs. They climbed back over the fence to the Mexican side of the border when they noticed the film crew.

Tunnels also are used. Last year, federal agents in California found an 874-yard-long tunnel beneath the border. Many other sophisticated tunnels have been discovered along California’s border with Mexico.

Condition in the United States continue to draw people willing to make the illegal crossing. The fact that many employers want to hire undocumented aliens has been described as the “job magnet.” It draws undocumented aliens to the United States and keeps them here.  

The Immigration Reform and Control Act of 1986 established a legalization program for undocumented aliens already in the United States and created employer sanctions to discourage employers from hiring undocumented aliens in the future.   

That was 30 years ago, and the program still has not been fully implemented. It might be better to let the Department of Labor (DOL) deal with the job magnet.

Many American employers hire undocumented foreign workers because it is easy to exploit them. DOL enforces federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, and other employment standards.  

With additional funding, DOL could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented aliens, without basing the fines on the immigration status of the employees.   

In contrast with Trump, President Obama focused his immigration enforcement program on aliens who had been convicted of serious crimes, had been caught near the border after an illegal entry, or had returned unlawfully after being deported.  

Once an undocumented alien had succeeded in reaching the interior of the country, he was “home free.” It was extremely unlikely that he would be deported unless he was convicted of a serious crime. This was a powerful incentive to find a way to get past security measures on the border.

No deportable alien is safe from deportation under Trump’s enforcement policies.

This produced results very quickly. In April 2017, CBP reported a sharp decline in the number of aliens apprehended while making illegal crossings.

But Trump has to implement his enforcement policies to keep the magnet from coming back and he could benefit from implementing expedited removal proceedings.

As of the June 2017, the immigrant court's backlog was 610,524 cases.  This severely limited efforts to remove deportable aliens.  

President Trump finessed his way around this problem by expanding the use of expedited removal proceedings in his Executive Order, Border Security and Immigration Enforcement Improvements.

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, and has not been physically present for two years, can be deported without a hearing before an immigration judge, unless he establishes a credible fear of persecution.  

Trump needs funding to be able to carry out a large-scale, nationwide program of expedited removal proceedings.

These measures would reduce the number of people trying to make illegal crossings, making border security much easier to achieve, even without his promised wall.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.


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