Emergency powers, the border wall and lessons from Germany
Trump offers to limit his border wall to strategic locations
Her objection all along has been to building a wall across the entire length of the Mexican border, and Trump no longer intends to erect "a concrete structure from sea to sea."
He has acknowledged that much of the border is already protected by natural barriers, such as mountains and water. He wants the $5.7 billion he has requested for a strategic deployment of steel barriers at high priority locations.
The border already has many miles of barriers, including 115 miles that are being built or are under contract. He just plans to add another 230 miles this year at locations where they are most urgently needed.
These barriers would not make illegal crossings impossible, but they would make illegal crossings more difficult and make it easier for the Border Patrol to apprehend crossers.
His request includes $800 million for humanitarian assistance; $805 million for drug detection technology; 2,750 more border agents and law enforcement officers; and 75 more immigration judges.
In what he describes as an effort to build trust and goodwill, the legislation he is offering to implement his proposal also would extend the status of 700,000 DACA participants for three years.
This is just a temporary measure, but the outcome of the litigation over the DACA program is uncertain, and the participants will be extremely vulnerable if the program is terminated. DACA participation is sufficient in itself to establish deportability, and they can't apply for asylum. There is a one-year time limit on filing asylum applications and they all have been here for more than a year.
The legislation also would extend the status of 300,000 current Temporary Protected Status recipients for three years.
Senate Majority Leader Mitch McConnell (R-Ky.) has promised Trump that his bill will be brought to the floor of the Senate this week.
Trump also mentions the immigration court backlog crisis in his address. He says that it is not possible to provide an asylum hearing for every illegal crosser who sets one foot on American soil.
The asylum provisions state that aliens who are physically present in the United States may apply for asylum irrespective of their immigration status, unless one of the stated exceptions applies.
In my opinion, the sheer number of illegal crossers is the real border crisis. It has overwhelmed our immigration courts, making it virtually impossible to enforce immigration laws.
This has produced a powerful magnet that encourages illegal crossings. Undocumented aliens who want to come here are extremely unlikely to be deported once they have reached the interior of the country.
How bad is the backlog?
As of November 30, 2018, the immigration courts had a backlog of 809,041 cases. This did not include an additional 330,211 cases that had not been put on the active docket yet, for a total backlog of 1,139,252 cases.
The average wait for a hearing is 1,018 days.
The immigration court has 395 judges. They have to complete 700 cases a year to get a satisfactory performance rating, which would produce a total of 276,500 cases a year. At that rate, it would take more than four years to clear the backlog - assuming the judges do not receive any new cases, which will never be the case.
The 75 additional judges that Trump wants to hire will not make a significant difference, but he
is proposing another method for reducing the demand for asylum hearings that is more promising. He wants to allow Central American minors to apply for asylum in their home countries.
I made a similar suggestion in July 2014, when I wrote, "Meet the Challenge of Unaccompanied Alien Children at the Southwest Border: Is there a better way?"
I pointed out that the United States does not have to assume sole responsibility for helping the unaccompanied alien children from El Salvador, Guatemala, and Honduras. I proposed removing them to a safe location outside of the United States where the United Nations High Commissioner for Refugees could process them for refugee status.
President Barack Obama did this on a more limited basis with the Central American Minors (CAM) refugee program in December 2014, which provided USCIS in-country refugee processing for qualified children in those Central American countries.
Trump should be encouraged to reinstate and expand this program.
According to Trump, his proposal is just a first step towards dealing with the rest of the serious immigration issues with more comprehensive legislation. Once the government is open and the immediate crisis at the border has been addressed, he will hold weekly bipartisan meetings on reforming our immigration system.
While I know that Pelosi would like more than Trump is offering, his proposal is a reasonable compromise that warrants serious consideration. The ball is in her court now.
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.