No documents? Hoping for legalization? Be wary of Joe Biden

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Democrats have rejected the deportation provisions in the Immigration and Nationality Act (INA) and decided for themselves who should be deported; moreover, they have proclaimed that people who disagree and want the INA provisions to be enforced are racists.

The deportation grounds in the INA were passed by our elected representatives in Congress and executed by previous presidents — including Democrats. Are they racists too, or does that just apply to people who want the deportation grounds they passed to be enforced?

Broken immigration system

The Democrats justify the refusal to comply with the INA’s enforcement provisions by claiming that the immigration system is broken and cannot be fixed with enforcement measures.

Joe Biden’s “Plan For Securing Our Values as a Nation of Immigrants” indicates that he intends to follow the approach that the Obama-Biden administration took, which was to prioritize enforcement resources on removing deportable aliens who are threats to national security and public safety.

In fact, he intends to go even further.

At the March 15, 2020, Democratic primary debate, Biden said, “…in the first 100 days of my administration, no one, no one will be deported at all. From that point on, the only deportations that will take place are commissions of felonies in the United States of America.”

Biden’s running mate, Sen. Kamala D. Harris (D-Calif.), feels the same way. When asked on the second night of the June 2019 Democratic debates if an undocumented alien should be deported if his only offense is not having lawful status, her response was, “I will say, no, absolutely not. They should not be deported.”

The impact of this policy

It has been more than 30 years since the passage of the Immigration Reform and Control Act of 1986 (IRCA), which was the last immigration reform bill with a legalization program.

IRCA was supposed to give lawful status to undocumented immigrants who were already living in the United States in return for enforcement measures that were expected to greatly reduce illegal immigration going forward.

Approximately 2.7 million people were legalized, but the enforcement measures were never implemented. By the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

Consequently, many Republicans want assurance now that promised enforcement measures will be implemented before they will agree to another immigration reform bill with a legalization program.

This won’t be possible until the Democrats change their position on enforcing the deportation provisions in the INA.

Do they really want a legalization program?

When Obama was campaigning for the first term in his presidency, he said, “I can guarantee that we will have, in the first year, an immigration bill that I strongly support.”

The Democrats could have passed any immigration bill they wanted during the first year of his presidency. From January 2009 to January 2010, they had the majority in the House and a strong enough majority in the Senate to stop a filibuster.

They chose not to do it.

On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. It had some Republican support, but most of the Republicans voted against it.

It would have established a legalization program for the 11 million undocumented aliens thought to be living in the United States at the time.

When the bill was passed in the Senate, House Judiciary Chairman at the time Bob Goodlatte (R-Va.) explained that it was unacceptable to the House Republicans because it did not adequately address the need for enforcement of our immigration laws.

The Democrats could have added meaningful enforcement measures to their bill to address that concern.

They chose not to do it.

On Jan. 25, 2018, President Donald Trump offered the Democrats a “Framework on Immigration Reform and Border Security” with a legalization program for approximately 1.8 million DACA participants in return for a $25 billion trust fund for border security measures, an end to chain migration and elimination of the Diversity Visa program.

The Democrats responded with abusive comments instead of negotiating for more favorable conditions.

House Minority Leader at the time Nancy Pelosi (D-Calif.) tweeted that Trump’s “anti-immigrant framework is an act of staggering cowardice which attempts to hold the #DREAMers hostage to an unmistakable campaign to make America white again.”

The chair of the Congressional Hispanic Caucus, Rep. Michelle Lujan Grisham (D-N.M.) issued a statement saying “The White House is using Dreamers to mask their underlying xenophobic, isolationist, and un-American policies.”

Biden’s immigration enforcement policy would do more harm than good

If undocumented aliens who are living in the United States aren’t convicted of a crime, their risk of being deported is quite low — even under the Trump administration.

In fiscal 2019, 68 percent of the Trump administration’s 267,258 removals were aliens apprehended by CBP in the vicinity of the border and turned over to ICE for removal proceedings. The other 32 percent were arrested by ICE in the interior of the country, and 91 percent of them (all but 7,697) had criminal convictions or pending criminal charges.

It seems likely that a Biden administration would put far fewer noncriminal aliens in removal proceedings than the Trump administration has — even without a policy to protect them from deportation.

In other words, although his enforcement policy might prevent several thousand otherwise deportable aliens from being removed from the United States, it would greatly reduce the likelihood of passing legislation to fix the broken immigration system and establishing a legalization program for more than ten million undocumented aliens here now.

From the perspective of an undocumented alien living in the shadows of our society, he or she will almost certainly have to wait at least another four years for a legalization program if Biden is elected.

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. Follow him on Twitter @NolanR1 or at

Tags Barack Obama Bob Goodlatte deferred action for childhood arrivals Donald Trump DREAM Act Illegal immigration Immigration and Nationality Act Immigration Reform and Control Act Immigration reform in the United States Joe Biden Kamala Harris legalization Michelle Lujan Grisham Nancy Pelosi

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