RUTHFULLY YOURS

On January 20, 2017 President Trump can and likely will end all of Obama’s illegal immigration executive orders, but he needs to do more.

For decades the effective enforcement of our nation’s immigration laws was hobbled by lack of resources in general and a particularly devastating failure to enforce the immigration laws from within the interior of the United States.

For decades the Border Patrol was perceived as the primary enforcement arm of America’s immigration laws and for the Border Patrol this worked out fine. They got the lion’s share of publicity and, far more importantly, the funding while INS special agents and the interior enforcement mission were all but ignored

When the DHS (Department of Homeland Security) was created in the wake of the terror attacks of 9/11, the former INS was dismantled and broken into several components of the DHS and mixed in with other agencies, principally the U.S. Customs Service.

Bad as it was for INS agents to operate in the shadow of the Border Patrol, the creation of the DHS was disastrous and caused many of the INS agents nostalgic for “the good old days.”

On May 5, 2005 the House Subcommittee on Immigration, Border Security and Claims conducted a hearing on the topic, “New ‘Dual Mission’ Of The Immigration Enforcement Agencies.”

I was one of four witnesses who testified at that hearing. In point of fact, I testified at several hearings that sought to understand the challenges that the creation of the DHS created for the effective enforcement of our nation’s immigration laws.

In my testimony I clearly articulated my concerns about the myriad issues created when the DHS was established and the former INS was dismantled.

Consider this excerpt from the testimony of then-Subcommittee Chairman John Hostettler in which he articulated the importance of immigration law enforcement and that was, however, hobbled by the creation of the DHS:

The first two Subcommittee hearings of the year examined in detail how the immigration enforcement agencies have inadequate resources and too few personnel to carry out their mission. The witnesses mentioned the lack of uniforms, badges, detention space, and the inevitable low morale of frontline agents who are overwhelmed by the sheer volume of incoming illegal aliens. If this were not enough, these ”immigration enforcement” agencies also face internal confusion resulting from dual or multiple missions in which immigration has all too often taken a back seat. Sadly, contrary to Congress’ expectations, immigration enforcement has not been the primary focus of either of these agencies, and that is the subject of today’s hearing.

The Homeland Security Act, enacted in November 2002, split the former Immigration and Naturalization Service, or INS, into separate immigration service and enforcement agencies, both within the Department of Homeland Security. This split had been pursued by Chairman Sensenbrenner based on testimony and evidence that the dual missions of INS had resulted in poor performance.

There was a constant tug-of-war between providing good service to law-abiding aliens and enforcing the law against law-breakers. The plain language of the Homeland Security Act, Title D, creates a ”Bureau of Border Security,” and specifically transfers all immigration enforcement functions of INS into it. Yet when it came down to actually creating the two: new agencies, the Administration veered off course. Although the service functions of INS were transferred to USCIS, the enforcement side of INS was split in two, what is now Immigration and Customs Enforcement, or ICE, to handle interior enforcement, and Customs and Border Protection (CBP) to guard our borders.

ICE was given all Customs agents, investigators, intelligence and analysis-from the Treasury Department, as well as the Federal Protective Service to guard Federal buildings, and the Federal Air Marshals to protect our airplanes, and finally the INS investigators.

CBP was given all Treasury Customs inspectors at the ports-of-entry, Agriculture Inspector from the Department Of Agriculture, and INS inspectors.

At no time during the reorganization planning was it anticipated by the Committee that an immigration enforcement agency would share its role with other enforcement functions, such as enforcement of our customs laws. This simply results in the creation of dual or multiple missions that the act sought to avoid in the first place.

Failure to adhere to the statutory framework established by HSA has produced immigration enforcement incoherence that undermines the immigration enforcement mission central to DHS, and undermines the security of our Nation’s borders and citizens.

It is not certain on what basis it was determined that customs and agriculture enforcement should become part of the immigration enforcement agency, except to require Federal agents at the border to have more expertise and more functions.

It is also unknown on what basis the Federal Air Marshals should become part of this agency, especially since it has been revealed that the policy is not to apprehend out-of-immigration status aliens when discovered on flights. If the mission of the Department of Homeland Security is to protect the homeland, it cannot effect its mission by compromising or neglecting immigration enforcement for customs enforcement.

The 9/11 terrorists all came to the United States without weapons or contraband—Added customs enforcement would not have stopped 9/11 from happening. What might have foiled al Qaeda’s plan was additional immigration focus, vetting and enforcement. And so what is needed is recognition that, one, immigration is a very important national security issue that cannot take a back seat to customs or agriculture. Two, immigration is a very complex issue, and immigration enforcement agencies need experts in immigration enforcement. And three, the leadership of our immigration agencies should be shielded from political pressures to act in a way which could compromise the Nation’s security.

One of the most treasured hallmarks of America’s democratic electoral process is that following every election the transference of political power is done peacefully. It is also expected that the candidate that loses an election will concede the results of the election and congratulate his/her opponent and wish that person success.

However, members of the Democratic Party and others, such as Presidential candidate Jill Stein, were so upset with the outcome of the election that they have made a series of false, outrageous accusations.

In so doing they not only attacked Donald Trump but our most prized democratic traditions.

The inflammatory and vitriolic statements made by various Democratic politicians, on all levels of government, were followed by violent demonstrations around the United States and on college campuses spurred on by the false accusations.

FBI Director Comey was blamed for causing Hillary to lose the election because he had made public statements about Hillary’s missing e-mails and illegal use of a private e-mail server to receive and transmit highly classified national security information.

Stein sought a recount of the votes in three key states. This costly effort failed to disclose any voting irregularities committed on behalf of Trump.

Now the most recent claim of the Democrats is that Russia hacked the U.S. electoral process to insure that Trump would win the election.

It is impossible to discuss computer security and not raise the issue of Hillary and her outrageous national security transgressions, through the use of her private and non-secure server as well as her non-secure digital devices, that created huge national security vulnerabilities for the United States.

Our government may not ever fully discover the extent of the damage this may have done to America’s intelligence gathering operations and may well continue to hobble those efforts for years to come.

EDITOR’S NOTE: The following article first appeared in the December 19, 2016, issue of National Review.

Ironically, Donald Trump’s marquee immigration proposal — a border wall, which Mexico will pay for — is the part of his immigration platform least likely to make much difference. This is not to say it’s infeasible or even ill advised. Only about one-third of the border with Mexico has any kind of fencing, and half of that consists merely of low-rise vehicle barriers intended to stop truck traffic; anyone can easily climb over or under them (as I myself have done on many occasions). And the president doesn’t need further authorization from Congress to build a physical barrier, although he would eventually need additional funding.

As to Mexico providing that funding, the campaign said this could happen through higher visa fees or a tax on remittances. The latter is long overdue regardless and already in place in Oklahoma, which taxes all personal out-of-state wire transfers but refunds 100 percent of the tax to those who file their annual tax returns, thus levying the tax only on illegal aliens. A national version of this fully refundable payment would be a fitting way of making illegal aliens help pay for immigration enforcement.

All that said, the problem at the border isn’t so much physical as political. While incremental improvements are needed in infrastructure, technology, and personnel, the Obama administration has rendered the long buildup at the border through the Clinton and George W. Bush administrations moot by simply waving illegal aliens across and letting them stay. This is no exaggeration; Brandon Judd, head of the Border Patrol agents’ union, testified before Congress last year that 80 percent of apprehended illegal aliens are being released into the United States. Ending this catch-and-release approach to border enforcement (item No. 2 on Trump’s ten-point list) is probably more important than the wall, and quicker to implement.

The other immigration initiative on the incoming administration’s to-do list that has drawn a lot of attention is Trump’s pledge to deport 2 to 3 million criminal aliens. This represented a move toward realism, away from his comments early in the campaign that all illegal aliens would have to be deported; Trump realized that, as Andrew C. McCarthy has written regarding immigration violations: “Our goal is never to extirpate crime problems. . . . Crime problems are managed, not eradicated.”

But deporting criminal aliens neglected under President Obama’s laxity is an essential part of such management. And the figure of 3 million is probably an undercount: Immigration and Customs Enforcement itself estimated several years ago that there were 1.9 million deportable aliens with criminal convictions. Add to that close to a million people who were ordered deported but absconded, plus other alien criminals who weren’t convicted only because they jumped bail or were released by sanctuary cities, and there will be plenty to do with the enforcement resources now underutilized because of the huge decline in interior deportations under Obama.

There are two parts of any effective immigration-enforcement plan that are more important than either the Mexican border or criminal-alien removals: turning off the jobs magnet and ensuring that lawful foreign visitors actually go home when their authorized time is up. Both are included in the president-elect’s enforcement outline, but they need more attention — and administrative focus — than they have received.

Making legal status a labor standard, through rules such as those that provide overtime pay and prohibit employing child labor, is the most important single thing that can be done to reduce the incentive to immigrate illegally. Practically, that means requiring use of the free online system E-Verify for all new hires. E-Verify enables employers to check whether the ID information provided by their new hire is authentic. It is now voluntary; about half of last year’s new hires were screened through E-Verify. Making it mandatory will require an act of Congress. E-Verify is not a silver bullet — despite continuous improvements, some illegals still slip through, and a significant share (though a minority) of illegals work off the books. But any immigration-enforcement overhaul must include mandatory nationwide use of E-Verify if it is to have any chance of success.

The second enforcement initiative, policing visas and the visitors who use them, isn’t the arcane issue some may think. The old rule of thumb used to be that 60 percent of the illegal population snuck across the border and 40 percent overstayed visas, making visa-tracking important but secondary. New research from the Center for Migration Studies (no relation to my Center for Immigration Studies) found the reverse — now close to 60 percent of the 1,000 new illegal aliens settling in the U.S. each day are believed to be visa overstayers.

This needs to be addressed at both the front end and the back end. That is to say, the State Department needs to reduce its issuing of “nonimmigrant” (i.e., temporary) visas to people who are likely to stay here illegally in the first place, and the Department of Homeland Security needs to implement a check-out system for foreign visitors so we can know in real time who didn’t leave when he was supposed to.

Our nation’s visa officers abroad are America’s other Border Patrol, but State Department leadership views them more as travel agents. As with the actual Border Patrol, this is a problem mainly of management and policy, not resources. The relevant law clearly says that every applicant for a temporary visa is to be assumed to be an intended illegal alien until he proves otherwise. In practice, the burden of proof is often reversed. Since 9/11, security screening has been taken more seriously, but preventing non-terrorist or non-national-security-related visa overstays is simply not a priority. In fact, an earlier version of the Foreign Affairs Manual, the body of regulations that govern the State Department, included this quote from a Truman-era immigration commission: