The Trump administration has found a way to deport millions of undocumented aliens without hearings, and the Republican-controlled congress is working on enforcement-only legislation.

On May 16, Rep. Raul Labrador (R-Idaho), introduced the Davis-Oliver Act, H.R. 2431. Davis and Oliver were law enforcement officers who were murdered by an alien returning to the United States illegally after being deported twice.

Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.

It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).

Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.

It makes membership in a criminal gang grounds for deportation.

It requires background checks to be completed before immigration benefits can be granted.

Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

Notwithstanding the enforcement priorities, the order states, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”

The Davis-Oliver Act would make it possible for the states to take over the responsibility for immigration enforcement if a future president limits enforcement the way Obama did.

Expedited removal proceedings.

In a memorandum implementing Trump’s enforcement policies, Department of Homeland Security Secretary John Kelly expanded the use of expedited removal proceedings to make it possible to deport millions of undocumented aliens without hearings before an immigration judge.

In expedited removal proceedings, an alien who has not been admitted or paroled into the United States will be deported without a hearing unless he requests asylum and establishes a credible fear of persecution.

Previous administrations limited the use of expedited removal proceedings, but the INA authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.”

Stopping the Republicans.

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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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