BY IAN SMITH & MICHAEL HETHMON, OPINION CONTRIBUTORS
In the lead-up to today’s confirmation hearing for Attorney General-designate Sen. Jeff Sessions (R-Ala.), open-borders activists have been pushing back hard in their public advocacy campaigns against his potential appointment.
The Justice department, of course, does have plenty of jurisdiction over immigration. Should Sessions clear committee and get the necessary votes for the post, immigration policies reflecting the senator’s enforcement-first approach will surely top DOJ’s agenda.
Much to the open-borders lobby’s horror, patriotic immigration reform will likely be a point of emphasis for a Sessions-led DOJ.
First, the agency must send a formal request to Department of Homeland Security (DHS) that all Notice-To-Appear (NTA) documents be actually filed with DOJ’s immigration courts.
NTAs, the charging document that starts the removal-hearing process, are supposed to be issued by Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents to every illegal alien apprehended in the country.
In 2014, however, agents began receiving orders not to issue NTAs for aliens who claim to have been in the country before January of that year. This so-called ‘catch-and-release’ or ‘notice-to-disappear’ policy quickly sparked complaints from agents when the number of apprehended aliens making such claims skyrocketed.
Border Patrol Union President Brandon Judd relayed to Congress that the motive behind the change was to suppress the rates at which illegal aliens fail to appear for their removal hearings, a figure that’s dramatically increased during the Obama years.
Until a NTA has been filed with an immigration court, an alien is not in removal proceedings under current regulation. This creates a major loophole in the deportation system.
Without a NTA being logged into the system, those aliens refusing to show up in court can’t be recorded as no-shows. By ensuring that all NTAs are filed and posted on public dockets on the DOJ website, future administrations won’t be able to hide behind this kind of smoke-and-mirrors data reporting.
The Office of the Chief Administrative Hearing Officer (OCAHO) is a DOJ sub-agency that adjudicates cases of illegal-alien hiring. With American wages averaging around ten times those of Mexico, the magnet behind the illegal immigration numbers and the legal immigration backlog appears to be job opportunities.
Unfortunately, while we finally made it unlawful for employers to hire illegal aliens in 1986 with the Immigration Reform and Control Act, we never got the promised enforcement.
The current state of OCAHO is testament to that. Despite its importance, the court, at present, is completely neutered — only two judges currently sit on its panel and months occasionally pass without any permanent judges.
As we’ve advocated elsewhere, a return of worksite enforcement actions on the part of ICE, which were discontinued in 2007, must be made. Those actions should be supported by rejuvenated courts and far greater penalties.
Fines proposed by ICE and levied by OCAHO are not only too low (making the practice of hiring illegal aliens simply a cost of doing business), they’re almost always reduced by the court. OCAHO regulations must be amended to curb this mitigation process.
The Immigration and Nationality Act (INA) also prohibits employers from discriminating against American citizens based on their citizenship-status, a practice employees in the tech industry have been well-acquainted with for years.
But, at the urging of the immigration attorneys lobby, OCAHO has refused to protect U.S. workers from employer-retaliation when they complain about an illegal alien.
The new administration’s promise to protect American workers cannot be realized unless OCAHO regulations are first amended to clarify that it is a prohibited act of immigration-related employment discrimination for an employer to prohibit or retaliate against a U.S. citizen for complaining about the employment of illegal aliens or the use of illegal alien contract workers.
DOJ must also issue a legal opinion confirming that section 274A(a)(h)(3) of the INA does not give the executive branch unlimited authority to grant work permits to any alien, regardless of their legal status.
When the president got angry with Congress for rejecting the ‘DREAM Act’ for the 24th time, he ordered DOJ’s Office of Legal Counsel (OLC) to take a "fresh, new look" at the INA and conjure up the legal authority he sought to bypass Congress.
OLC Assistant Attorney General Karl R. Thompson's reinterpretation of section 274A(a)(h)(3) describes a super-doctrine of executive discretion whereby the outgoing president could claim almost monarchical powers to issue work permits as well as amnesty en masse.
But, section 274A(a)(h)(3) only provides a list of limited exceptions to the general rule that it is unlawful “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.”
The INA defines “unauthorized alien” as any alien not “lawfully admitted for permanent residence” or an alien not “authorized to be so employed by this chapter or by theAttorney General."
Despite the INA’s general rule against employing illegal workers, OLC attorneys claimed that the phrase “by the Attorney General” allows the attorney general (now the DHS secretary) to give himself unfettered discretion in granting work permits to any category of illegal aliens he chooses.
We offered up this corrected interpretation in a friend-of-the-court brief to the Fifth Circuit, which ultimately took it up and closely tracked in their eventual decision to maintain the injunction against Obama’s Deferred Actions for Parents of Americans (DAPA) amnesty program. DOJ must formally adopt this interpretation.
Numerous other immigration reforms that put the national interest first can be implemented by DOJ under existing statutes, once Obama’s memos and decrees on discretion are rescinded. And no doubt they will be with an "America First" attorney general, like Sessions, at the helm.
Ian Smith is an investigative associate at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration. Hethmon is the senior counsel for IRLI.