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Necessary Amendments And An Argument For Discretion

Monday, May 21, 2007  |  posted by Hugh Hewitt
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Opponents of the draft immigration bill as written should be willing to articulate what they view as necessary amendments.  Here are my priorities:

(1) An amendment to establish a special category of illegal aliens which includes all males between the ages of 18 and 30 from countries with significant jihadist networks, with that list of countries to be determined by the DoD, the CIA and State.  No probationary Z visas under Section 601(h) would issue to such illegals.  A special visa could issue, but one that required special care in the background checks and special restrictions on the movement of such applicants until after their background checks were complete.

(2) Construction of at least half of the double-fencing prior to the issuance of a single probationary visa, and completion of all 800+ miles of the double fencing prior to the issuance of any 4 year Z visa or any Y visa.

(3) Acceleration of the six-year build-up in the authorized level of Border Patrol agents so that its  number of agents reaches 25,000 within 3 years with the funding for their hiring in place.  This should be another hard trigger.

(4) A detailed statement of how and by whom the millions of background checks and interviews called for by the act are to be done, with funding authorized and allocated to support such obligations.  This should also be a trigger.

(5) A set of easy to read ceilings on Y visas which cannot be raised except by Congressional directive.

(6) The elimination of social security credits for years worked as an illegal, and the payment –perhaps over a term of years– of at least 50% of unpaid back taxes

(7) This may seem odd, but I believe the employer penalties for record-keeping violations should be struck from the bill.  The burden-shifting to business of enforcing the immigration laws is going to be large in any event, but to impose on businesses the absurd paperwork completion and storage requirements –backed by a $1,000 per incident fine– empowers bureaucrats to punish any employer they take a disliking to.  Keep Mike Nifong in mind when you consider how abusive such a requirement could be made to be even for employers who cannot be shown to have employed a single illegal alien. 

These are my priorities, and the list may grow as more information becomes available through the next few days.  I also have one larger concept that could be infused into the bill to great effect.

The American legal system has grown very suspicious of discretion, and thus it has evolved into a procedure and rule intensive exercise in false equality.  This cripples our ability to move quickly and with common sense as our guide.

Think of the application pool for the country’s elite universities.  There are no “rules” allowing admission, just an emphasis on the judgment of the admissions staffs.

If we put the right people in charge of the regularization process and empower them to make decisions on the spot, during the top level analysis of the vast majority of Z visa applications, a sizeable portion of the initial workload would vanish.  It simply does not take much deliberation, for example, to decide to give a Z visa to a long term employee of a reputable company who is a 49 year old Mexican who is married and has three children born in this country.  If the first round of determinations simply sorted the Z visa applicants into “approved” and “further study ” piles, we might get to a manageable number.

Who could be trusted to make such decisions? Let me introduce you to the thousands of retired field officers in this country.  A two to three year program employing them for their leadership and judgment skills to conduct the regularization program wopuld make enormous sense and give the program at least a decent shot of succeeding, and do so without overwhelming our law enforcement agencies with the nuts and bolts of regularization.

The wholesale failure of the draft bill to plan the implementation phase of the proposed system undermines every aspect of its credibility.  A new Title VIII “Implementation” needs to be a key part of the rewrite that most certainly lies ahead.

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