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Posted March 5, 2010

Administrative Changes Can Benefit Immigration System, Martin Says

David Martin

Though comprehensive legislation would provide the best fix for the country’s immigration system, administrative reforms can accomplish much in the interim, Professor David Martin said Monday.

Martin, who is on a leave of absence from the Law School to serve as principal deputy counsel at the Department of Homeland Security, spoke to students and faculty at an event sponsored by the Immigration Law Program.

A lot of behind-the-scenes work has been underway on comprehensive immigration reform legislation, but passage of a bill isn’t imminent, Martin said.

“There are difficulties in immigration reform best addressed by legislation, but if it is stalled, there are good measures that can be done administratively,” he said.

There’s also a lot of meaningful work for lawyers, and Martin encouraged students in the room to consider public service.

“There is a long tradition of UVA law grads being involved in government,” he said, citing Homeland Security Secretary Janet Napolitano ’83. “There is a lot of room for attorneys to contribute in a really meaningful way.”

Current efforts to improve the immigration system through administrative changes include initiatives to improve workplace immigration enforcement, redirect immigration efforts toward individuals with criminal records or associations, and improve the detention system, Martin said.

Immigration raids at job sites — or “workplace enforcement efforts” — are a part of immigration enforcement, but efforts are underway to implement systems with more far-reaching effects, Martin said.

“We came in thinking there is a much better way to do workforce enforcement,” he said. 

The department has increased audits of I-9 tax forms, which are used by employers to verify an employee’s identity and eligibility to work. DHS is also encouraging employers to use the E-Verify system, an Internet-based application that allows an employer to verify a prospective employee’s work status.

Such measures can help employers who want to comply, and can help limit unfair competition that legitimate businesses face when their competitors skirt the rules, Martin said.

“It’s also ultimately very valuable for the workers,” because it prevents wage and condition deterioration, he said.

Martin said credible enforcement efforts will help facilitate comprehensive immigration reform legislation, and that he thinks Napolitano has struck the right balance between enforcement and reform.

“We have been trying to redirect our enforcement toward those with criminal records or association with criminal elements,” Martin said.

A new program called Secure Communities allows law enforcement agencies to check the fingerprints of suspected criminals after their arrests against a DHS database to determine immigration status and criminal history.

“I have a feeling we’ll be hearing a lot more about that,” Martin said, adding that DHS worked with its civil rights office to make sure the program doesn’t lead to racial profiling.

Detention is also a major issue that can be partially addressed through administrative work, he said. Though detention is a necessary part of the immigration system, facilities are often far away from the places where detainees are picked up, and are all built on the standard of pre-trial detention facilities meant to house suspected criminals.

“For some people this may be appropriate, but not for much of this population that is being held for civil, not criminal, violations,” Martin said.

He said Napolitano was on top of this issue shortly after taking office, and that reforms are underway to set up less restrictive conditions for non-dangerous detainees.

“It should, in the end, save money,” as immigration detentions can cost $100 per day per detainee, Martin said.

There’s also much that can be done administratively to aid the asylum process, he said.

Martin said that the regulation process has become much more difficult in recent years, but that there is still ample room for attorneys to aid the system.

“There is so much that can be done through working in government,” he said.