Our nation’s system of laws, the reliability and timeliness of our justice system and our consistent protection of intellectual and property rights have made our country a haven for businesses and investment. What is remarkable is not that future business owners look to our shores, but that our nation’s obtuse immigration laws have not suffocated business innovation and development altogether.
Foreign entrepreneurs who wish to invest in the United States face absurd conditions that make America less competitive. All too often, foreign nationals who hope to create a business in the United States must have family connections here, be famous, have another job lined up or be immensely wealthy.
Even the brightest foreign students graduating from U.S. universities cannot obtain continuing visas and are forced to leave the United States, taking their knowledge and ideas with them.
Of course, the U.S. visa system for entrepreneurs is hardly the only area where our immigration system falls short of rationality and even morality. Matters of life and liberty are decided in our system of immigration justice without the most basic protections that we expect in American courts.
Immigrants have no right to appointed legal counsel. In fact, children, the mentally incompetent and the disabled in our immigration system are not guaranteed access to a lawyer.
As a result, a 6-year-old can be brought before a judge, asked legal questions and face deportation to a possibly dangerous country, all without a lawyer or a guardian present.
Half of those in immigration proceedings lack legal counsel, despite the efforts of many lawyers to provide free legal advice. A significantly higher percentage of detainees do not have a lawyer, despite programs to connect them with pro bono counsel. There are simply too many individuals in immigration proceedings — Immigration and Customs Enforcement annually detains more than 400,000 foreign nationals — to meet the need with volunteers. Among this number of detainees are at-risk populations, including asylum seekers with a well-founded fear of persecution.
The cost of not providing counsel to immigrants is borne by every taxpayer. Immigrants who represent themselves and face deportation stumble through the legal process. They do not understand the nuanced laws and procedures of immigration court. They may not understand the legal language used in court. These factors result in costly delays that increase the time spent in court and in detention — delays that access to a lawyer could avoid. When housing an immigration detainee costs $164 per day, our nation cannot afford delays caused by lack of counsel.
For members of the House of Representatives, their first priority should be immigration reform. The Senate has already offered a bipartisan comprehensive immigration reform bill, which is supported by 14 Republican senators, including Sens. John McCain, R-Ariz., and Marco Rubio, R-Fla. The Senate bill would create a special Startup Visa for immigrant-entrepreneurs, provide more visas for talented foreigners with skills needed to improve the U.S. economy, and enhance fairness and efficiency in the immigration system.
The Senate bill is not perfect. It would create more complex procedures in some areas and does not go far enough to provide counsel to the poor. But it is better than continuing the current system that has for decades divided children from their parents, eroded our borders and hurt the U.S. economy.
We are a nation of immigrants. Realistic immigration reform that strengthens our borders and addresses the staggering monetary, legal and moral costs of enforcement and detention is needed. Better laws that protect children, the mentally incompetent, the disabled and victims of terrible violence are achievable.
Smarter policy is within reach. This will draw the best and brightest here to build American jobs. The House must take action to achieve immigration reform. Doing nothing will only continue a broken system that saps our treasury and undermines our justice system and our economy.
James R. Silkenat is president of the American Bar Association.