New EU pact on asylum

On December 20, the EU agreed on a policy which will have the effect of restricting asylum.  This new policy, which has been in the works for some time, roughly parallels the movement in the U.S. toward amnesty restrictions now being hashed out in the Senate.

Background: The number of persons seeking asylum in the EU rose from about 200,000 in 2010 to 900,000 in 2022. Much of the increase is due to the emigration of Ukrainians. This wave comes after a surge from elsewhere. The Arab Spring in 2011 and the Syrian Civil War triggered a substantial increase in asylum seekers, culminating in the 2015 European migrant crisis, when one million persons crossed into the EU with asylum claims. Africans crossing the Mediterranean Sea to Europe, which was annually in the low 1,000s 10 years ago, have risen to over 50,000 in recent years.

According to the NY Times, the new agreement among the 27 participating countries, worked on for three years, aims to make it easier to deport failed asylum seekers and to limit entry of migrants into the bloc. It spreads the cost of asylum applications throughout the EU, most directly affecting Greece and Italy, It seeks to give governments a greater sense of control over their borders while bolstering the E.U.’s role in migration management — treating it as a European issue, not just a national one.

The pact stipulates that rapid assessments of whether a person is eligible for asylum will take place at borders. It would make it harder for asylum seekers to move on from the countries they arrive in — while offering further support to those nations through a so-called “solidarity mechanism.”

 

Amnesty International blasted the agreement, saying that it will almost certainly cause more people to be put into de facto detention at EU borders. There will be reduced safeguards for people seeking asylum in the EU, with more people channelled through substandard border asylum procedures, rather than receiving a fair and full assessment of their asylum claims.

Also see Reuters reports here and here.

The Border/amnesty negotiation and Republican’s ambivalence

It is Thursday December 14. Senate Republicans and the White House are reportedly negotiating a border/amnesty deal aiming to complete before the holiday break. The leading newspapers don’t mention House Republican involvement. It is not clear to me if House Republicans want a deal.

The crush at the border is due to one thing: the easy chance for migrants to game the amnesty system. I understand that immigration courts approve only about 30% of appeals. Even were the acceptance rate 10%, people will stay crowd at the border as they expect to get permission to stay in the U.S. for years before their case comes up.  To stay, to work (legally or illegally) for several years, with the prospect of abandoning your case and joining the unauthorized workforce; perhaps get lucky by a immigration reform bill granting permanent residency – for many these are attractive scenarios relative to their other options. This is of course not to deny there are many valid amnesty cases – the courts show that to be the case.

For the Republicans, passage of a law which severely cuts down on this gaming, for instance by requiring applicants to file in a third country, and to deny application rights to those who enter outside of the formal ports of entry – if such a law passed, traffic to the border will drop instantly and the immediate border crisis will evaporate. I do not believe that Congressional Republicans want this to happen – they do not want draconian measures to pass.

There’s a Kirk Douglas film called Ace in the Hole, in which a washed up newspaper reporter prolongs another person’s life threatening crisis, and sabotages rescue efforts,  because to end the crisis puts an end to his ploy.   The amnesty crisis in the Republican’s ace in the hole.

Senate Republican ideas for immigration reform

Most of the 17 points in this document involve very specific changes. Here are the ones which stand out for me:

“Safe third harbor”: makes aliens illegible for asylum if they have transited through at least one country outside their home country unless the aliens can show that they sought and were denied protection in each safe third country.

Parole reform: prohibits DHS from using broad class based criteria to grant humanitarian parole. Narrows the scope of the parole statute to clarify that payroll is to be used rarely. Limits grants and parole to one year with up to one year extension or shorter.

Family detention (referred to as “family unification”) requires that families with children are to be detained intact, vs the Flores settlement of  1997 which strictly limits the duration of detention of children.

Noteworthy is the absence of any effort to reduce the backlog of cases. About 70% of asylum cases are denied by immigration court. And the document does not address issues such as employment-based immigration.

Comment: The 1967 UN Protocol Relating to the Status of Refugees doesn’t explicitly tells countries how to assess asylum applications; it requires them to apply the provisions of the 1951 Refugee Convention to refugees, which includes cooperation among countries on managing international refugees. The United States set for itself legal obligations to provide protection to those who qualify as refugees by incorporating the definition of a refugee from the 1951 Convention into U.S. immigration law through the Refugee Act of 1980. U.S. law requires the asylum seeker to be physically present in the United States or at a U.S. port of entry. The law is silent on how or where the person has entered the U.S.

The Tory government in the UK has been blocked by courts from sending ayslee applicants to Rwanda for processing. Italy is arranging with Albania to house ayslee applicants to Italy.

Time line of large scale ICE enforcement raids on workplaces

These raids were begun under the George W Bush administration, terminated under Obama, and (one instance) brought back under Trump.  Trump is planning mass arrests if he becomes president in 2025.

April, 2006. Several factories of IFCO, a manufacturer of crates and pallet facilities, we raided with arrests of about 1,100 workers and some management staff.

December 2006: Swift meat processing plants are raided. The raids took place at plants in Greeley, Colorado; Grand Island, Nebraska; Cactus, Texas; Hyrum, Utah; Marshalltown, Iowa; and Worthington, Minnesota.1,300 ICE agents were involved in the raids, resulting  in the arrests of nearly 1,300 undocumented immigrant workers.

March, 2007.  New Bedford MA clothing factory owned by Michael Bianco Inc raided resulting in about 350 arrests. Here is Senator Ted Kennedy’s statement about the raid.

May, 2008 Raid on Agriprocessors meat processing plant in Postville IA results in arrest of 1,000 workers.

October 2008, Greenville, SC meat processing plant of House of Raeford raided with arrest of about 350 workers,

July 2009 ICE enforcement action against American Apparel, with over 1,000 unauthorized workers, shows shift in enforcement from mass raids to financial penalties. Here abd here are postings about the shift in focus.

April, 2018. Bean Station, TN factory of Southeastern Provision, a family run meat processing plant, raided resulting in the arrest of about 100 workers.

Trump’s plan for immigration in his second term

The NY Times reports on Trump’s plan were he to be elected president next year:

Mass deportation: Tom Homan, who ran ICE for the first year and a half of the Trump administration and supported child separation,  said he told Mr. Trump he would “help to organize and run the largest deportation operation this country’s ever seen.” More broadly, Mr. Miller said a new Trump administration would shift from the ICE practice of arresting specific people to carrying out workplace raids and other sweeps in public places aimed at arresting scores of unauthorized immigrants at once. There are about 11 million unauthorized persons in the U.S. Mr. Trump wants to build huge camps to detain people while their cases are processed and they await deportation flights.

Revocation of visas: The visas of foreign students who participated in anti-Israel or pro-Palestinian protests would be canceled. People who were granted temporary protected status because they are from certain countries deemed unsafe, allowing them to lawfully live and work in the United States, would have that status revoked. This would apply to humanitarian parole beneficiaries such as from Afghanistan, Ukraine, and Venezuela.

Ideological screening: U.S. consular officials abroad will be directed to expand ideological screening of visa applicants to block people the Trump administration considers to have undesirable attitudes.

Birthright citizenship: Trump would try to end birthright citizenship for babies born in the United States to undocumented parents.  That policy’s legal legitimacy, like nearly all of Mr. Trump’s plans, would be virtually certain to end up before the Supreme Court.

Tactics: plan was crafted to need no new substantive legislation. And while acknowledging that lawsuits would arise to challenge nearly every one of them, Trump immigration aide Stephen Miller portrayed to the NY Times the Trump team’s daunting array of tactics as a “blitz” designed to overwhelm immigrant-rights lawyers.

Rhetoric: As he has campaigned for the party’s third straight presidential nomination, his anti-immigrant tone has only grown harsher. In a recent interview with a right-wing website, Mr. Trump claimed without evidence that foreign leaders were deliberately emptying their “insane asylums” to send the patients across America’s southern border as migrants.

 

 

How the big 1965 and 1986 immigration bills are enacted 

For the 1965 Immigration and Nationality Act: Dem Rep. Emmanuel Celler chaired the House Judiciary Committee which held hearings on immigration reform in the early 1960s. President Kennedy had proposed immigration reform and eliminating the national-origin quotas in 1963. The Senate Immigration Subcommittee and House Immigration Subcommittee reviewed immigration policies in Congressional hearings during the early 1960s.  Attorney General Robert Kennedy convened a panel of experts in 1964 to review immigration policies which helped build momentum for reform.

The Senate voted 76 – 18 and the House voted 326 – 69. It was signed by President Johnson on October 3, 1965

For the 1986 Immigration Reform and Control Act: The Select Commission on Immigration and Refugee Policy, a bipartisan task force created in 1982 chaired by Rev. Theodore Hesburgh (16 members – 4 from the House, 4 from the Senate, and 8 from the general public ). The commission released a report with recommendations including employer sanctions, legalization of certain unauthorized immigrants, and increases in immigration enforcement.

The report helped shape the debate and lay the groundwork for the Immigration Reform and Control Act of 1986. Several of the major provisions in the 1986 law mirrored the Select Commission’s recommendations.

The Senate voted 69 – 30 and the House voted 230 – 166. It was signed by President Reagan on November 6, 1986.

 

Temporary Protected Status

The Biden Administration has given temporary legal status to hundreds of thousands of persons through the use of the Temporary Protective Status program and through Humanitarian Parole. In this posting I address TPS. In 2019 there were about 400,000 persons covered by TPS. After action the Biden Administration in September, over a million will be covered. They will account for about 650,000 workers.

The Trump Administration attempted to terminate some authorizations but were frustrated by the courts. No immigration program since the passage of the 1986 has accelerated legal status in the U.S. more than TPS. It is, I believe, reasonable for a TPS benefiary to think that they have a very good chance of becoming a legal permanent resident.

(The best in depth reviews of TPS are here and here.)

Congress enacted the Temporary Protective Status program as part of the immigration act of 1990 to establish a uniform process and standard for granting temporary humanitarian protection in the United States, for non-citizens already in this country whose home countries are in crisis.  This provision was in part a response to a 1947 U.N. Protocol on refugees.

TPS designation can be for an initial period of anywhere from 16 to 18 months and extended indefinitely for periods for up to 18 months. The program is designed for people who cannot return safely due to their home countries due to ongoing armed conflict, environmental the disaster, or other extraordinary and temporary conditions. While the designation formally is temporary, the designation can lead to a more permanent status.

Nearly 93 percent of current TPS holders are from Latin American countries, particularly El Salvador, Haiti, and Venezuela, where a worsening humanitarian crisis has caused more than seven million people to flee the country. Hundreds of thousands of Salvadorans have been allowed to stay in the United States since devastating earthquakes rocked El Salvador in 2001. Haiti was first assigned TPS after a massive earthquake destroyed much of the country in 2010, and it received the designation again in 2021 and 2022 amid continued violence and a prolonged political crisis. Honduras and Nicaragua were given TPS after a hurricane battered the region in 1998. Countries that have previously received TPS include Angola, Bosnia and Herzegovina, Kuwait, Liberia, Rwanda, and Sierra Leone. (Go here).

In March 2019, some 400,000 citizens from 10 countries were covered by TPS, per the Congressional Research Service. As of March 2023, about 610,000 citizens of 16 countries have been granted TPS. In September 2023 the Biden Administration allowed 472,000 Venezuelans to be covered, adding to the some 250,000 Venezuelans already covered by TPS. Some arrived into the U.S. illegally, and they are prevented from moving to a more permanent status. Many have been here for years, integrating into the economy and raising children.

tiny shoots of immigration reform

This is way premature say that immigration reform will return as a front burner issue (last time was in 2017) but one should notice that Senate Republicans are proposing to match in increase in the Federal minimum wage with mandatory use of e-Verfiy.  (Go here).  The mandatory use of e-Verify is an essential element in immigration reform. Lobbies for both parties have resisted it – business and progressives

 

Update on DACA

A long dispute about the constitutionality of DACA (Deferred Action For Childhood Arrivals) reached another milestone with a federal judge in Texas has once more ruling that the Obama-era program protecting young immigrants known as Dreamers is illegal. (Go here). In the end, I expect that the Supreme Court will rule that DACA is an unconstitutional overreach of Executive Branch powers to make sweeping immigration law policy affecting large numbers of persons.  The Biden Administration’s use of humanitarian parole to enable hundreds of thousands of asylum seekers into the U.S. temporary is also under fire by some state attorneys general.

DACA beneficiaries are part of some two million persons of working age who are able to work legally only due to temporary programs created or expanded by the Obama and Biden administrations. This number will increase a lot if and when the surrent surge of parole beneficiaries are permitted to work.

U.S. District Judge Andrew Hanen, a George W. Bush appointee, previously invalidated the program in 2021, saying Congress never gave the executive branch the power to grant mass reprieves to an entire class of immigrants who are in the U.S. illegally.

The case now will likely go back to the Fifth U.S. Circuit Court of Appeals, which also has previously ruled against DACA. If it does so again, the administration could seek review by the Supreme Court.

Deferred Action for Childhood Arrivals, or DACA, will remain in effect while the decision is appealed, and existing beneficiaries can continue to renew their participation in the program, which provides work permits and protections against deportation. As was the case before Wednesday’s decision, new applicants can’t be admitted to the program.

What is DACA?

DACA, created by executive order in 2012, protects to immigrants without legal authorization who were 30 years old or younger when the program was announced. DACA recipients must have arrived in the U.S. before they turned 16 and satisfied a range of conditions, including being a student or graduate and having no significant criminal record. The program has been shut to new applicants since September 5, 2017. As of then about 800,000 were eligible about 600,000 are formally enrolled in the program.  Whenever the prospects for a permanent resolution rise, advocates think of including more persons up to as much as two million.

Michael Bloomberg on our broken asylum system

Michael Bloomberg in the NY Times Sept 10 2023:

We have a system that essentially allows an unlimited number of people to cross our borders, forbids them from working, offers them free housing, and grants them seven years of residency before ruling on whether they can legally stay. It would be hard to devise a more backward and self-defeating system.