The immigration court backlog


The pending immigration court case inventory on the Mexican border rose massively during the Trump Administration, and continues to rise.

From The Economist:

The new president’s apparently softer stance on immigration, as well as the pressures of the pandemic, have encouraged ever more people to try to cross the border illegally. Their number is now the highest in 21 years. In the past seven weeks alone, border agents have sent nearly 50,000 cases to the courts. That is increasing pressure on the country’s already overstretched courts. According to the Transactional Records Access Clearinghouse, a data research centre founded at Syracuse University, immigration courts have nearly 1.5m pending cases in their dockets—the most on record and nearly triple the number in 2016.

The job of deciding whether or not a migrant can stay in America, either as an asylum seeker or on other grounds, falls to 535 judges across 68 immigration courts—on average almost 2,800 cases per judge. Were the judges to rule on three to four cases every business day, it would take at least two-and-a-half years to clear the docket. Scheduling interruptions caused by the pandemic, and the multiple hearings and appeals for each case exacerbate the problem.

Intensified advanced country demand for immigrant workers

The NY Times surveys how countries have recognized labor shortages and are doing something about it.

Canada expects to receive 1.2 million immigrants in a three-year span. That is equivalent to an annual green card inflow of 3.7 million a year in the U.S, over three times our trend in the past 20 years. (In 2021 it probably closer to 600,000).

Australia expects to double immigration to 200,000 a year, equivalent to the U.S. receiving 2.6 million.

Both Canada and Australia have point-system immigration policies enabling them to target immigration towards productive work. I’ve analyzed a point system for the U.S. here. The Republican immigration reform bill (RAISE) submitted in 2017 had a point system.

The Times article says, “Many countries, including Belgium, Finland and Greece, granted work rights to foreigners who had arrived on student or other visas. Some countries, such as New Zealand, also extended temporary work visas indefinitely, while Germany, with its new Immigration Act, accelerated the recognition process for foreign professional qualifications. In Japan, a swiftly graying country that has traditionally resisted immigration, the government allowed temporary workers to change employers and maintain their status.”

Conflict within the Biden Administration, with Haiti migrants as example

The Wall Street Journal reported Nov 18 on internal dissension and policy zigzagging. Also see the Center for Immigration Studies’ analysis of the article, here. The internal dissension is most acute on responses to record high Mexican border crossings and arrests.

On one side are officials who helped shape Mr. Biden’s campaign message and now occupy several top immigration-policy jobs at the White House, the Department of Homeland Security and the State Department. Those officials say policies aimed at deterring migrants from crossing the border don’t work and support overhauling the immigration system to resolve requests for asylum faster, give asylum seekers the ability to apply from their home countries and create more legal immigration pathways.

They are backed by members of the Democrats’ progressive wing in Congress and immigration advocacy groups influential in the administration and the party.

On the other side are some senior advisers to the president and career border-enforcement officials who in an effort to manage record border apprehensions favor deterrence strategies, including ramping up deportations and putting pressure on Mexico to step up enforcement, saying the administration needs to reduce arrests before tackling long-term changes. They include White House chief of staff Ron Klain, national security adviser Jake Sullivan, senior adviser Cedric Richmond and Susan Rice, domestic policy adviser.

Example: Haitian migrants

Internal intelligence reports early in the year showed that Haitians, who had been living for years in South America, were on the move toward the U.S. border. Some advisers as early as the spring argued in favor of deportations to Haiti, saying that even a few flights to the Caribbean nation would prevent larger numbers of Haitians from attempting to cross the border.

Others countered that the country was too unstable to receive migrants and pushed instead for all Haitians present in the U.S. illegally to be shielded from deportation through a mechanism known as Temporary Protected Status, as Mr. Biden had said he would provide for Haitians during the campaign.

Ultimately, officials decided to follow two tracks: Haitians in the U.S. illegally before July 29 were allowed to stay, but new arrivals could be deported.

In August, as intelligence reports showed large groups of Haitian migrants in southern Mexico preparing to move north, ICE planned to deport about 600 Haitians who had recently crossed the border.

Alejandro Mayorkas, the Homeland Security secretary, signed off on the deportations, people familiar with the matter said. But he reversed the decision and ordered them released after immigration advocates flagged that the migrants were eligible for deportation protection.

News of their release spread on Haitian social media. A month later, about 30,000 Haitians crossed the border near Del Rio, Texas, with thousands crowded under a bridge. Those later arrivals didn’t qualify for the temporary deportation relief. The U.S. sent 58 deportation flights to Haiti in September, up from two the previous month.

The deportations have helped dissuade Haitian migrants. Border Patrol agents made 1,083 arrests of Haitians in October, down from nearly 18,000 in September. But it irked members of the Congressional Black Caucus, who opposed the deportations and raised concerns about the treatment of Haitian migrants by border patrol agents.

Refugees created by American post 9 /11 wars — aren’t we meant to fix it?

The U.S, has admitted less than 5% of the internationally displaced persons due to post 9/11 wars, all waged by the U.S. as anti-terrorism wars,

The U.S. has admitted 2000 – 2020 about 1.7 million persons as refugees/ asylees (refugees apply outside the U.S., asylees within the U.S.) (See here and here.)

The US post 9/11 wars have forcibly displaced at least 38 million people in and from Afghanistan, Iraq, Pakistan, Yemen, Somalia, the Philippines, Libya, and Somalia. This exceeds those displaced by every war since 1900 except World War II. This is a conservative estimate., The number may be closer to 49-60 million.

From these 8 countries, 7.9 million have sought residence in other countries.

2 million Afghans have been displaced outside their country since 9/11. Between 9/11 and 2019, the U.S. admitted about 90,000 Afghans, or less than 5% of those internationally displaced. It may admit 100,000 – 150,000 since complete withdrawal.

2.3 million Iraqis were displaced outside their country since 9/11. (Here and here.) Since then, perhaps 100,000 or less have immigrated. (The mayor of Dearborn MI is an Iraqi-American,). At 100,000 this is less than 5% of those international displaced.

Count of internationally displaced persons in post 9/11 wars:
Afghanistan – 2 million, Pakistan 400,000, Yeman – 70,000, Somalia – 800,000, Iraq – 2.3 million, Libya – 200,000, Syria – 2.1 million


The immigrant sections in the November 19 reconciliation bill

Bloomberg reports:

Parole: the bill contains temporary work permit and deportation protection program, known as parole, that Democrats believe has stronger prospects in the Senate.

Around 6.5 million people who’ve been in the U.S. at least a decade would receive parole under the plan, according to a Congressional Budget Office estimate. That is 60% of unauthorized persons. Of those, 2 million immigrants who wouldn’t otherwise be eligible could eventually obtain permanent status as immediate relatives of U.S. citizens.

Parole would be available to eligible applicants who entered the U.S. with or without inspection by U.S. border officials before 2011, as well as for immigrants who already have separate humanitarian parole status. Work permits and deportation protections would last for five years and could be renewed until the program expires in 2031.

Visa recapture: The bill would recapture unused family and employment-based visas back to 1992, and allow some foreigners to fast-track applications to adjust to legal permanent resident status and sidestep some numerical limits on visas, including per-country caps that have left hundreds of thousands of Indians in limbo.

The bill would also allow diversity visa lottery winners who couldn’t finalize their status or enter the U.S. due to Covid-19 or Trump-era immigration restrictions to reapply. It would provide $2.8 billion to U.S. Citizenship and Immigration Services to process parole and green card applications.

Proposed new pathways for non-farm Latin American workers

Mexico, Central America and the U.S. share a transnational labor market for low-skilled workers, but there has never been a comprehensive U.S. policy about managing this labor market. One approach is to introduce large numbers of multi-year visas.

The Migration Policy Institute recommends a long- term solution for temporary non-farm low skilled immigrant workers in the U.S., by revising the H-2B visa program, which is for non-farm labor, and has a cap of only 66,000 visas. Farm labor is covered by H-2A. (Here and here are analyses of H-2B):

The United States and its regional partners have short, medium, and long-term opportunities to leverage the US employment-based immigration system to assist in managing migration from Central America.

Legislatures could create a 1 to 3 year year-round temporary visa for the central Americans to work in specific industries. Lawmakers can also create a broader 1 to 3 year temporary visa for agricultural and non-agricultural workers that could create additional openings for prospective migrants.

The US can create pathways for temporary workers to access permanent residency. Individuals with H1B high skilled temporary visas they have the opportunity to receive sponsorship for a green card but this option does not exist for individuals on H-2B visas. Creating a new temporary to permanent visa or a pathway to green card for individuals with H-2B visas would empower workers to access more jobs.

A third option would be for the US to amend immigration law to allow workers on temporary visas to switch employers after a specific period of time, allowing workers to leave problematic employment relationships without jeopardizing the legal state.

Here is an analysis of the farm worker provisions in proposed 2021 legislation, which has the backing of the farm industry,

How to respond to a 3% decline in workforce

The American workforce as shrunk in pandemic times by upwards of 5 million. This has speeded up the predicted decline in rate of workforce growth.  Prior to the pandemic it grew by about one million a year. Immigration typically accounted for about 500,000 a year, most recently less. The Biden immigration bill may increase immigrant workers to perhaps a million a year.

Starting in about 2015 and going forward, the net growth in the American workforce will largely be due to immigration, in part because of the aging on the U.S. born population. Without immigration, the total working age population would decline by 2035 by 4%. With immigration, it will increase by 6%.

Mathew Yglesias writes, The last two big debates about comprehensive immigration reform (in 2007 and 2013) were very weak times for the American labor market. But that’s not the situation today. In 2017-19, the Trump administration drastically reduced legal immigration. Immigration further tumbled for pandemic-related reasons and has only very partially recovered since Joe Biden took office. All told, David Bier calculates that we are 1.2 million immigrants short of our early-Trump pace, which was a reduction from the Obama pace, which itself was a reduction from the Bush pace.

The Biden immigration bill (U.S. Citizenship Act of 2021) the total number of green cards is forecast to increase by 28% from about 1,180,000 to 1,510,000. Family-related visas (immediate and relatives) are to remain basically flat, while employment-related visas are expected to grow by 285%.

Much higher approval of inter-racial marriage

The percentage of adults approving of marriage between Black and white people went from 4% in 1958 to 94% in 2021, per the Gallup poll. In 1967, 16 states had anti-miscegenation laws, the year in which the Supreme Court banned these laws in Loving v. Virginia.

This change in opinion took time among older people., For people 50 or older in 1991, only 27% approved vs 91% in 2021 (when 98% of persons 18-29 approved).

The chart below shows the change in support by region of the country. Note how the South lagged and the West led, with the entire country uniformly in very high approval in 2021

From Gallup.

New York Times calls for an end of using Title 42

The New York Times calls for the end of using Title 42 as a tool for immediately returning asylum seekers at the Mexican border, saying that its justification, COVID risk, is no longer valid. Several administration officials have quit with scathing criticism.

As I’ve mention before, a key failure in the management of the border is dysfunction in our legal system, which inspires hope that persons can enter the country. As early as April, 2021, the backlog of cases, which was about 540,000 at the start of the Trump Administration, had ballooned to 1.3 million. The system is so backlogged that legally admitted asylees wait for a year to get formal permission to work.

In addition, the multi-state refugee management system in the world is broken. This is the case with the U.S. and the EU. The system lacks an assured, stable means of international coordination among countries for the movement of refugees. Because of the vast differences in economic, social and political outcomes depending where the refugee ends up, coordination among countries is both essential and very difficult in terms of politics and ethics.

Most recently, Belarus is importing refugees to create a crisis at its borders with EU neighbors.

According to the U.N, there were 26 million refugees, half under the age of 18. “There are also millions of stateless people, who have been denied a nationality and access to basic rights such as education, healthcare, employment and freedom of movement.”

Definitions

The United States, like European countries (which has incurred a huge wave of asylum seekers since 2015) and most other countries are signatories to the U.N. convention on refugees, signed in 1951. A refugee according to the U.N. has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…” .

The definition of an asylum candidate in American law is a refugee who entered the U.S. American law uses a standard of “credible fear” to establish “well-founded fear.”