The Laken Riley Act, passed by the House of Representatives and being considered by the Senate, is an act that does little to change immigration law. But there are two expansions of the existing law.  One, the Homeland Security “shall” [i.e. must] detain an unauthorized person in the event they are “charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense.”  That is, they cannot be released pending further legal action, but must be detained, even for shoplifting.

Two, the law grants a state Attorney General standing to file suits to enforce certain provisions of existing law if an unauthorized person within that state commits a “harm” as defined by law. A state Attorney General can get a court to require Homeland Security to apply a power already in place, which is to deny the issuance of all visas to a that person’s country if that country tends not to accept their citizens subject to deportation. At this time, these countries include China, India, Venezuela, Cuba, Ethiopia, Eritrea, Pakistan, Russia and Somalia.  For example, if an unauthorized person in Texas who is a citizen of Ethiopia falls within the scope of this law, the Attorney General of Texas can through a court stop all visa issuance for persons from Ethiopia.

The second of these provisions is what is controversial.

 

 

Senator Bernie Sanders issued a statement on January 3, “We need major reforms in the H-1B program.” The full statement is here.

Sanders argues that the H-1B visa program is exploited by corporations to replace well-paid American jobs with low-wage foreign labor. He says, “We must utilize this program as a very short-term and temporary approach“ to meeting workforce needs.  He advocates for reforms like raising minimum wages for guest workers and enabling them to switch jobs.

Sanders statement reflects persistent blinkered political thinking about immigration, and exposes the vulnerability of the Democratic Party to a major attack from Republicans. For one, he implicitly buys into the idea that for the most part bringing a worker in on a temporary basis means an American loses a job. I doubt he would say that when addressing the hundreds of thousands of temporary farm workers who come in from Latin America.

Further, he does what virtually every politician does when addressing immigration, which is to think in the extremely short term with no consideration of intermediate, much less long term, workforce needs.   No national Democratic politician, from what I read has come forward with a proposal on how to draw upon the huge talent pool in the world to complement, not replace, American workers.

Republican senators are, I believe, ready to come forward with a comprehensive immigration bill that would feature skilled labor, and defend this approach using a intermediate and long term vision of how to maintain a highly productive workforce. I have zero factual knowledge that such a bill is in the works. I am interested in how Sanders would respond to such a proposal.

The Wall Street Journal’s Michelle Hackman and Tariri Parti posted an article in the first few minutes of the new year which explains why I have predicted for months that mass deportation will not occur. The article cites five reasons. There is a sixth, the most powerful deterrent: public outrage over the first few arrests of law abiding unauthorized persons who have contributed to their communities for years.

Immigration-court backlog: Most immigrants in the U.S. illegally can’t be deported without a hearing in immigration court, where they have a chance to ask for asylum or another avenue to stay in the country. But immigration courts are so backlogged that hearings are being scheduled as far into the future as 2029.

Outside experts estimate that Congress would have to hire about 5,000 immigration judges—the system now has roughly 500—to efficiently sort through all existing cases as well as new ones.

I outlined here the complex series of steps to deport some one.

Lack of ICE agents: The U.S. Immigration and Customs Enforcement agency is responsible for arresting immigrants in the country illegally, detaining them and deporting them. It has roughly 6,000 agents on staff and funding to jail about 40,000 immigrants at any given time. It doesn’t have nearly the fleet of planes needed to deport millions of migrants back to their home countries.  The government is also having trouble recruiting new Border Patrol agents and doesn’t have enough asylum officers to hear claims made outside of court.

Republicans are hoping to use a budget process known as reconciliation to pass billions of dollars in spending for ICE as well as Trump’s border wall without needing Democratic votes.  Trump plans to declare a national emergency soon after taking office, which could unlock additional money taken out of the Pentagon’s budget for projects such as border-wall construction.

Blue-state resistance: Immigrants living in the country illegally are often concentrated in big, Democratic-led cities such as New York, Chicago, Los Angeles and Denver. Chicago Mayor Brandon Johnson said in a CNN interview recently that he wouldn’t be cooperating with federal immigration authorities. “The law is very clear,” he said. “Local police officers are not federal agents.”

Without local cooperation, ICE would need to post officers on watch outside of jails for hours or days to catch a release. They can also conduct neighborhood raids, but immigration officers—unlike regular police—don’t have warrants to make an arrest, meaning they can’t enter a person’s home to arrest them.

Lack of cooperation from foreign countries: Among the reasons President Dwight Eisenhower was able to pull off a broad deportation program in the 1950s, which Trump cites as a model, was that everyone he sought to send out of the country was from Mexico. But over the past few years, immigrants crossing into the U.S. illegally have come from record numbers of countries, such as China, India, Mauritania and Uzbekistan.

Many of the newly-arrived migrants in the U.S. come from countries where diplomatic relations are frayed or even nonexistent, such as Venezuela.  U.S. immigration law allows immigrants to be deported to third countries if their home countries won’t take them back, but getting a third country to agree is rare.

Legal challenges: Many of the changes proposed by Trump and Stephen Miller, his incoming deputy chief of staff and longtime immigration adviser, can only be done through Congress—or perhaps even through a constitutional amendment.

A core issue they have attempted to surmount is that under existing law migrants can legally ask for asylum even if they have entered the country unlawfully. Trump, and even Biden, sought to get around this by making asylum seekers live in Mexico while their claims were being weighed, jailing them, or coming up with new rules to make asylum seekers otherwise ineligible. As long as the law remains on the books, however, the government will struggle to find legal ways to narrow that right.

 

 

Two individuals can have a productive, rational, and deeply satisfying argument over the merits of a more restrictionist versus a more inclusive immigration policy. We do not have this debate because the political leadership in the country has evaded it. What we do have is, among several disruptive behaviors,  scapegoating of immigrants.

Donald Trump appears often to scapegoat immigrants, primarily as the cause of violence, but also stealing jobs. There’s an element in his rhetoric which suggests the so-called scapegoat mechanism of collective violence. This was articulated by René Girard (1923-2015), a French philosopher who taught at Stanford and one of whose students is Peter Thiel, the Silicon Valley billionaire and erstwhile supporter of trump.

Elements of the scapegoat mechanism:

Social tensions intensify, seen in an increase in a phenomenon of severe competition over status and identity. We can see this within the right (at the Mar a Lago court) and within the left (virtue signaling, censoring).

Release of tensions: this can involve group action to blame an individual or group. The scapegoat is often chosen arbitrarily, typically someone who stands out as different or vulnerable. Poor unauthorized immigrants fit this profile.

By focusing collective violence on a single target, the community temporarily sets aside internal rivalries and conflicts. The act of scapegoating provides a cathartic release for the community’s destructive tensions. Blaming a scapegoat gives the illusion of control over complex, systemic problems.  Doesn’t this seem like a conventional behavior of Trump?

Girard argues that for scapegoating to be effective, the community must be unconscious of the mechanism. They must genuinely believe in the scapegoat’s guilt.

It is quite remarkable that the mass deportation idea runs completely afoul of the legal protections afforded any resident of the United States. I have posted recently on the complex steps from detaining an individual in the United States and deporting them.