Improving judicial process at the border

I’ve mentioned how dysfunction in the judicial system is at the core of the Mexican border program. In October 2020 there were 1.3 million cases with a average time to trial of 900 days.

In late April a bipartisan group submitted legislation aimed at improving the judicial process. The legislation is here. The sponsors wrote the “The Bipartisan Border Solutions Act….to respond to the surge in migrants coming across our southern border. The bill would improve both the Department of Homeland Security’s and the Department of Justice’s capacity to manage migration influxes and adjudicate asylum claims in a timely manner, protect unaccompanied migrant children, reduce impact on local communities, ensure migrants are treated fairly and humanely, and ultimately deter those who do not have realistic asylum claims from placing themselves in danger by making the treacherous journey to our southern border.”

The bill has been endorsed by the U.S. Chamber of Commerce, National Immigration Forum, National Border Patrol Council, American Business Immigration Coalition, Texas Association of Business, New American Economy, Americans for Prosperity and The LIBRE Initiative.

The birth rate argument for immigration

Lots of editorials and opinion pieces about how the low birth rate in the United States argues for increasing immigration. Such as:

“According to the National Center for Health Statistics, the number of births in the United States in 2020 was down 4% from the previous year. This marked the sixth year in a row that births have declined and amounts to the lowest number of births in the country since 1979….The U.S. economy depends on growth of the labor force to generate the tax revenue needed to maintain programs like Social Security. And a key component of labor-force growth is immigration.” (From here.)

About 50% of new immigrants are employed or readily employable. The implicit message is that immigration must shift towards a higher percentage. This is difficult because workers often have families. Also, because temporary work programs, for those with or without a lot of formal education, are hard to manage. Nonetheless, the simple demographic argument for more immigrants is easy to understand.

A piece on birth rate trends since 1960 and how to measure the birth rate is here.

Trends in public opinion re unauthorized persons

Americans are sharply divided over legalization of unauthorized persons. (From Civiqs). Keep in mind that 60% of unauthorized persons have resided in the U.S. for at least ten years.

Overall, the division has been stable, turning more towards deportation very recently. These figures are for April. It used to be about 57-32. It is now 53-37

Whites are far less willing to grant citizenship that other racial / ethnic groups.

Strong support for citizenship is concentrated in young people.

Hardly any Republicans support citizenship.

How immigration wonks are talking about the border crisis

Here is a quick summary with links to articles published in the past two months about the Mexican border, written mostly not by journalists but rather immigration wonks.

Overall crisis management failure: The Bipartisan Policy Center calls for new legislation which enable “a presidential declaration of an extraordinary migration event,” and would mandate FEMA-like action involving coordination of many agencies.

Missteps by Obama and Trump. The Migration Policy Institute reviews the painful story of the past two administrations, both of which include failure to improve the management of immigration courts.

Better management of the courts. Again, we are back to the courts. I am deeply skeptical of court systems to respond quickly to events, even if these events are predictable and repeated. NPR reports on a potential Biden policy on how courts are assigned cases. NPR reports that “There are currently about 530 judges in the immigration courts that handle a caseload that is now backed up to more than 1.2 million cases, according to the Justice Department. Meanwhile, the asylum office that could take on some of those cases under this plan has about 860 officers and a pending caseload of about 350,000, according to the Department of Homeland Security.” Migrants with court cases can expect to be allowed to stay in the U.S. for several years before their cases are called.

Unaccompanied children shelters. Pro Publica writes that “After ignoring signs that shelters were filling quickly, agencies are scrambling to get thousands of kids out of Border Patrol jails. But new “emergency” facilities skirt safety standards, while facilities accused of abuse are still getting grants.”

Deja vue on asylum surges. Each surge different, each one the same. WOLA says that “At the moment, unaccompanied children (apart from unaccompanied Mexican children) are the only population that stand a 100 percent chance of being released into the United States to start an asylum process while living with relatives. (Families seem to have stood about a 40 percent chance in February.)
This is the fourth time that we’ve seen a significant increase in unaccompanied child and child-and-family migration at the U.S.-Mexico border since 2014. 

Hard core immigration stances of Americans

A research team wrote, “Our goal was to assess U.S. citizens’ mental models of immigration, i.e., their beliefs and attitudes towards it, but also their perceptions of the risks and benefits it poses…. Research shows that when perceived threat and social identity become involved, our policy stances can become sacralized, transforming into absolutist, moralized, non-negotiable values. These sacred values do not operate like regular values, which can be reevaluated if one is willing to make trade-offs….Social identity is a person’s sense of who they are based on their group membership(s). Group norms are the informal rules that govern behavior in a group. They set expectations of how to behave, whether in terms of eating a meal or interacting with outsiders.”

The top three sacralized open (i.e. immigration incluseive) stances are:

— Stopping family separation (47% of respondants cited this, the most strongly felt issue of inclusivists).
— Being a nation of immigrants (rather than preserving a white and Christian culture) (37%)
— Stopping construction of the border wall (33%)

The top three sacralized immigration restrictive stances are:

— Withholding public benefits from unauthorized immigrants (33% of respondents, the most strongly felt issue of restrictionists)
—Stopping undocumented immigration (22%)
—Continuing to build the border wall (21%)

From “What Immigration Issues Do Americans Hold Sacred? A Psychological Journey into American Attitudes Towards Immigrants” by Nichole Argo, Ph.D. and Kate Jassin, Ph.D.

A tiny explanation of what is going on at the Mexican border

I am going to explain in very few words what is happening at the Mexican border and the context. I have followed immigration for over a decade.

Immediate situation: The number of people trying to cross the border illegally has risen, but not to the highest levels experienced. ICE and other U.S. agencies are bureaucracies which cannot be expected to manage efficiently, consistently, or effectively major surges. Immigration and border enforcement are subject to complicated laws and staffing levels. A pattern of surges has been in place for 30 plus years. I doubt that surges are mainly driven by U.S. policies at the time.

An example of the unreality of the political pronouncements is that much is made of the migrants with COVID, but 15 million people cross the border legally each month and are never tested.

The context: Both right and left are more interested in arousing their constituencies than in longer term solutions. Most activists of both sides feel better off without a long-term solution. Yet, both Dems and Reps in Congress have proposed long term solutions which include legalization of substantially all unauthorized persons in the U.S. I have discussed this here. Among the relative handful of politicians who follow immigration closely, I think there is a lot of agreement about where immigration should be heading.

For 100 years + a transnational economy has existed involving Hispanic workers. This reality has never been addressed by legislation, including NAFTA. The economic and social incentives for Mexicans and Central Americans to migrate to the U.S., perhaps just for labor and not settlement, are and will be very high. I do not believe that the U.S. can successfully improve social/economic conditions there. This is the largest transnational labor market among advanced nations in the world.

Your Congress person is likely unable to articulate a coherent vision of comprehensive reform. We are a nation of immigrants. For us not to discuss immigration coherently is like Microsoft executives not to discuss the future of information technology.

Four ways for broad legalization of unauthorized persons

Now that both parties have released at least the outlines of a plan, we now see several ways to legalize the status of a larger number of unauthorized persons. I draw in part on a Migration Policy Institute report. All approaches implicitly recognized that 60% of unauthorized persons are estimated to have been in the U.S for at least ten years; hence, a legalization policy must be broad-based to avoid being severely draconian.

A relatively fast all-inclusive Biden policy. Biden’s U.S. Citizenship Act of 2021 proposes this approach. This bill, per the White House, “allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation.” Generally, persons had to be in the U.S. on January 1, 2021. The person will wait five years on a temporary visa before getting a green card. Citizenship is then accessible.

A narrower policy, as applied by the 1986 Immigration Reform and Control Act. Of the approximately 3.2 million unauthorized immigrants living in the United States at the time of the bill’s passage, 1.6 million legalized through IRCA’s general legalization, and another 1.1 million farmworkers and 38,000 Cubans and Haitians. Applicants had to demonstrate continuous residence since 1982 and meet certain criteria.

Per the MPI, the farmworker eligibility provisions were considered too lenient and as inviting fraud. The accompanying employer sanctions for hiring unauthorized immigrants proved easy for employers to evade and difficult for the government to enforce. The resources for border enforcement included in the legislation were inadequate. The unauthorized population surged in the 1990s and early 2000s. I describe why this surge happened here.

The relatively slow new Republican Dignity bill approach. I outlined here a draft of this act which was just released. Provisions includes, for all undocumented persons, a 10-year enrollment in a temporary program, followed by a five year program before gaining regular green card status. Citizenship appears not available. The draft act is silent on the cut-off date to be eligible.

A more narrow, but fast working old registry approach. The MPI says that Registry has been part of U.S. immigration law since 1929 when the Registry Act was enacted. Registry aims to resolve the issue of legal status for those who have been in the country for an extended period. The rationale is akin to that of statutes of limitation, which do not exist in immigration law. That is, that at a certain point no further public interest is served by pursuing long-ago violations. In the past, the registry date has been between 8 and 18 years prior to the passage of the registry act. If the date is 10 years before 1/1/21, it would include about 60% of the unauthorized population.

Why today’s Mexican border crisis is part of a predictable pattern

Here are pretty extensive excerpts from an insightful article by Cristobal Ramón , Yari Gutierrez on our chronic vulnerability to migrant surges at borders. The 2018 – 2019 surge under Trump was larger than what we are seeing now. In both cases we have been entirely reactive rather than proactive. (Go here for a summary of asylum in the U.S.)

The U.S. applies stringent border policies such as interdiction and detention to deter large flows of migrants who are fleeing humanitarian or political crises in their home countries and seeking asylum in the United States. However, these measures usually fail to meet these goals since they do not impact the root causes of these migrant flows or establish protocols for managing sudden shifts in migration patterns, showing that active management of migrant flows requires strategies that extend beyond border deterrence to handle humanitarian crises.

Our asylum system dates from the Refugee Act of 1980. The Act did not anticipate that future waves of migrants seeking asylum at the U.S. border would overwhelm the new system, leaving the U.S. government without measures to shift resources to manage sudden upsurges in asylum requests.

This issue first emerged in 1979 and 1980 when 25,000 asylum seekers from Cuba and Haiti arrived in Florida during what is known as the Mariel Boatlift, when the Fidel Castro regime’s decision to allow Cubans to leave the country precipitated the exodus of 125,000 individuals from Cuba and another 25,000 Haitians fleeing the dictatorship of Jean-Claude Duvalier arrived in South Florida. For the Haitians the U.S. focused on interdiction at sea.

In 2014, there was increase in the number of unaccompanied children and families fleeing violence in Central America arriving at the U.S.-Mexico border. Obama tried to coordinate with the Mexican government and built detention centers.

In response to a steady rise in family unit apprehensions in 2018, Trump sent the armed forces to the border, separated families at the border, and curtailed the ability of unauthorized immigrants to access asylum. Despite the severity of these measures, family unit apprehensions continued to increase through the end of 2018.

Congress should consider making these two policy areas a core component of the nation’s humanitarian system, including hiring more immigration judges, establishing protocols to rapidly shift asylum resources to the U.S. border, and maintaining programs that strengthen human security in countries migrants are fleeing.

From History Shows the U.S. Doesn’t Do Well at Preparing for Migration Crises
By Cristobal Ramón , Yari Gutierrez Jan 22, 2019

Homeland Security statement about the Mexican border

Homeland Security Secretary Alejandro Mayorkas issued a statement on March 16 about the situation on the Mexican border. Here are a few exceprts. The numbers below are 96,974 apprehensions at the border in Feb 2021. The prior high was in May, 2019, at 132, 956.

We are on pace to encounter more individuals on the southwest border than we have in the last 20 years. We are expelling most single adults and families. We are not expelling unaccompanied children. We are securing our border, executing the Centers for Disease Control and Prevention’s (CDC) public health authority to safeguard the American public and the migrants themselves, and protecting the children. We have more work to do.

This is not new. We have experienced migration surges before – in 2019, 2014, and before then as well. Since April 2020, the number of encounters at the southwest border has been steadily increasing.

Single adults (68,732 in Feb 2021). Single adults from Mexico and the Northern Triangle countries of El Salvador, Guatemala, and Honduras are swiftly expelled to Mexico….The expulsion of single adults does not pose an operational challenge for the Border Patrol because of the speed and minimal processing burden of their expulsion.

Families (18,945 in Feb 2021). Families apprehended at the southwest border are also currently being expelled

Unaccompanied children 9,297 in Feb 2021). A child who is under the age of 18 and not accompanied by their parent or legal guardian is considered under the law to be an unaccompanied child. We are encountering six- and seven-year-old children, for example, arriving at our border without an adult.

In more than 80 percent of cases, the child has a family member in the United States. In more than 40 percent of cases, that family member is a parent or legal guardian. These are children being reunited with their families who will care for them.

The children then go through immigration proceedings where they are able to present a claim for relief under the law.

The Border Patrol facilities have become crowded with children and the 72-hour timeframe for the transfer of children from the Border Patrol to HHS is not always met. HHS has not had the capacity to intake the number of unaccompanied children we have been encountering

Farm workers and immigration reform

Farming, especially corporate produce farming, is heavily dependent on immigrant labor. Temporary farmworker visas (the H-2A visa) are up. Over half of farm workers, some half million, are estimated to be unauthorized.

To protect its farm workforce, the state of California has made a special effort to get these workers vaccinated. Per the NY Times, “The challenges to getting farmworkers vaccinated go well beyond worries about their immigration status. The odds of being able to sign up for a vaccine online are low in a population that often lacks broadband access and faces language barriers. Many cannot easily reach vaccination sites in urban areas because they do not have reliable transportation or the ability to leave work in the middle of the day.”

The Biden immigration bill, the U.S. Citizenship Act of 2021. aims to protect all workers, including unauthorized from exploitation. Per Politico, over 70 percent of federal labor standards investigations of farms found violations, including wage theft and inadequate housing and transportation, according to a recent report by the Economic Policy Institute. “It’s pretty clear that the lack of a legal status leads to the ability for employers to break the law against you without much worry of getting in trouble,” Costa said. “They fear retaliation and can’t speak up in the workplace because that could lead to their deportation and they’re afraid to report violations to government officials because they don’t want to interact with officials over deportation fears.”