Biden’s new asylum rule

Biden has proposed a major change in managing persons seeking asylum. It strikes at a problem I’ve noted several times: a dysfunctional legal system which generates a huge backlog and thus incents people to game the system. Per the Migration Policy Institute:

The immigration court’s caseload stands at an all-time high of more than 1.3 million cases. Nearly half (619,837) are asylum claims. Asylum applicants typically face court dates that are years away.

(The idea behind asylum is that a person has a “credible fear” of persecution or torture if returned to their home country. the backlog is caused in large measure by immigration courts, rather than asylum officers, making the determination over credible fear.)

Under the new policy, asylum seekers found to merit protection will not be kept in limbo for years at a time while awaiting a final status determination. At the same time, those who may not have a strong asylum claim will have less incentive to apply for protection as a means of gaining U.S. entry, as often happens now, since the cases take so long to be decided.

The proposed rule would shift asylum decisions from being made by immigration judges in courtrooms to being adjudicated in interviews with asylum officers specially trained to decide protection claims.

At present, asylum officers decide asylum cases when they arise within the United States, not at the border. The border has been treated differently because asylum applicants are already in removal proceedings for having crossed the border without authorization, and so they enter a separate and much slower “defensive asylum” process before the immigration courts. The proposed rule would assign these cases to asylum officers.

The core idea is based on research and recommendations the Migration Policy Institute made in a 2018 report as a policy solution to make border case management more effective and timely.

Go here

e-Verify and the infrastructure bill

According to the Center for Immigration Studies. a few days ago a Republican senator proposed that the infrastructure projects employ only contractors who use e-Verify. All Republican senators voted for it. 45 Democratic senators voted against and and thus killed the amendment. 

Any serious plan to improve immigration policies and practices must include mandatory e-Verify. I don’t take any Democratic proposal for immigration reform seriously if it fails to mandate e-Verify, the electronic system introduced 20 years ago to help employers verify the legal status to work, using federal databases.

Crisis in employment green cards

A lot of people are saying that low birth rate in the U.S. (now 1.64, close to Europe’s and below the replacement rate of 2.1) justifies a higher level of immigration for economic prosperity. This argument is weak, unsupported in my view by a plausible model that higher population growth translates in more economic prosperity per person or household. However, I agree with idea that a higher level of immigrating workers than the trend in the past 20 years is good for our economy.

The Biden immigration proposal (here) does this by greatly increasing the flow of employment-based immigration, from 12% to 34% (with an overall increase from about 1.1 million to 1.5 million a year).

The Migration Policy Institute shows that employment based immigration is crippled by several severe problems. First, the 140,000 or so cap on employment based green cards (the source of the 12% figure) produces much fewer workers, because the 140,000 figure includes spouses and children. In fact, only about 77,000 workers (7% of total immigration) is for workers who awarded green cards on the basis of their work.

There is a very skewed, huge backlog: “If everyone with an approved petition in the backlog for an employment-based green card as of November 2020 stayed in that line until a green card became available, Indian nationals would wait an impossible 223 years for a second-preference category (EB-2) green card, while workers from countries other than India and China would face no wait at all.”

And, there is an overburdened, high overhead temporary work visa system. “In fiscal year (FY) 2019, the State Department issued 644,000 multiyear visas to temporary workers and their spouses—nearly five times more than the number of employment-based green cards available each year. Nearly half of those visas went to H-1B workers and their dependents, a growing number of whom stay in the country past the normally allowed six years while waiting in line for green cards.”

The severe constraints on legal employment immigration and temporary work visas encourages persons to come to work illegally, primary through visa over-stays (less so border crossings).

The Biden proposal, and even the “Dignity” proposal of Republican congress members (here), contemplate the historic legal overhaul leading to higher numbers of immigrants on the basis of employment.

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.