Category: Legal Topics

When unauthorized persons are not legally able to drive

There are 19, mostly blue states, which provide to unauthorized persons documents to allow them to drive. (Go here).  Wisconsin is one of 31 states which do not provide a satisfactory document to permit them to drive. A Propublica report captures the actual experience of law enforcement dealing with unauthorized persons: a lot of informal accommodation.

Normally, states require a would-be driver to prove identity and age, usually with documents like a birth certificate, passport, or Social Security card, pass required written and driving tests, and have lawful immigration status if not a U.S. citizen. The REAL ID standards for state-issued documentation such as driver’s license requires proof of legal status (The mandatory adherence to REAL ID for states is now in 2025). Thus a state needs to create another document, valid in that state alone, to enable unauthorized persons to drive.

A typical instance of where this authorization is valuable is for rural dairy workers, who do not have access to public transportation and need to drive to work, get groceries, etc. Propublica reports on dairy workers in Wisconsin.

From the Propublica article: Elected district attorneys in several counties have stopped bringing criminal charges against people caught driving without a license; both Democrat and Republican prosecutors say they want to dedicate their limited resources to crimes with victims.

And in four counties in southwestern Wisconsin, community advocates worked with local law enforcement agencies and dairy farmers a few years ago to create identification cards that workers could show officers during traffic stops to prove that they worked in the area and, potentially, keep those encounters from escalating.

“It did not prevent them from getting a ticket, but it prevented them from being handcuffed and hauled off to jail,” said Shirley Barnes, the recently retired co-director of the MultiCultural Outreach Program in Dodgeville. “The fact is, all the police officers in all of these counties know exactly where these people work. They know it is local farmers who are employing these people.”

Example of an authorizing law, Massachusetts: Massachusetts license for otherwise eligible individuals who present proof of identity, date of birth and state residence. Prohibits inquiries and recording of an applicant or license holder, citizenship or immigration status, with limited exceptions. Includes confidentialities provisions.

The DeSantis Immigration bill

Florida’s new immigration bill, Senate Bill 1718 was signed by Governor DeSantis on May 10. It goes into effect July 1.

Pew Research estimated in 2016 that 775,000 unauthorized persons were living in Florida. As the total national number of unauthorized persons has not risen since, this is a reasonable figure to use. Nationwide, 40% of crop workers are unauthorized. This implies a workforce of about 500.000. Many of them are in agriculture. The average hourly wage is about $13. (Go here and here.)

It will be a criminal act to drive an unauthorized person across state lines into Florida. (Go here.)

Companies with 25 or more employees will have to use the federal E-Verify system when hiring workers. Failure to do so will trigger $1,000 a day fines. Penalties for employers who don’t verify their employees’ status could face suspension of their licenses to operate.

Local governments will be banned from contributing money to organizations creating identification cards for undocumented immigrants.

Driver’s licenses issued to non-citizens in any state will be barred from use in Florida. These states are CA (2013), CO (2013), CT (2015), DE (2015). HI (2020), IL (2013), MD (2013), NV (2013), NJ (2019), NM (2003), NY (2019), OR (2013), and UT (2020).

Florida hospitals would need to include a question asking patients whether they’re United States citizens, and whether they are lawfully in the country. The form should inform patients that their answer does not affect patient care or result in a report to immigration authorities. (Go here.)

Death of Title 42; continuation by other means

Title 42, which has been used to turn back over two million migrants at the Mexican border, is being terminated today, May 11, 2023. New measures by the administration severely cut back the effective access to asylum applications for migrants.

The new measures were laid out in a regulation issued on May 10.  In with words of Dan Gordon of the National Immigration Forum, “The rule will reportedly disqualify most all asylum seekers who fail to pursue refuge in a third country on the way to the U.S. or otherwise follow a limited number of lawful immigration pathways to get here.”

In the words of the Wall Street Journal’s Michelle Hackman, “I think the administration’s theory [in its new post Title 42 rules] is that if they’re able to deport enough people quickly enough, using these new tools that they have, then that will really quickly send a message that it is not worth it to even try.”

About 80% of asylum applications are denied in formal hearings and by courts. But applying formally for asylum can enable a person to live in the U.S. for years. This has led to immense backlogs of open asylum cases. The core idea of the Biden strategy is to cut off this opportunity.

The formal citation for Title 42 is “Title 42 of the United States Code, Section 265: Suspension of Entries and Importations of Persons from Designated Foreign Countries.” Here is a timeline for the introduction and use of Title 42 in 2020 and 2021.  Here is a posting on the November 2022 court decision that ruled Title 42 a violation of federal regulatory law.

Title 42 has already been largely replaced by the use of Title 8, which provides broad powers for migrant control. This article summarizes the effect of this phase out, when linked to other Biden administration orders that effectively bar migrants who come to the border between official entry points and those who do not apply for asylum in countries they pass through. These new rules are covered by Title 8 of the immigration statutes (8 U.S.C. §§ 1101-1504, covering many topics including deportation and removal procedures, and more).

Title 42 has mostly affected Mexican and Northern Triangle citizens. Recently it is rarely used for other migrants.

 

 

 

 

Bureaucratic nightmares of immigrants that Biden can end without Congress

The Migration Policy Institute has identified 21 opportunities for Executive Branch action not needing Congressional approval.  Here are six examples of problems solvable by executive action.

Only 17% of non-immigrant application processing is occurring online and the government allows online filing for just 15 of it more than 100 application types. Applicants often still file on paper even when the electronic filing is available. (Under “make online filing workable.”)

The form to apply for a permanent residence has grown from 6 pages to 20.(“Shorten forms.”)

Temporary workers have a period of up to 60 days after ending work with their sponsor employer to find a new job with employers sponsorship. After that any worker without a new job or who has not transitioned to another type of immigration status must leave the United States. Highly skilled in specialized workers often need more than 60 days to secure a new job. This is also a very short transition period for workers who have sometimes been in the United States for decades and have deep community ties. (“Extend job-search periods for temporary workers.”)

Temporary visa holders who wish to travel outside the United States must renew their visas at a U.S. consulate abroad. Long wait times mean the temporary workers who travel for work, vacation, or family visits can get stuck outside the country. Wait times in Kolkata are 199 days and 189 days in Hyderabad. (“Renew visas in the United States.”)

Spouses of visa holders of the extraordinary ability visas (O-1) can come to the United States but are not allowed to work. Spouses of H1-B workers are authorized to work only in limited circumstances. (“Expand access to work authorization for the spouses of highly skilled temporary workers.”)

A list of occupations (Schedule A) which Department of Labor considers the need of workers is so high that comparable labor market studies are not necessary has not been revised since 1991. (“Update schedule A.”)

Many thousands of amnesty seeking persons from U.S. sanctioned countries are crossing at the Mexican border

A significant share of persons crossing the Mexican border in search of amnesty come from countries which has incurred the official wrath of the United States.

In October 2022, U.S. Customs and Border Protection had about 240,000 encounters at the Mexican border (many may be the same persons from prior months trying again). About 180,000 were from seven countries.  The country with the most persons was Mexico (66,000). Three countries with which the U.S. has an officially hostile relations – Cuba (29,000), Venezuela (22,000) and Nicaragua (21,000) — totaled about 72,000.  Given as the U.S. considers their governments as oppressive and (for Venezuela) illegitimate, it is reasonable to expect that many of these 72,000 will qualify for amnesty.  (Go here.)

Cubans

The Wall Street Journal reports that In the 12 months through October, around 244,000 Cubans were apprehended by the U.S. Border Patrol after fleeing economic misery and political repression at home. Most of them came via this expensive airlift through Nicaragua, and were released into the U.S., according to U.S. officials.

It is the largest number of Cubans to arrive in the U.S. in a single wave since the late Fidel Castro came to power in 1959, twice the 125,000 who came in the Mariel boatlift of 1980 and almost six times as many as in the comparable 2021 period.

U.S. policy regarding Cuban refugees: the U.S. embassy in Havana has issued a statement that the following are acceptable reasons for amnesty: Members of persecuted religious minorities; Human rights activists; Former political prisoners; Forced-labor conscripts (1965-1968); and Persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs or activities.

Nicaragua

On September 2022 White House spokesperson Karine Jean-Pierre said Nicaraguans are “fleeing political persecution and communism.” (Go here.)

Venezuela

In October 2022 the Biden administration said it would accept up to 24,000 Venezuelans via a humanitarian parole plan. (Go here.) This number is about equal to the number of Venezuelans to appear at the Mexican border each months. The administration in 2021 had provided for Temporary Protection Status though March 2024 to 320,000 Venezuelans in the U.S. without authorization. Yet as a sign of conflicted policy, the U.S. is expelling Venezuelans at the border (go here).

 

 

Georgia’s audit of voters among non-citizens

There are about 600,000 non-citizen foreign born persons in the Georgia, in addition to about 400,000 foreign born persons who have naturalized.

George Secretary of State Raffensperger conducted the first audit of Georgia’s voter rolls for citizenship status in the state’s history.  He focused on attempted registrations. He reported the results in March, 2022. (Here and here.)

The review involved the Georgia Department of Driver Services and USCIS’s Systematic Alien Verification for Entitlements (SAVE) program.

The attempts spanned from 1997 until as recently as February 24, 2022. 1,319, or 80.7% of the attempted registrations, have occurred since 2016.

The search found 1,634 individuals who had attempted to register to vote in Georgia despite not being citizens. None of these individuals have cast ballots in Georgia elections.

Assume that 85% of the non-naturalized foreign born are adults, or 510,000 persons, This means that 0.3% attempted to register to vote.  however, is it very likely that some of these persons had incorrectly labeled themselves as non-citizens in their drivers license forms. Databases do not match 100% each other and the facts in the ground.

I have posted here and here about spurious allegations of voter fraud by non-citizens.

The Special Immigrant Visa crisis explained

The New York Times ran this column on February 16 about the perils of Afghans due to failures in the SIV program.

What is a Special Immigrant Visa?

The “special immigrant” category was first instituted in 1965 as an amendment (and later amended) to the Immigration and Nationality Act (INA) of 1952, includes many classifications, including the following: An immigrant employed by the U.S. government overseas who “performed faithful service” for 15 years and those whose lives have been put in danger as a result of their employment with the U.S. government or its affiliates. Each need for an SIV involves a special act to approve more visas,

Here is a summary of the SIV programs specifically created for Iraqi and Afghan conflicts. Note that the size of these programs were initially set in the low 1,000s. By the end of 2019, some 18,000 visas were issued. An August 23, 2021 WSJ article includes an estimate that some 100,000 persons (including dependents) might be eligible. Last year, I showed here that past evacuations in similar circumstances indicated a 100,000 level effort.

Problems in the Iraq and Afghan SIV programs were well documented. Here is an Inspector General’s report dated June 2020.

This month (February 2022) Republican members of the Senate Foreign Relations Committee criticized the evacuation. Focusing on the SIV program the report said that the administration failed to correct well known problems in the SIV program including how employment was verified. The State Dept and Defense Dept did not have a proactive system for tracking employment.

There is no SIV program in place for Syrian and Kurdish helpers in the Syrian conflict.


More on the soaring immigration court backlog

From the Transactional Records Access Clearinghouse ( TRAC ) at Syracuse University, which closely monitors immigration and border flows, immigration court activity, and other aspects of immigration. The following comes from a study of immigration courts along the Mexican border.

At the start of the Bush administration the backlog stood at just 149,338. The backlog had continued to grow under President Obama. And it only accelerated under President Trump. But in late 2021, the backlog about 1.6 million, having grown in every year.



In 2009, asylum cases took 15 months to be heard. Today, it takes 58 months,

Although the recent surge in the Immigration Court backlog is alarming, it is not as if Congress or the federal government has been in kept in the dark about this problem. Since at least 2008, TRAC has published regular reports and alerts about the growing backlog.

In May 2009 a TRAC study reported on how judges were poorly resourced (for instance, in clerks). Three presidential administrations has failed to correct the situation.

I posted on this problem in December.

Governor Abbot’s border ploy

Deployment of Texas state forces to the Mexican border has, even by public statements of the state, resulted in very little. “Gov. Greg Abbott’s Operation Lone Star to arrest Immigrants at the Texas border Is actually helping some asylum-seekers stay In the country” (here). With the estimated cost of personnel deployment at $2 billion, it is hard to see the merit in the arrest of only some 10,000 persons, virtually all for minor infractions of trespass, and the apparently referral of tens of thousands of persons to what may be ayslum applications.

In March, 2021 Texas governor Greg Abbott launched Operation Lone Star, an initiative to deploy public safety personnel to the Mexican border

On June 1, 2021, Governor Abbott issued a disaster declaration along Texas’ southern border. “The Governor is authorizing the use of all necessary and available state and local resources to protect landowners in these counties from trespassers and the damage they cause to private property. ‘President Biden’s open-border policies have paved the way for dangerous gangs and cartels, human traffickers, and deadly drugs like fentanyl to pour into our communities,’ said Governor Abbott. Meanwhile, landowners along the border are seeing their property damaged and vandalized.”

Because states cannot enforce immigration laws, Texas authorities are left to arresting persons for innocently trespassing on private property and handing the vast majority of persons over to the Feds, leading to asylum applications.

In October 2021, one news media outlet reported 7,000 arrests, another 32,000 arrests. The grounds of arrests were usually trespassing on private property without intent or damage to the property – not serious criminal acts such as smuggling or trafficking.

“At the end of the day, my office is not enforcing immigration laws. They’re being charged with trespass,” the Val Verde County attorney said. “What I can tell you is this, as I’ve considered every aspect in those cases we have dismissed, I’m pretty confident those individuals didn’t break anybody’s fence, didn’t cause destruction, didn’t linger, didn’t harass anybody in their home. They’re simply crossing what to them looks like open rural land.” (from here.)

A February 2 article said that the Department of Public Safety said that it made 10,400 criminal arrests, including 2,572 arrests for criminal trespassing, and turned some 100,000 persons over to the CBP (Customs and Border Protection). I can’t find information as to how many so turned over applied for asylum, nor those convicted. (also here.)

The National Guard deployment is expected to cost $2 billion, with about 6,500 troops plus Dept of Public Safety personnel at the border.



New York City’s new voter law for non-citizens

In December 2021, New York City authorized non-citizens to vote in municipal elections. This is by far the largest enfranchisement of non-citizens in the United States. (For an inventory of these laws, go here.) on January 10, a suit was filed saying the law violated New York State’s constitution.

In one fell swoop, the legally eligible voters in municipal elections rose from about 5.8 million by about 800,000, or 14%. Additionally, if unauthorized residents are considered, the rolls increase by an additional 7%. (These estimates I developed myself.) Roughly one fifth of Alexandria Ocasio-Cortez’s adult population is newly enfranchised.

This chart shows the size of several segments (in millions) of the foreign born population of the City.

(Here is data on the City’s population. Here is a breakdown of non-citizens by borough. Here is another analysis of the immigrant population of the city.)

The pie chart shows how the law affects the distribution of eligible voters.



Legally, anyone with a Green Card or a work visa who has resided in the City for at least 6 months is eligible (until the very end, the drafts called for just 3 months). (Here is the law in full. Here is the best analysis of the law.)

The law not only does not include any steps to verify legal status of persons registering as a voters, but also expressly bars the City from asking this information: “No inquiries shall be made as to the immigration status of potential municipal voter or municipal voter, other than to ascertain whether he or she qualifies to vote under this chapter. If such information is volunteered to any city employee, it will not be recorded or shared with any other federal, state, or local agency, except as otherwise required by law.”

The law requires the person to sign and affidavit saying “I meet all of the requirements to register to vote in New York State except for United States citizenship.” Misrepresentation penalties are relatively minor compared to what I would expect for voter fraud: a $500 penalty and up to a year in jail.