Juan Orlando Herandez. president of Honduras, was an unindicted co-conspirator in his brother’s trial for drug smuggling into the U.S., and has been reported to having accepted bribes from drug smugglers. Three former attorneys general from Guatemala and El Salvador who have been forced into exile over the past four years.
Excerpts from an article on Central America:
Honduras, Guatemala, and El Salvador are not just poor and violent; they are beset by corruption and ineffectual, often predatory governance. On nearly all of the World Bank’s Worldwide Governance Indicators, including the effectiveness of government, rule of law, and control of corruption, countries in northern Central America lag well behind even their Latin American and Caribbean peers.
Over the past three decades, irregular migration from northern Central America has steadily grown, resulting in a dramatic increase in the number of non-Mexicans (predominantly Central Americans) apprehended at the southern U.S. border—from the low 10,000s in the 1990s to nearly 700,000 in fiscal year 2019. The Biden administration is now bracing for even more irregular migration across the U.S.-Mexican border. Through a series of executive actions, it has begun to reform antiquated border-processing infrastructure and the overtaxed asylum system, slowly unwinding Trump-era policies that eliminated migrants’ ability to claim asylum at the U.S. border and crippled the already limited capacity to deal with increased migration.
The United States cannot, of course, impose change. Rather, it should lift up local actors who are already responding to legitimate, popular demands for better governance. Where governments are open to reform, such as empowering national prosecutors to root out corruption and reforming laws to allow for the collection of more income and wealth taxes, Washington should provide political and technical support for those efforts. But where corrupt governing elites are resistant to change, Washington should partner with civil society.
The Trump administration turned its back on anticorruption efforts led by three former attorneys general from Guatemala and El Salvador, who have been forced into exile over the past four years. The United States must never betray such officials again. Instead, it should create a protection program to allow vulnerable officials and civil society leaders to seek refuge in the United States, signaling clearly that such actors are U.S. allies.
From Central Americans Are Fleeing Bad Governments To Stanch Migration, Washington Must Address a Deeper Crisis, By Dan Restrepo
Category: Legal Topics
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.
Interior arrests declined under Trump!
Despite the rhetoric of the Trump Administration, arrests of unauthorized persons in the interior (as opposed to at or near the borders) were much lower in the four Trump years compared to most of the Obama years.
From the Center for Immigration Studies, here.
Brief introduction to US Immigration system
The American Immigration Council has a concise overview of our immigration system. I recommend it.
The short document reflects how complicated and un-directed our system is. For instance, it says that there is a legal maximum of 675,000 green cards issued a year, yet for most years some one million or more green cards have been issued.
The overview does not refer to any planning or assessment function of the system, because no such function exists or is mandated by Congress. Nor does the overview discuss legal enforcement, despite the reality that a quarter of foreign born persons in the country are unauthorized to be here.
Federal Appeals court rules against Trump public charge rule
CNN reports that on December 2, in a 2-1 ruling, the Ninth Circuit continued the decision of other courts to place an injunction of implementation of the Trump public charge rule. I have posted (such as here) on the changes to the public charge rule, which raised the barrier to persons from obtaining permanent legal status. The changes in effect said that public assistance (such as subsidized housing and food vouchers) which close to half American households use over any period of five or so years are off limits to immigrants who seek green cards – either if they used them or if U.S. Citizenship and Immigration Services decided there was a high likelihood of their use after a green card was issued.
Per CNN the court concluded that the rule causes financial harm to states and doesn’t promote self-sufficiency as the administration has suggested. The panel also argued that the administration failed to explain the abrupt change in policy. “Addressing DHS’s contention that the statute’s overall purpose is to promote self-sufficiency, the panel concluded that providing access to better health care, nutrition, and supplemental housing benefits is consistent with precisely that purpose,” wrote Judge Mary M. Schroeder for the majority.
The court cited a prior decision to hold up the implementation of the rule: “The Plaintiffs do not argue, and we do not hold, that the receipt of various kinds of public benefits is irrelevant to the determination of whether a non-citizen is likely to become a public charge. But defining public charge to mean the receipt, even for a limited period, of any of a wide range of public benefits – particularly . . . ones that are designed to supplement an individual’s or family’s efforts to support themselves, rather than to deal with their likely permanent inability to do so – is inconsistent with the traditional understanding.”
The court also faulted the administration for its “abrupt” reversal of policy without careful analysis of reasons.” The plaintiffs argue that DHS failed the test in three principal respects: It failed to take into account the costs the Rule would impose on state and local governments; it did not consider the adverse effects on health, including both the health of immigrants who might withdraw from programs and the overall health of the community; and it did not adequately explain why it was changing the policy that was thoroughly explained in the 1999 Guidance.”
The court decision is here.
Supreme Court to consider unauthorized resident issue
On Monday November 30 the Supreme Court hears the arguments over whether unauthorized persons can be excluded from Congressional apportionment. This long posting will brief you on the issue.
Before delving into the current issue, I note that the Trump Administration has been trying from the start to reshape elections through innovative use of census data. I posted here about an attempt to apportion Congressional seats by excluding all non-citizens, authorized and unauthorized.
What is at stake.
The way in which the 435 Congressional seats are divided up among the states when unauthorized persons are excluded from the apportionment process.
Why it matters.
I posted on July 21 that Brookings demographer William Frey opined that only states where the undocumented population is so proportionally large that they would lose seats are California (lose 2 seats of 53), Texas (lose 1 seat of 36) and Illinois (lose 1 of 18). Florida would come close to losing 1 of 27 seats.
What the Trump Memorandum says, plus to relevant passages in law.
Trump Administration’s action (from a suit by New York State): On July 21, 2020, President Trump issued a “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” The Memorandum announces a “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” It directs the Secretary of Commerce to provide the President with information to carry out this policy. And it declares the President’s intent to make a determination of the “whole number of persons in each State” that will in fact exclude the undocumented immigrants he has targeted throughout his administration.”
I posted here about the statistical methods to be used to estimate the unauthorized population.
Text of Article XIV § 2 of the Constitution: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
4. 13 U.S.C. 141(a)-(b) provides: (a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary. (b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the
President of the United States.
What the opponents of the Memorandum say.
New York State’s brief July 24, 2020 : The President’s new policy and any actions Defendants take to implement it unequivocally violate the Fourteenth Amendment. The constitutional mandate to base apportionment on “the whole number of persons in each State” could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are “persons” under the Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.”
How the Justice Dept is defending the Memorandum.
Quoting from its brief: “It has long been understood that, under the governing legal provisions, the phrase “persons in each State” means “inhabitants” (or “usual residents”), and vests discretion in the Executive Branch to ascertain how that standard applies to particular categories of persons with debatable ties to a State.
The Justice Department says that “person” in state “has long been understood to cover only a State’s “‘inhabitant”…”As history, precedent, and structure indicate, the President need not treat all illegal aliens as “inhabitants” of the States and thereby allow their defiance of federal law to distort the allocation of the people’s Representatives. To the contrary, that an alien lacks permission to be in this country, and may be subject to removal, is relevant to whether he has sufficient ties to a State to rank among its “inhabitants.”
The DOJ goes on: “Founding-era dictionaries defined “inhabitant” as one who “dwells or resides permanently in a place…. This understanding of “inhabitants” is also consistent with Franklin’s observation that the concepts of “‘inhabitan[ce]’” or “‘usual reside[nce]’” can mean “more than mere physical presence” and can connote “some element of allegiance or enduring tie to a place.”
Most unauthorized persons have been living (or, have been “inhabitants”) in the U.S. for over 10 years.
Pew Research reports that “A rising share of unauthorized immigrants have lived in the U.S. for more than a decade. About two-thirds (66%) of unauthorized immigrant adults in 2017 had been in the U.S. more than 10 years, compared with 41% in 2007. A declining share of unauthorized immigrants have lived in the U.S. for five years or less – 20% of adults in 2017, compared with 30% in 2007. In 2017, unauthorized immigrant adults had lived in the U.S. for a median of 15.1 years, meaning that half had been in the country at least that long.”
See this Washington Post article.
More on Public Charge, Part Two
Prem Kumar of Visa Tutor tells me more about the Public Charge Rule:
Broad application When a US citizen or legal permanent resident sponsors family such as parents, spouse, children, and siblings, all the applicants are subject to public charge criteria. For aging parents, let’s say, it may be difficult to get private health insurance if they’re new to the U.S. The family category makes up the majority of green card applications.
Catch-22 for health insurance The I-944 Form indicates it’s a strong factor to have health insurance or enough assets to pay for “foreseeable medical expenses”. Most foreign applicants, however, don’t have health coverage nor the assets to pay for expenses before they enter the US or begin to work. How can the US government expect them to have health coverage before they become eligible? This confusion is causing many applicants to buy expensive private temporary health coverage (“visitor’s coverage”).
Adjusting status Let’s say you come on a tourist visa, and marry a U.S. national and want to adjust your status to permanent resident. To apply for a visitor visa, you’re not subject to public charge to enter the US. However, if you choose to adjust status, you must apply for a green card under which public charge applies.
More on Public Charge, Part One
I have posted about the toughened Public Charge rule of the Trump Administration, which went into effect in February but has been to some degree suspended during the pandemic. I asked Prem Kumar of Visa Tutor to describe how he sees its impact.
Public Charge is an immigration law provision which requires an immigrant or green card applicant to be self-sufficient or have a sponsoring family member or organization. The goal is to only grant a visa or green card to those applicants who are not likely to fall upon government financial assistance in the future.
Public charge laws apply to all immigrant visas, some non-immigrant visas, and nearly half a million green card applicants, with certain exemptions. Historically, it accounts for 25% of visa denials, where officers believe the immigrant does not have adequate sponsorship in the US, or a high “likelihood of becoming a public charge”.
To put the new version of the Rule in context, In just a single year, about 25% of U.S.-born citizens receive a benefit included in the final rule’s public charge definition. Over the 1997-2017 period, some 41% to 48% received one of the benefits included in the Rule’s new public charge definition.
State Department consular officers abroad and USCIS officers ask about:
Income The applicant or sponsor is compared to the Federal Poverty Guidelines. They must be the minimum 125% income level, however, officers are allowed to require up to 250%.
Health insurance Although it’s not an automatic disqualification not to be covered, the language in the “Final Rule” makes it clear that it is a “heavily weighted negative factor” in the assessment.
History of Means-tested benefits the U.S. can reject any applicant who has used means-tested benefits such as SNAP, TANF, some Medicaid, or other cash assistance. It even allows officers to determine if the applicant is “more likely than not” to require such benefits.
Disclosure of background information The officer is required to ask for financial status such as loans, unpaid debts, assets, even child support, and so on.
The Love Connection, Part Two
Roughly 40,000 persons each year are awarded a visa (“K”) to come to the U.S. and marry a U.S. citizen.K visas are only available to partners of US citizens, not permanent residents.
This process best serves international love birds who prefer not to go through the hassle of a marriage overseas. Marriage in different parts of the world can be long, expensive, or burdensome especially when dealing with local authorities. In addition, families of US petitioners find it inconvenient to travel to distant parts of the world to attend weddings.
One such example is in Morocco, where local authorities require numerous paperwork, a residency period for Americans, and often a bribe to “process” the marriage paperwork.
For those in the LGBT community the K visa may be the only way to marry. Outside of western Europe and the Commonwealth countries, same sex marriage is almost everywhere illegal.
What is needed for the overseas party to get a K visa, which gives the person 90 days in the U.S. to marry, after which the now married foreigner has access to permanent residency or citizenship? The foreign partner must produce documentation, get a medical exam, police / background clearance, among much more before attending an in-person visa interview at a U.S. consulate.
What does Citizenship and Immigration Service do to review of the intended marriage is a sham that will be shortly followed by divorce? Following marriage, the couple is given a conditional period of 2 years in which the USCIS evaluates to see if the marriage was bona fide or a sham meant for immigration benefits only.
The timeline from start to finish, including the consular interview, takes an average of 5-10 months.
For a more complete description of the process go here.
The Love Connection, Part One
How do spouses, children and fiances get into the United States? I asked Prem Kumar, who runs Visa Tutor, to describe what happens. Here we talk about the process for spouses and children. In the next installment, we discuss fiances.
Anywhere from 150,000 to 200,000 visas are issued every year to spouses of U.S. citizens and their children. The U.S. sponsor petitions his or her family and provides necessary documentation before the foreign spouse and children attend an interview.
The approval rate for these visas (CR1/IR1 and CR2/IR2) is very high, about 90%. But the entire process can take up to two years to complete.
The person in the United States needs to be either an American citizen or a permanent resident. Proof of marriage is required. Both the U.S. and foreign spouse cannot have a disqualifying criminal record.
Further, there has to be evidence that the spouse and children will not be a financial burden on government assistance – the public charge rule. The most common problem is that petitioners don’t meet minimum income requirements or aren’t able to provide enough assets to qualify.
The foreign spouse and any accompanying children attend an in-person interview. They present documentation to prove eligibility and answer any questions an immigration official may have regarding the relationship. Common questions include: “When did you marry? How? Where? Where does your spouse work?”
For a more complete description, go here.