The Migration Policy Institute issued in 2018 a study of the asylum process which is still valid today. Extremely long delays were undermining the system of asylum. The MPI’s recommendations are entirely focused to getting asylee petitions addressed by knowledgeable officers as quickly as possible.

This report underscores my observation that a breakdown in the legal process of immigration applications is at the core of the Mexican border crisis, though by no means the only factor. Judicial systems have a knack for getting screwed up over surges in demand.

Today’s asylum laws were enacted in Refugee Act of 1980. A breakdown in processing petitions occurred due to influx of Cuban and Central American applicants, and reforms were made in the 1990s. Applications soared again in the 2010s, rising from 28,000 in 2010 t0 143,000 in 2017. The Trump Administration’s main response was to narrow the scope of permitted asylum criteria. The MPI rejected this study this strategy.

An indepth analysis of border apprehension cycles over decades is here.

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.

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.

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.

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.

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.

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.