More on the status of our recent Afghan refugees

Continued disgraceful response by the United States to Afghan refugees, including those to whom we have a special obligation due to their affiliation with the U.S.

Great reporting by the Washington Post: Many Afghans rushed out of the country and largely now in military bases in the U.S. (such as Holloman Air Force Base in New Mexico) came as “paroles,” with two year status and no assurance of a green card, little practical access to applying for asylum given as Homeland Security’ asylum processing is tied up on the Mexican border.

They have a legal right of limited assistance for up to 90 days, including a one-time $1,250 stipend. They do not have the full range of medical, counseling and resettlement services available to immigrants who arrive through the U.S. refugee program.

Many of those who arrived are separated from nuclear family members still in Afghanistan or other countries such as Turkey, thanks to the chaotic departure of Americans.

A resettlement expert says that “The refugee resettlement system has been decimated [by the Trump administration], so our local offices are unable to accept parolees right now without an assurance of our ability to cover costs like medical expenses immediately.”

Biden administration drafted the Afghan Adjustment Act, to allow those paroled into the country to apply for green cards after a year, making it easier for them to become permanent residents and bring relatives left behind.

43,000 Afghan evacuees are waiting at transit sites in Europe and the Middle East.

Special Immigration Visa holders and applicants: it’s not clear how many of the roughly 80,000 Afghans admitted since the Summer either hold this visa are eligible for it. The U.S. military advertised this visas as a means to attract translators and other assistance. The screwed up nature of the SIV program was reported in the Wall Street Journal.

Here are maps of where Afghan immigrants concentrate in the U.S.

Washington Post articles here and here.




The immigration court backlog


The pending immigration court case inventory on the Mexican border rose massively during the Trump Administration, and continues to rise.

From The Economist:

The new president’s apparently softer stance on immigration, as well as the pressures of the pandemic, have encouraged ever more people to try to cross the border illegally. Their number is now the highest in 21 years. In the past seven weeks alone, border agents have sent nearly 50,000 cases to the courts. That is increasing pressure on the country’s already overstretched courts. According to the Transactional Records Access Clearinghouse, a data research centre founded at Syracuse University, immigration courts have nearly 1.5m pending cases in their dockets—the most on record and nearly triple the number in 2016.

The job of deciding whether or not a migrant can stay in America, either as an asylum seeker or on other grounds, falls to 535 judges across 68 immigration courts—on average almost 2,800 cases per judge. Were the judges to rule on three to four cases every business day, it would take at least two-and-a-half years to clear the docket. Scheduling interruptions caused by the pandemic, and the multiple hearings and appeals for each case exacerbate the problem.

The mess in the asylum process

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.

Central American governments and emigration to US

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

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.