Got Immigration? The World’s Best Damn Blog About U.S. Immigration

As promised, I want to expand on yesterday’s post, which dealt with “classes” of immigrants to the U.S. and whether immigration demand has any place in America’s future immigration policies.  Please know that this post is basically just me thinking out loud - in writing, at least – and represents severely underformed ideas on my part. 

Last time, I left off with this question: is immigration a commodity that the U.S. sells to the world?  In a larger sense, the answer has to be ”no.”  Immigration policy has to primarily advance America’s national goals, while respecting its history as a nation formed almost entirely through the process of immigration.  This is a very logical and rational answer, and I believe the correct one – but it is an answer that does not reflect the reality of immigration to this country in the 21st century.  The United States will always be a prime destination for immigrants for a variety of reasons, including its geographic location, high standard of living, and normally strong economy.  As I outlined in yesterday’s post, there are patterns to the reasons immigrants have for coming to this country, patterns that determine the populations that immigrate with the greatest frequency.  Since these patterns tell us who comes here most often, they can also tell us what these populations can contribute to the United States - which should in turn influence the direction of immigration policy.  Do we want more low-skilled workers in this country?  Do we need any more low-skilled workers?  Do we want students that obtain college degrees at American universities to be able to remain in this country legally afterwards?  The populations that come to the United States in the greatest numbers should serve as a basis for policy decisions because it reflects reality, whether or not the American public is ready to accept that reality or not.  

Now, I’m not saying that just because a ton of low-skilled foreign nationals want to enter this country they should all be allowed to enter and remain here legally.  I am saying, though, that recognizing that there are patterns to American immigration and accounting for those patterns in policy decisions will make the system function much more efficiently, which will end up benefiting everyone – i.e. through reduced enforcement costs, fewer immigrants “in the shadows,” leading in turn to increased tax revenues, more money for the Social Security system, etc.  The key question, then, is how to deal with patterns that might not be beneficial to America’s ultimate policy goals when it comes to immigration.  It will be politically untenable for a flood of immigrants from south of the border to come here and live legally, and be able to qualify for all manner of State and Federal public benefits.  It would also be untenable for people with connection to this country to be able to edge American workers out of jobs for which both qualify (although research suggests that foreign low-skilled workers take jobs in a different segment of the economy than American workers do).  At a certain point, following the logic above, you get an open-borders situation, which is not something that I think makes much sense from a policy perspective.

So how do you balance reality versus legitimate American policy goals, especially when so many employers are dying to employ undocumented workers?  America’s goals vis-a-vis immigration should focus on remaining competitive globally, and to that end, I think that the we should ensure that foreign students and professionals are able to remain in this country legally.  In this respect, I think that we also need to encourage foreign entrepreneurs to come and remain in the U.S. – and to bring their money with them as well.  Our history as a beacon of freedom means that there should always be a way for people fleeing oppression to come to this country, and seeing that families are able to be together is important as well.  The real question, then, involves what to do with the economic immigrants, the group that makes up the largest number of foreign nationals in this country.  There is no simple answer to this question, but I think that any solution has to acknowledge that a tremendous number of people that come here soley for economic reasons, and this will not change no matter how many fences are built along the border.  The best solution I can see is a long-term one - to bolster the economies of the countries that supply us with the most economic immigrants, finding ways to further integrate those countries into the global economy (through free trade agreements, through incentives for greater foreign direct investment, etc.).  But what about the short-term?  That’s a tough one - and I’ll need to think about that some more.  I’ll delve into that question in my next post.

Since I’m probably not going to post anything until after New Years (in light of my intense party schedule for the holiday weekend), I’ll say Happy New Years now to all my readers.  There will certainly be much more to talk about in 2010, so stay tuned!                     

Well, my plans to post something bright and early the Monday after Christmas never materialized.  I blame it on the excessive amount of food I consumed over the holiday weekend.  At least I’m back now, though, with some insightful insights on the world of immigration.

I actually had a thought over the weekend – a rare occurrence, apparently – about the different types of immigrants that come to the United States, and the implications that such classifications have for Comprehensive Immigration Reform (CIR).  There are of course an infinite number of reasons people want to immigrate to this country, and any system of classification will necessarily be incomplete.  Nonetheless, there are patterns to immigration, and certain reasons stand out.  Here’s my list:

1. Economic immigrants – People that need to come to the United States for their own or their families’ economic survival.  These are most likely immigrants from Mexico, Central, or South America.
2. Students that become professionals – People that come to the United States to study, get jobs in the U.S. after graduation, and eventually settle here.  These immigrants often become professionals, and can be in any number of fields, including business, medicine, one of the sciences, engineering, etc.
3. Entrepreneurs – People that have been educated abroad, that have money, and that see business opportunities in the United States.  This category is related to the above category in many ways, although many entrepreneurs come to the United States after getting their Bachelors degree abroad.
4. Immigrants escaping persecution – People that need to come the United States in order to live freely, and who, if returned to their native country, would face harm or even death.  The number of bona fide Immigrants in this category is generally fairly small compared to the first three – and notice that I said “bona fide,” by the way.
5. Immigrants that are happy in their home countries but that want to be near family – People that have no desire to leave their current countries of residence, but do so to be near loved ones, usually children and/or grandchildren.  Immigrants in this group usually enter through an approved family-based immigrant petition, since they wouldn’t otherwise need to come to the U.S. – although some might also enter illegally, depending on the immigration status of their family member(s).
6. Immigrants that come to the U.S. strictly for a job – People that ome to this country to work, but that have every intention of returning to their home countries once they leave that position.  Technically, these people are “nonimmigrants,” since they do not intend to remain in the U.S. indefinitely and usually maintain a nonimmigrant visa status – but many also get green cards and stay for as long as needed for work purposes.
7. Immigrants that come to the U.S. strictly so their children can learn English and receive an American education – People that only come to this country for their children, usually from South Korea, Taiwan, Hong Kong, China, and other Asian countries to a lesser extent.  Although they come for their children, immigrants in this category need to find a way for the entire family to enter and remain in the U.S. legally, and therefore might fall into one of the above categories as well.

There are undoubtedly other categories as well, but those are the main ones that I can see.  I think that thinking about immigration in terms of the goals of the people involved has some very interesting policy implications, especially if accurate numbers of how many people currently in the U.S. fit into each category.  If my experience is any indication, the vast majority of immigrants currently in the United States fit into the economic immigrants category, followed by the students turned professionals category.  In policy terms, we need to account for the fact that most of the demand in immigration will be in those categories, and plan accordingly – whether by increasing visa numbers in the EB3 category, increasing the number of visas for unskilled workers, etc.  This also begs the question: should U.S. policy take foreign demand into account?  What role, if any, should demand to live in the U.S. play in the development of sound immigration policy?  Is immigration simply a commodity that the United States provides to the world at large?

The answers to these questions and more on the policy implications of my list will follow at a later date (hopefully this week).

This is going to be the last post for a little while – I’m taking the 24th and 25th off to rest my brain and spend some time with the family.  I’ll be back the week after Christmas with more exciting news from the world of immigration.

An article in the New York Times today described how federal immigration prosecutions are at an all-time high under President Obama.  The article takes pains to point out that the Bush Administration is responsible for increasing immigration-related prosecutions, but the Obama Administration has done nothing to change that trajectory.  According to a report that Syracuse University’s excellent Transactional Records Access Clearinghouse (TRAC) released, there has been a 16% jump in immigration prosecutions since last year, compared to a 9% jump in federal criminal prosecutions overall.  Immigration-related case make up a whopping 50% of all federal prosecutions, a staggering number considering the many areas of criminal activity the federal government regulates.

This wouldn’t be such big news if there was really such a high level of immigration-related crime.  And don’t get me wrong – there is a staggering amount of crime related to many aspects of immigration: deported aliens re-entering the United States, alien smugglers, immigration fraud, and whole lot more.  There is no way, however, that immigration accounts for half of all the federal crimes committed in 2009.  This has been a year in which illegal border crossings decreased dramatically as the economy worsened.  It’s also been a year in which crime has fallen overall: violent crimes dropped 4.4% from last year, murder dropped 10%, and property-related crimes dropped 6.1%.  The federal government’s myopic focus on immigration skews the public’s perception of immigration issues, prevents the Department of Justice from combatting different types of crimes and devoting its resources accordingly, and smacks of a DOJ intent on keeping busy despite a sharp drop in the crime rate.

I really do want our government to fight crime.  I don’t like criminals, and I like criminals that take advantage of immigrants and/or make honest immigrants look bad even less.  I also believe that the federal government needs to devote the majority of its resources to pursuing and prosecuting violent and dangerous criminals, not people crossing the southern border to reunite with family members after a deportation.  There is simply no reason for immigration cases to compose 50% of federal prosecutions when there are so many other deserving criminals out there waiting to be locked up.

The 9th Circuit Court of Appeals decided the case Hamazaspyan v. Holder today, holding that an in-absentia removal order should be rescinded where neither the respondent nor his counsel of record received the hearing notice.  The 9th Circuit’s decision is not as noteworthy as the fact that they had to hear this appeal in the first place.  I don’t think it’s a huge stretch from (a) no one received proper notice in this case to (b) there has a been a due process violation.  There’s a great deal of statutory intepretation and legalese between points (a) and (b), but this specific legal issue seems to be one of fundamental fairness in deportation proceedings, in which the case the respondent should get the benefit of the doubt.  In my opinion, the bigger issue here is that the Federal Courts of Appeals are choking on meritorious appeals that should never have had to be filed in the first place.  Immigration Judges have a wide degree of discretion and should use it to err on the side of the alien more often, if for no other reason than to spare the Courts of Appeal from the veritable flood of appeals they have to hear every year.  There’s no harm ruling for the respondent when there’s an arguable basis to do so, especially if it means greater liquidity in the appeals process overall.

I applauded the Department of Homeland Security’s announcement yesterday that it would stop detaining asylum seekers.  I might have been a little too hasty, however, in cheering DHS’s apparent change in policy.  Attorneys are blogging about how DHS’s stated criteria for determining whether to detain asylum seekers – credible fear, able to verify identity, and not a flight risk – are already the factors it takes into account when deciding what to do in this situation.  Although John Morton’s announcement could signal a change in how ICE applies existing law, or maybe a new effort at standardizing operating procedures across points of entry into the U.S., it was ultimately a rather empty gesture, especially if asylum seekers still find themselves paradoxically seeking freedom in detention.  I always hate to assume the worst about our government, but I can definitely see ICE officers saying to themselves “well gee, Billy Bob, this guy from Ghana has a funny looking passport…I don’t think he can properly identify himself.”  The problem with ICE’s three-prong get-out-of-jail test is that many asylum seekers have to enter the country on false travel documents.  Many times, obtaining a real travel document can be a death sentence, especially if it tips the government off that an especially sought-after individual wants to leave the country.  Additionally, how can someone that has no contacts in the United States not be considered a flight risk?  The three-pronged test relies on the good graces of ICE and CBP agents deciding that someone merits an exercise of discretion – something on which asylum seekers shouldn’t have to count in order to stay out of detention.

This has been a truly exciting week for immigration.  First, the EOIR swore in six new judges, second, the first CIR-related bill appeared in Congress, and now, an announcement from DHS that it will no longer detain asylum seekers that are found to have a credible fear of persecution.  According to an article in the New York Times, “Foreigners who arrive at a port of entry and are found to have a credible fear will automatically be considered for release into the U.S…[a]sylum seekers still will spend time in detention while they undergo interviews and their information is checked, but the administration hopes to reduce the length of their stay with a policy change…”  This was a real no-brainer for DHS.  America should not want to be known as a country that detains people fleeing persecution.  True, many of these asylum claims might be specious at best, but we still need to give asylum seekers the benefit of the doubt.  After all, asylum claims often involve claims of horrific persecution, and the last thing we should want is to compound potential asylees’ suffering by locking them up for the months or years it takes to resolve their cases.  America purports to be a nation of great humanitarian ideals; let’s ensure that we live up to them in all aspects of our legal system.

That’s the name of a new bill submitted by Illinois Representative Luis Gutierrez (D) today – the first CIR proposal to be put forth during the Obama administration.  It’s no coincidence that this bill’s initials spell “CIR-ASAP.”  Representative Gutierrez admits that his bill is not meant to be the final word on CIR, rather a means of jump-starting discussion and debate on immigration reform.  The bill is divided into six Titles, each of which is further broken down into sub-issues.  These Titles include border security, detention, and enforcement, employment verification, visa reform, earned legalization for the undocumented, strengthening America’s workforce, and integrating new Americans.  Among Rep. Gutierrez’s proposals: require undocumented immigrants to pay a $500 fine, which leads to temporary nonimmigrant status for six years, which in turn can lead to permanent residence, recapturing unused visa numbers from Fiscal Years 1992-2008, various detention reform measures, and much more.

I’m happy that CIR-ASAP is only a means of jump-starting discussion on CIR.  The bill seems to have some good ideas, but also has some, uh, how shall we say – not so well-thought out ideas (up to five years in prison for misrepresentations on a legalization application?  Yikes).  My concern is more that Rep. Gutierrez’s ideas and those of other Members of Congress will become victims of bad political timing.  After all, unemployment is still a big issue across America, and health care is still far from a done deal.  Will Congress have the proverbial huevos to tackle another hot-button and potentially unpopular issue in that type of negative political climate?  Members of Congress are not known for taking big risks when their jobs are up for grabs, and I don’t see why that should be any different right now.  If anything, look for serious talk of CIR after the 2010 Congressional elections, but probably not before (and please, Congress, feel free to prove me wrong).

The Immigration Court system, also known as the EOIR, got six new immigration judges today – one for the Immigration Court in Charlotte, North Carolina, one for the Immigration Court in Lancaster, California, and a whopping four new judges for the Los Angeles Immigration Court.  The overburdened and chronically understaffed EOIR can always use new judges, and I’m happy that the overall caseload at the above three courts will soon be reduced, even if only by a little.  I do have a problem, though (if I didn’t, what sort of blogger would I be?).  All of these new judges came from the Department of Homeland Security.  Each was a Trial Attorney for ICE or for the INS, and each rose through the ranks to now become an Immigration Judge.  I strongly believe that diversity of opinion is critical for any judicial body.  Indeed, appointing jurists from different professional backgrounds is necessary for immigrants to have a fair chance before any one judge in any one Immigration Court.  Respondent A might get Judge X, who is a conservative former Trial Attorney, and Respondent B might get Judge Y, who is a more liberal former Legal Aid attorney.  Both of these judicial worldviews are valid, but they will influence and potentially determine the outcome of each case depending on the unique facts involved.  Respondents A and B are hardly entitled to the judge best suited to decide their individual case, but they are certainly entitled to the diveristy of viewpoints that so often flows from people of differing personal and professional backgrounds, giving each a chance at a fair and just result.

I saw this interesting article on a group of illegal Indonesian immigrants (who I’ll call IIIs from now on…good acronyms are so hard to find) in the New York Times.  It seems that the IIIs’ pastor, Seth Kaper-Dale, of the Reformed Church of Highland Park, New Jersey, secured an agreement with ICE to grant Orders Of Supervision to undocumented members of his flock, as long as there were no significant adverse factors in their backgrounds.  Mr. Kaper-Dale is to be commended for doing a lot for people that seem deserving of a little mercy from our government.  Most of these IIIs entered the United States in the 1990s on B-1/B-2 visitors visas, overstayed, had children, and built lives for themselves in this country.  They also chose a very unique place of worship, since their pastor apparently called everyone he could find in a position of authority in detention and removal matters on the IIIs’ behalf, something even most attorneys would think twice about doing.  He finally found someone that agreed to consider the IIIs’ cases, and was eventually able to negotiate the agreement for Orders Of Supervision.

Although admittedly heartwarming, I find this article troubling in certain ways as well, and not just because a pastor achieved a far better result for his “clients” than probably 95% of practicing immigration attorneys could have done under similar circumstances.  My biggest problem is that Orders Of Supervision are temporary forms of relief, and are entirely dependent on ICE’s goodwill.  They can be revoked at any time, and for whatever reasons ICE can cook up.  In my admittedly pessimistic opinion, ICE saw an opportunity to use the IIIs and their heroic pastor for some much-needed good PR, and took it. 

The much deeper and larger problem is that this situation had to happen in the first place.  I have a great deal of sympathy with these IIIs, but they did overstay their visas, albeit for a very valid reason: fear of persecution in Indonesia because of their Christian faith.  The article seems to indicate that many applied for asylum, though, and had their cases denied – and therefore had final deportation orders.  They went through the immigration system, were told to leave after having their day in court, but chose to remain in the country illegally anyways.  I hate to think that I’m being a hypocrite by saying that the IIIs should have returned home after losing their asylum cases.  There are so many situations in immigration that I believe warrant a little bending of the law, including many in the realm of asylum (people with legitimate gang persecution claims come to mind, for example).  In this case, I don’t know if the law should be bent.  America should have a generous immigration policy, reflecting the important place that immigration has in our history, our national narrative, and our continued prosperity in a globalized economy, but we can’t absorb everyone that wants to immigrate to this country.  Indonesian Christians might find life difficult in a Muslim-majority country, but finding life difficult doesn’t entitle you to live in the United States.  Mexicans struggling to support their families don’t have a right to jobs in California, but I can’t really say that I fault them for coming here, especially since there is a need for their labor and there are usually jobs waiting for them somewhere.  I also can’t fault Pastor Kaper-Dale for feeling compassion for individuals that have lives in the U.S. and stand to lose them because of our arbitrary immigration policies; the real problem is that the good Pastor shouldn’t have been put in this position in the first place.  These IIIs shouldn’t have been able to build lives for themselves for such a long time in the U.S. without authorization.  There should have been a means to identify visa overstays, find them, and remove them once their authorized stay in the U.S. ended.  Many things shouldn’t have been allowed to happen, but listing all of them won’t do anything for anyone at this point, and the Pastor and every other immigrant rights advocate out there is right to look at the human dimension of the nation’s immigration failings, and not just at the legal dimension.  There have to be standards, and there has to be adherence to the law, but most importantly it all has to make sense, and be designed with the human factor in mind.