On Christmas Day, Pogonip asked:
Can you post your view of the ideal immigration policy? I’d like to read it.
Pogonip asked for it and now you all will have to suffer… This post will, as a result of the topic, be long, so a lot of it will be after the jump.
I think that there are several policy changes that could and should be made to US immigration policy to bring the overall US immigration policy into the 21st century. Right now, like so much of US foreign and domestic policy, US immigration policy is a hodgepodge of specific policies on each issue or set of issues that are rooted in both statutory and presidential/executive branch decision making. Often the latter, executive branch policies are both built onto the statutory derived policy in an attempt to keep the policy relevant to what has both changed and is actually occurring in the years since the legislation on the issue was passed. And while these policies may be coherent and make sense individually or within selected sets, they are not necessarily working well overall. The last major and comprehensive legislative adjustment to US immigration policy was the US Immigration and Nationality Act of 1965. Since then there have been both large and small adjustments, such as both the Reagan and Bush 41 amnesties for undocumented workers in the US, as well as several attempts at comprehensive reform, including attempts supported by both the Bush 43 and Obama administrations. These latter two attempts at comprehensive reform were killed off by the most extreme nativists within the GOP Caucuses in the House and the Senate.
Given this history, here are four policy changes that would make progress in improving how the US deals with immigration in the second decade of the 21st century.
Establish a Guest Worker Registry
The creation of a guest worker registry, specifically to get those who are in the US and working in an undocumented status. This would also provide the guest worker or workers the ability to move not just themselves, but also their families and dependents who are with them, into a documented status. There are several advantages to instituting a guest worker registry and begin its implementation for those who are already in the US and functioning in this capacity. The most important one is that it gets them out of the shadow economy. Having undocumented immigrants, whether they entered the US without proper immigration papers in search of work or they overstayed their entry visits and are working without the appropriate paperwork, on the licit economy will have several benefits.It will create the economic benefits of being able to properly account for their labor in the tax rolls at all levels of government. This way guest workers will contribute to the municipal, state, and Federal tax base and be able to draw appropriate social services – from attendance of children in public schools to healthcare – without being considered tax cheats. There inclusion within the licit economy will also bring in needed revenue for social security, medicare, and medicaid. A guest worker program and registry will also reduce crime. Undocumented immigrants are easy prey. They are easy prey for employers that would exploit them, just as they are tempting targets for criminals who know that they are unlikely to go to the police for fear of being detained and deported.
A properly established guest worker registry would include a vetting process to determine which undocumented immigrants and workers already in the US should be eligible for and awarded guest worker status, as well as eligibility for those not currently here, but wishing to come to the US and work without seeking permanent resident status or citizenship. For instance, convictions for violent and serious non-violent crimes should and would be cause for rejection of an application. And since we know that the vast majority of undocumented immigrants and workers in the US commit far fewer crimes, including violent crimes, a guest worker program would establish a more equitable system for dealing with undocumented immigrants and workers currently in the US instead of whipsawing back and forth from one presidential administration to the next’s determination of what makes an undocumented immigrant eligible for detention and deportation.
Adjust Grants of Asylum and Awards of Refugee Status
While the US has both congressionally originated legislation, as well as treaty obligations that function as if they are US statutory requirements, regarding who is and is not eligible for grants of asylum and being awarded refugee status, the reality is that each presidential administration adjusts both the who and the how many. Currently, Stephen Miller and the fellow travelers he’s salted away across several executive branch departments and agencies, have managed to short circuit the normal, State Department led annual determination of how many foreigners qualify for refugee status and resettlement in the US. And Miller, as well as his fellow travelers, have also been attempting to rewrite US asylum laws and treaty obligations pertaining to asylum through executive orders issued by the President. While some adjustment from one administration to the next is normal, what Miller has been able to orchestrate is both something completely different and, frankly, un-American in terms of America’s ideals. It is, unfortunately, all to American in actual application. And, I fear, will be used by Miller’s fellow travelers in both the nativist, anti-immigration community as a whole and in the Republican Party to scream bloody murder when the next Democratic administration seeks to return the annual totals back to normalcy. Miller and his fellow travelers ability to severely restrict the quota numbers create a ticket time bomb for them to exploit when a future administration seeks to reestablish appropriate numbers regarding refugees.
In order to prevent having unaccountable, appointed, revanchist white supremacist aides hijack America’s asylum and refugee system in their attempt to re-whiten the US, there needs to be some serious changes made to how the US handles both asylum seekers and those seeking refugee status. The first change is that the threat of both serious criminal and domestic violence that result from the originating country’s political instability and inability to enforce their own laws need to be legislatively established as a valid reason to seek and be granted asylum in the US. Given that many of those fleeing instability in Central America to seek asylum in the US are fleeing the local effects of the political, social, and economic instability of those Central American states that manifest as criminal predation and domestic violence and abuse, these should be recognized as legitimate reasons to seek and be granted asylum. Especially as so much of the political, social, and economic instability in Central America is the result of well over a century of US meddling in the region. The waves of asylum seekers that we are seeing today are one of the downstream second and third order effects of decades of US actions in Central America. Successive US administrations pursuit of what they defined as America’s interests in the region and the hemisphere have contributed to the ongoing and current instability. As a result the US bears a responsibility to provide assistance, through acceptance of those fleeing that instability, through grants of asylum in the US.
A similar dynamic exists regarding refugees. A lot of those seeking to come to the US as refugees are coming from the Levant, primarily Iraq and Syria, as well as Afghanistan. The US’s strategic failures in both Operation Enduring Freedom and its successor mission Operation New Dawn in Afghanistan, as well as in Operation Iraqi Freedom, have destabilized both the Levant and Afghanistan. Additionally, the US’s support for Saudi Arabia, through the sale of weapons and the provision of military training, advise, and assistance missions (both conducted by US uniformed personnel and by contractors), in their religiocidal conflict in Yemen, has also destabilized southwestern Arabia. In all of these cases the US has a responsibility to accept properly vetted refugees and resettle them in the US. It should not be necessary for Americans who served in Iraq, Afghanistan, Syria, or all three in military and civilian capacities to have to fight their own governments to get their host country interpreters and translators awarded refugee status and relocated to the US with their families to ensure their safety. Safety that these host country partners willingly put at risk because they believed the US was there to help them fix their countries.
Despite what the President and his supporters say, we have an excellent and very vigorous process for assessing refugee and asylum seekers claims. What really needs to be reformed is the process by which the US government determines how many can be accepted each year and for what reasons they can be granted asylum and/or refugee status. A process for doing so should be created and established via legislation. And the legislation should require that the process, including the metrics used to determine the annual limits, be reviewed at regular intervals to ensure it is working as desired. For instance, every ten years. This is not a sunset clause, rather the requirement of mandatory review and, if necessary, revision.
Create a Comprehensive Resettlement Program for Guest Workers, Asylees, and Refugees
In order to make the reforms denoted above, it will be necessary to create a comprehensive resettlement program and system for guest workers, asylees, and refugees. To a certain extent, especially for the guest workers, the market for employees to do specific types of work, such as agricultural field hands, will assist in determining where the guest workers go. However, a comprehensive resettlement program has the ability to make a positive difference not just in the lives of guest workers, asylees, and refugees, but also in small towns across America that are dying as their younger residents move away looking for better opportunities. There is both scholarly research and news reporting that indicates that one of the best ways to save non-metropolitan towns is through relocating immigrants to them. Establishing a resettlement system for immigrants, guest workers, asylees, and refugees that seeks to maximize the advantages they bring to the US would be good for both those seeking better lives in America and the small towns in need of revival.
Transform Immigration Judges from Administrative Judges to Title III Judges
Currently immigration judges and immigration courts are administrative judges and courts. Specifically, these courts are established by the Department of Justice and the judges work for the Attorney General. Aside from the fact that there are often too few immigration judges and courts, the fact that they were administrative and not Title III has normally not been a major problem. Unfortunately not being a problem was dependent on not having an unreconstructed neo-Confederate and white supremacist as attorney general. Jeff Sessions was able to severely limit the scope and authority of immigration judges and their courts because they are under the direct control of the Attorney General of the United States. He specifically went shopping for immigration court cases that he could use to remake the rules for what does and does not qualify for an award of asylum just by issuing a memo. Fortunately, the Federal courts have stepped in and blocked this for the time being. However, given the abuse of the oversight power of the Office of the Attorney General regarding immigration courts and judges, this ticking time bomb cannot be left lying around for future bigots to use for their own xenophobic, racist, and nativist ends. The only way to ensure the independence of the immigration courts and the judges who preside over them is to remake them as Title III courts where they will be outside the abuse of the next Jeff Sessions. And there is always a next Jeff Sessions waiting for his or her chance to harm others with a smile on his or her face.
Reform, Restructure, and Relocate US Immigration Enforcement Authority
Right now two Department of Homeland Security agencies, Customs and Border Patrol (C&BP) and Immigration and Customs Enforcement (ICE), are primarily responsible for dealing with both documented and undocumented immigrants into the US. And because the vast majority of Americans live within 75 miles of the border, including coasts and points of entry at airports and seaports, C&BP and ICE, which have enforcement authority within a 100 miles of the border, have enforcement authority over the vast majority of the US population. This has led to abuses. One of the major problems with both C&BP and ICE is that they are composite agencies created in the panicked frenzy in the wake of the 911 attacks. In the case of the former they are responsible for both some customs enforcement and for patrolling the border. The latter is responsible for immigration enforcement, as well as customs enforcement.
This is not an effective, efficient, or intelligent way to delegate handling these issues. It would be far better for customs enforcement issues to be separated out and put in its own agency. And since this is a form of law enforcement related to import duties, that agency should be relocated under the Department of the Treasury. Immigration should also be separated out into two separate agencies. The first should be located under the State Department and should be responsible for handling issues pertaining to immigration. As in who qualifies for a visa, what type, how long can they stay, oversight of naturalization, things like that. The enforcement arm, as in policing those who are either undocumented entries, undocumented overstays, or who violate the provisions on their entry visas, should be separated into its own agency and relocated under the Department of Justice. Finally, border enforcement should be its own department, which could remain within DHS or be relocated to the Department of Justice. My natural preference is for the latter as I think providing DHS with Federal law enforcement functions is inherently dangerous and, to be honest, that DHS should be dissolved and the agencies, bureaus, and departments within in it returned to where they originated before it was created as a rushed and panicked response to the 911 attacks.
There are other reasons to break agencies like ICE up. As someone who has done inservice training for an ICE field office on how to leverage cultural information to conduct better engagements with the communities that ICE officers have to interact with and police, I can honestly tell you that ICE has its own internal professional cultural problem; it was created out of only semi-related parts as part of the the creation of DHS, and those parts don’t really hang well together. A similar issue exists for Customs and Border Patrol. As a result the best thing we can do is separate these agencies out by their functions, consolidate those, such as customs enforcement, where appropriate, relocate them within more appropriate departmental homes, and then revise recruitment and training requirements.
I’m going to stop with these five proposed policy changes. Some will have to be done legislatively, some might be able to be done through executive branch action. But all of them are needed to bring US immigration policy into the 21st century. And while they resolve some of our current immigration related challenges, they will, no doubt, create new ones.
Update at 1:15 AM EST
Now that the site is back up, I want to add three additional proposed policy changes based on being reminded I didn’t explicitly deal with them by several commenters. The first is that the cap on legal immigration needs to be raised. People who want to come here to make a better life, become Americans by choice, and contribute to forming a more perfect union should be encouraged to do so, not discouraged by too low caps. Furthermore, once here and seeking citizenship, the process to do so needs to be streamlined and it also needs to be insulated from the type of political manipulation, maladministration, and malfeasance of the current administration. People seeking to become naturalized American citizens shouldn’t have to live in fear that a bunch of racist nativists will get political appointments solely so they can work out their issues by messing around with the lives of immigrants. Finally, a permanent fix needs to be instituted for the Dreamers so they can move forward with their lives without fear that their entire existences can be upended based on an executive order or a Federal appellate court or Supreme Court ruling.