The Immigration Reform and Control Act of 1986 had two major features: to make it illegal for employers to knowingly hire illegal immigrants and to provide amnesty for the then approximately 5 million illegal immigrants in the country on the condition they had no criminal record. Some 2.7- 2.9 million illegal immigrants stepped out of the shadows and applied for amnesty. The President at that time, Ronald Reagan, supported the legislation with the understanding that there would also be enhanced border security to stem the flow of future illegal immigrants. 

By any measure the 1986 legislation and the amnesty program were a dismal failure. 

According to the Pew Research Center by 1990 the illegal immigrant population stood at 3.5 million and had grown to 12.2 million by 2007.  As of 2020, estimates of the illegal immigrant population range from 11-12 million. Some suggest it is significantly more than that, which is more likely.

This past Wednesday the White House introduced the US Citizenship Act of 2021 with a primary goal of providing a “pathway to citizenship” for the 11 million plus illegal immigrants now residing in our country.  But a “pathway to citizenship” is really just another term for “amnesty” re-branded to legitimize and sanitize the fact of criminal illegal entry and to conflate illegal immigration with legal immigration.  Nothing is more indicative of this attempt than the bill’s proposal to replace the terms “illegal alien or alien” with “non-citizen.”

The legislation as proposed would effectively provide the opportunity for amnesty for those illegal immigrants present in the country as of January 1, 2021. Those who pass criminal background and national security checks would be allowed to apply for Temporary Protected Status (TPS) and then five years later apply for a green card or Lawful Permanent Residence (LPR).  Three years hence they could apply for citizenship…a total transition period of eight years. Anyone deported after January 20, 2021, would also be able to apply for Temporary Protected Status. Anyone already in the country who are farm workers or under TPS or DACA protection could immediately apply for a green card and then citizenship three years later.

One significant aspect of the legislation is that, as noted by Bloomberg, “the citizenship path is not conditional on the implementation of border security measures.” This is a major flaw in the legislation, which in combination with the hijacking of existing programs that are designed to govern the legal immigration process, effectively moves us to an open border society … the ultimate goal of the progressive agenda.

More specifically, the legislation subverts the intent of Temporary Protected Status which is a designation applied to immigrants in the United States who cannot return to their country of origin due to ongoing armed conflict, natural disaster, or other extraordinary reasons. By allowing all illegal immigrants in the country to now receive this status, regardless of the situation in their home country, renders the program meaningless since it assumes they all entered the country illegally to escape those condition in their home country.

It also dilutes the basis on which Lawful Permanent Resident (LPR or green card) status is granted. LPR is primarily granted in the context of two major categories…as an immediate relative (spouse, fiancée or children) or a family member of a US Citizen or Lawful Permanent Resident and as an individual being sponsored for employment by an employer in the US.  Individuals who are granted LPR status under false pretenses (for example, saying they are going to marry but do not or who marry and are subsequently divorced and/or who it is proven have not lived with each other) are subject to deportation. LPR status can also be revoked if someone has committed a crime of moral turpitude, an aggravated felony and drug-related crimes. LPR Status can be denied if a person is deemed a security risk, or is inadmissible for health or criminal reasons, or there is a finding that the individual is likely to become reliant on government assistance. The question is whether these standards will actually be applied to the 11 million or so illegal immigrants who will be put on a path to citizenship. Or will the administration simply go through the motions and end up granting LPR status to all covered under the legislation. 

The reality is that once you have, through amnesty, given tacit permission to immigrate illegally you have demonstrated a laxity that will carry over to other standards.

Biden’s immigration legislation proposal (along with his recent policy initiatives) is built on the premise that by granting amnesty, streamlining and shortening the immigration approval process, minimizing criminal violations, and liberalizing the criteria for those seeking asylum and/or refugee status we can stem the tide of illegal immigration.  

This predicted outcome, if we learn anything from the historical record, is disingenuous. In fact, Biden’s proposed legislation and policies are the equivalent of throwing up our hands and admitting defeat in the face of those who flout our laws.

There is no doubt that if passed as proposed we will be confronting the same or a worse illegal immigrant issue 30 years from now.

Instead of acquiescence we need to demand resolve on the part of our representatives to enforce our immigration laws and to ultimately hold people accountable for their trespass.

Amnesty is not the solution but another facet of the problem.

Biden’s “Proclamation on the Termination of Emergency with Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction” effectively cuts short the efforts of the Trump administration to plug the holes in our porous 1,954 mile southern border which allow thousands of immigrants to enter the United States illegally.  

The proclamation serves to formally end the declared emergency which allowed the Trump Administration to divert funds from other areas of the government’s budget ($601 million from the Treasury Forfeiture Fund, up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities, and an up to $3.6 billion reallocation from the Department of Defense military construction projects) to fund, given Congress’ reticence to do so, the building of new, and refurbishment of existing, border wall.

The fact is that, according to the Federation for Immigration Reform, in 1996  a majority Democrat Congress mandated the construction of a 14-mile, triple-layered fence along the boundary between San Diego and Tijuana as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Only nine miles of fencing were completed by 2004.  A Democrat controlled Congress then passed the Secure Fence Act of 2006, which called for a double-layered fence along the border, to be augmented by manpower and technology.  It also directed the Secretary of Homeland Security to construct “reinforced fencing along not fewer than 700  miles of the southwest border, in locations where fencing is deemed most practical and effective.”

When Trump took office some 700 miles of barrier had, in fact, been installed. This included 353 miles of Primary Pedestrian Fencing, 36 miles of Secondary Fencing, 14 miles of Tertiary Pedestrian Fencing, and 300 miles of Vehicle Fencing.

As a result of his declared emergency, Trump was able to build or refurbish some 450 miles of border wall.

Biden’s reason for stopping the renovation or building of the wall is that it is not a serious policy solution.   This conclusion flies in the face of the legislative action by prior Democratic Administrations cited above.

Yet Biden has offered no counter policy solutions.

Instead he announced a 100-day moratorium on deportations and an indication that he will seek to give amnesty to all resident illegal aliens, giving birth to a new onslaught of immigrant caravans from the Northern Triangle.

The only effective policy solution is strict enforcement of the immigration laws on the books. Anything less by the President of the United States is a betrayal of his oath of office.

Executive Order (13993) : Revision of Civil Immigration Enforcement Policies and Priorities

On February 3, 2021 this writer published a post titled “Biden’s Executive Orders and Presidential Memorandums on Immigration Obscure the Facts.” That post presented evidence that the Trump Administration’s immigration policies, based on actual outcome statistics, were, in large part, more generous or, depending on your perspective, less punitive to illegal and legal immigrants and, in other respects, equivalent to Obama era policies.

Today’s post launches a series of commentaries which will examine each immigration-related Biden Executive Order in detail.

Almost immediately following his inauguration, Biden signed Executive Order (13993) titled “Revision of Civil Immigration Enforcement Policies and Priorities.”  This order specifically revoked Trump’s Executive Order (13768) titled “Enhancing Public Safety in the Interior of the United States” which was published in January 2017.

But was Trump’s executive order so egregious that it needed to be revoked?

Consider the following…

Trump’s order was focused on interior enforcement of immigration laws and those who try to and/or successfully enter the United States illegally (approximately 872,000 attempted illegal border crossing apprehensions by Customs and Border Patrol in 2019) as well as those who overstay (676,000 in 2019 alone) and, in other respects, violate the terms of their visas and/or who presented a significant threat to national security and public safety by virtue of their criminal conduct.  

What specific actions were implemented pursuant to Trump’s Executive Order 13768?

1. It resurrected the Secure Communities Program, implemented under the Bush Administration and initially expanded under the Obama Administration until it was ultimately terminated in 2014. The program was designed to identify immigrants in U.S. jails who are eligible to be deported under immigration law by having participating jails submit the fingerprints of those arrested to immigration databases. From the program’s inception in 2008 through the date it was terminated, some 379,000 undocumented criminal aliens were deported.

2. It established a list of enforcement deportation priorities tied to criminal offenses and chargeable criminal activity by individuals including those who engage in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; those who abused any program related to receipt of public benefits; those who have been previously told to depart the United States but have not done so; and those who in the judgment of an immigration officer, otherwise pose a risk to public safety or national security. 

These priorities would appear to be consistent with a goal of simply enforcing existing law with a focus on those who broke our laws while being in the country illegally.  Critics of Executive Order 13768 on the other hand expressed concern that it was too broad (it did not distinguish between misdemeanors and felonies) and therefore threatened virtually all undocumented immigrants with deportation, regardless of the seriousness of the crime or how long they had been in the country.

3. It increased the number of 287(g) agreements, which allow DHS to deputize select state and local law-enforcement officers to perform the functions of federal immigration agents. These deputized officers may interview individuals to determine their immigration status; check their documents against DHS databases; issue “detainers” (which instruct a state or local law enforcement agency to hold a suspected removable individual for up to 48 hours after the scheduled time of release so that ICE can assume custody); and issue a Notice to Appear (NTA). The latter is the official charging document that begins the removal process.

4. It sought to bring to task those state and local jurisdictions that declared themselves places of sanctuary for illegal aliens. In that regard, the Department of Justice (DOJ) and DHS explored actions they could take to ensure that U.S. jurisdictions limiting their cooperation with DHS were not eligible to receive federal grants, except as deemed necessary for law-enforcement purposes.

There are, in fact, specific federal statutes that require state and local officials to aid federal immigration authorities… specifically  Section 1373(a) of Title 8 of the U.S. Code says state and local governments can’t ban officials from sending or receiving information regarding the immigration or citizenship status of people to the Department of Homeland Security.  However, one of the basic tenets of federalism and the Tenth Amendment is that the federal government cannot commandeer states and cities by compelling them to actively enforce federal laws at their own expense. Which means that state and local governments cannot be forced to enforce federal immigration law, i.e., they can decide to allocate as few resources to this endeavor as they deem desirable.  States and municipalities have exploited this loophole and effectively established themselves as sanctuary jurisdictions to the detriment of American citizens and lawful permanent residents.

5. It charged the Secretary of State with the responsibility to undertake negotiations with foreign countries to ensure that in order to receive foreign aid these other countries commit to accepting the return of their nationals upon deportation. 

6. It created The Victims of Immigration Crime Engagement (VOICE) Office.

7. It authorized the hiring of 10,000 more Enforcement and Removal officers, subject to funding by Congress.

Taken together, all of the above seem quite reasonable.

So what policy has Biden formulated that will take its place?

In fact, we do not know because the executive order that Biden signed revoking the Trump order is lacking in any specificity.  Instead, it generally references a set of policies that have yet to be developed that will “protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety … and adhere to the due process of law.”

I would offer that the litmus test of any governmental policy is whether it is consistent with the legislation under which it is promulgated and in the interests of the citizens and lawful permanent residents of the United States.

We will have to wait and see if Biden’s ultimate policy passes that test.

February 3, 2021

Apropos of the snowy weather we have experienced over the past few days in the Northeast, President Biden has initiated a blizzard of executive orders and presidential memorandums during his first 15 days in office. Yesterday he added to the four previous ones he issued …all focused on immigration policy. Each of his orders and memorandums related to immigration are aimed at putting on hold or undoing what he has characterized as “some of the most egregious, damaging actions from the Trump administration.”

That judgment, however, is founded on political bias and, in fact, refuted based on a comparison to what happened under the Obama Administration. A simple presentation of the facts supports this contention.  (Note: All the statistics that follow are taken from the Yearbook of Immigration Statistics published by the Department of Homeland Security.)

Asylum

The general assertion is that Trump’s policies created obstacles to those seeking asylum. Yet over the three years (2017 -2019) of the Trump administration for which we have complete statistics some 110,274 people were granted asylum…an average of 36,758 each year… with a high of 46,508 achieved in 2019. In contrast, over the eight years of the Obama Administration, a total of 187,493 people were granted asylum…an average of 23,437 each year…with a high of 27,920.

Naturalizations

The assertion is that Trump’s policies slowed the naturalization process for those seeking to become citizens. The facts tell another story. The average number of people naturalized under each of three years (2017-2019) of the Trump Administration was 884,860 with a high of 986,851 in 2017. In contrast, the eight year annual average under Obama was 779,727 with a high of 972,151 in a single year.

Legal Permanent Resident Status

The assertion is that Trump’s policies created obstacles to those applying for legal permanent resident status. Actually Trump’s and Obama’s record in this area was about the same. Specifically, Trump’s Administration granted legal permanent resident status to an average of 1,085,181 over three years with a high of 1,127,167 in 2017. Obama’s average over eight years was 1,063,590 with a high of 1,183,505 in 2017.

Aliens Determined Inadmissible

The assertion is that the Trump Administration was too tough when applying the criteria to determine who should be admitted to the United States. Perhaps … but maybe it did so in the interest of those of us who are citizens who he pledged to protect. In that regard, the average annual number of immigrants determined to be inadmissible under the Trump Administration was 262,054 for a total of 786,162 over three years. The comparable figures under Obama were 227,825 and 1,822,600, respectively.

Aliens Apprehended

The assertion is that the Trump Administration was exaggerating the crisis at the border. In fact, the high watermark of alien apprehensions under the Trump administration was 1,013,539 in 2019…the majority (86%) by Border Patrol. The average over the administration’s three years was 682,548 with a definitive pattern of increase over the three years. In contrast, the high under Obama was 889,212 in 2009 with a definitive pattern of decrease over the eight years with the lowest point reached in 2015 with 462,388 apprehensions. Was the decrease under Obama a function of less people trying to cross over illegally between ports of entry or was it a simple lack of will to aggressively enforce the law by ICE and Border Patrol due to a less than supportive administration?

Alien Removals and Returns

The assertion is that Trump was tougher than Obama in the approach he took in identifying and removing and returning undocumented aliens. Once again, the facts do not support this assertion. During the three year period (2017 -2019) the Trump Administration removed a total of 975,694 aliens and returned 432,080 aliens… an annual average of 325,231 and 144,027, respectively. In contrast, over the eight years Obama was in office, a total of 3,062,581 aliens removed and 2,186,457 were returned…an annual average of 328,065 and 273,307, respectively.

In light of the above statistics an appropriate conclusion would be that the Trump Administration’s policies were generally more welcoming to those who legitimately needed asylum and who followed the proper path to citizenship but increasingly harder on those who sought to enter or remain in the country illegally. Obama’s policy was, in contrast, similarly tough in many areas but also increasingly more liberal in the latter years of his administration with respect to all aspects of illegal immigration.

It is important to understand that each administration sets its immigration policy within the confines of the statutes that have been passed, the legal case decisions which govern immigration, and the authority delegated to it by Congress.

The differences in policy between administrations are generally a difference in what each administration chooses to emphasize in its enforcement of the law. And what each administration chooses to emphasize in its enforcement is a function of what is happening at any given point in time from a political, economic, and social standpoint. Thus, even within the same administration what and how it chooses to enforce immigration law may vary over a period of time…witness the change that took place under the Obama administration.

For example, Trump’s policy approach to immigration focused on general enforcement of the law with the primary aims of deterring and discouraging illegal immigration and protecting American citizens in terms of their physical and economic security. 

It reflected and adhered in large respect to the philosophy expressed by Democrat Barbara Jordan, who as Chair of the Clinton Commission on Immigration Reform, stated “Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.”

Biden’s approach to immigration policy promises to be mirror image of Obama’s in the latter years of his administration…one, that while it may be viewed as more humane, weakens existing immigration law and actually encourages illegal immigration…witness the rebirth of caravans coming from the Northern Triangle.

Biden would do well not to “throw the baby out with the bath water” as he reviews Trump’s immigration actions.  Certainly Trump’s “zero tolerance” policy that led to family separations was a misstep and should not be repeated but beyond that his actions were focused on enforcement of existing law and protecting American citizens…which is a primary duty of the President.

Hopefully he will be guided by common sense and adherence to the laws as passed by Congress and not by the pleadings of his more liberal base as he moves forward to formulate his immigration policy.