Belinda, hello. Do you remeber do you helped me with my Annotated Bibliography assignment? I was wondering if you can help me with this one, is the same thing, the same 3 articles. I will put the requ
Original ArticleAn Overview and Critique of US
Immigration and Asylum Policies
in the Trump Era
Paul Wickham Schmidt
Georgetown Law
Executive Summary
This article provides an overview and critique of US immigration and asylum policies from the perspective of the author’s 46 years
as a public servant. The article offers a taxonomy of the US immigration system by positing different categories of membership: full
members of the “club” (US citizens), associate members (lawful permanent residents, refugees, and “asylees”), friends (non-
immigrants and holders of temporary status), and persons outside the club (the undocumented). It describes the legal framework
that applies to these distinct populations and recent developments in federal law and policy that relate to them. It also identifies a
series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and
local immigration policies, and constitutional rights that extend to noncitizens. It ends with a series of recommendations for reform
of the US asylum system, and a short conclusion.
Introduction
This article examines distinct categories of membership in the United States, a vibrant twenty-first-century democracy built on the
not completely fulfilled promise of “liberty and justice for all.” Membership in this “club” remains among the nation’s most dif-
ficult, fundamental, and contentious issues. Membership determinations involve often-conflicting human needs, such as belonging,
self-determination, allegiance, loyalty, and even survival. In addition, the stakes are high. The US Supreme Court has said that
expulsion from the nation can result in the “loss of everything that makes life worth living.” 1
The US immigration process affects those living in not only Texas, California, New York, Florida, and states along the US–
Mexico border, but also other states with rich histories that continue to be shaped by immigrants, both documented and
undocumented.
In 2016, the United States had a very contentious national election in which immigration played a major role. The election’s
winners presented a far more hostile and negative view of immigration than the nation has seen in recent history. In ways not wit-
nessed by recent generations of Americans, the Trump administration has challenged both the US tradition as a haven for immi-
grants and its traditional role in the international community as a beacon of freedom, liberty, and justice.
We have seen instances of accelerated, harsh, and aggressive removals in many areas of the country. Some politicians, most
administration officials, and their supporters praise these efforts as necessary and long overdue. A debate over funding to build
a wall the length of the US–Mexico border led to an unnecessar y government shutdown from December 22, 2018, to January
25, 2019, which particularly hurt the US immigration court system (TRAC 2019). By mid-June 2019, the number of pending immi-
gration court cases exceeded 900,000.
At the same time, other politicians and many states and localities have attempted to protect and reassure vulnerable populations
in their communities that President Trump cannot keep all of his campaign promises to wall off, deport, and bar the admission of
certain groups of individuals on a grandiose scale.
Corresponding Author: Paul Wickham Schmidt, Adjunct Professor of Law, Georgetown Law. Email: [email protected]
1Ng Fung Ho v. White , 259 U.S. 276, 284 (1922).
Journal on Migration and Human Security 2019, Vol. 7(3) 92-102ªThe Author(s) 2019 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/2331502419866203 journals.sagepub.com/home/mhs In most urban areas, local television news regularly features stories of scared families who believe that they could soon be forced
out of their homes in the United States and sent to foreign countries where they have not been for years, perhaps decades. Some US
citizen children who are part of these families face the prospect of exile to foreign countries they have never visited.
Families seeking to apply for refuge under our laws were intentionally separated as part of a misguided and probably illegal
“zero tolerance” program instituted by former Attorney General Jeff Sessions to punish and deter asylum seekers. The administra-
tion has used a range of interception, border enforcement, and legal strategies to deny access to the US asylum system. The pres-
ident has also mocked the US Constitution with threats to strip some US citizens of their birthright — citizenship under the
Fourteenth Amendment — through unilateral and almost certainly illegal use of an executive order. Consequently, the issue of who
should belong to our national club and how we treat those who are not welcome will continue to occupy our nation and its leaders.
Categories of Membership in the US “Club”
Full Members
The “full voting members” of our nation are US citizens. A very small group of people are US “nationals” who owe permanent
allegiance to, but are not citizens of, the United States.
Under the Fourteenth Amendment to the US Constitution, persons born in the United States automatically become US citizens.
The exceptions are children born to certain high-ranking foreign diplomats with immunity and rare individuals born on foreign
public vessels who are not subject to the jurisdiction of the United States. US citizenship vests automatically, regardless of the
US legal status of the mother or father.
Although so-called birthright citizenship has become a very controversial topic recently, it has been a firmly established con-
stitutional rule for more than a century. Because it is a constitutional rule, Congress cannot change it by statute, nor can the pres-
ident change it by executive order. The great majority of scholars and lawyers agree that to do so would require a constitutional
amendment or a radical reinterpretation of the US Constitution by the Supreme Court.
In addition, certain individuals born abroad (i.e., whose parent or parents are US citizens who previously lived in the United
States) can automatically acquire US citizenship at birth. “Citizenship by acquisition” is governed by statute, rather than the Con-
stitution, and the rules have changed throughout the years.
This issue came up in connection with the 2016 presidential race because one of the leading primary candidates, US Senator Ted
Cruz, was born in Canada to a Cuban citizen father and a US citizen mother who had lived in the United States for at least 10 years
prior to his birth. Consequently, by the then-applicable statute, he became a US citizen at birth. That does not necessarily answer the
question of whether he is a natural-born citizen eligible under the Constitution to become president.
In addition, children born outside the United States may under certain conditions automatically derive US citizenship on the
naturalization of at least one parent or on being lawfully admitted to the United States to reside with a citizen parent.
Finally, certain individuals lawfully residing in the United States may, if eligible, choose to apply to the Department of Home-
land Security (DHS) for naturalization. This is, in effect, a way in which a prospective member of the club may apply for and
receive full membership.
While Article I, Section 8 of the Constitution gives Congress authority to establish “a uniform rule of naturalization,” and the
Fourteenth Amendment provides that naturalized individuals shall be citizens, the Constitution does not specify rules for natura-
lization. Theoretically, Congress could decide not to provide for naturalization at all.
The rules for naturalization are set by statute and also have changed frequently throughout the years. They largely depend on
lawful permanent residence, knowledge of the English language and basic civics, and good moral character. In other words, only
naturalized citizens actually earn their status by some type of merit-based process. The rest of us are simply beneficiaries of extreme
good fortune that we did nothing to deserve.
There is a process for denaturalization of individuals who illegally obtained naturalization. Some of the most famous denatur-
alization cases involved Nazi war criminals who concealed their atrocities during the immigration and naturalization processes.
The current administration has instituted a vigorous program of reviewing applications of naturalized US citizens for evidence of
past fraud that could lead to denaturalization. Otherwise, however, one may lose US citizenship only through “voluntary relinquish-
ment.” 2In other words, Congress may not involuntarily strip an individual of legally acquired US citizenship. An “alien” is defined
by law not as an “extraterrestrial being,” but rather as anyone who is not a citizen or national of the United States.
Associate Members
A second group might be characterized as “associate members” or “prospective members” of our club. In immigration terms, they
are known as lawful permanent residents (LPRs) or “green card” holders. While LPRs cannot vote or participate in our political
2Afroyim v. Rusk , 387 U.S. 253 (1967).
Schmidt 93 processes, they can reside here on a permanent basis, provided that they obey our laws. Generally, they can work here without much
restriction and can travel relatively freely abroad. Eventually, most individuals in this category can attempt to meet the criteria to
become US citizens, although significantly they are not required to do so.
LPRs are by far the largest group of “associate members.” The US system of permanent legal immigration favors the admission
of three groups: close relatives of US citizens and LPRs, persons with needed job skills, and refugees. The United States admitted
approximately 1.1 million permanent residents in fiscal year (FY) 2017 (DHS 2017).
Family and Employment-Based Immigrants
Immediate relatives of US citizens — that is, spouses, minor children, and parents of adult US citizens — can immigrate without
numerical limitation. Approximately 516,000 immediate relatives, 300,000 of them spouses, were admitted as immigrants in FY
2017 (ibid., table 6). Only parents of adult US citizens who are older than age 21, however, qualify for immediate relative status.
Consequently, and contrary to popular opinion, the birth of a US citizen child confers no immediate immigration benefits on the
parents.
Two hundred and twenty-six thousand immigrant visas are allocated annually for other types of family reunification for adult
children of US citizens, spouses and children of LPRs, and siblings of US citizens. The latter category, however, has a waiting list of
nearly 13 years; and for intending immigrants from certain countries in oversubscribed preference categories, projected backlogs
can extend for decades (Wheeler 2016; Kerwin and Warren 2019).
Another 140,000 immigrant visas for employment-based immigrants are annually allocated, primarily to professionals and other
skilled workers. “Members of the professions holding advanced degrees” and “outstanding professors and researchers” are within
the preferred categories.
Significantly, at present, only 10,000 immigrant visas are available annually to so-called unskilled workers whose services are
needed by US employers; yet this category appears to be one in which US employers have a great need. “Unskilled” is a highly
misleading term. Many of the so-called unskilled possess abilities and skills that few college-educated persons possess or would
be willing to learn and perform on a regular basis (Hagan, Demosant, and Chave ´ z 2014).
The Trump administration has chosen to characterize some aspects of legal family migration as “chain migration.” Accordingly,
this administration and some legislators have proposed a reduction in overall immigration and a reallocation of some of the family-
based visas to the employment categories. There is no basis for such changes in the law, however. Indeed, most studies show that
US society, and particularly the economy, would benefit from more legal immigration across the board (Bier 2018; Orrenius 2018).
Family immigration contributes to the success of the American economy and enriches our society, as does employment-based
immigration. A more rational change would be to increase both family and employment-based legal immigration to better match
the “market forces” of supply and demand, as well as to reduce the number of individuals seeking to migrate outside the legal
system.
The current administration also erects bureaucratic roadblocks — often in the guise of additional security measures — to slow
the legal immigration process, and to discourage and block prospective immigrants from seeking permanent status. In particular, it
has tried to severely restrict Muslim immigration, apparently to make good on campaign promises. While US law generally does not
permit such specific religious exclusions and courts have enjoined the most severe forms of discrimination, the president nonethe-
less enjoys significant discretion related to immigrant admissions.
Refugees
“Refugee” status can be granted to individuals who have been pre-screened abroad. While refugees — as well as asylees — do not
immediately become green-card holders, they have a right to remain in the United States indefinitely, can bring into the country
their spouses and minor children, and can work. In most cases, they eventually become eligible to receive green cards, which can
lead to US citizenship.
In recent years, refugees have become a political football, both internationally and in the United States. The humanitarian disas-
ter in Syria has sent millions of persons, many of them women and children, pouring across the borders of neighboring countries in
search of life-preserving safety. Many have found their way to the borders of Europe, prompting European Union leaders to search
for solutions, including resettlement in third countries, integration into host communities, and measures to stem the tide of future
arrivals.
One of President Trump’s first actions in office was to cut US refugee admissions drastically. As a result, refugee admissions
have fallen from 84,994 in FY 2016, to 53,716 in FY 2017, 22,491 in FY 2018, and 18,051 in FY 2019 through May 31 (DOS-PRM
2019). Between FY 2017 and FY 2019, the refugee admissions ceiling set yearly by the president fell from 110,000 to 30,000
(ibid.), the lowest ceiling since the creation of the US Refugee Admissions Program in 1980.
In his first executive order on immigration, sometimes referred to as “Travel Ban I,” the president sought to indefinitely bar the
admission of Syrian refugees. As a result of litigation before the US Supreme Court, this order was modified to some extent. The
94 Journal on Migration and Human Security 7(3) latest version, known as “Travel Ban 3.0,” was finally allowed to go into effect by the Supreme Court, over several vigorous dis-
sents. Many observers believe that this partial success at the Supreme Court, along with his appointment of more conservative jus-
tices, has emboldened the president to institute his highly questionable legal attack on the rights of asylum seekers at the border.
Notwithstanding the minute number of Syrian refugees that the United States resettles, the rigorous pre-screening they receive,
and the fact that most are women, children, or family units, various US state governors — including, notably, current Vice President
Mike Pence when he was governor of Indiana — have made well-publicized attempts to slam the door on Syrian refugee resettle-
ment in their respective states based on unsustainable national security concerns (Kerwin 2016). So far, federal courts have soundly
rejected such efforts. 3
Nevertheless, a number of administration officials and members of Congress have expressed strong opposition to the current
procedures for resettling refugees. Some legislators have introduced bills that would give states authority to block refugee reset-
tlement, narrow the already limited refugee definition, and make it generally more difficult for refugees to be admitted, particularly
those from Syria and the Middle East, while effectively giving preference to Christian refugees over Muslims and those of other
religions (Human Rights First 2016).
The president ultimately has great authority to determine the future of US overseas refugee programs. In theory, he could des-
ignate any group of refugees as of “special humanitarian concern” to the United States or designate none at all. And, as shown in FY
2018 and FY 2019, he can reduce the number of legal refugee admissions to historic lows or even to zero.
A popular myth about US refugee and asylum law is that the United States protects everyone who can show that they would be
killed or placed in severe danger if returned to their home country. In fact, US and international refugee law applies only to those
who face harm on account of one of five protected grounds: race, religion, nationality, political opinion, or the amorphous and
highly controversial “membership in a particular social group.”
This means that if, for example, your neighbor seeks to kill you and rape your daughter because you are a Christian or a member
of a targeted political party and the police cannot or will not offer help, you qualify for refugee status. On the other hand, if your
neighbor threatens to do the very same things to you and your family because of envy or lust or just plain old criminal behavior, you
do not qualify. These are the arcane distinctions that appellate judges and policy makers far removed from the scene argue about
endlessly. But to the refugee or asylum seeker, the exact reason why he or she is likely to be killed or harmed on return seems
unimportant in relation to the very real danger.
The nearly unprecedented retrenchment in our international humanitarian commitment to resettle refugees, at a time of histori-
cally high numbers of forcibly displaced persons, has negatively affected large refugee populations such as Syrians, who are in dire
need of resettlement opportunities. As of June 2019, the United Nations High Commissioner for Refugees (UNHCR) reported that
there were 5.6 million Syrian refugees and 6.6 million internally displaced within Syria. Many of the forcibly displaced are chil-
dren. The United States accepted only 62 Syrian refugees in FY 2018. According to a report from Oxfam International, the US fair
share would be 170,000 a year (Cowan 2016).
Asylees
“Asylees” typically enter or arrive in the United States with no status or with a temporary status, and they seek to establish their
refugee qualifications while in the country. Asylum cases formed the bulk of my work as an immigration judge at the Arlington
Immigration Court. Beyond seeking asylum in removal proceedings before an immigration judge, persons already in the United
States or at our border who satisfy the “refugee” definition may be granted asylum by DHS’s US Citizenship and Immigration Ser-
vice (USCIS) asylum officers. Approximately 20,500 persons were granted asylum in FY 2016, 4approximately 8,700 by the immi-
gration courts 5and the balance by the DHS Asylum Office.
The US asylum system is under unprecedented attack by the Trump administration. Former Attorney General Jeff Sessions and
former DHS Secretary Kirstjen Nielsen claimed without proof that this system has attracted too many fraudulent applicants and
served as a magnet for undocumented migration.
On February 15, 2019, President Trump declared a national emergency at the US–Mexico border, which has led to the deploy-
ment of several thousand National Guard troops to the border. In addition, the president, with assistance from DHS and the US
Department of Justice (DOJ), has issued a “proclamation” and “Interim Regulations” that would severely restrict the right of indi-
viduals arriving at the border to apply for asylum. According to these measures, those who enter anywhere but at an official port of
entry will be ineligible for asylum, even though most families turn themselves in to the Border Patrol in the immediate vicinity of
the border.
3See, e.g., Kowalski (2016) and CBS News (2016).4USDOJ, EOIR, FY 2016 Statistical Yearbook [hereinafter EOIR 2016], table 16, available at www.usdoj.gov/eoir. 5EOIR (2016, J-1).
Schmidt 95 A US district judge in San Francisco issued a temporary restraining order against the enforcement of this initiative. That order
was upheld on appeal by a “split panel” of the Ninth Circuit Court of Appeals. Interestingly, the Ninth Circuit opinion was written
by Judge Jay Bybee, a leading conservative jurist appointed by President George W. Bush. 6By a 5–4 vote, with Chief Justice John
Roberts siding with his four so-called liberal colleagues, the Supreme Court rejected the administration’s irregular “emergency
stay” request, thereby allowing the injunction to remain in effect pending further litigation in the lower courts (Liptak 2018).
Moreover, the administration has provided inadequate facilities and too few USCIS asylum officers at the ports of entry (POEs),
thereby artificially creating lengthy waiting periods for asylum applicants to be screened. Others are illegally turned away by US
authorities when they try to apply at a POE. Not surprisingly, the administration’s actions have generated a spirited legal challenge
from the American Civil Liberties Union and others, which is pending in a US district court.
In addition, the administration has instituted a program disingenuously called the “Migrant Protection Protocols,” which requires
certain individuals who have been found to have a “credible fear” of persecution to await their immigration court hearings in Mex-
ico. 7This policy has been challenged in federal court. In June 2019, the United States and Mexico reached an agreement to expand
this program beyond the POEs at San Diego, Calexico, and El Paso.
A continuing controversy involves the mostly women, children, and families from Central America, who are fleeing violence
and corruption. We face difficult questions regarding where, if anywhere, such individuals fit within our asylum and immigration
systems. Will they be welcomed, or will they be returned to the danger zones from whence they fled?
The Trump administration has pledged not only to restrict the right to apply for asylum but also to hold all undocumented border
crossers, including asylum seekers and their families, in expanded detention facilities in remote locations along the United States’
southern border pending final determination of their asylum claims and to make it more difficult for those claims to be heard by US
immigration judges. Also, the administration has so far been unsuccessful in blocking asylum applications by those who entered
illegally. It has also made some asylum seekers wait for court hearings in Mexico, even though they have demonstrated a credible
fear of persecution, which allows them to make an asylum claim in US immigration courts.
Another myth is that those who enter illegally should simply “get in line” for a visa. Unless an individual fits into one of the three
limited groups of permanent immigrants, there is no line to join. Even some of those who appear to be eligible for permanent immi-
gration may face lengthy waits or highly technical requirements that preclude any realistic chance of legal immigration in the fore-
seeable future. Finally, a high percentage of undocumented persons are already in the line but subject to multiyear visa backlogs
(Kerwin and Warren 2017, 307).
Friends
A third membership category could be characterized as “friends” of the club, that is, individuals who are here with legal permission
and may remain for a temporary period of time, sometimes quite lengthy, but who have no clear path to permanent residency or
citizenship. The most numerous group in this category is nonimmigrants.
A “nonimmigrant” is distinct from an immigrant. The term “immigrant” generally refers to those, whether legal or illegal, who
seek to remain permanently in the United States. Nonimmigrants, by contrast, seek only temporary admission to the United States,
not permanent residence.
Visitors for business or pleasure, approximately 50 million in FY 2017 (DHS 2017, table 25), comprise the largest nonimmigrant
category. An example of a “business visitor” might be a French national speaking at a conference and receiving no US compen-
sation other than payment of expenses. Members of a German family coming to see the cherry blossoms or visit Colonial Williams-
burg could be classified as “visitors for pleasure.”
Another familiar category is nonimmigrant academic students with so-called F-1 status. In FY 2017, approximately 1.9 million
such individuals with accompanying family members were admitted to the United States (ibid.). As reported in the Washington Post
and other media, nonimmigrant student admissions have steadily declined since Trump’s election (Rampell 2018). This has hurt the
many colleges and universities that have come to rely on them to maintain and boost enrollment. Many attribute the decrease to the
administration’s anti-immigrant rhetoric and to bureaucratic roadblocks intended to slow down and discourage applicants applying
for visas.
There are numerous other classifications in the alphabet-soup world of nonimmigra nts. Because of very specific technical
requirements and the general concept that a nonimmigrant is someone who is coming to the United States temporarily, however,
these categories are seldom accessible to the undocumented immigrants who are already living, working, or studying in the United
States. Nonimmigrant visas have also come into the limelight, because President Trump’s executive orders on immigration bar visa
issuance to nationals of certain, predominantly Muslim countries.
6East Bay Sanctuary Covenant v. Trump , reported by Mark Joseph Stern (2018). 7See Chase (2019).
96 Journal on Migration and Human Security 7(3) Beneficiaries of temporary protected status (TPS) represent another group of “friends.” The secretary of DHS may make TPS
designations for nationals of countries where there is an “ongoing armed conflict,” “where there has been a natural disaster,” or
where “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state
from returning to the state in safety.” 8
Individuals with TPS can temporarily reside and work in the United States. This status does not, however, lead to lawful per-
manent residence or US citizenship, although some TPS recipients eventually qualify for green cards through the normal immigra-
tion system. Three of the largest groups o f TPS beneficiaries are nationals of El Sa lvador, Honduras, an d Haiti. Because TPS
designations are within the sole discretion of the Executive Branch, the administration can decide to terminate or revoke them,
leaving former beneficiaries subject to removal if they cannot secure status in another way and fail to depart voluntarily. As of this
writing, federal courts have enjoined the administration’s attempt to terminate TPS for nationals of El Salvador, Honduras, Haiti,
Nicaragua, Sudan, and Nepal. Testimony in these cases has indicated that the administration ignored the recommendations of career
officials and other experts in reaching these highly questionable termination decisions.
Based on statements to date, the Trump administration is unlikely to grant any large groups TPS status in the future, no matter
how dire their situation. It claims that TPS is widely abused and that the so-called temporary protection invariably morphs into
permanence.
In reality, TPS has been proven to be a practical, low-budget way of handling large numbers of humanitarian cases that might
otherwise clog our asylum and court systems. The vast majority of those granted TPS make positive contributions to our society,
and many have US citizen or LPR family members (Warren and Kerwin 2017). The relatively few TPS recipients who misbehave
are arrested by Immigration and Customs Enforcement (ICE), placed in detention, and usually promptly removed. Far from an eva-
sion of law, TPS has proven to be one of the most successful, practical, and efficient US immigration programs. It fills gaps in our
legal immigration and asylum systems that otherwise would be problematic. Terminating these long-standing grants of TPS, par-
ticularly for those with long residence and ties to the United States, makes little if any sense.
Outside the Club: The Undocumented
The estimated 10.7 million US undocumented residents — 5.4 million from Mexico — are outside the club (Warren 2019, 20). This
group consists of individuals who crossed the border surrep titiously or by fraudulent means, as well as a significant group
who entered legally as nonimmigrants, but overstayed or other wise violated the terms of their admittance. A recent study by
the Center for Migration Studies shows that overstays have significantly exceeded illegal entrants for each of the past seven years
(ibid., 20–21).
In some instances, the law permits individuals in the United States to change to “green card” status through a process known as
“adjustment of status.” In FY 2017, approximately 550,000 individuals used this provision (DHS 2017, table 6). The stringent
requirements for that relief, however, make it of little practical benefit to most of those who are here illegally (Kerwin and Warren
2019).
Also, there is a smaller, yet highly visible, group of individuals who were granted LPR status, but who by their subsequent crim-
inal misconduct forfeited that right and are therefore subject to expulsion from membership and removal from the nation.
Most people would agree that the latter group presents plausible arguments for expulsion. Nevertheless, there may be circum-
stances in which forgiveness based on an overall assessment of the equities, particularly the effects on US citizen and LPR family
members, is warranted. Indeed, a limited form of discretionary relief called “cancellation of removal” is available to individuals
whose criminal record is on the less serious end of the spectrum. 9
For many years, there has been an acrimonious debate on how to address the US undocumented population. Some say that these
individuals possess characteristics, such as willingness to work hard in jobs most Americans do not want and US citizen or green
card–holding relatives (particularly children), which make them strong candidates for membership in the club at some level. They
also argue that mass removals of such individuals from the United States would be impractical and inhumane.
The Trump administration avers that such individuals are lawbreakers and a drag on US society, and should be removed through
active enforcement efforts, a strategy of attrition, or both. The attrition strategy depends heavily on aggressive and effective
enforcement of the prohibition on hiring noncitizens who lack employment authorization.
These laws also prohibit discrimination based on national ori gin or citizenship status against employees and job applicants
authorized to work in the United States. The I-9 employment veri fication form is part of the process for enforcing these laws.
To date, however, the so-called employe r sanctions laws have not effectively eli minated US employment opportunities for
unauthorized workers.
8Immigration and Nationality Act § 244(b).9INA § 240A.
Schmidt 97 Groups favoring removal have consistently blocked efforts at overhauling the immigration system. One such effort, referred to as
comprehensive immigration reform, was supported by then-President George W. Bush and subsequently by a bipartisan group of
US senators. It would have combined stronger border enforcement with earned legal status for many individuals now residing and
working in the United States without status. It also would have provided more avenues for the legal admission of temporary workers
to do “low-skilled” or “semiskilled” jobs. In reality, however, many of these jobs, which are demeaned by immigration restriction-
ists and policymakers, involve skills that few possess and fewer still would be willing to obtain and carry out on a long-term basis.
A second unsuccessful proposal — the Development, Relief, and Education for Alien Minors Act (the “DREAM Act”) — would
have made it possible for certain undocumented youth (many of them US high school graduates) who have lived in the United States
since a young age to regularize their status by attending college, working in the United States, or joining the US military.
Often, students who came with their parents at a young age might not become fully aware of their undocumented status until they
fill out college application or financial aid forms and are asked to verify legal status in the United States. By one estimate, there are
1.25 million Deferred Action for Childhood Arrivals (DACA)-eligible individuals in the United States, making the issue of how to
treat them a highly significant aspect of the immigration debate (Kerwin and Warren 2016).
In the absence of congressional action, in 2012 the Obama administration implemented an administrative program, known as
DACA, to allow some potential DREAM Act beneficiaries to remain in the United States. As of 2018, approximately 750,000
young people residing in US communities had registered under DACA (Kerwin and Warren 2016, 22).
A similar program for parents of US citizens and green card hol ders known as Deferred Actio n for Parents of Americans
(“DAPA”) was prevented from going into effect by an injunction issued at the request of Texas and other states that claimed that
they would be harmed by this program. An evenly divided Supreme Court rebuffed the Obama administration and allowed this
injunction to stand.
At first, President Trump expressed “great sympathy” for the Dreamers and pledged to work with Congress to achieve a legis-
lative solution to their plight. Later, however, he turned on the Dreamers after Democrats declined to accept his proposals to build
the border wall, cut legal immigration, restrict family migration, and reduce the rights of children seeking asylum in return for
granting Dreamers a path to citizenship.
In September 2017, the Trump administration ended the DACA program, claiming that it was an illegal action by President
Obama. Terminating DACA would strip beneficiaries of authorization to work or study and would throw them into US immigration
courts, which are already in chaos with a pending docket that may soon reach an astounding 1 million cases. Fortunately, that
ill-advised decision has been blocked on legal grounds by a number of lower federal courts. The Supreme Court recently turned
down the administration’s request to intervene in the lower court actions.
At present, there are no politically viable comprehensive immigration proposals pending before Congress, nor is there any cur-
rent prospect of legislative relief for Dreamers.
Cross-Cutting Issues
Detention
DHS holds many individuals in immigration detention. The possibility of long-term civil detention of individuals awaiting hearings
or eventual removal is always a controversial aspect of immigration enforcement.
Indeed, a dispute over the number of authorized detention beds for DHS was a major issue in the recent bipartisan border security
package. In simple terms, however, the lives and suffering of the real human beings in often dangerous and substandard facilities
have been dehumanized to the point at which they are portrayed as mere inanimate objects — “beds.” But we should never forget
that those “beds” actually contain real men, women, and children, like the rest of us except for the bad hand that life has dealt them.
A case involving the permissible scope of pre-hearing immigration detention was recently before the US Supreme Court. 10In a
split decision that drew a stinging dissent from Justice Breyer, the court punted the case back to the lower federal courts. The
Court’s majority did not appear to be sympathetic to the plight of persons facing indefinite “civil” immigration detention, however.
Nevertheless, the lower courts have once again indicated an intent to slam, this time on Fifth Amendment grounds, the govern-
ment’s position that indefinite detention without legal recourse pending immigration court hearings is acceptable.
The administration has announced plans to dramatically increase the use of immigration detention, particularly along our south-
ern border with Mexico. This is in addition to President Trump’s plans to build a wall along that border, which, as we know, has met
with a mixed reception in Congress and has not been fully funded to date.
Many view President Trump’s decision to send the military to the southern border to protect us from an alleged “caravan,” con-
sisting largely of desperate women and children seeking refuge from uncontrolled violence in the Northern Triangle of Central
America, to be largely a spiteful reaction to Congress’s failure to fully fund construction of the wall. The administration has also
10Jennings v. Rodriguez , 583 U.S. ___; 138 S. Ct. 830; 200 L. Ed. 2d 122 (2018).
98 Journal on Migration and Human Security 7(3) used family detention, as well as family separation and criminal prosecution of asylum seekers, to deter persons from seeking refuge
under our laws.
Immigration Court Backlogs
The immigration court backlog has largely been caused by political interference and ever-changing priorities during the past three
administrations. This kind of aimless docket reshuffling involves priority cases moving to the front of the docket, and relegating
other cases, some many years old, to the end. Under former Attorney General Sessions, the court backlog rose astronomically, to the
point at which it is now so large and out of control that there is no realistic plan to address it. Meanwhile, the role of US immigration
judges under this administration has been reduced to what are essentially demoralized rubber stamps.
State and Local Immigration Measures
A number of states and localities have enacted or are considering immigration proposals. Some are restrictionist, aimed at discoura-
ging the presence of undocumented immigrants. Examples include denying them in-state tuition, requiring local law enforcement to
turn suspected undocumented individuals over to DHS for removal, denying services or housing to undocumented individuals, or
revoking the licenses of businesses that hire undocumented workers. Such laws and regulations have had mixed success in federal
courts (Chisti and Bergeron 2014).
In a highly controversial countermove, some states and cities have enacted “Sanctuary City Laws,” which limit cooperation
between local police and federal immigration enforcement agencies. The apparent rationale for such laws is that fear of being
turned over to DHS might inhibit cooperation from ethnic communities in reporting crimes or cooperating with law enforcement
in solving crimes. This, in turn, has led to threats to enact laws on the federal and state levels to withdraw funding from localities
that have enacted such provisions, as well as suits brought by DOJ to force cooperation with DHS.
In particular, former Attorney General Jeff Sessions and former DHS Secretary Kirstjen Nielsen took an aggressive stance to
strip various types of federal funding from “sanctuary jurisdictions.” Like the travel ban, however, these efforts have run into road-
blocks in the lower federal courts, which have uniformly held them to be illegal.
Constitutional Rights
One often-misstated aspect of the current debate is the proposition that “aliens in the United States illegally have no rights.”
Although it is true that such individuals might ultimately have no right to remain in the United States, while here, they do have
a number of important rights under our laws. The Supreme Court, for example, recently reaffirmed that US “representatives serve
all residents, not just those eligible or registered to vote.” 11
First and foremost is the right to fair treatment under the Due Process and Equal Protection Clauses of the Fifth and Fourteenth
Amendments to our Constitution. 12 Sometimes, the course of history can be changed by a single vote. One of those instances is a
5–4 decision by the US Supreme Court in 1982 in the Plyler v. Doe case. 13 The Court found that it was a violation of the Equal
Protection Clause of the Fourteenth Amendment for the State of Texas to deny undocumented school-aged children the free public
education that it provides to US citizens and LPRs. In doing so, Justice Brennan, writing for the majority of the Court, observed that
“education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by
our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” 14
The right to receive free public education does not, however, extend to higher education. In many states, notwithstanding long
residence, undocumented high school graduates have a difficult time continuing their education because they are required to pay
nonresident tuition and are denied access to most scholarships or other forms of financial aid.
Not surprisingly, unlawful presence does not relieve an individual from compliance with local civil and criminal laws. Thus, for
example, an undocumented couple from Uganda who seek to marry in Alexandria, Virginia, must comply with Virginia law rather
than with Ugandan tribal customs.
Another important obligation under our laws that does not depend on legal status is payment of taxes. Failure to pay taxes, and to
be able to prove compliance, may prove to be a serious impediment for a foreign individual who otherwise qualifies to regularize his
or her status in the United States. Under the federal Real ID Act, designed to improve security following the 9/11 attacks, in many
states it is difficult or impossible for someone without legal status to obtain a driver’s license.
11Evenwel v. Abbott , No. 14-940 (March 4, 2016). 12Zadvydas v. Davis , 533 U.S. 678, 692-93 (2001); and Plyler v. Doe , 457 U.S. 202 (1982). 13457 U.S. 202, 221-22 (1982); see also Rabin, Combs, and Gonzalez (2008).14Plyler v. Doe, at 221-22 (citation omitted).
Schmidt 99 Recommendations for Reform of the US Asylum System at the Border
In November 2018, a Washington Post editorial argued for the need to send immigration judges, not the US military, to the US–
Mexico border (Editorial Board 2018). While the solution is not quite so simple, taking this step would be a move in the right direc-
tion. The following asylum reform proposals would largely use existing laws that recognize and are, in fact, designed to deal effi-
ciently with larger-scale migration situations.
DHS and USCIC should send far more asylum officers to conduct credible-fear interviews at the border.
Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the
Asylum Office and the immigration courts.
USCIS asylum officers should be permitted to grant temporary withholding of removal under the Convention Against Tor-
ture (CAT) to applicants who would probably face torture if they were returned to their countries of origin.
Immigration judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping
them from clogging the immigration courts — while working with the UNHCR and other counties in the hemisphere on more
durable solutions for those currently fleeing the Northern Triangle.
Individuals found to have a credible fear should be released on minimal bonds and be allowed to move to locations where
they will be represented by pro bono lawyers. 15
Contrary to Trump administration claims, almost all represented asylum applicants show up faithfully for their immigration
court hearings.
Asylum officers should be vested with the authority to grant asylum in the first instance, thus keeping some of the asylum
cases out of immigration court.
If the administration wants to prioritize the cases of recent arrivals in immigration courts, this can and should be done without
creating more docket reshuffling, inefficiencies, and longer backlogs.
To explain, hundreds of thousands of cases that unnecessarily clog immigration court dockets are for long-time residents who are
eligible to apply for cancellation of removal for nonlawful permanent residents. The cancellation cases of persons without serious
criminal records should be removed from the immigration court docket and sent to USCIS for initial processing. Those granted by
USCIS should be put in a line for green card numbers maintained by USCIS, and those denied who have committed serious crimes
(likely a small number) should be referred back to the immigration courts. The administration, in turn, should sponsor and Congress
should pass legislation to provide legal status to those long-term residents who do not quality for cancellation.
The immigration courts could then focus on the cases that should be its real priorities: detained cases, cases of recently arrived
individuals with or without asylum claims, cases of immigrants who have committed crimes, and cases of other individuals who
don’t fit within our legal system as properly administered.
These recommendations do not align with the administration’s plans. Nonetheless, they offer a practical, legal solution that
would be good for immigration enforcement, the legal system, and the country as a whole. In addition, until the recommended final
step of legislation to legalize long-term residents is taken, this plan can be achieved under the current law. It would also cost less
than some of the designed-to-fail and arguably illegal strategies being pursued by the administration. This is the case because appli-
cations to legalization programs pay for themselves through ap plication fees — perhaps even turning a slight profit for the
government.
Conclusion
This article has described how the rules governing permanent membership in the United States favor three groups — family, skilled
workers, and refugees/asylees — while providing only limited opportunities for those who seek membership based on unskilled
labor.
The undocumented possess certain well-recognized rights, including the right to receive public primary and secondary education
and the right to fair treatment with respect to expulsion from the club and/or removal from the premises.
Mass deportation of the 10.7 million US undocumented residents is highly unlikely because all of these individuals have due
process rights to a fair procedure prior to their removal. Moreover, it would be disastrous to US families, many industries, and com-
munities. Nevertheless, the Executive Branch does have a great deal of discretionary power over immigration and could revoke
executive protections granted by previous administrations, terminate or restrict overseas refugee admission programs, and step
up arrests, detentions, and removals. While these actions are counterproductive and wasteful, they undoubtedly will be politically
15This reform would save the money currently spent on “tent cities” and other types of detention.
100 Journal on Migration and Human Security 7(3) popular with certain voting blocs. Therefore, immigration is likely to remain both highly controversial and in the public eye for the
foreseeable future.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
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102 Journal on Migration and Human Security 7(3) Reproduced with permission of copyright owner. Further reproductionprohibited without permission.
