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The Wrongologist

Geopolitics, Power and Political Economy

Monday Wake Up Call – Immigration Judges Edition, September 30, 2019

The Daily Escape:

Monsoon season, AZ – September 2019 photo by FHatcher

The immigration crisis has many threads, but one that hasn’t gotten the focus that it needs is the ongoing problem with the immigration courts. From the NYRB: (brackets by Wrongo)

“Trump’s attempts to close possible paths to immigration have meant ramping up activity in [Immigration] court. Some immigration judges operate out of courthouses, others work out of detention centers, and some have been transferred—both in person and virtually—to courts along the border. Over the course of a week in the Rio Grande Valley….It was common to see people be forced to leave the US after hearings lasting minutes.”

According to the AP, the Trump administration has hired nearly 200 new judges and plans to add at least 100 more. Nearly half of currently sitting immigration judges were appointed by Trump, and about half of these new judges had previously been attorneys for ICE.

Immigration judges are employed by the Justice Department, not the judiciary. They make the decisions about who gets to stay in the US, and who has to return to their home countries.

We’ve all heard about the immigration court backlog. It’s becoming so large that the government may have to suspend asylum hearings until it can be brought under control.  The Hill reports about the backlog:

“It was 542,411 cases in January 2017, when President Donald Trump took office, and it increased to 1,007,155 cases by the end of August 2019, with an average wait for a hearing of 696 days. In addition, there are 322,535 pending cases that have not been placed on the active caseload rolls yet. When they are added, the backlog will be more than 1.3 million cases.”

The three largest immigration courts are so under-resourced that hearing dates were being scheduled as far out as August 2023 in New York City, October 2022 in Los Angeles, and April 2022 in San Francisco.

One result is that judges have been taking a harder line under Trump than in the Obama administration, denying 65% of asylum cases during the 2018 fiscal year, compared with 55% two years earlier.

Trump’s transformation of immigration law started under former Attorney General Jeff Sessions. Now, under William Barr, the DOJ has taken legislation passed over the years and used it to drive large-scale changes to immigrant rights.

Unlike the judges in federal or state courts, immigration judges can be fired or reassigned by the AG, and they face sanctions if they don’t process cases rapidly.

Currently, the AG can override decisions issued by immigration judges once they are appealed to Executive Office for Immigration Review (EOIR). An interim rule, issued by the DOJ that took effect Monday, delegates that responsibility to the EOIR director. The director, who is not confirmed by the Senate, can now decide cases pending before the appeals board.

The new rule has caused an uproar among career employees who said their independence has been usurped by a political appointee. In fact, the NYT reports that the union representing the nation’s immigration judges filed two labor complaints against the Justice Department last week. The National Association of Immigration Judges, representing the 420 judges, filed one of the complaints after the Justice Department moved to decertify the union.

DOJ claims that the judges were management officials and therefore ineligible for collective bargaining, an argument they pursued unsuccessfully in 2000. The judges and the Trump administration have frequently clashed, and the union has for years pushed for independence from the Justice Department altogether.

The simple fact is that as more and more cases are placed on a single judge’s docket, immigrants assigned to that judge are inevitably required to wait longer and longer before an available time slot opens up for their hearing. And the asylum seeker isn’t represented by a lawyer, and the case is usually decided in less than five minutes.

The entire immigration problem needs to be addressed, and Democrats must go further than just talking about the humanitarian crisis at the border. Taking a hard look at the immigration judges’ backlog, and funding at least on a temporary basis, many more can partially alleviate the humanitarian problems.

We have to act to prevent a catastrophic collapse of our immigration court system, a collapse that could force America to stop accepting asylum applications until the backlog can be brought under control.

Wake up America! That just may be what Barr and Trump are angling for.

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Immigration

The Daily Escape:

Great Sand Dunes, Colorado – 2019 photo by VincentLedvina

Whomever the Democrats nominate for President must share their vision on immigration. Democrats need to have clear answers about how we got here, and how Trump is making it worse. And they have to say what we should do about it.

The American voter barely pays attention, but they are persuadable by big ideas that are communicated clearly.

The UN reports that a quarter of a billion people worldwide are immigrating. Moral considerations aside, the developed world needs to deal with migration on an epic scale over the next 20 years. This is partly due to climate change in the global South, and is partly due to mass destabilization caused by tribal warfare throughout the third world.

These factors create two kinds of migrants: economic migrants seeking a better life, and refugees fleeing personal danger. The WaPo reports that we’re seeing huge numbers of migrants: (brackets by Wrongo)

US Customs and Border Protection statistics …show more than 144,000 migrants were taken into custody [in May], a 32% jump from April. It was…the largest one-month arrest total since…Trump took office, and it was the highest monthly figure in 13 years….May was the third month in a row that border detentions topped 100,000, led by record-breaking levels of illegal crossings by Guatemalan and Honduran parents bringing children.

Some 45 million foreign-born people now make their home in the US. About 12 million live here illegally. Globally, immigration is remaking nations on a world-altering scale.

Politicians throughout the developed world are aware of these trends, and either deny their existence, or are calling for draconian policies to protect their borders and keep migrants out. In America, we see some people who want open borders and many who want the borders closed.

Wrongo witnessed how open borders work in Eastern Europe last year. The EU has the Schengen policy that allows cross-border migration throughout Europe. Poland and Hungary continually lose educated, younger workers to Western Europe, because pay and working conditions are better. Open borders have caused Poland’s and Hungary’s populations to skew older, and less skilled.

America needs a comprehensive policy that deals humanely with all types of migrants, but we must secure our borders. We can’t have open borders.

How should we secure our borders? We need physical border control in all high traffic areas, and we have to add border enforcement wherever it is easy to cross unimpeded.

  • Democrats should take Trump’s wall off the table for 2020. Its cost is a rounding error in the annual budget, and more security is better than less.
  • We need a hard annual cap of immigrants to the US. It could be high, say 1 million, or lower. The level is worth a serious debate.
  • Once the cap is exceeded, anyone trying to enter will be returned to their home country.
  • We should give preference to those immigrants who have demonstrable skills or educational preparation. American economic growth relies on the skill and productivity of our people. When an immigrant joins the American economy, that person is asking us to honor a multi-generational commitment to him/her and to each of his/her descendants. We should be selective.
  • We should continue having geographic quotas that apply against the overall hard cap.
  • We should expand work, temporary work and student visa quotas.
  • We should deport any immigrant convicted of a serious crime either in the US, or in their home country.
  • We should provide amnesty to all law-abiding illegal immigrants now resident in the US.
  • Any illegal migrant who is physically in the country must be treated humanely and with respect until their case is adjudicated. Cages must go.
  • To accomplish this will require a substantial financial investment to support migrants who the border patrol is apprehending. We’ll need more case workers, immigration judges, medical staff, and substantially increased, and humanely built and operated facilities.
  • This will cost billions, but eventually, the bulge of migrants attempting to enter may decline, and we will then be able to cut back on the level of services.

Pushing our border control back on Mexico is a partial solution. Trump is correct about that. His gratuitous brutalities shock our conscience, and fail even on their own terms. Intended as deterrents, they are not deterring.

If Mexico can cut off a portion of the illegal immigration before migrants try to enter the US, we are better off, but Mexico is worse off. It would be easier to get Mexico’s support via cooperation, rather than by coercion via tariffs.

Democrats want to restore development funding for Guatemala, Honduras and Nicaragua. That’s a fine idea, but we should not expect that it will achieve much of a decrease in economic migration. Most of the funding will be siphoned off by the governments and by local criminals. Little will reach the target.

America needs a bipartisan immigration solution. If we weren’t paralyzed by partisan rancor, we would already have one. Controlling immigration, and selecting the immigrants more carefully, enables us to quickly and successfully absorb those who come here, and to ensure equality of opportunity to both the newly arrived, and the rest of us.

Our goal must be to make everyone feel that they belong to one nation.

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Democrats Can’t Let Trump Beat Them On Immigration

The Daily Escape:

Barcelona balcony – 2016 photo by Wrongo

We should talk about the Democrats’ unwillingness to articulate an immigration policy. Wrongo has shied away from talking much about immigration, because it is a very complicated problem without a school-book answer. It’s an emotional issue, but it is also a complex problem that isn’t easily addressed.

Amy Walter of the Cook Political Report says that immigration will be a key issue in 2020, since Trump will surely stoke more immigration fear to hold on to his base while trying to peel away working-class white voters who might otherwise be voting for Democrats.

Despite historical data that show border crossings are relatively low, we’re faced with a genuine border crisis. The number of people attempting to cross the border and seek asylum rose to about 100,000 in March. If sustained, that would be more than a million asylum seekers a year.

There are now 800,000 pending cases in immigration courts, and each case requires about 700 days to process. Most of these families have woefully inadequate resources for housing, food and medical care. And now, Trump plans to ship them from detention to America’s sanctuary cities.

We’re at a critical juncture. Trump’s Immigration policy based on incarceration, deportation, and border militarization has proven to be a disastrous failure. But what should replace it? As the crisis grows, maybe the possibility for political change can improve. The NYT’s David Leonhardt said this about Democrats:

“…not so long ago. The party’s leaders knew what they favored and felt comfortable saying so. Their platform generally included: 1) a path to citizenship for immigrants who came to this country illegally but had since obeyed the law; 2) deportation of undocumented immigrants who had since broken the law in significant ways; 3) fairly robust border security and investigation of companies employing undocumented immigrants, to hold down current and future levels of illegal immigration.”

In the past, Democrats were also willing to talk about limiting immigration. David Frum has a must read article in April’s Atlantic. His biggest point is that “If Liberals Won’t Enforce Borders, Fascists Will”. He feels that we are at an inflection point, and that Democrats in particular, need to promote policies to prevent Trump from riding the wave of anti-immigrant sentiment into a second term.

Democrats, including some 2020 presidential hopefuls, have expressed ever greater unease about removing unauthorized border-crossers. Julián Castro wants to decriminalize the very act of crossing the border illegally, by repealing 1325, the section of the US Code that makes unauthorized entry into the US a federal crime. No other Democrat is willing to go that far.

Speaker Pelosi spoke this week about immigration overhaul: (brackets by Wrongo)

“Our view of how we go forward is if we can….give [the American] people confidence, end some of their insecurities about their own economic situation, there will be a better atmosphere among some who are opposed to immigration in the country….”

This is why Democrats are more focused on their economic agenda than rewriting immigration laws.

When it comes to immigration, public sentiment is not on the Democrats’ side. A Gallup poll from early March found opinions largely split on how much voters worry about illegal immigration: 36% of those surveyed said they worried a “great deal,” followed by, “only a little” at 24%, “not at all” at 21% and a “fair amount” at 18%.

A different Gallup poll in February found that 47% of respondents felt that large numbers of undocumented immigrants entering the US was a critical threat. Another 30% said it was important, while 22% said it was not important. That 77% who view undocumented immigrants as a threat was up by 8 points from a year earlier.

The pressure on Democrats will be to run as pro-immigrant in 2020 since it contrasts completely with Trump’s position. But with so many people concerned about border security and illegal immigration; that may not be a wise political decision.

Dems can make a case that it would be destabilizing and impractical to remove all who have been living peaceably in this country for many years. But they can’t support a position like Castro’s that says any non-felon who sets foot in the US should be allowed to remain here.

Wrongo favors setting hard overall quotas for all immigration, and a hard sub-quota for asylum requests.

We can’t solve the illegal immigration problem overnight, but we can warn potential migrants that once the yearly quota is reached, all will be denied entrance.

And Wrongo is in favor of letting in fewer low-skills immigrants and more high-skills immigrants. That could help reduce poverty among immigrants while also potentially lifting domestic economic growth.

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