For this post I have placed all references at the end of the post.
When President Jimmy Carter signed the Refugee Act in 1980, its intent was to align U. S. law and international treaty obligations. It remains the law of the land. It was passed unanimously by the Senate. It has been enforced by Democratic presidents and Republican presidents. It has been workable for 43 years.
It provided a clear definition of what constituted refugee status:
“The term ‘refugee’ means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unwilling or unable to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or (B) in such special
circumstances as the President after appropriate consultation (as Post, p. 103. defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, £md who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”.
defined the legal standards of proof to be used in the assessment of applications for asylum: the applicant must have a “well-founded fear of persecution”, and raised the number of refugees to be accepted by the United States to 50,000.
Our present situation has two aspects: stock and flow. There is presently a backlog of 3 million asylum applications. That is the “stock”. These cases are being adjudicated by roughly 1,000 election judges with each election judge able to hear roughly 700 cases per year. If the “flow”, new asylum applications received, were to slow to zero, it would take four years to adjudicate all of those cases. That is obviously unacceptable.
The AIC summarizes the problem succinctly:
The changes proposed to border and asylum policy in this bill can be over-simplified into two principles.
- Making it harder for people to be allowed to start the asylum process upon entering the U.S.; and
- Making that process itself faster.
The bill that failed to proceed in the Senate included (in the portions relevant to refugees and applications for asylum):
- Appropriated $2.3 billion in refugee assistance inside the U.S.
- Appropriated $20.2 billion for improvements to U.S. border security
- Rather than being heard by immigration judges, asylum officers would review both the applications for asylum and their appeal; asylum applicants would not be allowed representation
- The standard would be changed from “clear and convincing” to “significant possibility”
- Additional criteria would be added (asylum claims can be rejected if the person has a disqualifying criminal history, if they were living safely in a third country before seeking asylum, or if they could safely relocate in their original home country)
- The process will be changed:
Under the bill, this system is to be in place and operational 91 days after the bill is signed into law. This is how it would work: (1) Migrants receive an initial screening within 90 days of arrival. (2) If the claim fails — a “negative protection decision” — they are immediately ordered for removal. They have 72 hours to appeal or request a hearing. (3) If the claim passes initial screening — “positive protection decision” — they will get a work authorization immediately, be released into the country and have another 90 days before a final decision is made on their case.
- Establishes “emergency border authority”: when the number of encounters per day reaches 5,000 DHS is obligated to reject additional applications for asylum and remove the applicants from the U. S. Exclusions to this include unaccompanied minors and 1,400 applicants processed per day
- Establishes “humanitarian parole” for Cubans, Haitians, Nicaraguans, and Venezuelans.
- Appropriates funding for an additional 4,300 asylum officers
The bill has a number of shortcomings. Among its defects are that it:
- Makes bad assumptions
- Is unrealistic
- Is unnecessary
AIC’s reaction to the bill was:
Notably, this bill would not stop anyone from being allowed to set foot on U.S. soil. It would not, therefore, do anything to bring down “the numbers” on its own. The bill’s proponents hope instead that it will reduce the number of people who are allowed to stay in the U.S. outside of immigration custody, and therefore, through word of mouth, reduce the number of people trying to come to begin with.
What we have seen, time and time again, is that adding additional penalties or complications to the process for asylum seekers once they arrive in the U.S. immiserates those asylum seekers without having a lasting impact on overall border arrivals. This is especially true when the process is made longer and less certain, contributing to bottlenecks throughout the system including dangerous border overcrowding.
The supporters of the bill assume that word of mouth will be sufficient to reduce the “flow”. They are wrong. New asylum-seekers will be coached to provide the answers that will gain them admission under the new rules.
There is presently a shortfall of 25% in the number of asylum officers hired for whom funds have already been appropriated. That strongly implies that there will be a lag between the appropriation for the additional asylum officers and when those asylum officers will be hired, trained, and prepared to review applications. During that lag the backlog of unprocessed applications will continue to mount. How quickly do they expect the hypothetical 5,000 asylum officers to address the backlog of millions of applications?
Assume it’s twice as fast as asylum judges are clearing them. That would just about clear the backlog in a year.
I think there’s good reason to believe that will not happen: the provision for lack of representation is a deal-killer, practically guaranteed to cause the provisions of the bill to be enjoined from taking force until fully adjudicated. How long will that take? While the injunction is in force, the processing of asylum applications will be in limbo with neither immigration judges nor asylum officers processing them. If representation is allowed, that will slow the processing of applications, probably to the present clearance rate or fewer.
If anything the exceptions provided for unaccompanied minors institutionalizes present practice and the way we are dealing with unaccompanied minors is criminal. It is legally-approved kidnapping. The correct way of addressing it is by returning unaccompanied minors to their countries of origin and turning them over to designated authorities there.
The provisions for “humanitarian parole” invite abuse. Every Mexican, Guatemalan, or Salvadoran will magically become Nicaraguans or Venezuelans. Sub-Saharan Africans will become Haitians.
The trigger level of 5,000 asylum-seekers per day before compelling action institutionalizes the present flow and that at 2 million per year is already unmanageable. As a gauge of how unmanageable it is, the $2 billion in refugee assistance the bill called for is far below the mark. Illinois alone’s spending on migrants is in excess of a half billion per year. I can only guess what the total state and local government spending might be.
Furthermore, we aren’t adding housing units nationally at the level required for this mass migration and the migrants will never be able to afford the units we are adding.
What is actually needed is a return to the conditions and standards of the Refugee Act of 1980 which is completely legal and workable with a reasonable limit on applications for asylum at, say, 1,000 per day which is consistent with the admission of 50,000 legitimate refugees per year which is what that act calls for. Claims that we are required by treaty to accept an unlimited number of asylum applications are false for two reasons. The first is that acts of Congress take precedence over international treaties. There is already a law in place. The second is that anything that is unworkable is ipso facto unconstitutional and the status quo is unworkable.
What is lacking is will on the part of the Biden Administration. The effect of the Senate’s bill which failed to proceed was to give political cover to the Biden Administration for its fecklessness in managing the border.
The Refugee Act of 1980
Emergency National Security Supplemental Bill
American Immigration Council analysis of the Senate border bill
PBS News Hour analysis of the Senate border bill
FRED: total housing units
USCIS Asylum Quarterly Engagement Fiscal Year 2023
This substack from someone who tries to be nonpartisan provides some interesting graphs on border crossings during the Trump and Biden administration. “In general, the lesson from the data: If you let people in, more will come. If you stop people from getting in, they’ll stop coming.”
https://www.maximumtruth.org/p/border-crossing-data-show-incentives?r=1ehke&utm_campaign=post&utm_medium=web
I think the recent “exercise” show most policy “influencers” (the Biden administration, most lawmakers Republican or Democratic, and think tanks) don’t perceive the illegal immigration issue as a serious problem or risk — rather it is more a short term PR issue (it polls poorly this year).
It stays that way unless it is a decisive factor in a general election (maybe a whole string of them) and / or primary in a non-deep red area.
After all, how do you refute in lists of pros and cons the one that politicians respond to — that the migrants will form a potent future pool of voters.
As someone who will be paying for these migrants for the rest of my life through increases in my state and local taxes and the borrowing that has gone on to pay their bills, it’s hard for me to see it that way.
My suggestion: levy a surtax specifically against people who support illegal immigration. I predict their attitudes would change.
I think much of your post is wrong on the facts. There is no 50k limit, for example.
This CRS report provides a very good history and the current status – at least as of 2019, but not too much has changed:
https://crsreports.congress.gov/product/pdf/R/R45539
And therefore, I think your conclusion is flawed: “What is lacking is will on the part of the Biden Administration. ”
What the administration can do is limited by existing laws and existing implementing rules and regulations. As Trump found out, when he tried to have the “will” to make changes at the border, he didn’t actually have the authority, the government was sued, and an injunction was put into place. If it were actually a question of Presidential will, then Trump would have solved this problem, and clearly, he did not.
I think it would be useful to state specifically what authority you think Biden has and where that authority flows from. I frequently hear the claim that Biden has the power to stop the chaos at the border, or prevent with asylum claims from remaining in the US, but every time I ask, ok, what specific power does he have and what is the statute or regulations that grant that power, no one has any idea.
As far as the Senate bill is concerned, considering the reality of the current partisan conflict and political dysfunction, the Senate bill is, in my opinion, a step in the right direction, though obviously not a complete solution. The fact that Democrats did not demand something for Dreamers or other things they normally would have was, at least to me, surprising. And the fact that Republicans, even the authors of the Senate bill, completely caved because Trump doesn’t want any legislation at all for his own political benefit, is also, sadly, not surprising. The GoP demanded legislative action from Democrats on the border and got it – until Trump decided that was bad.
This is another reason why the whole argument that Biden could fix the border if he only had the will makes no sense. The border is currently a huge political liability for him. It’s such a liability that Democrats in the Senate were willing to make actual compromises to address that political liability. If Biden could fix the border with only the will to do so, you wouldn’t have Democratic Senators compromising on this issue, you’d have them lobby Biden to exercise whatever power people think he has to stop the flow of asylum seekers. But he’s not, and they’re not. And Trump knows this. He knows Biden can’t do anything because he couldn’t do anything – that’s why Trump wants to block to the bill – to ensure the issue doesn’t get solved so he can campaign on it.
On the contrary it’s mostly correct but is wrong in detail. It should be rewritten.
What bad thing would have happened if this bill had passed? I am not really seeing anything and up until recently you seemed to support many of the individual parts. You seem to think it is unnecessary but others clearly dont. So pass it and let the good things in the bill take effect. Maybe the courts again limit some of it, maybe they dont. In this case it wouldn’t be an executive action so I would expect the courts to be more accepting. The only reason to not pass it is to avoid giving Biden, but also the country, a win.
PD link is interesting. The Remain in Mexico policy had close to zero effect. Also, expulsions grew a lot under Biden and didnt when there was a spike under Trump while releases increased under both when numbers grew. Seems odd. The piece also seems to suggest that once people ask for asylum you have to let them stay until it is resolved.
Steve
“As someone who will be paying for these migrants for the rest of my life through increases in my state and local taxes and the borrowing that has gone on to pay their bills, it’s hard for me to see it that way.”
Well there’s a money line if I’ve ever seen one. Everyone has a great idea how to virtue signal with OPM. See: all the sanctuary cities.
“My suggestion: levy a surtax specifically against people who support illegal immigration. I predict their attitudes would change.”
Impossible, for “supporters,” but a juicy thought. I’ve come to your conclusion when it comes to businesses, though. Fines. Not because I think its a good idea to turn businesses into the police, but because I don’t have an alternative, and the immigration problem is having severe consequences.
Note that the Chicago City Council has outright refused to allow Chicago’s status as a sanctuary city to be brought up for referendum. Multiple times. That provides additional insight into what is meant by “preserving democracy”.
It would have produced more chaos rather than solving anything.
I supported adding immigration judges, for example, not for changing who reviewed the applications from immigration judges to asylum officers. I never supported eliminating representation which is a key component of the failed bill. That’s completely and utterly different from what’s in the bill.
Unless you and a large group of voters will change who they vote for because of the situation; rather than merely grousing, politicians won’t have any incentives to change the status quo.
So far I don’t see anyone being primaried or losing a general election due to this.
I have voted in every election of my adult life. Rarely is any candidate for whom I vote elected. Don’t blame me.
How would it produce more chaos? It would increase the number of judges and asylum officers. I find it hard to believe that an asylum officer could do worse than a judge and it would be a quicker endless expensive way to rule on the asylum claims. If they want a lawyer they can always bring one, I dont think there is anything stopping them from doing so.
Steve
I’d just point out that the bill was basically a first draft of what could have passed the Senate. It never even got to the floor. The bill could have been improved and flaws fixed if it had been allowed to at least go through the normal legislative process. All the criticisms people have with it could at least have been debated, examined, and adjudicated with amendments.
But none of that happened because it was strangled in the crib so Trump can use the issue for his own political benefit, with no hope or desire for improvement, much less replacement with a different bill.
Seems to me we are in the weeds a bit too much here. And the Trump mind reading is in full force.
What we know is Biden suspended a number of existing measures practically day 1. He said come on in. Illegal immigration took off like a rocket. We know that the numbers allowed in the rejected bill are huge.
You can say its chance Biden’s actions had no effect. I’m not buying it. You can say the bill would have improved things. It looks to me like “let’s compromise: do it my way.”