Bernie Sanders Releases His Immigration Plan

An unserious proposal with serious consequences

By Andrew R. Arthur on November 11, 2019

Likely in an attempt to rise above the pack of Democratic nominees for president, Sen. Bernie Sanders (I-Vt.) has issued his immigration platform. It is not a serious proposal, but it is one that would have serious consequences if implemented.

Captioned "A Welcoming and Safe America for All", it is a significantly more expanded document than one would normally expect from a campaign website. Generally, in politics (as in humor and profiles), brevity is a virtue. Not in this case: It runs 4,541 words by my count, or 12 pages of single-spaced 11-point Calibri type.

Fortunately, Sanders provides a synopsis at the beginning:

Key Points

  • Institute a moratorium on deportations until a thorough audit of past practices and policies is complete.
  • Reinstate and expand DACA and develop a humane policy for those seeking asylum.
  • Completely reshape and reform our immigration enforcement system, including breaking up ICE and CBP and redistributing their functions to their proper authorities.
  • Dismantle cruel and inhumane deportation programs and detention centers and reunite families who have been separated.
  • Live up to our ideals as a nation and welcome refugees and those seeking asylum, including those displaced by climate change.

I will take these "key points" one at a time.

Moratorium. It is always interesting to hear an elected member of Congress complain about a lack of oversight. For those in the public who have never worked for Congress, however, oversight is usually a much more effective tool than legislation is as it comes to shaping policy in the massive bureaucratic machine that controls most of the U.S. government (and in which I have been a cog). The committees of jurisdiction in the House and the Senate (in this instance, the committees on the Judiciary) have authority to oversee the "deportation" process, as do the House Committee on Oversight and Reform (HOR) and the Senate Homeland Security and Government Affairs Committee (HSGAC). And I cannot even count how many hearings those committees have had over the past few Congresses on the subject.

Not only has there been an "audit of past practices and policies" on deportations by these various committees, there's been a real-time analysis of those practices and policies.

Congress' authority does not end there, however. It also has the Government Accountability Office (GAO) at its beck and call. As GAO's website notes:

The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO examines how taxpayer dollars are spent and provides Congress and federal agencies with objective, reliable information to help the government save money and work more efficiently. [Emphasis added.]

That does not even count the inspectors general at DHS and DOJ who are answerable to HOR, HSGAC, and the congressional committees of jurisdiction. The Congressional Research Service (CRS) notes:

Statutory IGs — established by law rather than administrative directive — are intended to be independent, nonpartisan officials who aim to prevent and detect waste, fraud, and abuse in the federal government. To execute their missions, IGs lead offices of inspector general (OIGs) that conduct various reviews of agency programs and operations — including audits, investigations, inspections, and evaluations —and provide findings and recommendations to improve them. IGs possess several authorities to carry out their respective missions, such as the ability to independently hire staff, access relevant agency records and information, and report findings and recommendations directly to Congress. [Emphasis added.]

CRS is another resource available to Congress for such tasks. Its website states:

[CRS] works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for more than a century.

CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation's best thinking. [Emphasis added.]

If Sanders truly believes that there needs to be a "thorough audit of past [deportation] practices and policies", he would be remiss if this very day he did not demand that his "watchdogs" begin that process. There's plenty of time between now and January 20, 2021, (the next inauguration day) for GAO to complete its work. And there is plenty of time for CRS to break that down for members who need further analysis. And plenty of time for the IGs to complete such reviews. I'm not sitting around waiting for that to happen, of course, because the junior senator from Vermont is not being serious about this demand.

There are two ways in which he is not being serious. First, any such "moratorium" would be nothing more than a de facto amnesty for the approximately 10.5 million aliens who were present United States illegally as of 2017 according to the Pew Research Center (massive illegal immigration in the past two years has likely bumped that number up a good bit). Second, I seriously doubt whether even the most ardent opponent of immigration enforcement would want the American people to suffer the continued presence of removable serial rapists and murderers (and they do exist) in the community. Taken at his word, however, they would benefit from this "moratorium", too.

Such a moratorium would send a message to the world that the U.S. borders are wide open, even if the Border Patrol continues to apprehend illegal entrants. U.S. Customs and Border Protection (CBP) would be overwhelmed by illegal migrants hoping that, if they can get into the United States, they will be able to remain indefinitely (read: forever). If you dislike the prospect of swamped CBP processing centers where minors must be segregated from non-related adults (the "kids in cages" canard that the senator is peddling), it will only get worse. Much, much worse.

That does not even touch on the effect that a wave of unskilled, less-educated migrants will have on the job prospects of unskilled, less-educated workers already present in the United States. As civil-rights icon Barbara Jordan (then-chairwoman of the Commission on Immigration Reform, appointed to that position by then-President Bill Clinton) stated more than 25 years ago: "The Commission is particularly concerned about the impact of immigration on the most disadvantaged within our already resident society — inner city youth, racial and ethnic minorities, and recent immigrants who have not yet adjusted to life in the U.S." Apparently, Sanders does not share those concerns.

DACA and a "Humane" Asylum System. It is curious that the senator lumps these two together. DACA, of course, refers to Deferred Action for Childhood Arrivals. To recap my October recap of that massive system of "prosecutorial discretion" (which itself was essentially a short-term amnesty):

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain aliens who came to the United States under the age of 16 and who met specific guidelines could request consideration of DACA for a period of two years, subject to renewal. The press release accompanying that announcement set forth the parameters of that relief:

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Are not above the age of thirty.

As of April 30, 2019, there were approximately 669,080 aliens present in the United States who were DACA beneficiaries, according to USCIS.

On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded DACA, effective March 5, 2018. DACA recipients whose benefits would have expired before that date could have applied for renewal up until October 5, 2017. As I explained in May 2018, however: "Due to federal District Court injunctions ... that program remains in effect, and U.S. Citizenship and Immigration Services (USCIS) has resumed accepting requests to renew DACA grants."

Those injunctions have made their way through the courts, and a review of DACA is currently pending before the Supreme Court, which will hear arguments on November 12, 2019. President Trump stated on October 9, 2019, that If the Supreme Court rules in favor of the government and allows for the rescission of DACA, Congress will pass a deal to allow the affected individuals to remain in the United States, meaning that would-be President Sanders' will have the chance long before he takes the oath of office to make good on this promise.

As for a "humane policy for those seeking asylum", we already have one. It is set forth in section 208 of the Immigration and Nationality Act (INA) , and a humane refugee system (section 207 of the INA), too. In FY 2017 (the latest year for which U.S. Citizenship and Immigration Services (USCIS) has issued statistics), 26,568 aliens were granted asylum in the United States. USA Facts reported that "the number of pending affirmative asylum cases in front of USCIS in January 2019 stood at 325,277, more than 50 times higher than the 6,382 pending cases in January 2010," and that "the immigration courts received 142,961 total asylum cases [in FY 2017], more than three times higher than the 43,032 cases in 2013."

It is tough for even the most subjective critic to argue that you can get much more humane than that. By way of comparison, the U.S. Census Bureau reports that, as of July 1, 2018, the population of Vermont was 626,299, meaning that just the number of affirmative asylum seekers is almost 52 percent the size of the population of the Green Mountain State. Add in just the new cases filed with the immigration courts in 2017 and you get to 75 percent, meaning that just the number of asylum applicants is likely close to statehood levels, entitling them to their own two senators.

If the gentleman from Vermont means that he wants to expand asylum eligibility (and he does), that will simply encourage more people to put their lives (and the lives of their children) in danger by undertaking the deadly trek to the United States to enter illegally.

With respect to asylum eligibility, the candidate states that as president, he will: "Reverse DOJ guidance to deny asylum claims on the basis of fleeing domestic or gang violence, including those targeted for their sexual orientation or gender identity." The "DOJ guidance" referenced is presumably Attorney General (AG) Jeff Sessions' June 2018 decision in Matter of A-B-. As I explained shortly after that decision was issued, Matter of A-B- was actually premised on existing law, meaning that President Sanders is going to be overturning a lot (and I mean a lot) of Board of Immigration Appeals (BIA), circuit court, and Supreme Court decisions.

He can reverse (through his attorney general) the administrative decisions, I guess (more on that below), but the president lacks the authority to reverse Article III judges (Donald Trump would have a field day if he could), and definitely cannot change the INA without Congress' assent.

I imagine that all of the immigration judges who are arguing for their independence would push back on the administrative efforts (I am not being facetious about that for most), especially if Sanders is serious that he will "Establish immigration courts as independent Article I courts, free from influence and interference."

Plus, AG certification decisions have traditionally been drafted by the Office of Legal Counsel (OLC) at DOJ (about which my colleague Dan Cadman recently wrote), meaning that President Sanders will either have to fire a lot of career DOJ lawyers or improperly interfere in their independent judgment to get the decisions that he wants.

Finally, aliens who were targeted in their home country on the basis of gender identity are already protected under the asylum laws (I granted such asylum claims as an immigration judge myself), meaning that either the Senator is misinformed, or that this statement is a red herring.

Completely Reshape and Reform Our Immigration Enforcement System, Including Breaking Up ICE and CBP and Redistributing Their Functions to Their Proper Authorities. Not to be repetitious, but candidate Sanders explains that as president, he will:

  • Break up ICE and CBP and redistribute their functions to their proper authorities.
    • Deportation, enforcement, border and investigatory authority would return to the Department of Justice.
    • Customs authority would return to the Treasury Department.
    • Naturalization and citizenship authority would be given to the State Department.

There are plenty of Border Patrol and legacy INS agents who likely wish that they could be back at DOJ (I do not want to speak for the Customs agents, but they likely are not crazy about the current situation, either), but Sanders fails to explain how moving around functions within the executive branch will make anything he complains about any better, let alone address the issues he claims this will resolve:

Critics from across the political spectrum have documented the dysfunction and unaccountability of DHS, and President Trump has turned Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) into a renegade detention and deportation force.

ICE is a "renegade detention and deportation force"? By what standard? A December 2018 headline from the Washington Post says it all: "Deportations under Trump are on the rise but still lower than Obama's, ICE report shows."

Specifically, in FY 2018, ICE deported 256,085 aliens, 57 percent of whom were convicted criminals. In FY 2011, by comparison, the agency deported "396,906 individuals — the largest number in the agency's history", 54.6 percent of whom had felony or misdemeanor convictions. Hate the president (and all of the government employees) if you want, but at least get your facts straight. Either that, or Barack Obama will have a lot of explaining to do to his next would-be successor.

Dismantle Cruel and Inhumane Deportation Programs and Detention Centers and Reunite Families Who Have Been Separated. The candidate states that on day one: "Bernie will end the barbaric practice of ripping children from their parents and locking children in cages, thoroughly audit and close detention centers, and work to undo the damage President Trump has done to our immigrant community and our national character."

On day one he plans on both auditing and closing detention centers? What's the point of the audit? Later on, he clarifies this point:

Bernie believes it is reprehensible that corporations are making a profit from locking children and their families in cages and will immediately close for-profit and private detention centers. Community-based alternatives to detention are more effective, less expensive, and more humane. Bernie will partner with nonprofit organizations to authorize and greatly expand these programs and end detention for nearly all immigrants, with exceptions for violent criminals and extenuating circumstances. For any shelters necessary, such as those legally required to house unaccompanied minors until they are connected with family or sponsors, Bernie will implement strong quality standards.

There may be a strawman he missed, but not for want of trying.

What if Sanders' audit shows that "corporations" are more cost-effective than government-run detention? He is a "Democratic Socialist", a point that I make not to question his character but to note that he prefers government ownership of things, so he would probably not care, and may actually find it "reprehensible" that any corporation is making a profit. What if that audit were to show that such detention provided better services to the detainees themselves and the community, however? Would he still follow through on his plan?

His assertion that "[c]ommunity-based alternatives are more effective, less expensive, and more humane" is open to debate, and my colleague Dan Cadman and I would disagree. It certainly has never been my experience that they are "more effective": an alien in detention is almost guaranteed to be removed, while an alien free on "alternatives to detention" (ATD) either has to turn him- or herself in (good luck with that when a migrant has paid thousands of dollars to enter illegally to begin with), or more likely be apprehended by an under-resourced ICE (again, good luck). The expense of any ATD is dependent upon the daily cost of such programs times the number of days that aliens are subject to such ATD, as Cadman has made clear:

ATD is, on a daily basis, cheaper than detention, but because ATD participants are placed into the "non-detained" docket of the immigration courts (as opposed to the significantly faster hearings that aliens receive on the detained docket), those savings may be wiped out over the course of two, three, or four years on the program while aliens await the docketing and conclusion of their cases.

Please note that the more aliens in the system, the longer the time that it will take for any individual case to be decided. And there is no doubt in my mind that Sanders' proposals (as stated above) will encourage hundreds of thousands, if not millions, of additional foreign nationals to enter the United States illegally.

Want proof? The Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel found in its April "Final Emergency Interim Report":

[T]he large-scale influx of [family units, "FMUs"] is new, having increased dramatically in the last year by 600%. Over 53,000 FMU were apprehended last month alone by the Border Patrol, and at the current trajectory, that number of FMU apprehensions is likely to exceed 500,000 in Fiscal Year (FY) 2019.

After being held for several days at inadequate and overcrowded holding areas at USBP stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America.

By far, the major "pull factor" is the current practice of releasing with a NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). [Emphasis added.]

As for "children in cages": (1) even Snopes has found that "The Obama administration, not the Trump administration, built the cages that hold many immigrant children at the U.S.-Mexico border;" and (2) as I explained in a June 26 post, Congress itself actually created the situation it complained about with respect to children being detained in those Border Patrol stations by failing to fund HHS shelter space for them. Yes: Sanders created the situation in the very same cages he is now vowing to close. Shame on him, and shame on any media outlet that failed to report these facts in real time (or correct them now).

Dismantle Cruel and Inhumane Deportation Programs and Detention Centers and Reunite Families Who Have Been Separated. This one shares a lot of the same issues as the previous key point. As for "families who have been separated": (1) President Trump ended most family separation by executive order in June 2018; and (2) had Sanders and his fellows in the legislative branch provided the funding the president had requested on May 1, 2019 (see above), children would have been sent to HHS shelters, and been reunited with their families, more quickly.

As Time reported in late October:

According to the Department of Homeland Security (DHS), reasons a child may be separated from family include if DHS is unable to determine a familial relationship, they believe the child might be at risk and if the parent is referred for criminal prosecution.

I seriously doubt that any sensible voter wants a child "reunited" with a "parent" if there is a question as to the validity of the familial relationship. An October 17, 2019, ICE statement revealed:

Unrelated illegal aliens, falsely posing as families from Central and South America, continue to fraudulently circumvent U.S. immigration laws so they will be quickly released into the United States after turning themselves in to U.S. border authorities.

In April 2019, U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and [CBP] U.S. Border Patrol (USBP) began the Family Fraud Initiative in El Paso to identify individuals fraudulently presenting themselves as families when making an asylum claim in order to be released into the United States.

Since inception, this law enforcement initiative has resulted in the following:

  • 238 fraudulent families identified;
  • 329 false documents seized that were used to support fraudule[n]t claims;
  • more than 350 individuals federally prosecuted for various crimes, including human smuggling, making false statements, conspiracy, and illegal re-entry after removal; and
  • 50 individuals identified who have fraudulently claimed to be unaccompanied minors.

Some of the most disturbing cases identified involve transnational criminal organizations (TCOs) and individuals who are increasingly exploiting innocent children to further their criminal activity. Investigations indicate that TCOs and individuals have entered into schemes with biological parents to dangerously transfer their children — ranging in age from 4 months to 16 years — to unrelated adults so they can pose as family units to further their human smuggling criminal enterprises and/or fraudulently obtain U.S. immigration benefits. [Emphasis added.]

This statement speaks for itself, but I would add that it would be refreshing for a candidate from either party to vow to crack down on criminal smugglers, who are the lowest of the low.

Further, and needless to say, we do not send children to jail with their parents who are convicted of crimes, so this leaves the government two choices: Either continue the limited separation policy that is currently in effect, or stop prosecuting criminal aliens who may have committed some fairly serious crimes. Given the fact that the parents likely brought their children with them to avoid detention (see above), the latter will simply encourage aliens who are facing criminal charges in the United States to subject their children to the perilous trek to the United States.

Finally, the idea of releasing a child to the custody of an adult who may pose a risk to the child opens to the doors to physical or sexual abuse, sex trafficking, or worse (if that is possible).

Of course, most UACs are released to parents without status, and most of those parents likely paid the criminals who brought those UACs (at great danger to those minors' safety) to the United States to begin with. Sanders, not surprisingly, does not deal with the fact that under his plan, the U.S. government will basically be subsidizing smugglers, or with the attendant crime that comes with such smuggling.

Live Up to Our Ideals as a Nation and Welcome Refugees and Those Seeking Asylum, Including Those Displaced by Climate Change. I have already addressed refugees and asylees above.

The "climate change" aspect of this is more complex, because there is no basis in refugee or asylee law that provides for protection on this ground. (NB: I take no position on climate change, or more specifically anthropogenic climate change.) The candidate states:

We are already seeing the effects of climate change and how it will continue to drive people from where they live. By 2050, an estimated 200 million people will be displaced by climate change. Bernie will lead the international community in combating this crisis and America will do its part to welcome those who are forced from their homes by climate change.

Again, I take no position on the 200 million figure. Sanders states, however, that he wants to accept at least "50,000 climate migrants in his first year in office". That would require congressional action, and given the lack of consensus at the congressional level on this issue, it is unlikely that such legislation would pass (at least given the current makeup of Congress).

If President Sanders were to attempt to simply include the admission of "climate migrants" under the current U.S. Refugee Admissions Program (USRAP), I would expect to see legal challenges by states to such action, similar to those filed successfully in opposition to the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

In summary, immigration to the United States is a serious issue, and one that deserves serious responses. Slogans and strawmen, however, are not the place to start.

Topics: Politics