Democratic hopeful and current Mayor of South Bend, Ind., Pete Buttigieg, has released a 16-page, single-spaced white paper outlining the immigration plans he wants to implement as soon as he enters the White House. To cut to the chase: He would gut immigration enforcement and promote amnesty. For starters.
Here comes the amnesty, with the flowery rhetoric removed:
Pete will: Create a path to citizenship for the approximately 11 million undocumented people living in the United States who call this country home. ... In his first 100 days, Pete will push for legislation that provides a mechanism to gain legal status and ultimately citizenship, including for people with temporary protections — Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), Deferred Enforced Departure (DED), and withholding of removal. While working on a necessary legislative fix, Pete will restore and extend temporary protections rescinded or threatened by the current administration.
There are a couple of points to be made here. Adding together current DACA (660,880), TPS (just over 300,000), and DED (approximately 3,600) recipients gets you to almost one million aliens. Buttigieg also promises to grant TPS to Venezuelan nationals, adding an unknown number of additional aliens in quasi-legal status (28,660 filed affirmative asylum applications in FY 2018 alone). It is not entirely clear how "Pete" (as he refers to himself in the third person throughout) gets to an additional 10 million, but look for an administrative expansion of "parole in place" (PIP) or deferred action for some if not all of them.
That said, no matter how popular Buttigieg claims amnesty is with the American people, Congress's refusal to pass such legislation under the Obama administration (particularly during the period Democrats held a majority in the House, a supermajority in the Senate, and the White House) suggests that enough members of Congress and senators do not see it as a winning issue to pass it. Given the ratchet effect of short-term (in concept, at least) administrative amnesties (like DACA, TPS, and DED), however, a few years of PIP or deferred action would likely create political pressure to give more permanent status to some portion of that population. If "Pete" gets the chance to start the ball rolling, that is.
In the interim, the mayor wants to make things easier for aliens who are unable to support themselves, by defanging the public charge provisions in the Immigration and Nationality Act (INA) and using public funding to support aliens illegally present in the United States:
Eliminate the five-year waiting period for green card holders gaining access to public health insurance and food assistance programs.
Allow all immigrants to access health coverage on the marketplaces.
Expand access to Pell grants for students with DACA.
Withdraw regulations that restrict or deter access to public programs and benefits, including the Department of Homeland Security (DHS) final public charge regulation and the Department of Housing and Urban Development (HUD) proposed immigration status verification regulation.
These proposals are particularly interesting in light of the introductory statement that proceeds the specific proposals in that white paper:
My hometown of South Bend is a city with a history of diverse immigrant communities, from the French fur trappers who came here in the 1800s, to the German and Polish immigrants who labored in the Studebaker factories, to more recently arrived Mexican, Honduran, Burmese, and Cameroonian immigrants who have helped transform our city into what it is today.
I am going to guess that those French fur trappers were not accessing means-tested welfare programs to tide themselves over through the lean times, and my relatives who worked in automotive assembly plants seemed to be able to provide for themselves and their families just fine, thank you.
That said, I have no problem with references to immigrants of yore in public statements, but at least be honest about the differences in their situations and those of immigrants today. As my colleagues Steven Camarota and Karen Zeigler have previously shown: "In 2014, 63 percent of households headed by a non-citizen reported that they used at least one welfare program, compared to 35 percent of native-headed households." I doubt that many Americans (even those who arrived as immigrants themselves) believe that this is how the system should work. We have restrictions on access to welfare programs because we expect immigrants to be able to provide for the support of themselves and their families. Not the taxpayers.
Speaking of honesty, Buttigieg is likely leaving out a major reason for the transformation of South Bend, Ind., into what it is today: the presence of the University of Notre Dame, the city's largest employer. And for those who do not have college-age children:
Federal Pell Grants are direct grants awarded through participating institutions to students with financial need who have not received their first bachelor's degree or who are enrolled in certain postbaccalaureate programs that lead to teacher certification or licensure. Participating institutions either credit the Federal Pell Grant funds to the student's school account, pay the student directly (usually by check) or combine these methods.
Did I mention that, unlike loans, Pell grants do not have to be repaid, except under certain, very specific, circumstances?
I suppose that it makes sense for "Pete" to promote Pell grants for students with DACA when tuition at the economic engine of his community costs $74,193 per year. Does it really make sense, however, to force those who are "labor[ing]" in car plants and other industries to send their own children to institutions of higher learning to pay the college tuition of foreign nationals who were brought (or came) here from abroad?
And, given the fact that DACA recipients are "generally [a] low-education, low-skilled population" (as my colleague Steven Camarota has noted), they are probably more likely to need more aid than the native-born and those who entered legally. "Pete" does not even attempt to put a price tag on this giveaway, but it is likely going to encourage more parents to bring their children to this country illegally (at risk to them all) to take advantage of the mayor's future largesse, which seemingly has no limit.
Speaking of inducements to migrants to enter the United States illegally, Buttigieg also wants to: "Encourage states to reduce barriers for immigrants accessing certain public services, occupational licenses, business and economic development support, and driving privileges."
In this context, "immigrants" means "illegal immigrants", as the footnote to that proposal (an opinion piece captioned "Let undocumented immigrants drive legally, and stop pretending they don't exist") makes clear. I used to drive past a furniture store that had a sign out front that read: "Sin papeles? Sin problemas", or something of the sort. "Pete" wants that credo to apply to all pathways to transit and commerce in the United States. And public services, to boot.
Simply to mention this proposal is to make clear how ridiculous it is, but seriously, why bother going through the process of legally immigrating to the United States when you can just cross the border, get a driver's license, open a business, and take advantage of public services? No modern welfare state could long function under such a proposal, particularly given the message that it would send to the rest of the world that, once a foreign national entered this country illegally, he or she could take full advantage of the benefits of this country.
This is directly contrary to the admonition of civil-rights icon (and then-Chairwoman of President Clinton's bipartisan Commission on Immigration Reform), Barbara Jordan, who stated in August 1994: "If people unauthorized to enter believe that they can remain indefinitely once having reached the interior of the nation, they may be more likely to come."
Plus, current restrictions on driver's licenses (which were included in the REAL ID Act of 2005) were not the product of some xenophobe's wish list. Rather, they were a specific recommendation of the bipartisan 9/11 Commission, which noted:
All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud. Acquisition of these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities.
That is not all that Buttigieg wants to do.
He also wants to gut immigration enforcement through "prioritiz[ation]", in a manner similar to the non-enforcement of the latter years of the Obama administration, via executive order. As my colleague Jessica Vaughan stated at that time:
The Obama administration has embraced a radical new approach to immigration law. It has, without the consent of Congress, transformed violation of immigration law into a "secondary offense." That is to say, the goal is to ensure that an alien faces consequences for breaking immigration law only if he also breaks some other, "real," law involving, say, violence or drug dealing. And even then, the primary violation has to be quite severe to warrant deportation for the (secondary) immigration offense.
John Sandweg, former acting director of ICE, stated the Obama administration position succinctly: "If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero."
Taking a page out of the Sandweg playbook (and then taking it one step further), here is Buttigieg's proposal:
Pete will prioritize enforcement efforts on people who have committed serious crimes, people just arriving who have no asylum or other humanitarian claims, and people who circumvent our laws for profit, including employers who exploit immigrant labor and human traffickers who endanger lives. Pete will offer deferred action for people who have lived in the United States for many years, vulnerable populations, and others with strong ties to the community. [Emphasis added.]
In other words, not only would the odds of getting deported be less than zero for the "run-of-the-mill immigrant[s] here illegally", but they would also get quasi-legal immigration status for their trouble.
But how can Buttigieg be sure that he could eviscerate immigration enforcement enough not to accidentally remove someone? How about ending the successful 287(g) program? "Pete" is on it. Even better, why not simply "update" the list of removable offenses, to get rid of the ones that are "outdated, overly harsh, and inconsistent with criminal justice reforms", and do so "retroactively so that offenses that previously made someone removable would not continue to have that effect"? Each is a Buttigieg proposal. That is right — the mayor wants to allow more criminal aliens to remain in the United States.
In that vein, he also wants to provide more funding to local public defenders, so that they can draft plea agreements that will allow criminal aliens to avoid the consequences of their actions. The latter statement is my take, not his expressly, but I am not really taking liberties.
As he puts it: "Without a strong understanding of complex immigration laws, a public defender can inadvertently put an immigrant client in danger of deportation when a different approach would have avoided adverse immigration consequences." Respectfully, the only way "a public defender can inadvertently put an immigrant client in danger of deportation when a different approach would have avoided adverse immigration consequences" is by pleading to that alien's actual criminal activity, as opposed to a lesser variation that would allow that criminal back out on the streets. Few public defenders will have their clients plead guilty to murder when all they have committed is assault.
He also wants to end private detention facilities, limit immigration detention, and expand questionably effective alternatives to detention (ATD). Why? "Pete" states (without context) that: "The United States has the largest immigrant detention system in the world." (I actually appear in the article footnoted for this proposition). Given the fact that the Pew Research Center estimates that there are 10.5 million "unauthorized immigrants" in the United States, and that U.S. Customs and Border Protection (CBP) encountered almost a million immigrants at the Southwest border alone last year, however, the fact that our immigration detention system is the largest in the world should come as no surprise.
As I explained in a post earlier this month, though, even the actual detention numbers are deceiving. Most of those detained by ICE were apprehended at the border by CBP, and even then they were only held by ICE Enforcement and Removal Operations (ERO) for an average of 26.6 days, down from 38.6 days in FY 2017 and 29.8 days in FY 2018. Why? Here was my take:
The number of aliens encountered by CBP and the ERO beds they utilized increased, but the average stay decreased for two likely reasons: Some aliens who were detained were removed, and (likely more often) aliens who had been detained were released to free up beds for new arrivals.
Moreover, ending private detention contracts would put the burden for building and staffing new detention facilities squarely on the federal government (that is, the taxpayers), and limit ICE's excess capacity to detain aliens during an emergency, such as a massive influx of illegal migrants at the border (which Buttigieg's proposals would almost definitely invite, as explained below).
And, as my colleague Dan Cadman has explained: "Long-term data do not conclusively establish the value of [ATD] programs in actually ensuring removal from the United States of ATD participants once they have been ordered removed." Or, as I have previously stated:
If an alien has made such an investment in the hopes of working in the United States, release on an [ATD] will not prevent that alien from achieving the goal of gaining employment. Further, many such [ATDs] can be subverted, and once an alien is at large in the United States, [ICE] must expend significant resources to locate that individual, if they are ever able to locate him or her at all.
But how would Buttigieg limit the number of aliens who are detained? By shifting the burden to ICE to show that an alien poses a flight risk, or as he puts it:
Creat[ing] a default expectation that immigrants will be released on their own recognizance or in an alternatives to detention program when there is no significant threat to public safety, especially those for whom detention poses a particular risk of harm, including children, pregnant women, LGBTQ+ people, and asylum seekers.
Whatever one thinks about the detention of "children, pregnant women, [or] LGBTQ+ people", given how low the bar is for an illegal migrant to establish credible fear (which then enables that migrant to apply for asylum), this proposal would all but ensure a flood of new migrants entering illegally. Or, as then-Attorney General Jeff Sessions explained with respect to a similar plan in October 2017:
[I]n 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes — and case law that has expanded the concept of asylum well beyond Congressional intent—created even more incentives for illegal aliens to come here and claim a fear of return.
The consequences are just what you'd expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down.
The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. This, of course, undermines the system and frustrates officers who work to make dangerous arrests in remote areas. Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien shows for the hearing.
Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016 — nearly a 19-fold increase — overwhelming the system and leaving those with just claims buried.
If simply being released from custody by claiming credible fear were not impetus enough for hundreds of thousands each year to attempt illegal entry, Buttigieg promises "to urge Congress to allocate funds and work with legal service providers and state and local governments to create a system that makes counsel available" in removal proceedings. This is not guaranteeing respondents in removal proceedings public defenders, but it is not far from it.
It gets worse. "Pete" also wants to:
Create a process to review unlawful deportations. It is not enough to reset our policies without addressing the grave harm created by this administration. People who never should have been deported — parents separated from their children at the border and military veterans and their families in particular— must not be forgotten.
How would he ensure that those deported would "not be forgotten"? Buttigieg does not state as much, but the only solution that I can imagine is to reopen their cases and allow them to reenter the United States, straining DHS resources and expanding backlogs.
Speaking of reopening, the mayor also wants to:
Allow for reopening and termination of unexecuted removal orders. Some individuals with removal orders continue to live and work in the United States under regular government supervision for years and establish strong ties to their communities. Others have lived without knowledge that they were ordered removed because no action was taken against them. If these immigrants have no criminal convictions and pose no security threat after five years, and would qualify for immigration relief but for the removal order, DHS should allow them to reopen their removal orders and seek lawful status. This will allow ICE to focus its resources on individuals who are actually a threat, while removing the threat of deportation from others.
In other words, Buttigieg wants to grant an additional bite at the apple for aliens who have received due process and been ordered removed from the United States, but who have not left. How large is this population? ICE recently reported that there were 595,430 fugitive aliens, that is aliens "who ha[ve] failed to leave the United States based upon a final order of removal, deportation or exclusion, or who ha[ve] failed to report to ICE after receiving notice to do so," at the end of FY 2019. There is no data on the number who have remained for five years or more after receiving those orders, but it is likely to be massive.
Those others who "have lived without knowledge that they were ordered removed because no action was taken against them"? Many if not most are likely aliens who failed to show up in court at all, were ordered removed, and who ICE (with its limited resources) has been unable to apprehend. Or they were aliens who moved and failed to update ICE on their new address (for obvious reasons).
This is bad policy, not least of all because of the effect that this proposal would have on the backlog before the immigration courts of 1,071,036 cases through November 2019. By limiting funding to ICE, and allowing aliens under final orders to reopen their cases after five years if they become available for relief, Buttigieg and House Democrats would be able to effectively end immigration enforcement entirely, with the exception of those aliens whose crimes so shock the conscience that they could not be ignored.
Not that Buttigieg does not have a plan to address the backlog. It is just a bad one. He wants to:
Take some forms of immigration relief out of the courts. ... Certain forms of relief are currently only available in immigration court, which contributes to this backlog unnecessarily. Pete will allow U.S. Citizenship and Immigration Services (USCIS) to adjudicate certain types of cases overwhelming the system, including cancellation of removal requests and "readjustments," which correct technical errors. Pete will also encourage ICE to agree to relief from deportation in currently-pending cases via written motion, rather than a hearing before an immigration judge.
It is not clear how USCIS would adjudicate cancellation of removal and "readjustments" (more on that below), because to be eligible for those forms of relief, the alien has to be judged to be removable (which, with the limited exception of expedited removal, only immigration judges can do). If USCIS were to somehow adjudicate those forms of relief, then (1) that agency's backlog would swell; and (2) some aliens would be denied relief.
In the second scenario, those cases would logically go back to the immigration court for orders of removal. Inevitably, however (and although Buttigieg does not mention it), those aliens would be able to ask the immigration judge to review USCIS's decision before ordering removal, essentially giving the alien respondent another chance to obtain relief. Why not just address those forms of relief and the backlog by hiring more immigration judges? He does promise to "create and fully fund an independent immigration court system under Article I" (the latter a bad idea in and of itself), but he never explicitly states that he will hire the 700 judges (at a minimum) that are needed to handle the caseload.
As for "readjustments", it has not been my experience as an immigration prosecutor or as an immigration judge that such applications were filed to "correct technical errors". Instead, criminal aliens file for readjustment to avoid the immigration consequences of criminal activity. This is not to say that there are no readjustments to "correct technical errors", simply that this is not a reason with which I am familiar nor the only basis that an alien who is a lawful permanent resident would seek to adjust status again.
Speaking of second bites at the apple, Buttigieg also wants to:
Change the way asylum seekers' cases are heard at the border. Currently people claiming asylum and other humanitarian protections face a screening interview and then are placed in the queue for a full asylum hearing in an adversarial courtroom setting years later. Pete will greatly improve this process by allowing asylum officers to conduct full asylum interviews and adjudication, consistent with their role in the affirmative asylum process. Each asylum seeker will be entitled to a lawyer and the federal government will work with legal service providers to create a system to substantiate this guarantee. To expedite these interviews and adjudications, the USCIS Asylum Corps will streamline certain types of cases. Asylum seekers who are not granted asylum following an interview will have the option of seeking review before an immigration judge. This will be conducted as expeditiously as possible while still protecting the due process rights of the asylum seeker. [Emphasis added.]
In other words, as if the weaknesses in the current credible fear system were not enticement enough for migrants to enter the United States illegally, Mayor Pete wants to (1) ensure that they have lawyers throughout the credible fear process; (2) allow asylum officers to grant them asylum; and (3) allow those who failed to obtain asylum through this credible fear/asylum hybrid before USCIS to again seek asylum, this time before an immigration judge.
This would again strain USCIS resources, likely have little effect on the backlogs before the immigration court (only 13 percent of credible fear claimants were granted asylum in FY 2018), and give arriving aliens five opportunities for review of their asylum claims (asylum officer, immigration judge, Board of Immigration Appeals, court of appeals on petition for review, and Supreme Court on a writ of certiorari), one more than aliens filing defensive asylum applications before the immigration courts currently receive. Plus these arriving aliens would get a lawyer at the outset, to boot.
While on the topic of asylum, Buttigieg also wants to make gang violence a ground for protection. Although he asserts that he simply plans to "[r]estore long-standing asylum protection to ... families and children escaping from deadly gangs," generally under immigration law, fear of criminal activity without more is not a basis for asylum, and never has been. Expanding the law in this manner would, again, encourage aliens from countries with significant gang activity to flood the border seeking asylum, even if they themselves had not been affected by such criminal activity.
Buttigieg also promises to end several successful Trump-administration initiatives, including "asylum cooperative agreements" (also known as "safe third-country agreements," which Buttigieg erroneously refers to as "asylum cooperation agreements"), the Migrant Protection Protocols (MPP, or "remain in Mexico"), and Presidential Proclamation 9645, the latest iteration of the so-called "travel ban" (which actually just places restrictions on nationals of certain counties in specified visa categories, with waivers, limitations, and exceptions).
Buttigieg would, however, retain the senseless diversity visa lottery, and "re-commit the United States to the Global Compact on Migration and the Global Compact on Refugees." My colleague Nayla Rush explained the defects in the Global Compact on Refugees in a December 2018 post, noting bluntly: "Signing on to this compact would also be handing the reins of U.S. refugee and asylum policy to the UNHCR, the world body's refugee agency."
I addressed the flaws in the Global Compact on Migration in October 2017. Simply put: It is bad, and the United States should stay out.
In my mind, however, the mayor's most poorly thought-out proposal would be handing responsibility for detaining arriving aliens who are seeking asylum to the Department of Health and Human Services (HHS):
Shift responsibility for processing centers to HHS to ensure proper care of asylum seekers. When asylum seekers arrive at the border, they may spend days or even weeks in CBP processing centers. Many centers are overcrowded, lack basic hygiene features, and are not designed for long-term detention or families. To ensure that all families and children receive appropriate care from the moment they enter the United States, Pete will send asylum seekers and other migrants to newly created HHS-run facilities.
These HHS-run facilities will be staffed by personnel trained in health, trauma-informed and age-appropriate care, and emergency aid. They will be equipped for overnight accommodations and prioritize the safety of migrants and asylum seekers. Outside agencies and watchdog groups will make regular and unscheduled inspections of these facilities. People will not be subject to comprehensive screening until they have had time to recover from their journeys and have accessed "Know Your Rights" information and counsel. Those without a lawful basis for staying in the United States will be processed and then removed. But people who establish a "credible fear" of persecution will be able to seek asylum. These reforms will allow CBP agents to return their focus to border management and enforcement tasks.
Aliens only "spend days or even weeks in CBP processing centers" when Congress has failed to authorize sufficient ICE and HHS detention space for their transfer. "Pete" is correct that those CBP centers "are not designed for long-term detention or families," but they were never meant to be. They are merely a stopgap when a surge along the border overwhelms ICE's and HHS's detention capacities, which is Congress's fault, not the administration's.
And, as ICE notes:
Through an aggressive inspections program, ICE ensures its facilities follow ICE's National Detention Standards (NDS). ERO's Detention Standards Compliance Unit ensures that detainees in ICE custody reside in safe, secure and humane environments and under appropriate conditions of confinement.
The NDS were originally issued in September 2000 to facilitate consistent conditions of confinement, access to legal representation and safe and secure operations across the detention system. The standards established consistency of program operations and management expectations, accountability for compliance and a culture of professionalism.
With respect to the most recent standards, the agency explains: "NDS 2019 also incorporates substantive additions, addressing topics such as medical care, segregation, disability access, sexual assault and abuse prevention and intervention, and language access." As for medical care, those standards require that:
As soon as possible, but no later than 12 hours after arrival, all detainees shall receive, by a health care practitioner or a specially trained detention officer, an initial medical, dental and mental health screening and be asked for information regarding any known acute, emergent, or pertinent past or chronic medical conditions, including history of mental illness, particularly prior suicide attempts or current suicidal/homicidal ideation or intent, and any disabilities or impairments affecting major life activities. Any detainee responding in the affirmative shall be sent for evaluation to a qualified, licensed health care practitioner as quickly as possible, but no later than two working days. Detainees who appear upon arrival to raise urgent medical or mental health concerns shall receive priority in the intake screening process. For intra-system transfers, a health care practitioner will review each incoming detainee's health record or health summary within 12 hours of arrival, to ensure continuity of care. Facilities shall have policies and procedures to ensure documentation of the initial health screening and assessment. [Emphasis added.]
So, what Buttigieg is demanding, ICE essentially already provides. But why does he want all arriving aliens sent to HHS?
As I have previously explained, under section 462 of the Homeland Security Act and the Trafficking Victims Protection Reauthorization Act of 2008, most unaccompanied alien children (UACs) encountered by DHS are to be transferred within 72 hours to HHS's Office of Refugee Resettlement (ORR), for eventual placement with sponsors (most of whom are present illegally) within the United States, even if they have not been trafficked.
To say that HHS has not been up to the task would be an understatement, as I have previously reported. Not that it has been the department's fault, a point that I have clearly made in the recent past:
So, why choose HHS for this responsibility? I have no idea, except for the fact that the Office of Refugee Resettlement (ORR) in HHS has long been responsible for arranging benefits for newly admitted refugees — not exactly akin to placing tens of thousands of UACs. But, as I have previously stated:
I don't think that HHS ever asked to be the caretaker of 10,000 alien children, and nothing in their mission statement suggests that they would be any good at the job. Why not assign it to the Postal Service or the Department of Energy? Anybody except those evil, evil people in the former INS who were skilled at it. This is akin to having a painter wire your house and then complaining when it burns down.
Buttigieg essentially wants to double down on this bad idea, and foist upon a department that has struggled with its limited detention responsibilities in the past even more detention responsibilities. This is a concept known in Washington and the business world as "failing up".
The public would do well to wade through Buttigieg's white paper to see what all he has in store when and if he enters the White House. But trust me — it is bad, and will only make bad problems worse.