My recent appearance at a debate in New York, and an analysis by my colleague Mark Krikorian of a study recently issued by the Center on the "political effect of immigration ... on the apportionment of seats in the House of Representatives (and, therefore, of electoral votes)", raised separate, but connected questions, with respect to immigration: What kind of country the United States is, and what kind of country we want it to be.
Here is the excerpt from Krikorian's piece in National Review that particularly struck me, because it is both obvious, but also usually overlooked:
The politically redistributive effect of immigration is so notable because, unlike during past waves of immigration, the majority of population growth comes from immigration. That means Congress is essentially using immigration — which is, after all, just another federal government program, rather than some natural force like the weather — not only to engineer the future size of America's population but, because immigrants are inevitably concentrated in a handful of states, also to engineer its distribution. [Emphasis added.]
The obvious point in Krikorian's statement is that immigration is a federal government program, meaning that the American people have the ability to control it, through policy, and thereby forge a vision of a future for the United States.
With respect to the aforementioned debate in New York, one rejoinder that I heard more than once in response to my arguments for enforcement of the immigration laws was "what kind of country are we that would ... ?", for example, return migrants who had entered illegally to Mexico to await their court hearings under the Migration Protection Protocols.
The two issues — what kind of country the United States is, and the kind of country that we want the United States to be, cannot be easily separated. When you hear appeals to the Statue of Liberty or reference to the speaker's immigrant forebears in the immigration debate, the message that is (usually) actually being conveyed is that there should be some loosening of the immigration laws to benefit the most recent wave of (usually illegal) migrants.
This is an important point, because the current immigration laws are structured the way that they are to apply prospectively, by defining the characteristics that we want (and don't want) in future immigrants, and by attempting to mitigate the effects of immigration on the American workforce — both native-born, and lawful immigrants already here.
The inadmissibility provisions in section 212(a)(2) of the Immigration and Nationality Act (INA), for example, are intended to prevent criminal aliens from entering the United States and becoming Americans in the future.
The health-related grounds of inadmissibility in section 212(a)(1) of the INA are intended to exclude those with "a communicable disease of public health significance" in order to protect the American people from those diseases, and also to spare the American taxpayer the costs of future treatment.
The latter is also true of the public-charge grounds in section 212(a)(4) of the INA. As I have recently noted: "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." I have never heard anyone who talks about their immigrant forbears talk about how granddad came to the United States to live on the public dole — those instead are generally stories of plucky immigrants who came to this country and overcame challenges and prejudice to build this country, to prosper and provide for themselves and future generations. But listen to how often the speaker is usually suggesting that those same rules should be relaxed for newcomers.
The labor certification grounds of inadmissibility in section 212(a)(5) of the INA are there to protect the wages and working conditions of Americans — a fact about which clause 212(a)(5)(A)(i) is explicitly straightforward:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. [Emphasis added.]
The latter is not a purely theoretical point. As civil-rights icon Barbara Jordan, who was then the chairwoman of President Clinton's Commission on Immigration Reform, stated more than two decades ago: "Immigration policy must protect U.S. workers against unfair competition from foreign workers, with an appropriately higher level of protection to the most vulnerable in our society." Who are the most vulnerable? Specifically, she noted: "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." That is who we are as a country of individuals who look out for one another.
In this respect, immigration does not exist in a vacuum, even at the individual level. To practice law, you need to have a bar license, and to practice medicine, you need to be certified. Such credentialing serves two purposes: It protects the public against shysters and quacks (respectively), but it also limits the number of individuals who will be competing in highly skilled professions. Outside of the INA, however, there are no such restrictions on unskilled laborers, although logic would suggest that unskilled "inner city youth, racial and ethnic minorities, and recent immigrants who have not yet adjusted to life in the U.S." need more protection from unfair competition in the workforce than graduates of law and medical schools, and are more deserving from a perspective of compassion.
To ensure that the grounds of inadmissibility are effective, sections 212(a)(6) and 212(a)(7) of the INA render inadmissible those who have entered illegally and those who do not have proper entry documents (again, respectively). And, to put teeth into those provisions, section 212(a)(9) of the INA renders inadmissible those who have been previously removed. That provision both provides incentives for immigrants to enter legally, and sanctions for those who have failed to do so, or who have violated our laws when they were admitted lawfully in the past.
These laws are a framework for identifying the characteristics that the United States is looking for in its immigrants (and thereby, its future citizens), and for enforcing that vision.
The immigration laws are not purely restrictive. Section 201 of the INA does set annual limits on the number of immigrants admitted each year, but those limits are extremely generous. And "immediate relatives", that is "the children, spouses, and parents of a citizen of the United States", are not subject to numerical limitations under clause 201(b)(2)(A)(i) of the INA, reflecting a focus in immigration on family unification. The children and spouses of immigrants are also eligible to immigrate to the United States with the primary immigrant, again reflecting an interest in family-based immigration.
The immigration laws, in fact, currently promote extended family-based "chain" immigration (that is, avenues for migration beyond just the immediate family members of primary applicants) over skills-based immigration, as my colleague Jessica Vaughan has explained previously:
Every year, about one million new legal immigrants, or lawful permanent residents, are admitted to the United States. More than 10.6 million immigrants were admitted from 2007 through 2016. According to DHS statistics, in recent years about half of these immigrants have been what are sometimes called "initiating immigrants", or the first in their family to settle permanently in the United States, perhaps after attending college, finding employment, as refugees from persecution, or receiving amnesty after illegal settlement. The other half are not path-breakers, but are joining family members who arrived earlier, in the phenomenon known as chain migration.
Over the last 35 years, chain migration has greatly exceeded new immigration. Out of 33 million immigrants admitted to the United States from 1981 to 2016, about 20 million were chain migration immigrants (61 percent).
By comparison, according to Politifact, in FY 2017, only 12 percent of all immigrants entered the United States "under an employment-based category", that is, according to the skills they bring to the United States.
The website compared this to Canada, where 56 percent entered under what that nation calls the "'economic class' category" (including "caregivers, entrepreneurs and other skilled workers," and their immediate families); to Australia (where 68 percent entered "under the 'skill stream' designation", which includes "points-tested skilled migrants, entrepreneurs, and workers sponsored by employers" and their family members); and to New Zealand (which 60 percent entered "under the 'skilled/business' stream," which "covers entrepreneurs, people with exceptional talents, technicians and trade workers", and their family members).
Politifact goes to great pains to note that half of those admitted in these categories in Canada, less than half in Australia, and half in New Zealand were primary applicants under these categories, and the rest were their family members. It is clear, however, that those countries favor skills-based immigration for primary applicants in a way that the United States does not, and the website concedes: "the United States does have a significantly lower rate of employment-based immigration."
This raises the legitimate question of whether the United States should shift to a merit-based immigration system, as the president has proposed and which my colleagues and I have promoted. While it would not guarantee that the future United States has the right mix of skilled workers for the world of tomorrow, it would do a much better job than an immigration system largely based (like our current system) on who you are related to. It would provide opportunities to potential immigrants who currently have no avenue to immigrate. And, best of all, it is anti-discriminatory, because it is blind to race, nationality, religion, or ethnicity. Skills are not limited to any one group, and a merit-based immigration system would draw from the best of them all.
Not all immigrants to the United States are primary applicants under an employment-based category or family members of those who have come before, of course. Some enter as refugees under section 207 of the INA, others enter legally or illegally and obtain asylum in the United States, and some are beneficiaries of the diversity visa lottery. How the United States approaches and treats those groups touches on what kind of nation we are today.
There is strong interest in the concept of humanitarian forms of relief (like refugee and asylee status), but it not clear that the American people are fully supportive of those protections as they are currently sought and apportioned.
With respect to support of the American people for humanitarian protections for foreign nationals, look no further than the 1995 testimony of then-Chairwoman Jordan, in which she stated:
Unless there is a compelling national interest to do otherwise, immigrants should be chosen on the basis of the skills they contribute to the U.S. economy. The Commission believes that admission of nuclear family members and refugees provide such a compelling national interest, even if they are low-skilled. [Emphasis added.]
Now for the current application of this concept.
In November 2019, the president set the refugee ceiling at 18,000, well below the ceiling set in previous years. While this may at first blush seem miserly and contrary to "American values", my colleague Steven Camarota estimated in November 2015 that, "in their first five years in the United States each refugee from the Middle East costs taxpayers $64,370 — 12 times what the UN estimates it costs to care for one refugee in neighboring Middle Eastern countries."
This calls into question whether the resettlement of a larger number of refugees in the United States is really the most compassionate tack for the United States to take, and the best use of limited taxpayer funding to care for refugees. UNHCR estimates that there are 25.9 million refugees in the world, and yet, according to the Pew Research Center, the United States has not accepted even 100,000 refugees (.38 percent of the current total) in any given year in more than two decades. The receipt of even a massive number of refugees for permanent resettlement would not be more than a token effort.
And, as the White House has noted: "The primary goal of our refugee policy is to enable refugees to ultimately return home, where they can help rebuild their communities — which also supports our foreign policy interests." This is consistent with reports that I received back from congressional and staff delegations to refugee camps in the Middle East when I was staff director at the House Immigration Committee's Subcommittee on National Security. Ensuring that civil society could be reestablished in areas of conflict after those conflicts had ended was a higher priority for the governments of neighboring countries of primary refuge than resettlement of given numbers of refugees in the United States — provided that the United States provided those governments with support for the refugees their countries were sheltering.
If the United States is going to spend money to support refugees (and it should do its fair share), it should do the greatest amount of good with that money — which likely means not increasing refugee admissions.
Then, there is the current asylum program. That program is out of control, regardless of the metric any objective observer were to use.
The White House estimates that the United States will receive 350,000 new asylum claims in FY 2020. This would be in addition to the 340,810 affirmative asylum applications that were pending with U.S. Citizenship and Immigration Services (USCIS) at the end of FY 2019, and the more than 476,000 asylum cases that were awaiting adjudication at the immigration courts and Board of Immigration Appeals as of October 11, 2019.
Despite the massive numbers of aliens who currently have applications for asylum pending, relatively few applicants end up receiving that protection. I have previously noted: "In FY 2018, immigration judges adjudicated 64,223 asylum applications, granting only 13,173, or 20.5 percent."
The percentage of affirmative asylum grants by USCIS, on the other hand, has varied greatly based on nationality, but is generally still quite low. According to Department of Homeland Security statistics, in FY 2017 (the latest year for which statistics were available), 16,045 affirmative asylum applications were granted by USCIS, more than half coming from just four countries: the People's Republic of China (PRC), El Salvador, Guatemala, and Honduras. The grant rates for those countries by percentage were nonetheless low, however: 17.5 percent of applications from nationals of the PRC, 13.3 percent for El Salvador, 12.6 percent for Guatemala, and 6.9 percent for Honduras. The highest percentage of grants came from the "all other countries" that did not make the top 10 in filings: 30.4 percent, or less than one in three.
Adding to the backlogs in the asylum adjudication process are the lax standards for adjudicating credible fear for aliens in expedited removal proceedings — that is aliens apprehended after entering illegally or deemed inadmissible at the ports of entry — demonstrated by the low grant rate for asylum for those aliens who have passed credible fear. As I have reported:
In FY2018, 34,031 aliens in expedited removal received positive credible fear findings and were referred to immigration court to apply for asylum.
Of that number, 13,369 aliens (approximately 39 percent) failed to file an asylum application, abandoning their claims. Most of those aliens likely simply used the credible fear process to bypass expedited removal and obtain entry into the United States.
By comparison, only 5,577 of those 34,031 aliens were ultimately granted asylum.
Thus, only 27 percent of all aliens who were referred to immigration court after a positive finding of credible fear and who applied for asylum were granted asylum, a percentage that dropped to 16.4 percent when all aliens in expedited removal who were referred by USCIS are included.
All of this raises the question of whether the humanitarian instincts of the American people are being taken advantage of by foreign nationals who are coming to the United States and filing non-meritorious applications for asylum (or filing no applications at all) in order to live in this country and work. Many if not most of those applicants will simply remain in the United States illegally, meaning that the future America will consist of even more aliens who lack status in this country.
It also raises the question of whether the United States is living up to its international obligations in delaying the adjudication of those asylum claims that have merit but are lost in the mix by failing to adopt a system by which non-meritorious claims can be weeded out more quickly. This goes to the heart of what sort of country we are.
Speaking of expedited removal, the surge at the Southwest border of aliens subject to those proceedings, which totaled 977,509 in FY 2019, severely strained U.S. Customs and Border Protection (CBP) resources, and contributed to a perception that ours was a nation with no control of its borders.
I have previously referenced a poll that was purportedly produced for House Majority Forward, "an 'affiliate' of House Majority PAC, a political action committee dedicated to electing Democrats to the House of Representatives". That poll showed that:
Most of the respondents [white, non-college voters in two New Jersey congressional districts] — across all of the groups — said they side with Trump on immigration. Almost to a person, immigration was described as a matter of bringing "control" to our borders and immigration system (the treatment of children at the border barely came up during the groups).
Those individuals would not have sided with the president on this issue if they did not agree with his perception that more needed to be done to secure the border. Despite these facts, Democratic lawmakers were slow to even acknowledge that there was a crisis at the border, and even slower to respond to that crisis.
This, again, touches on what kind of country the United States is, and will be. A failure to control our borders is a threat to our national sovereignty. Put differently, if our national boundaries cannot be enforced, the United States is no longer a sovereign entity at all, and the value of citizenship and lawful residence is reduced to a formality.
And, with respect to the future, an inability to remove those who are simply allowed in because the system has broken down will result in a future United States in which, again, there are even more millions of aliens living and working in this country without legal status.
Such lawlessness breeds even more illegality, as criminals will have more opportunities to engage in the trafficking of persons and fraudulent documents. Worse, it will lead to the exploitation of both those who are here legally and illicitly in the workplace, a point that I have previously made. We pride ourselves on our strong workplace protections, but if there is a compliant population of illegal workers, soon even the lawful workforce will be unable to demand their rights to safe working conditions.
Through effective enforcement of our immigration laws, we can live up to the ideals of who we believe we are as a nation today, and forge a future for the United States as a diverse country of strong, self-reliant citizens.
But, first, some changes are in order. As citizens and a voters, the American people have a choice: to make those changes, or to accept the status quo.