Let's Change the Conceptual Framework Used in Migration Decision-Making

By David North on February 21, 2011

After a year or two of watching how DHS, and more specifically USCIS, makes immigration decisions, I realize that both the agency, and Congress, are working in the wrong conceptual environment.

Virtually everything that DHS does regarding migrants, legal and illegal, is (perhaps unconsciously) based on how we handle criminal cases. Immigration decisions are made on an individual basis, often with many of the trappings of the courts, and with ample opportunity for extended due process.

That's exactly how it should be if you are taking someone into a court system that can deprive the individual of his or her liberty, or in rare cases, his life. The courts also, in that setting, can seize property and destroy reputations.

But should we make decisions the same way when neither life, nor liberty, nor property, nor reputations are at stake? Immigration proceedings, even at their most drastic, are about location, not life or liberty. Does the migrant have a right to be in this country, as opposed to another one? Sometimes the decision-making deals with a still less pressing set of issues – exactly which legal status can the migrant enjoy? Can he be an immigrant rather than a nonimmigrant? Can he be a naturalized citizen or must he remain a green card?

Admittedly, a tiny minority of immigration decisions involve a jailed applicant, but generally only the most egregious cases are held in DHS detention facilities, which are the moral equivalents of courthouse jails, not state penitentiaries. They are holding places, not places for punishment.

But, as an agency, DHS misses this liberty vs. location distinction completely. As a direct consequence of these legalistic decision-making techniques it also spends inordinate resources on processes involving tiny populations.

Lord knows that DHS does not have resources to waste, in terms of either people or dollars, so it is high time to reorient the agency's priorities, to put first things first.

A primary problem is the labor-intensive decision-making processes used in admissions, in adjustment cases, and in deportation situations. Congress has created, the immigration bar has lauded, and the agency has accepted, an environment in which every application for anything is treated as the first stage of a process that may well reach the U.S. Supreme Court.

The highly-detailed rules laid down by our Congress, which feed into the legalistic policies of USCIS, and on to the courts, are not the global norm. In most democracies the agency in charge of immigration makes its decisions within a broad framework laid down by the legislative body, with courts playing much smaller roles than in the U.S.

My suggestion: let's think in terms of systems, not appeals processes. Let's be aware that no one's life or liberty is at stake anywhere in the whole immigration process. Let's think in terms of impact of immigration on the public welfare generally, and not exclusively on the desires of individual aliens, as we do now.

As shorthand, maybe we should have a system run by MBAs, thinking holistically, not lawyers, thinking in terms of individual cases.

Lawyers, of course, have been the dominant force over the years in these agencies. Think of the DHS Secretary, Janet Napolitano, and the USCIS director, Alejandro Mayorkas; both of them spent most of their careers as attorneys. Their predecessors often had similar backgrounds.

A Better Focus

Individual cases will still have to be decided, but let me suggest another framework; one that stresses the needs of the populace, generally, in addition to the current focus on the interests of specific aliens.

I would divide all DHS immigration decisions, like Gaul, into three parts. There would be those of the highest priority, of high priority, and of low priority. To the extent possible, time and energy currently being spent on the lower priority activities should be moved up the ladder.

Highest Priority. Generally, I think DHS' strongest efforts should be devoted to diminishing the illegal alien population. While it would be helpful to give alien criminals a little more attention than the rest of the illegal population, we should bear in mind that all aliens unlawfully in the country face deportation.

High Priority. Many would-be immigrants and most nonimmigrants are in categories not covered by numerical restrictions. We have no ceilings on immediate relatives of U.S. citizens, for example. More time should be spent on these no-numerical-limits cases than those within numerical limits simply because the addition of one unlimited immigrant adds to the expected population, and, from my point of view, we have too many people already.

Low Priority. On the other hand, within the numerically-limited classes, if alien A is not admitted, alien B will fill his place, and the number of admissions will not change a bit. So unless alien A is a secret criminal, sorting him out of the stream will not be very helpful. Most categories of numerically-limited admissions are usually utilized, and if not, the numbers "fall down" to another category, so there is a steady inward flow of these migrants.

There are numerous sets of decisions made about which alien will be admitted within the classes with numerical limits. And, in other, somewhat different situations, decisions are made about small migrant populations. The general notion is that such low priority decisions will not make much of an impact on the population, and should be made with less staff time than currently used.

Unfortunately, currently DHS does not make these distinctions and thus spends too much time on low priority matters, and too little on high priority cases. One of the results of this is that staff time is squandered on creating systems for making decisions about small and often insignificant populations. Some examples of DHS time and energy spent on these minor groupings will be covered in a subsequent blog.