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What is Title 42?
Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.
But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.
Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.
It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.
Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.
The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.
Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”
Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.
The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Looking for Trouble (and Answers) in Berlin
I went looking for trouble in Berlin.
Traveling in Germany as an American I was left with one thought: why can’t we live this way? Of course modern Germans have their problems, but it seems wherever you go it is clean, safe, organized. They pay taxes, sure, but receive nearly free healthcare, college, and federally-mandated vacation time. The trains run on time. They have trains everywhere.
But there had to be more to it. So I went looking for trouble, asking Berliners where I shouldn’t go, where the off-limits parts of town are, you know, the places I wouldn’t be safe. It turned out to be a difficult question. OK, there were some areas where I might be pickpocketed at night, and a few parks where if I went in search of someone to sell me drugs I might find him. Prostitution is legal and sin is orderly. The closest I saw to a fight was four drunk non-German tourists hassling passers by. I went to an immigrant area which was statistically Berlin’s highest crime zone, and saw lots of graffiti and received some close looks but nothing more threatening than that. I couldn’t find a really bad part of town, and I tried.
A similar quest in nearly any major American city would be a lot easier. We run our lives, never mind plan a tourist’s itinerary, around the bad parts of town. I live in New York City, where we play a kind of parlor game about which areas are not as bad as they used to be. In Alphabet City where they filmed Taxi Driver in the 1970s the former crack houses now rent out tiny apartments for over $3,000 a month. There is a moderate push-pull between the border of the Upper East Side and Harlem as gentrification drives up housing prices.
The police presence around the areas in Harlem where tourists venture — the legendary Apollo Theater, the soul food restaurants — is effective even as the area still retains its snap. I was savagely beaten not far away, near the White Castle which serves as a kind of Checkpoint Charlie between zones. I wandering into five black teenagers pounding the life out of a much smaller Hispanic kid and yelled for them to stop or I’d call the cops. They quit, but circled around the block and attacked me, all at 4pm in the afternoon, you know, just after school.
So at age 60 I threw my first punch in anger since maybe 8th grade. After the cops came and the attackers scattered (and nobody nearby saw nothing) I was told I was likely part of an initiation, as no one made any attempt to rob me or the Hispanic kid. The cops said almost certainly a gang member was taping it all, so I should check online. It made me remember how the insurgents in Iraq would also have a video guy nearby when they set off an IED.
Pray for the tourist who alights at Hunts Point in the Bronx. The neighborhood has the highest reported crime rate in New York City, including the most violent crime. And given the poor relations between residents and the police, you can be assured reported crimes represent only some sliver of what really happens. Over 50 percent of the area lives in high or extreme poverty. Unemployment is among the highest in the state. It’s all just eight subway stops from Jeffrey Epstein’s old mansion.
Hunts Point is split between blacks and people from Puerto Rico and the Dominican Republic, but race is less the criteria for victims than familiarity. Very, very few people on those streets don’t already live there, and as a stranger of any hue you are unwelcome except as prey. Daytime, in and out of a roast chicken joint, okay, but stay off the side streets, keep your eyes down, avoid displays of gang colors (and you better know what they are) and, well, just don’t go there.
A good friend spent a couple of years in a Hunts Point high school under Teach for America, our national service program designed to destroy the souls of liberal arts graduates, and was told her most dangerous days would be her first, until the beast that is the neighborhood adjusted to her presence. Luckily she he was quickly subsumed as a neutral element, and by the end of her tenure probie gang members in her classes would even graciously suggest she not hang around after school certain days when trouble was expected.
New York is also awash in hate crime, centered in parts of Queens and Brooklyn formerly considered “safe.” Hate crimes reported this year show an 83 percent rise over the corresponding period last year, what the governor calls a “growing cancer.” In one recent incident, Heil Hitler, a swastika, and the words “gas chamber” were spray painted on a predominantly Jewish club which counts many Holocaust survivors among its members. The hate crime wave is under-reported, however, in that the majority of the incidents are anti-Semitic, and the perpetrators often black, as once-separated neighborhoods grow together, all counter-narrative to the national white supremacy meme.
On the S-Bahn train trip back into Berlin center from another not-so-bad bad neighborhood I was preoccupied with the people around me. None of them were really poor, or even could become poor. Under Germany’s social system, there is only what they call “relative poverty,” with the lowest levels of households receiving about 60 percent of the average German income. So everybody eats.
And everybody gets medical care; the healthcare system in Germany is funded by statutory contributions ensuring healthcare for all. You can also choose private insurance. The system can be complicated, but basically takes about 7 percent out of everyone’s paycheck, matched by their employer. Absent yearly copays of maybe $50, that’s it. If you make below a minimum wage, you pay nothing and still get the same healthcare as others. The system also covers long-term nursing care.
College is free. At work, there are maternity benefits, a cash child allowance, and laws ensuring expectant mothers stay home for six weeks before birth and eight weeks after. Child mortality rates are almost twice as good as in the U.S. overall, and staggering compared to forgotten places like Hunts Point. The United States is the only advanced industrial nation that doesn’t have national laws guaranteeing paid maternity leave.
For every German there is a national pension plan, work-related accident insurance, and welfare for extreme situations. No one lives homeless except by choice. The U.S. is also the only advanced economy not guaranteeing workers any vacation, paid or unpaid, and the only highly developed country (other than South Korea) that doesn’t guarantee paid sick days. In contrast, European Union nations guarantee workers at least four weeks paid vacation. Among the countries in the Organization for Economic Cooperation and Development, the U.S. has the lowest minimum wage as a percentage of the median wage.
In Germany there are plenty of rights. Free speech and freedom of religion all you want, elections at all levels. Even with restrictions Germany has one of the highest global rates of gun ownership. And none of that gets mixed up in questions of whether to provide everyone healthcare, because it has nothing to do with providing everyone healthcare, or a college education, or maternity leave.
I’m sure there are downsides beyond what a short term visitor can see. But look around Germany: whatever the tax rates, it works for a very broad range of people. Not perfectly, but it works and it’s better than what we have in what we unironically and constantly otherwise remind ourselves is the Greatest Country in the World. You can’t get past that. I don’t know how to twist every detail to make it work in America, and I’m not sure Bernie or Elizabeth or whomever we could elect can try hard enough (Trump and Biden are campaigning on not trying), but there it is, in Germany. And in the UK, Japan, China, Canada, etc. To an American, it all sounds too good to be true.
I write with a certain desperation, not wonderment. I’m not an undergrad who just took his first trip overseas, amazed at the great big world. I lived abroad for 24 years, used national health care in three nations, and traveled to many others. I’ve been a Democrat, voted Republican and third party, been called a fascist and a liberal, had long hair and short, lived in my car and paid off a mortgage.
In Germany I had some sense of what life would be like freed from the burdens which define American life: no worries about healthcare, or old age care. Money enough to really live on if I lose my job or become disabled. No decades-long burdens to get my education, followed by more to help pay the rising costs of my kids’. No worries about outliving my savings, or having a carefully crafted retirement plan blown to shreds by a recession, or being struck down illness my insurance won’t pay for. To never have to wonder how to pay for their spouse’s life-saving medications or watch them whither. What would life be like absolved of those fears?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Is America’s Answer to Its Immigration Assimilation Problem in Germany’s Mistakes?
Too many Americans think immigration is about arguing over head scarfs. Many simplistically demand or oppose the diversity migrants bring. But they’re all using the wrong words, maybe because the right word – heimat — is in German.
The Marzahn neighborhood is way out of town, near the end of the S-Bahn train line, in what used to be East Berlin. There aren’t many obvious signs of the heady Cold War days except the most obvious ones, endless rows of Stalinist apartment blocks. They’re plattenbau, housing constructed of prefabricated concrete slabs. From a distance they look like the greatest set of Legos ever made, and are much more colorful than the brown-gray public housing people in New York live in. The Marzahn area was historically farmland, but in the 1970s and 80s these housing estates were the largest in East Germany, mass scale showcase socialist living.
The fall of the Berlin Wall sent the sharper residents west and the Marzahn area was populated for many years by Germans who could not or would not leave, East Germans left behind by the new demands of capitalism. The population fell from 170,000 about 12,000. In 2015 the near-empty neighborhood was called on to house a large number of Muslims flooding out of the Middle East and North Africa. Chancellor Angela Merkel’s decision to bypass the orderliness of the Dublin Convention and expeditiously take in more than one million migrants (with more to come; the backlog of asylum applications is still well over 400,000) brought the challenges of assimilation to the fore in German politics. With the new additions, today every fifth person in Germany comes from an immigration background.
Initial enthusiasm gave way to fear amid rising numbers of new immigrants. Violent protests hit the eastern city of Chemnitz, leading Merkel’s interior minister to call immigration “the mother of all political problems.” Populist politician Thilo Sarrazin published Deutschland schafft sich ab (Germany Abolishes Itself) about the end of a majority race in the nation as more and more Muslims arrived, apparently with the sole goal of reproducing. One conservative Christian Social Union politician announced “Islam doesn’t belong in Germany.”
The Germans in places like Marzahn who awoke one day to find themselves living among immigrants became known as some Euro version of the characters in Hillbilly Elegy. They reacted by registering some of the strongest support for the anti-immigration party Alternative for Germany (AfD), helping AfD finish third in the 2017 elections. Marzhan’s reputation for crime, especially what we might call hate crime and what the Germans label “politically motivated crime,” rose.
Things are quieter now, but the area today has one of Germany’s highest unemployment rates at 20 percent. About 45 percent of families with kids use government benefits. Like in Marzahn, in 43 percent of Berlin’s elementary schools the majority of children speak little or no German at home. More than 80 percent of Muslim migrants see themselves as “very religious” or “true believers.”
Walking around Marzahn, I never found trouble. Some graffiti. A lot of suspicious looks. But stores were open with the cashiers not hidden behind protective glass, women in hijab pushed baby strollers while chatting on cellphones, and men smoking shisha in mid-afternoon returned the least of an obligatory nod. None wanted to talk, but none objected to me asking. They weren’t going anywhere, but they also weren’t going anywhere.
The other 88 percent of the people in the area are German.
“No, no, nobody is going to burn down the mosque,” sighed one German. “But none of us are friends with them.” Another interrupted to point out Muslims don’t wait in line, and don’t try to speak German. They don’t work hard, he said. He had been a bricklayer. His generation had its first Christmases in the ruins of WWII. They’d seen the massive 1960’s and onward diaspora of Turkish guest workers, gastarbeiters, frustratingly still not fully assimilated. Someone who might have been second? third? generation Turk swept the floor around us and another who looked like a sibling tended bar. Every German has a favorite late night doner kebab joint run by a faux-friendly Turkish guy with a funny accent. Fewer have a Turkish best friend.
“There are always those who will take advantage of this problem, for politics,” said one German. “But no one seems to understand what we feel.” It didn’t take long for the word heimat to come up. It is often mistranslated as “homeland” or even “fatherland” by American progressives desperate to connect everything to some creeping Nazi resurgence, but a definition truer to this conversation would be a place allowing someone to experience safety in the form of predictability, a place of reliability of existence. A place where you know where you are and what is around you, and what is around you supports your sense of heimat. It tells you you are in the right place. Rooted. The opposite is feeling rootless in your supposed home, a foreigner in what once was your country.
Heimat was what this was about, creating it somehow or suffering when you don’t, something evolutionary, not revolutionary, progress or lack of, not to be judged by one election or two. It was about the longer term, politics vs. assimilation vs. stubbornness vs. time cheating away anyone who remembered it differently. Historical-time scale change, the kind that took from WWII through the Cold War through Reunification in these German lives here.
Maybe that only can happen once a generation. But time alone doesn’t seem to be an answer either. The Turks, Germany’s largest minority group today at four million, remain largely segregated from mainstream culture. They earn lower wages than Germans, and their children are less likely to attend university. Generations in, mostly citizens now, many still work the “immigrant jobs.” As one writer put it, “We asked for workers, and human beings came instead.” Nobody had a plan for that.
But somebody somewhere tried to raise awareness, told everyone to change, or refuse to change, or that the other side should change, or they are racist not to change, or that change is antithetical to who they are. Anti-racism morphed into anti-whiteness. You are a lesser person because of the way you vote. Every group’s goal should be to create their own Wakanda. Expecting migrants to blend in to a homogeneous society nullifies the benefit of multiculturalism. Expecting a homogeneous society to simply accept the changes and challenges of multiculturalism as a “value” ignores millennia of human nature. Anger and fear are always exploitable. The dinosaurs didn’t live forever but unmanaged they stomped a lot of mammals on the way out.
It would have been easy to move the discussion from Marzahn, Berlin to Akron, Ohio. There are always people who see it as Brown and White. Their answers are simple and will fail as simplistic. More/less immigration. Progressive/racist. Build the wall/abolish ICE. Asylum for almost none/asylum for almost all and let the ones denied stay anyway. #Families/#None without skills.
The better of the Germans eschew hashtags to ask themselves what their heimat will look like in five and 50 years, and likely so on the Muslim side as well. As on both sides of the Atlantic, it is easy to guess everyone would agree the government will continue to not bother to solve the problems arising out from the lack of integration. In search of a modern answer, one person introduced a term, societal diversity management, currently missing from the polarized conversation.
Politicians decide how many and how fast for their own short-term election goals. Whoever was already there and whoever just arrived are left to work it out. People stand across the street from one another, one side despairing their rootlessness because they won’t change to assimilate the newcomers, the other facing multi-generational marginalization because they won’t adapt. They think they’re arguing over head scarfs when in fact they are arguing about the need to create a livable version of heimat.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Towards a More Sensible Asylum Policy
America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for economic migrants. The Trump administration is restoring asylum to its correct role in American immigration policy. It is a long overdue, right thing to do, but almost nobody is satisfied. Here’s why.Asylum is a very old concept, dating back to the ancient Greeks. It recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. will consider Female Genital Mutilation grounds for asylum while in many nations it is an accepted practice), but in most cases asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group.
The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994 for example, LGBT status has been, and remains under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But even as those criteria have changed with political winds, asylum has never been about simply wanting a better life. Poverty, for all its horrors, has never fallen within the protected grounds of race, religion, nationality, political opinion, or social group, though is often assumed to by progressive journalists without access to the Internet and some Democratic legislators from the Bronx.
A theoretical “perfect” asylum case in the U.S. might be a prominent Chinese democracy advocate finally granted permission by Beijing to lecture in the U.S. As he arrives, his government announces he will be arrested upon his return to China for intellectual crimes against the state, and per the State Department, likely subjected to torture.
The reality of 2019 is the asylum system has evolved into a cheater’s backdoor, a pseudo-legal path to immigration otherwise not available to economic migrants. They lack either the skills for working visas, or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and emptily ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent in the last two years even as refusal rates for those cases along the southern border run into the 80th percentile.
It works — for them. A Honduran on the border who says he came to work is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out over at time years is expensive and politically distasteful (kids in cages!), until recently most asylum seekers were instead released into American society to wait out their cases. They became eligible for work authorization if their cases extended past 150 days, as almost all do. The number of pending cases in early 2019 was 325,277, more than 50 times higher than in 2010.
Eventual approval rates for all nationalities over the past decade average only 28 percent (some place the approval rate as low as 15 percent and argue it is because of unfairness in the system, rather than illegitimate claims. Others claim the approval rate, however low, is bogus, reflecting clever coaching by immigration lawyers instead of legitimate fears), and after denial the applicant could either refile as a defensive asylum claim, or simply disappear into the vast underground of illegals.
Previous administrations’ plans to create expedited asylum processes proved ineffective as numbers endlessly just increase to fill the available opportunities. Simply making a claim to asylum has been enough to live and work in America in one status or another. Trump is changing that.
The most visible change is detaining asylum seekers and their families at the border instead of releasing them into society to wait for their cases to be processed. Detention is a deterrent to economic migrants making false claims to asylum, statistically somewhere between seven to nine out of 10 persons plus their families.
The next change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or in a detention facility, but in Mexico, a program called the Migrant Protection Protocols. People at the border make their asylum claim, and are then nudged a step backward to wait for an answer in Mexico. This relieves the U.S. of the costs, monetary (the House just voted an additional $4.6 billion to be spend on beds and baths for detainees) and political.
Mexican officials estimate about 60,000 people will be sent to Mexico by the end of August under the Migrant Protection Protocols. The policy seems to be effective in weeding out economic migrants as many, denied the chance to work off their debts in America to the human traffickers they paid for the journey north, choose to return home to Central America and abandon their previous sworn assertion such a return would imperil their lives.
A more significant Trump change to U.S. policy is to bring it in line with the European standard (“Dublin Convention“) of country of first refuge. Most of Europe subscribes to this model, which requires asylum claims to be made in the first country that can offer refuge. The idea is a person legitimately fleeing a repressive government would want safety as soon as possible. If the person is really just an economic migrant, this will stop him from “forum shopping” to see if the economic benefits are better in Italy or Austria. Or Mexico versus the United States.
In the American context, if someone is fleeing gang vengeance in Honduras, Mexico would become his refuge even though his cousin needs help in the restaurant in Chicago. The U.S. will thus not consider asylum seekers who pass through another country before reaching the United States (the order is being challenged in the courts.)
To put the plan into practice, U.S. reached a deal with Guatemala for that nation to take in more asylum seekers from other Central American nations. The U.S. is expected to sign similar agreements with El Salvador and Honduras. The U.S. has had an identical but little-noticed arrangement in place with Canada for many years, allowing the U.S. to not consider asylum applications from persons who did not apply first while in Canada. Despite the media hysteria about cruelty, the idea is nothing new.
The impact of these changes will be significant. Though Mexico does not yet have a formal safe third country agreement with the U.S., its Commission for Aid to Migrants projects 80,000 asylum requests this year, up from only 2,137 five years ago. Mexico and other Central American nations are expected to also become a place of first refuge for the many Haitians, Cubans, and Africans who previously just passed through their territory en route to America.
This illustrates an ancillary benefit to moving some of the costs of housing migrants to Mexico, and asking for more asylum processing by Guatemala and other nations: it gives them a reason to police their own borders. Until recently, there was no incentive for these countries to stop migrants headed north, and indeed much incentive to pass on the problems by opening their own borders to northbound traffic. This same thinking allowed human traffickers and drug dealers to operate with near impunity.
Following all this, the newest change concerns derivative claims to asylum. Spouses and minor children of those approved for asylum continue to be granted asylum alongside the principal. AG Barr, however, recently overturned a decision by the Board of Immigration Appeals saying a Mexican adult man could apply for asylum on the basis of his father being targeted by a cartel. Previous administrations held such an adult, while obviously not a dependent minor, would still automatically “inherit” asylum as the member of a particular social group, his extended family. Barr says now the adult can still apply today for asylum, but has now to prove his case independent of his father.
Barr’s decision is in line with former Attorney General Jeff Sessions, who ruled victims of domestic violence would no longer be considered members of a particular social group, i.e., all abused women of say Honduras, and were thus not eligible for asylum based simply on a claim to have been such as victim. Sessions determined each woman would need to prove a specific case of persecution and not simply assert she was a victim of a crime sadly endemic to many Central American societies.
Americans broadly favor immigration in general. But the gap between orderly immigration and unfettered immigration based on how many people can slip through physical holes in the border and loopholes in the law has grown too wide, to the point where a quarter of the 45 million foreign-born people currently in the U.S. arrived here illegally. Some 60 percent of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” As Europe has acknowledged and America is learning, modern immigration comes with considerable social and political costs, and those will be accounted for by society one way (good and thought out) or another (violent and chaotic.)As David Frum melodramatically wrote to encourage his fellow progressives to abandon garbage “policy” like abolishing ICE and throwing open the borders, “if liberals won’t enforce borders, fascists will.” Rewriting that a bit, if Congress will not reform immigration policy in line with a broad national consensus, then whoever is in the White House will, albeit in a piecemeal fashion. The result is Obama’s DACA reforms didn’t outlast his administration, and if a Democrat wins in 2020 Trump’s changes to asylum processing will be rolled back. Nothing gets permanently resolved that way, and it needs to be.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A Broken Asylum System, and How We Ended Up With Kids in Cages
How did we end up with kids in cages? We put them there, across multiple administrations, and created a politicized immigration and asylum system that constrains better options. So time to stop saying this isn’t who we are and start looking beyond the hysteria.There are givens. Immigration restrictions are not inherently racist. All countries have borders. They have to so they can make decisions about who can enter their country and who can be a citizen.
No nation allows people to simply move in. Every border globally is designed to place a barrier in between those allowed and those who are not. At the same time, most economies depend on the cheap labor of immigrants. For most of the developed world, labor needs are worked out via a points system that admits a regulated number of workers with designated skills coupled with border enforcement. The U.S. instead focuses on “reunification,” with family members legally in the country petitioning for relatives with unknown skills to immigrate (do we get the brother with the 4.0 GPA or the one with 3.0 murders under his belt?) Our borders have historically then been left porous to ensure an adequate number of exploitable workers. But since the number of people drawn to work usually exceeds the demand, our immigration laws also place speed bumps in front of the many, many people around the globe who want to try their luck. Inevitably you end up with kids in cages.
Bill Clinton’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act set new records for immigrants detained. Next up was George W. Bush’s 2005 Operation Streamline, a zero-tolerance plan to prosecute all illegal entrants. But to avoid the logistics and negative optics, the program made exceptions not written into the law for adults traveling with children. Nature finds a way, and more and more economic migrants arrived with somebody’s child in hand as a Get Out of Jail Free card. Fewer kids in cages, but more illegals.
Obama initially prosecuted only those found illegally entering more than once. Caught off guard by an influx of asylum seekers from Central America, the administration in 2014 established then-legally permitted family detention centers to hold parents and children — potentially indefinitely — in cages as a means of deterring others. There were also children held alone in cages when they arrived without parents, or in the hands of human traffickers, or when their parents were criminally dangerous. The program ended only because of a 2016 court decision ordering the release of most of those hostage families and largely prohibiting family detention facilities. Adult men, women, and children, would be caged separately in the future.
The whole Obama program got little media attention, although kids were in cages, mostly at the same facilities in use today. The holding facility at Clint, for example, currently a focal point for progressives, has been open since 2013. It was set up specifically for children. Fort Sill, Oklahoma, housed Japanese-American detainees during WWII, 1200 immigrant children during the Obama years, and will reopen to again take in immigrant children for Trump. Immigrant rights activists dubbed Obama “deporter in chief” for having deported more immigrants than any president. He still holds the title because his administration deported more migrants per year than Trump.
While many children at the border are with parents, others arrive with human traffickers, some on their own. “Children” can include everyone from infants to 17 year old “boys,” and the dangers of housing those vulnerable people among adults of all types should make it obvious why the law is written as it is. While on the face a nice solution sounds like “parents with their own kids,” imagine the terrible things that can happen when children and adults are detained together. Also under Trump, parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being criminally prosecuted.
Trump set out in April 2018 to prosecute every illegal crosser, first or tenth time, with or without kids, the letter of the law. There had been a growing rise in the number of people from the Northern Triangle (Honduras, Guatemala, and El Salvador) along with Mexico. For example, the border patrol detained 6,405 unaccompanied children in May 2018, up from 4,302 in April. In comparison with May 2017, the number of unaccompanied children soared by 329% and parents migrating with kids as a family surged by 435% in 2018.
By law now children and adults cannot be detained together; it was allowed during the Obama years and earlier under the Flores Settlement. Most parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being prosecuted. Overall, interpreting what these laws say must be done versus can be done to end up at what should be done draws some very fine, politically-motivated legal lines.
What is clear is by ending the various catch-and-release, and ignore and don’t catch policies of his predecessors, Trump triggered the next variation on an old problem. With no legal avenue to immigrate for work, and with border enforcement stopping many from simply walking north and blending into the estimated 11 million illegals already in the U.S., a vast number of economic migrants now ask for asylum. They are aided by for-illegal profit asylum cartels, staff from a Democratic Congresswoman’s office, and volunteer American lawyers.
Asylum applicants must demonstrate if sent home they would be persecuted on account of race, religion, nationality, political opinion, or social group. The definition of those five protected grounds has varied based on American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration for asylum under the Obama administration, rolled back under Trump. However, asylum never has been and was never intended to stretch to security or economic situations affecting blanket-like most everyone in a country. “Wanting a better life” has never been grounds for an asylum claim.
However, economic immigrants without legitimate claims to asylum have long taken advantage of slow processing by American authorities. A Mexican man caught on the border who says he came just to work may be sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case, however frivolous (there are potential expedited processes.)
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires those seeking asylum be detained while their cases are processed. But for logistical and political reasons, prior administrations simply released most asylum seekers into American society to wait. Asylum seekers become eligible for work authorization if their case has been pending for more than 150 days, as almost all do. Trump has directed the letter of the law be followed, ending this catch-and-release system. He also has negotiated for many asylum seekers to wait out their cases in Mexico instead of working the while in the U.S.
The problem is the backlogs are unresolvable. Affirmative asylum seekers, such as most of those now at the border, apply administratively through DHS. The number of such pending cases as of January 2019 was 325,277, more than 50 times higher than in January 2010. Defensive seekers are those applying for asylum once facing deportation or removal for some reason, including being denied under an earlier affirmative application. These cases go through the courts. As of July 2018, there were over 733,000 pending. The average wait time for a hearing was a staggering 721 days.
The approval rates for asylum claims are low, and always have been. Some recent figures for Mexican claimant approvals are 12%, Salvadorans 21%, Honduras 22%, and Guatemalans 26%. Those countries account for more than 40% of asylum applications, and have for some time. The high refusal rates, while up under Trump, are not at odds historically. In 1984, only 3% of asylum cases from El Salvador and Guatemala were granted, even as U.S.-sponsored wars raged there. Approval rates for all nationalities over the past decade average only 28%, skewed high over recent years by waves of cases designed to pander to general U.S. voters (Chinese pro-democracy applicants) and evangelical voters (Chinese anti-One Child Policy applicants.)
But as we talk there are still kids in cages. None of this is to defend the conditions in detainee camps. Those are a result of a sudden shift in implementation of immigration law coupled with a lack of infrastructure planning, driven by a president who impulsively wants to be seen as “tough” facing down a problem, all backed by an asylum system no longer suited for the conditions imposed on it. Conditions can be quickly improved, and the House just voted $4.6 billion to do that.
But we need also acknowledge the dangers in 2019 of hysteria, driven by media and progressive politicians exploiting the situation to paint themselves as liberating another concentration camp on the road to Berlin, when the immediate solutions are more in line with hygiene kits and child care workers. And no whataboutism. Under Obama we tolerated kids in cages. Without that tolerance then we would not have the intolerant situation now.
But there are deeper dangers. Progressives don’t want to fix Trump’s logistical mistakes (AOC and others voted against the recent humanitarian funding increases.) The camps must not be made more humane, they say, they must be closed. Deportations must not be limited, they must be ended by decriminalizing illegal entry. Free medical care for illegal immigrants. Asylum to economic migrants. Abolish ICE. Open borders.
Meanwhile, Trump’s immigration policies resonate with important sectors of the public. Some 60% of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” This does not grow from racism or white supremacy (Latinos support much of the Republican immigration agenda), though using those words is an easy way to blame people impacted by decades of imposed change and delete them from the conversation on how to do better.
The driver seems to be the imposition by elites of an uncounted number of illegal immigrants with unknown skills and unknown criminal backgrounds to have an unknown impact on the places they choose to settle. Do we get the guy with the 4.0 GPA or the one who committed 4.0 murders? We are destined — required — to take the bad with the good, scatter them around the country, and hope for the best.
So when economic turmoil in Mexico during the early 1990s pushed migrants north, just as war in Central America drove them in the 1980s, and gang violence does today, in America there is no plan. Tired, consumed, with resources stretched, there was a backlash building Trump sensed and acted on. As Trump was unprepared at the border and told DHS to make do, America for decades has been unprepared and told to make due. A de facto open border similar to 2015 Europe imposed by progressives would have the same effect here as there, leading to a new, even more conservative backlash.
The peak year for legal immigration to America was 1907. Your great-grandfather entered an agricultural and rapidly industrializing nation desperate for workers with no time to waste putting kids in cages. To get them out today we need more than olde timey nostalgia and modern outrage. We need a 21st century asylum and immigration policy.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Don’t Believe America About Syrian Refugees
The world finally noticed that one Syrian refugee kid drowned on a beach, after failing to notice the Middle East refugee crisis has been an ongoing disaster for almost five years now.
Same for the U.S.; Obama just announced he wants America to accept 10,000 Syrian refugees, so this is all fixed now, we can go back to Miley and Katy, right? No.
The Day Before
Here was the state of affairs as of the day before Obama’s announcement.
The United Nations High Commission for Refugees referred 15,000 Syrians to Washington for resettlement over the last four years; the United States accepted 1,500, with formally announced plans to take in only another 1,800 by next year, citing, among other issues, concerns over terrorists hiding among the groups.
With no apparent irony, United States Senator Patrick Leahy stated the refugee crisis “warrants a response commensurate with our nation’s role as a humanitarian leader.” Secretary of State John Kerry said the United States is “looking hard at the number” of additional Syrian refugees it might accommodate, given America’s “leadership role with respect to humanitarian issues and particularly refugees.”
Many in Washington likely felt that was enough. A token increase, some nice, high-flying language, a little sprinkle of freedom and respect. I think we’re done here.
The Day After
But, after seeing that it was a slow week and the media was still showing sad pictures of refugees on the TV box, it seemed more (rhetoric) was needed. So, on September 10, President Obama announced, per the New York Times headline, he will “Increase Number of Syrian Refugees for U.S. Resettlement to 10,000.”
Well, that’s good, right? I mean, the estimates are that there are some four million Syrian refugees already out there, with another 10 million internally displaced, so even if it is 10,000 that’s hardly anything but still, better than nothing.
What He Said, What He MeantMaybe. But let’s dig down one level deeper.
To be precise, Obama did not say the U.S. is taking 10,000 Syrian refugees in FY2016. He did not say if the 10k were part of the U.S.’ overall 70k refugee cap, or in addition to it, meaning other refugees could be left behind to favor the flavor-of-the-moment out of Syria. Obama also did not explain that the United States processes refugees abroad (if the person is somehow in the U.S. physically, that’s asylum, different thing, done while the person is in the U.S.)
Actually, have a look at the exact wording from the White House spokesperson (emphasis added): “The president has… informed his team that he would like them to accept, at least make preparations to accept at least 10,000 Syrian refugees.”
Refugees are processed, not accepted. That processing can take years, indefinite if enough information on a person’s security background cannot be amassed; there remains great fear in the U.S. government about terrorists sneaking into refugee flows, and so if a positive “up” decision cannot be made that a person is “safe,” then the default is indefinite pending status. Such a conundrum has, for example, stymied the applications of many Iraqis and Afghanis who served as translators for the American military and fear for their lives, only to have been stuck left behind.
As Representative Peter King said “Our enemy now is Islamic terrorism, and these people are coming from a country filled with Islamic terrorists. We don’t want another Boston Marathon bombing situation.”
There are also medical and other checks before a refugee is approved. With all the variables, there is no average processing time, but post-9/11 we can say the average is s-l-o-w. In the world of suffering, slow can often mean death.
Bottom LineIt appears the White House is taking full advantage of the media’s ignorance of how refugee processing works to create the appearance of doing something when little of a practical nature is being done, all sizzle and no meat. There is little help coming from the United States for any significant number of Syrian refugees. Sorry guys!
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Edward Snowden’s Statement
Edward Snowden, in front of officials from Human Rights Watch and Amnesty International at Moscow’s Sheremetyevo Airport, made clear both his own bona fides as a whistleblower, and the hypocrisy of the United States in its manhunt for him.
Whistleblower? Snowden’s remarks reinforce the basic tenet of whistleblowing, that it is an act of conscience. He made clear what he gave up– home, family, perhaps even his liberty and life– and what we gained, learning what a government which claims to be “of the people” is doing to the people. Snowden still loves America, if not its government and its intelligence services. He reinforced the idea that one courageous act of conscience might make a difference in a nation gone astray.
Snowden also touched on the most fundamental of points: that the America he is defending is not limited to physical safety, but extends deeper, to the freedoms from unwarranted search and seizure that define America. We are better people than we are now.
Hypocrisy? Of the countries that offered to help Edward Snowden, the U.S. itself has accepted 3,103 of their own asylees, 1,222 from Russia and 1,762 from Venezuela. The U.S. took those people in without a hint of regard for anyone’s opposition. This is in fact how the asylum system, codified by various UN treaties the U.S. has signed, should work.
The concept of asylum reaches back to the original democracy, Greece, and it is shameful that the United States today, in only this one case, refuses to recognize it as a fundamental right of a free people. Our Founders, who pledged their own lives, fortunes and sacred honor to such ideals, would weep.
Irony? During the Cold War, the Soviet Union was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West. Indeed, it was only about a year ago that the U.S. gave Chinese dissident Chen Guang Cheng refuge in our own embassy in Beijing before allowing him to enter the United States. Chen had escaped from Chinese government house arrest and was a fugitive to reach the U.S. embassy.
Bonus: Please also see my article, Edward Snowden’s Long Flight, as there seem to be some overlaps between what I wrote and today’s statement.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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