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Has Trump Helped Curb Illegal Immigration?
No one knows how many illegal immigrants (a catch-all term here for false asylees, visa overstays, border sneaks, the general undocumented, and the like) are in the United States, but various studies suggest it is a large number, maybe 18.6 million people, close to 6 percent of the entire population of the United States. For many years we had no mechanisms to count them, and in many instances the government did not really want to know. For example, despite issuing as many as 11 million visas a year, the State Department has avoided any comprehensive analysis on how many people overstay or misuse their visas as feedback to guide future decisions, claiming in a bureaucratic tussle the task belongs to DHS and isn’t any of their business. Even rudimentary immigration exit controls at airports, near standard world-wide, have only recently been deployed in the U.S. by DHS.
So any measurement of Trump’s attempts to lower illegal immigration begin with current, not historical, numbers. The U.S. Border Patrol recorded about 237,000 migrant “encounters” at the southern border in FY 2025, down from more than 1.5 million in FY 2024 and more than two million annually during the Biden peak years of 2022–2023. ICE reached a milestone this year of more than 10,000 foreign gang members arrested, many at the border. There are now more Border Patrol agents than any other time in the Patrol’s 102-year history. At the same time, Trump did away with the CBP One app which allowed would-be asylum seekers to begin the process by smart phone app even before they reached U.S. soil. Trump also restricted asylum processing and toughened standards against widespread fraud, even seeking to punish an American immigration attorney who (allegedly) filed false asylum applications, a rare Federal action.
Trump expanded expedited deportations and removals, reinstated tougher ICE deterrence policies and arrests, and made changes to the State Department visa-issuing system abroad to include new and higher fees and bond deposits, fewer visa posts issuing visas at all in fraud-plagued Africa, and stopped immigrant and non-immigrant visa issuance entirely in countries that do not cooperate with the U.S. on deportations and fraud prevention.
ICE arrests rose from a long-term average of roughly 350 per day to as many as 1,300 per day, increasing more than three times compared with the final year of the Biden administration. Deportations from within the United States increased by roughly 4.6 times during the first nine months of Trump’s second term. The use of third countries to accept deportees when their home country refuses to do so has increased significantly, with a new office at the State Department set up just to handle the details. Efforts to get illegals to self-deport have yielded almost 90,000 voluntary departures. ICE detention populations increased substantially, reaching nearly 70,000 detainees at one point, compared with roughly 39,000 when Trump returned to office. Congress also approved tens of billions of dollars for immigration enforcement and detention operations through 2029. Trump toughened up the civics test immigrants must pass in order to become citizens. The Justice Department launched legal challenges in states which allow illegal alien college students to pay the tuition rate reserved for legal in-state residents. Trump deincentivized working illegally in the United States while at the same time cutting into money laundering by Mexican and other drug cartels with a 3.5 percent remittance fee on the often untaxed money sent by aliens in the U.S. to their home country.
The administration’s changes were reinforced by two recent Supreme Court victories which allow Trump to regain substantial authority managing the border. In Mullin v. Al Otro Lado the Court ruled an undocumented person must be physically present in the United States to make an asylum claim. Asylum seekers who are stopped on the other side of the border (i.e., in Mexico, not actually admitted to America) are not “present” in the United States. If treated as inside the country as under Biden, despite being outside it, these individuals would be allowed to enter the U.S. and remain for years, with work permits, while their asylum claims pended. The eventual formal asylum approval rate was as low as 15 percent, even under Obama and Biden judges, and many asylum seekers simply disappeared into the United States as permanent illegals rather than face refusal and deportation. The U.S. Government Accountability Office found the immigration court system does not systematically track hearing attendance anyway, making it impossible to produce a real “no-show rate.”
The Supreme Court also gave DHS a powerful new tool in Mullin v. Doe, upholding the right of the administration to remove Temporary Protection Status (TPS) from more than 356,000 Syrians and Haitians now in the U.S. Congress created TPS in 1990 to allow temporary legal status and work authorization to nationals of countries experiencing armed conflict, natural disasters, or other transient conditions that make safe return impossible. With TPS, Congress intended the emphasis to be on “temporary.” The alien would not be expected to return home in the immediate aftermath of an earthquake, but was expected to return home as soon as possible. TPS as created by Congress never provided a path to permanent residency or citizenship. Yet hundreds of thousands of aliens stayed in the U.S. indefinitely under TPS, often vying for other immigration statuses like asylum when available. Many Haitians affected by the new Supreme Court ruling have been in the U.S. in “temporary” status since 2010, many Syrians since 2012. What was once intended as a temporary humanitarian gesture had been hacked into a new de facto permanent immigration status. The new Court ruling allows TPS to return to its original function. Elsewhere, Trump also seeks to end TPS for people, some 1.3 million of them, from 13 out of 17 countries holding the designation when Joe Biden left office. One TPS designation, for Somalis, has been in place for 35 years.
At the same time, Trump deportations, arrests, and detentions do continue to face significant legal and political constraints. This shows how deeply entrenched illegal immigration is in our society, and how easily it can be made into an emotional and political football. The article you are reading now, with its statistics about ICE enforcement growing, might be seen by The Atlantic as a call to arms against fascism. At The American Conservative, many of the same government actions are likely to get a nod of approval. Progressives are driven by the immigration myth that because their great, great grandpa immigrated to the U.S. from some eastern European shtetl that America is obligated forever to allow near-unfettered immigration. Others believe it is the right of any person living under less-than-ideal circumstances anywhere in the world to “have a better life” in the U.S., ignoring that every other nation instead tries to vigorously control its borders and interior with metered immigration.
Lastly, so much of the opposition to Trump’s immigration changes is simplistic Trump hatred. Reasonable Trader Joe-type suburban people are willing to suck tear gas and engage in street fights with armed Federal law enforcement over points of immigration law they had not heard of a few years ago. One resistor was just sentenced to 100 years in jail for trying to murder an officer in the midst of an armed assault on an ICE facility. The mayor of New York, unaware apparently of the importance of the Rule of Law in America, vows to not enforce a recent Supreme Court decision ruling because he feels it is anti-immigrant. These people’s apparent willingness to risk death or imprisonment over the fate of illegal aliens they do not even know is irrational. What they see as authoritarianism is simply the enforcement for the first time of laws on the books for decades. They don’t see immigration change in terms of something that might possibly help America, only in some schadenfreudian calculus that makes it seem Trump is losing a battle against them. Their way of thinking blocks any sensible discussion of immigration, one that ultimately could result in reforms to the law. Policies that might once have been debated on their merits are now interpreted almost exclusively through the lens of “resistance.” It is all America’s loss as chaos replaces democracy in the streets.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
U.S. Gets Internal Immigration Enforcement for First Time
The millions of illegal aliens resident in the United States got here primarily through two avenues of neglect, exacerbated by a lack of internal immigration enforcement. Here’s how the system works, and what has changed under Trump.
Many aliens simply walked in, using the wide-open southern border. The others, perhaps the majority over the years, were issued legitimate tourist or student visas abroad by a Department of State more concerned with facilitating travel than protecting America. Those illegals simply stayed in America as they pleased, as long as they pleased, doing whatever they pleased, whether that be working out-of-status or in the extremis, going to flight school and conducting the attacks of September 11. There was no one to interfere with their plans once a visa was issued and they were admitted to the U.S. because America for decades lacked any form of internal immigration enforcement. Until now, and now everything has finally begun to change.
The system works like this. A Department of State employee abroad at one of our embassies or consulates issues tourist, student, and temporary worker visas. While the terms of those visas are set by law, the standards of adjudication (i.e., who actually gets a visa under a part of the law called 214(b)) are largely determined by mid-level officials at each overseas post. Once issued, the visa is valid, in the case of most tourist visas, for ten years. That means the person issued that visa can use it to enter the U.S. once or as many times as they like, during a ten year period. There is no further review of circumstances that may change in the person’s life, or their home country, during those ten years. There are an estimated 55 million valid such nonimmigrant visas in existence in the hands of travelers from Niger to Iran, from China to Russia. In FY 2023, the State Department issued over 10.4 million nonimmigrant visas, any holder of which could apply to enter the U.S. As the numbers keep growing exponentially as staffing stays the same, scrutiny inevitably must drop.
The mantra during the 1990’s, when I was a visa officer as a young State Department employee, was to issue visas, lots of visas, as conveniently as possible. We were told by our bosses we were not law enforcement and our duty was to facilitate travel. As policy we took full advantage of the ability to waive personal interviews for as much as 40 percent of our clientele. We were trained to overlook certain overstays in the U.S., and to not question or review decisions made by others. This mania for issuance reached its peak with the Visa Express program. Visa Express was a Washington-sanctioned State Department program in Saudi Arabia that allowed most Saudi nationals to apply for U.S. visas without going in person to a U.S. embassy or consulate for an interview. The idea was to streamline visa processing, since Saudi Arabia generated huge numbers of applications and in-person interviews were seen as burdensome. Three of the 19 9/11 hijackers got their U.S. visas through Visa Express. Some had gotten their multi-year tourist visas years before. But Visa Express was not an anomaly; most posts overseas had something similar in place. It happened to be Visa Express in Saudi that made 9/11 possible, but it could have been any of us, whispered visa officers globally. It was policy.
Programs like Visa Express were done away with in the immediate aftermath of 9/11, only to creep back a few years later. The Trump administration has now mandated near 100 percent personal interviews once again. Other changes were imposed on a recalcitrant State Department, including a requirement to fingerprint all visa applicants, extensive use of facial recognition technology, and closer liaison with the intelligence agencies. But the prime directive of facilitating travel still remains. It is part of the culture and demands some sort of backup, some sort of internal enforcement.
Once handed his visa, the traveler applies to enter the U.S. at one of hundreds of ports of entry, run until 2001 by the predecessor to Homeland Security, the Immigration and Naturalization Service. The visa holder is stamped in for a period of time, typically six months for tourists. A side system exists where people from 41 certain “vetted” countries need no visa at all. In FY 2023, the United States welcomed approximately 18 million visitors to the U.S. under the Visa Waiver Program. Once any of these people left the airport, up to now, almost none had any contact with any form of immigration enforcement, a massive oversight involving everyone looking the other way as the number of illegal aliens in America grew.
I handled the case of a Syrian man. He entered the U.S. on a tourist visa years earlier, and no one cared that he was obviously not a tourist. He attended community college without a student visa because no one at the college cared, received food stamps for awhile, got a driver’s license, upgraded that so he could drive a taxi and work full-time, and eventually bought a house. He even became a notary public in pursuit of his real estate license. At each instance the government officials he encountered did not care he was an illegal alien, if they even knew. He learned he could do what he wanted in America, that the law meant very little. When I was able to deny him his new visa, he asked me a question that has haunted me ever since: of all the people, why do you care? (FYI, he married a Syrian-American and got a waiver for his ineligibility.)
One extreme example of time allowed in the U.S. is student visas. Most international students are admitted for “duration of study.” That means as long as they stay in full-time status, as determined by the school or university mind you, not ICE, they can live and work part-time in America. And weep not; many of these “colleges” are run by fellow nationals out of store fronts, offer no classes, but for a fee validate student status. Some students live in the U.S. in “soft” status for a decade or more (this will soon change to a set, limited time frame under new DHS guidelines.) Other aliens benefit greatly from bogus asylum claims. They are allowed to live and work in the U.S. while the claim grinds through the courts, something a clever lawyer can drag out for years. Then, finally given an order of deportation, under the policy of no internal enforcement, they simply left the courtroom and resumed their illegal life.
At one point the number of illegals grew so high that an amnesty was granted to, for a moment, reset the number to zero. The immigration amnesty was in 1986, under President Ronald Reagan, with the Immigration Reform and Control Act (IRCA). This law offered a pathway to legal permanent residency (and eventually citizenship) for most undocumented immigrants who had entered the U.S. before January 1, 1982 and had lived continuously (albeit illegally) in the country. It also provided legal status to seasonal agricultural workers who had worked a minimum number of days as illegals in America. It had the should-have-known but unexpected consequence of reshaping Latino communities, especially in California, Texas, and the Southwest, with long-lasting political and social effects. But employer sanctions in the IRCA were weakly enforced under the no internal enforcement policy, and unauthorized hiring continued. Border enforcement ramped up somewhat, but without creating new legal entry channels for low-wage workers, and without any internal enforcement of immigration law against the new batch of illegal entrants who snuck through, undocumented migration resumed as usual.
Under Trump, things have changed. One of the most significant backstops to so many visas being issued abroad and then promptly forgotten about is a new plan to review the more than 55 million people who have valid U.S. visas for any violations that could lead to deportation. The State Department said all U.S. visa holders, to include tourists and students, are now subject to “continuous vetting,” with an eye toward any indication they could be ineligible for permission to enter or stay in the United States. If such information is found, the visa will be revoked, and if the visa holder is in the United States, he would be subject to deportation.
The pre-Trump eras reflect how U.S. immigration law was often little more than symbolic. Before Trump, the United States pursued immigration enforcement policies concentrating on border security while neglecting the nation’s interior. Both Democrats and Republicans tolerated the presence of millions of illegal aliens, balancing weak enforcement with political and economic considerations. Since Trump’s second administration came into power, the most obvious change in immigration policy is the current campaign by ICE to locate and deport aliens in the United States illegally. This summer storm has been a long time coming. This is a step that the flaccid immigration system demanded for decades, as local, state, and Federal authorities turned a blind eye toward illegals walking free out of court rooms, walking free from prisons, and living any life they chose, good or bad, in America. There is no other country in the world so lax on internal immigration enforcement, and the time has come to play catch-up on the millions of cases allowed by so many officials to be in America. It isn’t authoritarianism or fascism, it is enforcing laws on the books for decades for the first time.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Trump Doctrine
The deranged left claims Donald Trump’s foreign policy is chaotic, that it has no broad goal. So it is good to see Secretary of State Marco Rubio, in a little-noticed statement, lay out the broad outlines of Trump’s foreign policy, and thus his State Department’s own marching orders. Rubio managed to work in some “inside baseball” points as well, leaving clues as to how the State reorganization is proceeding with like-minded individuals seeded into key positions in the bureaucracy.
Rubio began with the bottom line up front: American foreign policy is going to be about American goals, not some sort of global largess.
This President inherited 30 years of foreign policy built around what was good for the world. The decisions we made as a government in trade and foreign policy were basically, is it good for the world and the global community? And under President Trump, we are making foreign policy based on is it good for America. What that means is foreign policy is about three things: Does it make America stronger? Does it make America safer? Does it make America richer? If something doesn’t do those three things—and hopefully all three things—we are not doing it.
This explains Rubio’s gutting of a whole vertical stack of State Department offices on his revised organizational chart whose names begin with the word “global,” such as the office for Global Women’s Issues. The current foreign policy system was built primarily around two ideas: that is was America’s responsibility to right all wrongs world wide to its own liking, and competition with the Russians during the Cold War to gain leverage in the developing nations of Africa and Southeast Asia. The latter faded with the shifts of history (though the Cold Warriors lurking in government would love to revive the Cold War using China as the punching bag) and the former morphed under a succession of presidencies into things like the U.S. scolding the world about human rights (while ignoring the dark stains on our society at home) and pressing social justice programs empowering women, LGBT people, and minorities around the world in tune with the woke America those State Department officials wanted to believe was true. That was former SecState Hillary Clinton’s State Department.
Well, one of the main tools for enacting that kind of foreign policy is now gone, USAID. Rubio reminded everyone:
Foreign aid. We were funding some crazy stuff—crazy stuff! You tell me, how does a puppet show in some country around the world make us stronger, safer, more prosperous? So we got rid of the puppet shows and many other things. I’m sure they were very good puppet shows, and I’m sure some charity can go pay for it, but the American taxpayer should not.
The crazy projects way of doing business reached its high point in the nation building fiascos in Iraq and Afghanistan. The social justice side of things may have found its pinnacle under the Biden administration, when Pride Flags and Black Lives Matter banners were displayed outside many American embassies. It is certainly true many countries treat their minorities poorly. It is less clear, Rubio seems to say, that fixing that as a foreign policy priority is America’s business.
Rubio also made claim to his department’s role in Trump’s mass deportation plans.
I say this unapologetically—we are actively searching for other countries to take people from third countries, not just El Salvador, but other countries, to say, “We want to send you the most despicable human beings to your countries. Will you do that as a favor to us?” The further away from America, the better, so they can’t come back across the border. I am not apologetic for that. The President was elected to keep America safe and get rid of a bunch of perverts and pedophiles and child rapists out of our country.
He then turned to his department’s own reorganization to meet the demands of the new administration.
We have stopped student visas for people who burn down our universities and take over libraries and harass people. Why are we giving student visas to people to create disruption? We have taken away student visas from people who came here to do that.
ICE does the heavy lifting of actually arresting and physically deporting illegal aliens from the United States, it is the State Department, through its Visa Office in the Bureau of Consular Affairs, that actually issues the visas abroad in the first place. Rubio is calling for a new vision in those visa decisions, one that looks to the anticipated behavior of the applicant once in the U.S., not just his paper qualification for the visa itself. It is a change, if fully implemented, as drastic as those following 9/11 when visa officers were repurposed from basically tourism advocates to pseudo-law enforcement.
It is simple—if you are coming to America to start riots, we will not give you, and we will take away, a student visa. By the way, every country I have traveled to, 14 countries in 14 weeks, and you know what they say to me? “Yes, that is what we would do too.” The only people that seem to disagree are a handful of federal judges and a bunch of crazy people who get paid to write a report.
While ICE makes the arrests in the U.S., it is the State Department that makes the actual legal revocations of the visas. In line with this, Rubio announced “his officials are evaluating whether any of the anti-Israel protesters who invaded a Columbia University building [recently] should see their temporary visas revoked.” Rubio said on X the State Department is “reviewing the visa status of the trespassers and vandals” after New York police made 80 arrests at the campus. A State Department spokesperson said “We are upholding the highest standards of national security and public safety through our visa process.” That is a new emphasis under Rubio. Trump critics claim this “America First” policy will collide with the upcoming World Cup matches scheduled this year in the United States. Not so, said Rubio, explaining “We have very talented consular affairs people, but technology, working with consultants, and millions of people coming into the country for this.”
Finally, Rubio praised State’s most public facing office, the one that issues U.S. passports to the public.
Some of us who served in Congress recognized a year and a half ago we had a meltdown under Biden. You couldn’t get a passport. We had people calling in on Friday, “My passport expires,” and in the month of March, 2.78 million Americans got their passports. That’s the largest single-month processing of passports ever.
It is more than a coincidence that Rubio in his statement called out by name only two not-so-well-known offices at State, the Visa Office and the Passport Office. Both have new heads, and both men are members of the Ben Franklin Fellowship (BFF.) The BFF believes “U.S. international engagement should recognize the primacy of American sovereignty and the obligation to defend national borders… The central purpose of U.S. diplomacy is to serve the national interest. We endorse the careful husbanding of limited resources, both budget and staff, rather than engaging in perpetual, unfunded expansion.” In its own words, BFF is “a community of current and past State Department employees and foreign affairs practitioners who support traditional, Constitutional American values in international affairs.”
Layoffs are not expected to hit passport and visa processing within the Bureau of Consular Affairs. That bureau has around 2,400 domestic employees, about half of whom process passports, removing a large swath of the workforce from the RIF pool.
Rubio has seeded other BFF members at key nodes within State, most visibly as Deputy Secretary (Rubio’s Number 2) and as the acting head of the Director General’s office, the part of the State Department which sits atop a pyramid of offices controlling internal budgets, personnel assignments, discipline, and promotions. It grants Rubio a lot of control over the Department, and represents an understanding of the mechanics of the bureaucracy that his predecessors, former Secretaries of State Rex Tillerson and Mike Pompeo, never achieved.
Rubio gave no hints whatsoever that he is done making changes at Foggy Bottom. Keep a close eye on his public statements for clues for which direction he intends to take his department.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Aliens and Deportations and Bigger Fish
What happens when two solid objects collide? And the immigration jails are full. Is that when you invoke the Alien Enemies Act? Or is there something bigger going on?
ICE announced in the first weeks of the Trump administration it made 32,809 illegal alien arrests. Officials also said they had maxed out detention capacity at 47,600 people as they work with the Marshals Service, Department of Defense, and Federal Bureau of Prisons to increase bed space even as they request more money from a tied-up Congress. But more detention capacity won’t resolve the biggest roadblock to Trump’s mass deportation plans — there’s an immigration court backlog, meaning the need to provide due process to those scheduled for deportation is colliding with the goal of clearing millions of illegals out of the U.S. Trump is the victim of his own success. So does that means it is time to invoke the 1798 Alien Enemies Act?
The Alien Enemies Act, today known as 50 U.S.C. § 21, says
[W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government… all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.
What’s missing from that summary of the Act? Due process. The Act provides for none and that’s what makes it so attractive to the Trump administration with its plans for large-scale deportations. Unlike the 47k illegals now in custody, aliens rounded up under the Act are not due a day in court before an immigration judge to plead their case (at least one of the recently deported Venezuelans appears to have an asylum claim pending.) The Act appears to allow ICE to move arrestees straight from their apprehension to a flight out of the United States.
There are a few technicalities to the Enemies Act; the aliens must be from a nation that launched an “invasion or predatory incursion” against the U.S., and there must be a declared state of war. Passed during a quasi-war with France, the Act was meant to give the President broad authority over potential spies and saboteurs at home. Until now, the Act has only been used during the War of 1812, and the First and Second World Wars. The latter was the most notorious use, the Act purposed to inter Japanese-Americans in remote isolation camps lest they turn against the U.S. while it was at war with the Empire of Japan.
There’s still that part of the Act, however, about an invasion taking place as part of a war. The United States is not at war with Venezuela. In his Proclamation invoking the Act, Trump tried to get around this by referring to the Venezuelan Tren de Aragua (TdA) gang as part of a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.” The government’s brief on appeal claims “TdA also operates as a de facto government in the areas in which it is operating.”
That is, politely, pretty damn thin soup to hang the deportation of several hundred people without due process on. But since the Act does not require anything but such as proclamation, and faced with a lack of bed space and overcrowded immigration courts standing in the way of getting rid of purported gangsters, the Trump administration went with it as good enough.
While the Venezuelan deportation flight was still in the air, and following a lawsuit filed by the ACLU, U.S. District Judge James Boasberg instituted a temporary restraining order preventing the deportation of the Venezuelans. He also demanded the plane turn around and return the gangsters to the U.S. Going with a specious legal argument the turnaround order was not in writing, Trump opted not to order the plane back and instead to deposit the gang members in an El Salvadoran prison (No one is clear on what legal grounds that happened.) Trump thus denies he deliberately ignored a court order; that’s not the legal ground on which he wants to fight this fight anyway.
Judge James Boasberg has given the government a second chance to respond, threatening contempt, and Department of Justice has already filed an appeal. It is almost certain the case will move upward through the court system and likely be heard in some fashion before the Supreme Court. The current appeal by the government offers a clue as to how this might play out, stating “Plaintiffs cannot use these proceedings to interfere with the President’s national-security and foreign-affairs authority, and the Court lacks jurisdiction to do so… the Court should vacate the hearing and de-escalate the grave incursions on Executive Branch authority that have already arisen.”
The Trump strategy is further revealed in a quote from Elon Musk: “If ANY judge ANYWHERE can stop EVERY Presidential action EVERYWHERE, we do NOT live in a democracy.” The Trump administration’s three emergency applications to the Supreme Court asking the justices to limit the scope of injunctions entered by district courts in Baltimore, Boston, and Seattle against the executive order on birthright citizenship repeated Musk’s words almost verbatim, asserting “the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.” Constitutional authority Steve Vladeck wrote “Tellingly, the government is not asking the justices to put the executive order back into full effect. Rather, it’s launching a frontal assault on ‘universal’ injunctions — urging the Court to limit the district courts’ relief to the specific plaintiffs in those three cases.” Trump has said judges “want to assume the Powers of the Presidency” without getting elected.
The muscle tussle between Trump and the courts is not (just) about the legal technicalities of due process, the Alien Enemies Act, or birthright citizenship. Instead, they are means to an end. Trump is provoking test cases challenging the very power of any part of the judicial system to interfere with his executive power. He is seeking new constitutional ground for that executive authority, citing his unitary power over foreign affairs. The courts have traditionally shown deference on this issue (the court in Hamdi v. Rumsfeld even sanctioned military detention as an “enemy combatant” of a U.S. citizen captured in Afghanistan, the War on Terror, the gift that, sarcastically, keeps on giving) and Trump wants to expand that. He likely could care little about the shell that idea will eventually inhabit, whether it be the Enemies Act and a few hundred gang members or something else out of the 150 lawsuits he now faces contesting his Executive Orders. It is about the case(s) that will form the eventual uber challenge in front of the Supreme Court over who if anyone can say no to President Trump.
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Staffs Up for Immigration War
After Americans overwhelmingly give the White House, Senate, and House (you might as well count the Supreme Court in, too) to one party, which ran with a vow to limit illegal immigration on Day One of its control, what do you do if you’re governor of a liberal state? Why, you ignore the support Trump and the Republicans have in your state and try to work around the coming war on immigration in direct opposition to the Federal government in Washington. Might as well be 1860 all over again.
“Democrats,” says the New York Times, “envision flexing their power in these states to partly block the Trump administration’s policies — for example, by refusing to enforce immigration laws.” The Times claims some of the planning in blue states began in 2023 as a potential backstop if Trump won, but the preparations were largely kept quiet to avoid projecting public doubts about Democrats’ ability to win the election. The anti-populist Democratic effort will rely on the work of hundreds of lawyers being recruited to combat Trump policies. Advocacy groups are workshopping cases and recruiting potential plaintiffs to challenge expected regulations, laws, and administrative actions. For example, Democracy Forward, a legal group formed after Trump won in 2016, has a multimillion-dollar bank roll and more than 800 lawyers on call.
Governors Gavin Newsom of California and J.B. Pritzker of Illinois are mobilizing their Democratic-controlled legislatures to gird their states loins against the future Trump administration. Newsom’s legislature issued a proclamation to “safeguard California values and fundamental rights in the face of an incoming Trump administration… bolstering California legal resources to protect civil rights, reproductive freedom, climate action, and immigrant families.” Illinois Governor J.B. Pritzker took a more direct stand, stating “You come for my people, you come through me,” apparently referring to migrant families and illegal alien criminals as “his people.” Pritzker and Governor Jared Polis of Colorado announced the formation of a group called Governors Safeguarding Democracy.
Massachusetts Governor Maura Healey vowed to protect the state’s “citizens and residents.” While New York’s sanctuary city-loving mayor lies low in the face of ethics charges, Governor Kathy Hochul convened the Empire State Freedom Initiative to combat “threats” from the Trump administration, including on immigration. She and Trump-hating Attorney General Letitia James vowed to be warriors in the fight to, in Redstate’s words “stop what the American people just voted for.” Sanctuary cities and other localities across the U.S. have, since Biden took office, freed more than 22,000 criminal migrants wanted by federal immigration authorities, according to data from Immigration and Customs Enforcement (ICE.) The number of criminal aliens freed into the country by sanctuary authorities could potentially be much higher given many times local law enforcement releases criminal migrants before ICE is aware of them and files a detainer notice.
But it is not all bad news. Oklahoma is launching a program, Operation Guardian, to turn over illegal immigrants already in prison to ICE to jump-start Trump’s deportation effort. Governor Kevin Stitt shared with the Washington Examiner plans to expeditiously deport 526 convicted illegal immigrants as soon as Trump takes office. “We want to be the first state that works with President Trump,” Stitt said. “Right now, we have over 500 people incarcerated in Oklahoma who have broken the law, who are criminals, and they also are illegal. We would love to get them out of the state of Oklahoma, out of the country.” The state pays $36,000 to house them each day, according to the governor’s office.
Trump is staffing up for the war. In addition to Stephen Miller as deputy chief of staff, Trump is set to install an immigration hardliner in a major White House role, a position that does not require Senate confirmation and will enable him to enact Trump’s immigration agenda across the federal government. Tom Homan, who’ll be immigration czar, formerly headed (but was never confirmed as) the Department of Homeland Security (DHS) division responsible for arresting, detaining and deporting undocumented immigrants. The two men’s prompt installation in senior White House roles, says Politico, among the first personnel selections for Trump 2.0, signals immigration enforcement is a “top priority.”
Immigration is a complex affair in the U.S., with the immigration legal code longer and more complex than the tax code. Miller, Homan and their staffs will need to poke holes in various parts of DHS in general but also look deeper into the bureaucracy. There’s the Department of Labor, which issues work permissions for many visas (such as the H-1B likely of interest to Elon Musk), the Department of Justice, which runs the immigration courts, and the Department of State, which issues the actual visas themselves abroad. Project 2025 specifically calls out the “Diversity” Immigrant Visa lottery, and F and J student visas as in need of an overhaul. “This is the biggest national security vulnerability this nation has seen since 9/11 and we have to fix it,” Homan said.
But initially Trump’s immigration plan will focus on the reported 1.2 million illegal alien criminals loose across the U.S. This population was created by the Biden-Harris administration by allowing migrants to flow across the border without any vetting being done. The plan was especially egregious when dealing with citizens of places like Venezuela, which refuse to cooperate with U.S. law enforcement. Next in line may be military-age Chinese males. All of this targeted enforcement is a far cry from the “mass deportations” feared by the Left.
Trump is serious about all this, beyond personnel choices. Trump confirmed on Truth Social he will declare a national emergency and use military assets to help him carry out his deportation plans. Trump also pledged to continue building the U.S.-Mexico border wall, revive the Remain in Mexico program, hire more border patrol agents, and end birthright citizenship for those born on U.S. soil to illegal migrant parents.
“I’ve got to go back and help because every morning I get up, every morning I’m pissed off about what this [Biden] administration did to the most secure border in my lifetime. So I’m going to go back and do what I can to fix it,” said Homan. “I have seen some of these Democratic governors say they are going to stand in the way. They are going to make it hard for us,” he said. “Well, a suggestion. If you are not going to help us, get the hell out of the way. If we can’t get assistance in New York City, we may have to double the number of agents we send to New York City. We are going to do the job. We are going to do the job without you or with you.”
Copyright © 2024. 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 © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Is it still a secret if everyone knows?
Is it still a secret if everyone knows?Such is the dilemma Wikileaks poses for the government. Fearful to verify that anything on Wikileaks is authentic, and doubtless seeking to preserve the ironic freedom to prosecute anyone, someone, somewhere, someday for the leaks, the US Government insists on treating information available to anyone with Internet access as still highly classified.
It works like this. The latest tranche of files from Wikileaks, published this week by the New York Times and others, includes extensive information from (ok, allegedly) Guantanamo. Sit down in an Internet café in Karachi or Kabul and read to your heart’s content interrogation notes and prisoner records. This is of course presuming you are not a defense attorney for one of those held in Guantanamo.
If you are a defense attorney, then the US Department of Justice has already informed you that the documents remain legally classified even after they were made public. Because you the lawyer were granted a security clearance to enable you to even meet with your client, you are obligated to treat the readily available files “in accordance with all relevant security precautions and safeguards,” handling them, for example, only in secure government facilities. Somehow, if DOJ caught you working with the files in an Internet café, you could lose your security clearance.
These kinds of fear-mongering rules have lead to some bizarre situations. A friend at ICE says that visa extension applications that include Wikileaked docs as proof of persecution, printed off the web, have to be treated as classified inside the office and stored accordingly to avoid a security violation by the ICE worker (not the potential beneficiary, who is somehow not covered by the security laws.) Another colleague who has legitimate access to classified material told me that he finds the search functions for Wikileaks available through the Guardian newspaper so superior to the government’s internal search tools that he now routinely looks for documents online, makes notes, and then later doubles back to cite official references in his in-house drafting.
The State Department issued very clear guidance to its employees about viewing Wikileaked material on their work computers:
Personnel are reminded that unauthorized disclosure of classified documents in the media (print, blog, website) does not mean that the documents have been declassified. You must continue to abide by the classification markings on any documents in your possession and handle them with the appropriate protections, even when they have been posted on Internet websites.
If a State Department employee wants to save some of the documents for a clearly work-related reason, s/he “should put all saved documents in a computer directory folder that begins as ‘Wikileaks published material’. Any classification markings on the downloaded material should be retained. If any such material is printed out, however, it must be handled as a classified document and stored in a classified container.”
So, if you download a still-classified document from the web, you can store it on your unclassified computer. However, if you print that same document out, it must be stored in a safe rated for classified material. Got it?
The State Department has also used its firewall software to block some Wikileaks sites inside Foggy Bottom, including of course the main Wikileaks page, but also a number of blogs (a favorite, Toms Dispatch, is among the blocked sites months after a limited reference to the leaked data.) One is tempted to shout “Censorship!” but realistically it is just likely bureaucratic idleness about adjusting the software. Bigger media outlets, such as the New York Times and the Washington Post, which routinely publish Wikileaked material, are not blocked.
Many State employees, spooked over fear of security violations, only access routine articles on Wikileaks from their home computers. The New York Times reported that in December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chances of getting a government job. The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home.
People end up going along with these makes-no-sense rules. Fear is perhaps the most powerful tool available in a police state, and as effective a means of control as any taser. My dog won’t leave the yard for fear of being whacked with a rolled up newspaper, even when no one is around to enforce the rules. We don’t have or need a fence. She has learned that getting along under an authoritarian regime means remembering to allow fear to control her, however absurd the rules and however unlikely the punishment.
Woof! Good doggy gets a Scooby snack!
Copyright © 2024. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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