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1. What’s Wrong with Temporary Protected Status and How to Fix It: Exploring a Complementary Protection Regime

Author:
Bill Frelick
Publication Date:
02-2020
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Temporary Protected Status (TPS) became part of the US protection regime in 1990 to expand protection beyond what had been available under the US Refugee Act of 1980, which had limited asylum to those who met the refugee definition from the United Nations’ 1951 Refugee Convention. The TPS statute authorized the attorney general to designate foreign countries for TPS based on armed conflict, environmental disasters, and other extraordinary and temporary conditions that prevent designated nationals from returning in safety. While providing blanket protection that very likely has saved lives, TPS has nonetheless proven to be a blunt instrument that has frustrated advocates on both sides of the larger immigration debate. This article evaluates the purpose and effectiveness of the TPS statute and identifies inadequacies in the TPS regime and related protection gaps in the US asylum system. It argues that TPS has not proven to be an effective mechanism for the United States to protect foreigners from generalized conditions of danger in their home countries. It calls for changing the US protection regime to make it more responsive to the risks many asylum seekers actually face by creating a broader “complementary protection” standard and a more effective procedure for assessing individual protection claims, while reserving “temporary protection” for rare situations of mass influx that overwhelm the government’s capacity to process individual asylum claims. The article looks at alternative models for complementary protection from other jurisdictions, and shows how the US asylum and TPS system (in contrast to most other jurisdictions) fails to provide a mechanism for protecting arriving asylum seekers who do not qualify as refugees but who nevertheless would be at real risk of serious harm based on cruel, inhuman, or degrading treatment or punishment or because of situations of violence or other exceptional circumstances, including natural or human-made disasters or other serious events that disturb public order, that would threaten their lives or personal security. The article proposes that the United States adopt an individualized complementary protection standard for arriving asylum seekers who are not able to meet the 1951 Refugee Convention standard but who would face a serious threat to life or physical integrity if returned because of a real risk of (1) cruel, inhuman, or degrading treatment or punishment; (2) violence; or (3) exceptional situations, for which there is no adequate domestic remedy.
Topic:
Immigration, Border Control, Citizenship, and Domestic Policy
Political Geography:
United States, Central America, and North America

2. The Use of Executive Orders and Proclamations to Create Immigration Policy: Trump in Historical Perspective

Author:
Michele Waslin
Publication Date:
03-2020
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article examines presidential immigration policy making through executive orders (EOs) and proclamations. Donald Trump’s overall volume of EOs has been remarkably similar to that of other presidents, while his number of proclamations has been relatively high. His immigration-related EOs and proclamations, however, diverge from those of his predecessors in several ways. Of the 56 immigration-related EOs and 64 proclamations issued since 1945, Trump has issued 10 and nine, respectively. Overall, about 1 percent of all EOs and proclamations during this period have been immigration related, compared to 8 percent of Trump’s EOs and 2.4 percent of Trump’s proclamations. In a sharp departure from previous presidents, a greater share of his EOs and proclamations have been substantive policy-making documents intended to restrict admissions of legal immigrants and increase enforcement along the border and in the interior of the United States. This article explores Trump’s unorthodox use of executive tools to make immigration policy, circumventing Congress and even members of his own administration. It recommends that: Congress should hold oversight hearings and should consider revoking or modifying EOs and proclamations that have been issued pursuant to the authority provided to the president by Congress, as opposed to those based on the executive’s constitutional authority. Advocacy organizations should continue to challenge the president’s executive actions, the insufficient process and consultation leading to them, their statutory or constitutional justification, and their impact. Congress should take an inventory of the immigration authorities it has delegated, both explicitly and implicitly, to the executive branch and determine when this authority can and should be limited. Congress should pass legislation to update and reform the US immigration system, and thus clarify its intentions regarding US immigration law, policy, and executive authority in this area.
Topic:
Immigration, Border Control, Domestic Politics, and Federalism
Political Geography:
United States, North America, Washington, and D.C.

3. Fixing What’s Most Broken in the US Immigration System: A Profile of the Family Members of US Citizens and Lawful Permanent Residents Mired in Multiyear Backlogs

Author:
Donald Kerwin and Robert Warren
Publication Date:
05-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The US Department of State (DOS) reports that as of November 2018, nearly 3.7 million persons had been found by US Citizenship and Immigration Services (USCIS) to have a close family relationship to a US citizen or lawful permanent resident (LPR) that qualified them for a visa, but were on “the waiting list in the various numerically-limited immigrant categories” (DOS 2018). These backlogs in family-based “preference” (numerically capped) categories represent one of the most egregious examples of the dysfunction of the US immigration system. They consign family members of US citizens and LPRs that potentially qualify for a visa and that avail themselves of US legal procedures to years of insecurity, frustration, and (often) separation from their families. Often criticized in the public sphere for jumping the visa queue, it would be more accurate to say that this population, in large part, comprises the queue. While they wait for their visa priority date to become current, those without immigration status are subject to removal. In addition, most cannot adjust to LPR status in the United States, but must leave the country for consular processing and, when they do, face three- or 10-year bars on readmission, depending on the duration of their unlawful presence in the United States. This population will also be negatively affected by the Department of Homeland Security’s (DHS) proposed rule to expand the public charge ground of inadmissibility (Kerwin, Warren, and Nicholson 2018). In addition, persons languishing in backlogs enjoy few prospects in the short term for executive or legislative relief, given political gridlock over immigration reform and the Trump administration’s support for reduced family-based immigration. In this paper, the Center for Migration Studies (CMS) offers estimates and a profile based on 2017 American Community Survey (ACS) data of a strongly correlated population to the 3.7 million persons in family-based visa backlogs: i.e., the 1.55 million US residents potentially eligible for a visa in a family-based preference category based on a qualifying relationship to a household member. CMS data represents only part of the population in family-based backlogs. In particular, it captures only a small percentage of the 4th preference, brothers and sisters of US citizens.[1] However, everybody in CMS’s data could be petitioned for, if they have not been already. Among this population’s ties and contributions to the United States, the paper finds that: Fifty-nine percent has lived in the United States for 10 years or more, including 23 percent for at least 20 years. Nearly one million US-born children under age 21 live in these households, as well as 111,600 US-born adults (aged 21 and over) who have undocumented parents. 449,500 arrived in the United States at age 15 or younger. 139,100 qualify for the DREAM Act based their age at entry, continuous residence, and graduation from high school or receipt of a GED. Seventy-two percent aged 16 and older are in the labor force, and more than two-thirds (68 percent) are employed; these rates exceed those of the overall US population. Two-thirds of those aged 18 or older have at least a high school diploma or its equivalent, including 25 percent with a bachelor’s degree or higher, and 295,100 aged three and older are enrolled in school. The median income of their households is $63,000, slightly above the US median. More than two-thirds (68 percent) have health insurance, including 51 percent with private health insurance. Nearly one-third (32 percent) live in mortgaged homes, and 12 percent in homes owned free and clear. The paper provides several recommendations to reduce family-based backlogs. In particular, it proposes that Congress pass and the President sign into law legislation to legalize intending family-based immigrants who have been mired in backlogs for two years or more. In addition, this legislation should define the spouses and minor unmarried children of LPRs as immediate relatives (not subject to numerical limits), not count the derivative family members of the principal beneficiary against per country and annual quotas, and raise per country caps. The administration should also re-use the visas of legal immigrants who emigrate each year, particularly those who formally abandon LPR status. This practice would reduce backlogs without increasing visa numbers. Congress should also pass legislation to advance the entry date for eligibility for “registry,” an existing feature of US immigration law designed to legalize long-term residents. In particular, the legislation should move forward the registry cutoff date on an automatic basis to provide a pathway to status for noncitizens who have lived continuously in the United States for at least 15 years, have good moral character, and are not inadmissible on security and other grounds. In fact, Congress advanced the registry date on a regular basis during most of the 20th century, but has not updated this date, which now stands at January 1, 1972, for 33 years.
Topic:
Migration, Immigration, Border Control, and Domestic Politics
Political Geography:
United States, Central America, and North America

4. Do Immigrants Threaten US Public Safety?

Author:
Pia Orrenius and Madeline Zavodny
Publication Date:
07-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Opponents of immigration often claim that immigrants, particularly those who are unauthorized, are more likely than US natives to commit crimes and that they pose a threat to public safety. There is little evidence to support these claims. In fact, research overwhelmingly indicates that immigrants are less likely than similar US natives to commit violent and property crimes, and that areas with more immigrants have similar or lower rates of violent and property crimes than areas with fewer immigrants. There are relatively few studies specifically of criminal behavior among unauthorized immigrants, but the limited research suggests that these immigrants also have a lower propensity to commit crime than their native-born peers, although possibly a higher propensity than legal immigrants. Evidence about legalization programs is consistent with these findings, indicating that a legalization program reduces crime rates. Meanwhile, increased border enforcement, which reduces unauthorized immigrant inflows, has mixed effects on crime rates. A legalization program or other similar initiatives not currently under serious consideration have more potential to improve public safety and security than several other policies that have recently been proposed or implemented.
Topic:
Crime, Migration, Immigration, and Border Control
Political Geography:
United States and North America

5. Paradoxes of Protection: Compassionate Repression at the Mexico–Guatemala Border

Author:
Rebecca Galemba, Katie Dingeman, Kaelyn DeVries, and Yvette Servin
Publication Date:
07-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Anti-immigrant rhetoric and constricting avenues for asylum in the United States, amid continuing high rates of poverty, environmental crisis, and violence in Guatemala, Honduras, and El Salvador, have led many migrants from these countries to remain in Mexico. Yet despite opportunities for humanitarian relief in Mexico, since the early 2000s the Mexican government, under growing pressure from the United States, has pursued enforcement-first initiatives to stem northward migration from Central America. In July 2014, Mexico introduced the Southern Border Program (SBP) with support from the United States. The SBP dramatically expanded Mexico’s immigration enforcement efforts, especially in its southern border states, leading to rising deportations. Far from reducing migration or migrant smuggling, these policies have trapped migrants for longer in Mexico, made them increasingly susceptible to crimes by a wide range of state and nonstate actors, and exacerbated risk along the entire migrant trail. In recognition of rising crimes against migrants and heeding calls from civil society to protect migrant rights, Mexico’s 2011 revision to its Migration Law expanded legal avenues for granting humanitarian protection to migrants who are victims of crimes in Mexico, including the provision of a one-year humanitarian visa so that migrants can collaborate with the prosecutor’s office in the investigation of crimes committed against them. The new humanitarian visa laws were a significant achievement and represent a victory by civil society keen on protecting migrants as they travel through Mexico. The wider atmosphere of impunity, however, alongside the Mexican government’s prioritization of detaining and deporting migrants, facilitates abuses, obscures transparent accounting of crimes, and limits access to justice. In practice, the laws are not achieving their intended outcomes. They also fail to recognize how Mexico’s securitized migration policies subject migrants to risk throughout their journeys, including at border checkpoints between Guatemala and Honduras, along critical transit corridors in Guatemala, and on the Guatemalan side of Mexico’s southern border. In this article, we examine a novel set of data from migrant shelters — 16 qualitative interviews with migrants and nine with staff and advocates in the Mexico–Guatemala border region, as well as 118 complaints of abuses committed along migrants’ journeys — informally filed by migrants at a shelter on the Guatemalan side of the border, and an additional eight complaints filed at a shelter on the Mexican side of the border. We document and analyze the nature, location, and perpetrators of these alleged abuses, using a framework of “compassionate repression” (Fassin 2012) to examine the obstacles that migrants encounter in denouncing abuses and seeking protection. We contend that while humanitarian visas can provide necessary protection for abuses committed in Mexico, they are limited by their temporary nature, by being nested within a migration system that prioritizes migrant removal, and because they recognize only crimes that occur in Mexico. The paradox between humanitarian concerns and repressive migration governance in a context of high impunity shapes institutional and practical obstacles to reporting crimes, receiving visas, and accessing justice. In this context, a variety of actors recognize that they can exploit and profit from migrants’ lack of mobility, legal vulnerability, and uncertain access to protection, leading to a commodification of access to humanitarian protection along the route.
Topic:
Migration, Immigration, Border Control, Violence, and Humanitarian Crisis
Political Geography:
United States, Central America, North America, Honduras, Guatemala, and El Salvador

6. An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

Author:
Paul Wickham Schmidt
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article provides an overview and critique of US immigration and asylum policies from the perspective of the author’s 46 years as a public servant. The article offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens), associate members (lawful permanent residents, refugees, and “asylees”), friends (nonimmigrants and holders of temporary status), and persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and constitutional rights that extend to noncitizens. It ends with a series of recommendations for reform of the US asylum system, and a short conclusion.
Topic:
Immigration, Border Control, Domestic Politics, and Asylum
Political Geography:
United States and North America

7. Universal Representation: Systemic Benefits and the Path Ahead

Author:
Lindsay Nash
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to those facing deportation. This essay describes the genesis and expansion of the universal representation movement — a project based on the idea that indigent individuals should be entitled to counsel regardless of the apparent merits or political palatability of their case. It describes the benefits of such a program to the immigration adjudication system writ large. Beyond the oft-cited increase in success rates for individuals represented and the benefits to the communities in which such programs are located, universal representation promotes the integrity of the court system and strengthens an adjudicatory procedure that, for too long, has functioned primarily to expeditiously churn through cases. Finally, looking forward, it considers some of the challenges this movement faces as it grows and it identifies areas for further expansion.
Topic:
Immigration, Border Control, and Legal Theory
Political Geography:
United States and North America

8. Putting Americans First: A Statistical Case for Encouraging Rather than Impeding and Devaluing US Citizenship

Author:
Donald Kerwin and Robert Warren
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article examines the ability of immigrants to integrate and to become full Americans. Naturalization has long been recognized as a fundamental step in that process and one that contributes to the nation’s strength, cohesion, and well-being. To illustrate the continued salience of citizenship, the article compares selected characteristics of native-born citizens, naturalized citizens, legal noncitizens (most of them lawful permanent residents [LPRs]), and undocumented residents. It finds that the integration, success, and contributions of immigrants increase as they advance toward naturalization, and that naturalized citizens match or exceed the native-born by metrics such as a college education, self-employment, average personal income, and homeownership. It finds that: Naturalized citizens enjoy the same or higher levels of education, employment, work in skilled occupations, personal income, and percentage above the poverty level compared to the native-born population. At least 5.2 million current US citizens — 4.5 million children and 730,000 adults — who are living with at least one undocumented parent obtained US citizenship by birth; eliminating birthright citizenship would create a permanent underclass of US-born denizens in the future. Requiring medical insurance would negatively affect immigrants seeking admission and undocumented residents who ultimately qualify for a visa. About 51 percent of US undocumented residents older than age 18 lack health insurance. In 2017, about 1.2 million undocumented residents lived with 1.1 million eligible-to-naturalize relatives. If all the members of the latter group naturalized, they could petition for or expedite the adjustment or immigration (as LPRs) of their undocumented family members, including 890,000 “immediate relatives.” Their naturalization could put 11 percent of the US undocumented population on a path to permanent residency. The article also explores a contradiction: that the administration’s “America first” ideology obscures a set of policies that impede the naturalization process, devalue US citizenship, and prioritize denaturalization. The article documents many of the ways that the Trump administration has sought to revoke legal status, block access to permanent residence and naturalization, and deny the rights, entitlements, and benefits of citizenship to certain groups, particularly US citizen children with undocumented parents. It also offers estimates and profiles of the persons affected by these measures, and it rebuts myths that have buttressed the administration’s policies. For example, the Trump administration and restrictionist legislators have criticized the US immigration system’s emphasis on family reunification for its supposed failure to produce skilled workers. Yet the article finds that: The current immigration system, which prioritizes the admission of the nuclear family members of US citizens and LPRs, yields a legal foreign-born population that has occupational skills equal to those of the native-born population. The legal foreign-born population living in 24 US states and Washington, DC, and those from 94 source countries have higher percentages of skilled workers than the overall population of native-born workers.
Topic:
Immigration, Citizenship, and Domestic Policy
Political Geography:
United States and North America

9. DACA and the Supreme Court: How We Got to This Point, a Statistical Profile of Who Is Affected, and What the Future May Hold for DACA Beneficiaries

Author:
Daniela Alulema
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
In June 2012, the Obama administration announced the establishment of the Deferred Action for Childhood Arrivals (DACA) program, which sought to provide work authorization and a temporary reprieve from deportation to eligible undocumented young immigrants who had arrived in the United States as minors. Hundreds of thousands of youth applied for the program, which required providing extensive evidence of identity, age, residence, education, and good moral character. The program allowed its recipients to pursue higher education, to access more and better job opportunities, and to deepen their social ties in the United States. This article provides a statistical portrait of DACA recipients based on administrative data from US Citizenship and Immigration Services (USCIS) and estimates drawn from the 2017 American Community Survey (ACS) Census data. It finds the following: As of September 30, 2019, there were 652,880 active DACA recipients. Sixty-six percent of recipients are between the ages of 21 and 30. The top five countries of birth for DACA recipients are Mexico (80 percent), El Salvador (4 percent), Guatemala (3 percent), Honduras (2 percent), and Peru (1 percent). DACA recipients reside in all 50 states and Washington, DC, and in US territories including Puerto Rico, Guam, and the Virgin Islands. The top five states with the highest number of DACA recipients are California (29 percent), Texas (17 percent), Illinois (5 percent), New York (4 percent), and Florida (4 percent). Eighty-one percent of DACA recipients has lived in the United States for more than 15 years. Six percent is married to US citizens, 4 percent to lawful permanent residents (LPRs), and 13 percent to undocumented immigrants. Among US-born children younger than 18 years, 346,455 have at least one DACA parent. Fifty-five percent of DACA recipients graduated from high school, 36 percent has some college education, and 7 percent a bachelor’s degree or higher. Ninety-five percent is employed. The Trump administration rescinded the DACA program in September 2017, leaving recipients and their families in a legal limbo. Federal litigation led to a nationwide preliminary injunction and DACA’s partial reinstatement for existing recipients. At this writing, the case is before the US Supreme Court, which will determine the program’s fate. Beyond its statistical portrait, the article provides testimonies from DACA recipients who recount how the program improved their lives and their concerns over its possible termination. It also provides recommendations for Congress, local and state governments, and immigration advocates. In particular, it recommends passage of legislation that would create a path to citizenship for DACA recipients and programs and policies to support and empower young immigrants.
Topic:
Immigration, Border Control, and DACA
Political Geography:
United States and North America

10. Immigration and the War on Crime: Law and Order Politics and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Author:
Partisia Macias-Rojas
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was a momentous law that recast undocumented immigration as a crime and fused immigration enforcement with crime control (García Hernández 2016; Lind 2016). Among its most controversial provisions, the law expanded the crimes, broadly defined, for which immigrants could be deported and legal permanent residency status revoked. The law instituted fast-track deportations and mandatory detention for immigrants with convictions. It restricted access to relief from deportation. It constrained the review of immigration court decisions and imposed barriers for filing class action lawsuits against the former US Immigration and Naturalization Service (INS). It provided for the development of biometric technologies to track “criminal aliens” and authorized the former INS to deputize state and local police and sheriff’s departments to enforce immigration law (Guttentag 1997a; Migration News 1997a, 1997b, 1997c; Taylor 1997). In short, it put into law many of the punitive provisions associated with the criminalization of migration today. Legal scholars have documented the critical role that IIRIRA played in fundamentally transforming immigration enforcement, laying the groundwork for an emerging field of “crimmigration” (Morris 1997; Morawetz 1998, 2000; Kanstroom 2000; Miller 2003; Welch 2003; Stumpf 2006). These studies challenged the law’s deportation and mandatory detention provisions, as well as its constraints on judicial review. And they exposed the law’s widespread consequences, namely the deportations that ensued and the disproportionate impact of IIRIRA’s enforcement measures on immigrants with longstanding ties to the United States (ABA 2004). Less is known about what drove IIRIRA’s criminal provisions or how immigration came to be viewed through a lens of criminality in the first place. Scholars have mostly looked within the immigration policy arena for answers, focusing on immigration reform and the “new nativism” that peaked in the early nineties (Perea 1997; Jacobson 2008).Some studies have focused on interest group competition, particularly immigration restrictionists’ prohibitions on welfare benefits, while others have examined constructions of immigrants as a social threat (Chavez 2001; Nevins 2002, 2010; Newton 2008; Tichenor 2009; Bosworth and Kaufman 2011; Zatz and Rodriguez 2015). Surprisingly few studies have stepped outside the immigration policy arena to examine the role of crime politics and the policies of mass incarceration. Of these, scholars suggest that IIRIRA’s most punitive provisions stem from a “new penology” in the criminal justice system, characterized by discourses and practices designed to predict dangerousness and to manage risk (Feeley and Simon 1992; Miller 2003; Stumpf 2006; Welch 2012). Yet historical connections between the punitive turn in the criminal justice and immigration systems have yet to be disentangled and laid bare. Certainly, nativist fears about unauthorized migration, national security, and demographic change were important factors shaping IIRIRA’s criminal provisions, but this article argues that the crime politics advanced by the Republican Party (or the “Grand Old Party,” GOP) and the Democratic Party also played an undeniable and understudied role. The first part of the analysis examines policies of mass incarceration and the crime politics of the GOP under the Reagan administration. The second half focuses on the crime politics of the Democratic Party that recast undocumented migration as a crime and culminated in passage of IIRIRA under the Clinton administration. IIRIRA’s criminal provisions continue to shape debates on the relationship between immigration and crime, the crimes that should provide grounds for expulsion from the United States, and the use of detention in deportation proceedings for those with criminal convictions. This essay considers the ways in which the War on Crime — specifically the failed mass incarceration policies — reshaped the immigration debate. It sheds light on the under-studied role that crime politics of the GOP and the Democratic Party played in shaping IIRIRA — specifically its criminal provisions, which linked unauthorized migration with criminality, and fundamentally restructured immigration enforcement and infused it with the resources necessary to track, detain, and deport broad categories of immigrants, not just those with convictions.
Topic:
Immigration, Border Control, Domestic Politics, and Deportation
Political Geography:
United States, Central America, and North America

11. Twenty Years After IIRIRA: The Rise of Immigrant Detention and Its Effects on Latinx Communities Across the Nation

Author:
Melina Juarez and Sonia Bettez
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This paper studies the dynamics of detention, deportation, and the criminalization of immigrants. We ground our analyses and discussion around the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’s (IIRIRA’s) detention mandate, the role of special interest groups and federal policies. We argue that these special interest groups and major federal policies have come together to fuel the expansion of immigrant detention to unprecedented levels. Moreover, we aim to incite discussion on what this rapid growth in detention means for human rights, legislative representation and democracy in the United States. This study analyzes two main questions: What is the role of special interests in the criminalization of immigrants? And does the rapid increase in detention pose challenges or risks to democracy in the United States? Our study is grounded within the limited, yet growing literature on immigrant detention, government data, and “gray” literature produced by nonprofits and organizations working on immigration-related issues. We construct a unique dataset using this literature and congressional reports to assess what factors are associated with the rise of immigrant detention. A series of correlations and a time series regression analysis reveal that major restrictive federal immigration policies such as IIRIRA, along with the increasing federal immigration enforcement budget, have had a significant impact on immigrant detention rates. Based on these findings, we recommend three central policy actions. First, the paper recommends increased transparency and accountability on behalf of the Department of Homeland Security, Immigration and Customs Enforcement, and on lobbying expenditures from for-profit detention corporations. Second, it argues for the repeal of mandatory detention laws. These mandatory laws have led to the further criminalization and marginalization of undocumented immigrants. And lastly, it argues that repeal of the Congressional bed mandate would allow for the number of detainees to mirror actual detention needs, rather than providing an incentive to detain. However, we anticipate that the demand for beds will increase even more given the current administration’s push for the criminalization and increased arrests of undocumented individuals. The rhetoric used by the present administration further criminalizes immigrants.
Topic:
Immigration, Border Control, Criminal Justice, and Mass Incarceration
Political Geography:
United States

12. Immigration Governance for the Twenty-First Century

Author:
Ruth Ellen Wassem
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The governance of immigration has a checkered past, and policy makers’ efforts at reform rarely meet expectations. Critiques have echoed over the years and across the political spectrum. The current system of immigration governance is scattered around the federal government, with no clear chain of command. No single government department or agency captures the breadth of the Immigration and Nationality Act’s reach. At the crux of understanding immigration governance is acknowledging that immigration is not a program to be administered; rather, it is a phenomenon to be managed. The abundance of commissions that have studied the issues and the various administrative structures over time offers some wisdom on ingredients for successful governance. Based upon this research, options for effective immigration governance emerge. This paper studies the administration of immigration law and policy with an eye trained on immigration governance for the future. It opens with a historical overview that provides the backdrop for the current state of affairs. It then breaks down the missions and functions of the Immigration and Nationality Act by the lead agencies tasked with these responsibilities. The paper concludes with an analysis of options for improving immigration governance. Each of these options poses unique challenges as well as political obstacles.
Topic:
Immigration, Governance, and Border Control
Political Geography:
United States

13. Predicting Unauthorized Salvadoran Migrants’ First Migration to the United States between 1965 and 2007

Author:
Karen Pren and Nadia Flores-Yeffal
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Although Salvadoran emigration to the United States is one of the most important migratory flows emanating from Latin America, there is insufficient information about the predictors of first unauthorized migration from El Salvador to the United States. In this study, we use data from the Latin American Migration Project–El Salvador (LAMP-ELS4) to perform an event history analysis to discern the factors that influenced the likelihood that a Salvadoran household head would take a first unauthorized trip to the United States between 1965 and 2007. We take into account a series of demographic, social capital, human capital, and physical capital characteristics of the Salvadoran household head; demographic and social context variables in the place of origin; as well as economic and border security factors at the place of destination. Our findings suggest that an increase in the Salvadoran civil violence index and a personal economic crisis increased the likelihood of first-time unauthorized migration. Salvadorans who were less likely to take a first unauthorized trip were business owners, those employed in skilled occupations, and persons with more years of experience in the labor force. Contextual variables in the United States, such as a high unemployment rate and an increase in the Border Patrol budget, deterred the decision to take a first unauthorized trip. Finally, social capital had no effect on the decision to migrate; this means that for unauthorized Salvadoran migrants, having contacts in the United States is not the main driver to start a migration journey to the United States. We suggest as policy recommendations that the United States should award Salvadorans more work-related visas or asylum protection. For those Salvadorans whose Temporary Protected Status (TPS) has ended, the United States should allow them to apply for permanent residency. The decision not to continue to extend TPS to Salvadorans will only increase the number of unauthorized immigrants in the United States. The United States needs to revise its current immigration policies, which make it a very difficult and/or extremely lengthy process for Salvadorans and other immigrants to regularize their current immigration status in the United States. Furthermore, because of our research findings, we recommend that the Salvadoran government — to discourage out-migration — invest in high-skilled job training and also offer training and credit opportunities to its population to encourage business ventures.
Topic:
Migration, Immigration, Violence, and Humanitarian Crisis
Political Geography:
United States, Central America, North America, and El Salvador

14. Immigration Detention, Inc.

Author:
Denise Gilman and Luis A. Romero
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article addresses the influence of economic inequality on immigration detention. The US Department of Homeland Security (DHS) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This article connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions. The article begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private for-profit prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to the use of jail-like facilities that are the product offered by the private prison industry. The article then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger, but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities, regarding detention and bond patterns at a specific detention center that demonstrate this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by US Immigration and Customs Enforcement (ICE). During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero. The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released, without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty. The article urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich. Looking at immigration detention through the lens of economic inequality offers new lines of theoretical inquiry into immigration detention. It connects the discussion of immigration detention to scholarly critiques of for-profit prisons and the privatization of state security functions more generally. It also brings a new perspective to prior work in the immigration and criminal justice contexts, questioning the fairness and utility of requiring payment of monetary bonds to obtain liberty from detention. The article concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision making.
Topic:
Immigration, Economic Inequality, and Mass Incarceration
Political Geography:
United States

15. The Case for a National Legalization Program without Legislation or Executive Action

Author:
Jeanne M. Atkinson and Tom Wong
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article presents the results of a study that finds that as many as two million unauthorized immigrants in the United States could have a path to permanent legal status. However, these immigrants may not know that they are eligible for legal status, much less be able to afford the costs or take the necessary steps to obtain it. The two million figure is drawn from an analysis of screening data from 4,070 unauthorized immigrants from 12 states. The study highlights the profound impact that a national project to screen for legal status would have on the entire US population, including eligible immigrants, their family members, and the country at large. The need for legal screening has become particularly acute in light of the Trump administration’s focus on apprehension and deportation of unauthorized immigrants without regard to their length of residence in the United States, family relationships to US citizens and lawful permanent residents (LPRs), or other positive factors. The proposed termination of benefits for many Temporary Protected Status (TPS) holders and Deferred Action for Childhood Arrivals (DACA)1 recipients would add more than one million individuals — approximately 325,000 (Warren and Kerwin 2017), and 700,000 (Krogstad 2017) people, respectively — to the pool of unauthorized immigrants.
Topic:
Immigration, Border Control, and Citizenship
Political Geography:
United States, Central America, and North America

16. Family Matters: Claiming Rights across the US-Mexico Migratory System

Author:
Jacqueline Maria Hagan, Ricardo Martinez-Schuldt, Alyssa Peavey, and Deborah Weissman
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The Immigration and Nationality Act of 1952 (INA) created an immigration system favoring the immigration of spouses, children, and parents of US citizens, thereby establishing family unity as the cornerstone of US immigration policy. Despite this historical emphasis on family unity, backlogs and limited visas for non-immediate relatives of US citizens and legal permanent residents, the militarization of the US-Mexico border, punitive measures for those who enter without inspection, such as the forced separation of children from their parents at the US border, and an aggressive policy of deportation have made it more difficult for members of Mexican binational families to unify. How do members of Mexican binational families manage the hardships that result from US immigration policies that prolong and force family separation? Immigrants and return migrants alike may not be aware of their rights and the legal remedies that exist to enforce them. Structural barriers such as poverty, legal status, fear of deportation, lack of proficiency in English, and lack of familiarity with government bureaucracies no doubt prevent many migrants in the United States and return migrants in Mexico from coming forward to request legal assistance and relief in the courts. Despite these barriers, when it comes to family matters, members of some Mexican binational families can and do assert their rights. In this article, we analyze an administrative database of the Department of Legal Protection of the Mexican consular network that documents migrant legal claims resulting from family separation, along with findings from 21 interviews with consular staff and community organizations in three consular jurisdictions — El Paso, Raleigh, and San Francisco — to investigate the sociolegal processes of claims. Our investigation centers on the mediating role the Mexican state — via its consular network — has developed to assist binational families as they attempt to assert their rights and resolve child support and child custody problems resulting from prolonged and forced family separation. We find that the resolution of binational family claims in part depends on the institutional infrastructure that has developed at local, state, and federal levels, along with the commitment and capacity of the receiving and sending states and the binational structures they establish. These binational structures transcend the limitations of national legal systems to achieve and implement family rights and obligations across borders.
Topic:
Military Strategy, Immigration, Border Control, and Family
Political Geography:
United States, North America, and Mexico

17. Redefining American Families: The Disparate Effects of IIRIRA’s Automatic Bars to Reentry and Sponsorship Requirements on Mixed-Citizenship Couples

Author:
Jane Lily López
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
With passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the goal of discouraging illegal immigration and the legal immigration of the poor triumphed over the longstanding goal of family unity in US immigration policy. This shift resulted in policy changes that prevent some mixed-citizenship families from accessing family reunification benefits for the immigrant relatives of US citizens. Two specific elements of IIRIRA — (1) the three- and 10-year bars to reentry, and (2) the minimum income thresholds for citizen sponsors of immigrants — have created a hierarchy of mixed-citizenship families, enabling some to access all the citizenship benefits of family preservation and reunification, while excluding other, similar families from those same benefits. This article details these two key policy changes imposed by IIRIRA and describes their impact on mixed-citizenship couples seeking family reunification benefits in the United States. Mixed-citizenship couples seeking family reunification benefits do not bear the negative impacts of these two policies evenly. Rather, these policies disproportionately limit specific subgroups of immigrants and citizens from accessing family reunification. Low-income, non-White (particularly Latino), and less-educated American families bear the overwhelming brunt of IIRIRA’s narrowing of family reunification benefits. As a result, these policy changes have altered the composition of American society and modified broader notions of American national identity and who truly “belongs.” Most of the disparate impact between mixed-citizenship couples created by the IIRIRA would be corrected by enacting minor policy changes to (1) allow the undocumented spouses of US citizens to adjust their legal status from within the United States, and (2) include the noncitizen spouse’s income earning potential toward satisfying minimum income requirements.
Topic:
Immigration, Border Control, Citizenship, and Domestic Politics
Political Geography:
United States, Central America, and North America

18. You are Not Welcome Here Anymore: Restoring Support for Refugee Resettlement in the Age of Trump

Author:
Todd Scribner
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
After descending an escalator of his hotel at Central Park West on a June day in 2015, Donald Trump ascended a podium and proceeded to accuse Mexico of “sending people that have lots of problems, and they’re bringing those problems with us (sic). They’re bringing drugs. They’re bringing crime. They’re rapists” (Time 2015). It was a moment that marked the launch of his bid for president of the United States. From that point forward, Trump made immigration restriction one of the centerpieces of his campaign. Paired with an economically populist message, the nativist rhetoric shaped a narrative that helped launch him to the White House. His effectiveness partly lay in his ability to understand and exploit preexisting insecurities, partly in his outsider status, and partly in his willingness to tap into apparently widespread public sentiment that is uneasy with, if not overtly hostile to, migrants. This paper will try to make sense of the restrictionist logic that informs the Trump administration’s worldview, alongside some of the underlying cultural, philosophical, and political conditions that inspired support for Trump by millions of Americans. This paper contends that the Clash of Civilizations (CoC) paradigm is a useful lens to help understand the positions that President Trump has taken with respect to international affairs broadly, and specifically in his approach to migration policy. This paradigm, originally coined by the historian Bernard Lewis but popularized by the political theorist Samuel Huntington (Hirsh 2016), provides a conceptual framework for understanding international relations following the end of the Cold War. It is a framework that emphasizes the importance of culture, rather than political ideology, as the primary fault line along which future conflicts will occur. Whether Trump ever consciously embraced such a framework in the early days of his candidacy is doubtful. He has been candid about the fact that he has never spent much time reading and generally responds to problems on instinct and “common sense” rather than a conceptually defined worldview developed by academics and intellectuals (Fisher 2016). Nevertheless, during the presidential campaign, and continuing after his victory, Trump surrounded himself with high-level advisers, political appointees, and staff who, if they have nothing else in common, embrace something roughly akin to the Clash of Civilizations perspective (Ashford 2016).[1] The paper will focus primarily on Trump’s approach to refugee resettlement. One might think that refugees would elicit an almost knee-jerk sympathy given the tragic circumstances that drove their migration, but perceptions of refugees are often tied up with geopolitical considerations and domestic political realities. Following 9/11, the threat of Islamic-inspired terrorism emerged as a national security priority. With the onset of the Syrian Civil War and the significant refugee crisis that ensued in its wake, paired with some high-profile terrorist attacks in the United States and Europe, the “Islamic threat” became even more pronounced. The perception that Islamic-inspired terrorism is a real and imminent threat has contributed to a growing antagonism toward the resettlement of refugees, and particularly Muslims. When viewed through the lens of the CoC paradigm, victims of persecution can easily be transformed into potential threats. Insofar as Islam is understood as an external and even existential threat to the American way life, the admission of these migrants and refugees could be deemed a serious threat to national security. This paper will begin by examining some of Trump’s campaign promises and his efforts to implement them during the early days of his administration. Although the underlying rationale feeding into the contemporary reaction against refugee resettlement is unique in many respects, it is rooted in a much longer history that extends back to the World War II period. It was during this period that a more formal effort to admit refugees began, and it was over the next half century that the program developed. Understanding the historical backdrop, particularly insofar as its development was influenced by the Cold War context, will help to clarify some of the transitions that influenced the reception of refugees in the decades after the fall of the Soviet Union. Such an exploration also helps to explain how and why a CoC paradigm has become ascendant. The decline of the ideologically driven conflict between the United States and the Soviet Union has, according Huntington’s thesis, been superseded by culturally based conflicts that occur when competing civilizations come into contact. The conceptual framework that the CoC framework embodies meshes well with the cultural and economic dislocation felt by millions of Trump supporters who are concerned about the continued dissolution of a shared cultural and political heritage. It is important to keep in mind that the CoC paradigm, as a conceptual framework for understanding Donald Trump and his approach to refugee resettlement and migration more broadly, is at its core pre-political; it helps to define the cultural matrix that people use to make sense of the world. The policy prescriptions that follow from it are more effect than cause.
Topic:
Immigration, Border Control, and Refugees
Political Geography:
United States, Central America, and North America

19. National Interests and Common Ground in the US Immigration Debate: How to Legalize the US Immigration System and Permanently Reduce Its Undocumented Population

Author:
Donald Kerwin and Robert Warren
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
The conventional wisdom holds that the only point of consensus in the fractious US immigration debate is that the system is broken. Yet, the US public has consistently expressed a desire for a legal and orderly immigration system that serves compelling national interests. This paper describes how to create such a system. It focuses on the cornerstone of immigration reform,[1] the legal immigration system,[2] and addresses the widespread belief that broad reform will incentivize illegal migration and ultimately lead to another large undocumented population. The paper begins with an analysis of presidential signing statements on seminal immigration legislation over nearly a century. These statements reveal broad consensus on the interests and values that the United States seeks to advance through its immigration and refugee policies. They constitute additional common ground in the immigration debate. To serve these interests, immigration and refugee considerations must be “mainstreamed” into other policy processes. In addition, its policies will be more successful if they are seen to benefit or, at least, not to discriminate against migrant-sending states. Not surprisingly, the US immigration system does not reflect the vast, mostly unanticipated changes in the nation and the world since Congress last meaningfully reformed this system (27 years ago) and last overhauled the law (52 years ago). The paper does not detail the well-documented ways that US immigration laws fall short of serving the nation’s economic, family, humanitarian, and rule of law objectives. Nor does it propose specific changes in categories and levels of admission. Rather, it describes how a legal immigration system might be broadly structured to deliver on its promises. In particular, it makes the case that Congress should create a flexible system that serves compelling national interests, allows for real time adjustments in admission based on evidence and independent analysis, and vests the executive with appropriate discretion in administering the law. The paper also argues that the United States should anticipate and accommodate the needs of persons compelled to migrate by its military, trade, development, and other commitments. In addition, the US immigration system needs to be able to distinguish between undocumented immigrants, and refugees and asylum seekers, and to treat these two populations differently. The paper assumes that there will be continued bipartisan support for immigration enforcement. However, even with a strong enforcement apparatus in place and an adaptable, coherent, evidence-based legal immigration system that closely aligns with US interests, some (reduced) level of illegal migration will persist. The paper offers a sweeping, historical analysis of how this population emerged, why it has grown and contracted, and how estimates of its size have been politically exploited. Legalization is often viewed as the third rail of immigration reform. Yet, Congress has regularly legalized discrete undocumented populations, and the combination of a well-structured legalization program, strengthened legal immigration system, and strong enforcement policies can prevent the reemergence of a large-scale undocumented population. In contrast, the immense US enforcement apparatus will work at cross-purposes to US interests and values, absent broader reform. The paper ends with a series of recommendations to reform the legal immigration system, downsize the current undocumented population, and ensure its permanent reduction. It proposes that the United States “reissue” (or reuse) the visas of persons who emigrate, as a way to promote legal immigration reform without significantly increasing annual visa numbers.
Topic:
Immigration, Border Control, and Domestic Politics
Political Geography:
United States, Central America, and North America

20. Another Story: What Public Opinion Data Tell Us About Refugee and Humanitarian Policy

Author:
Brad Blitz
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Abstract:
The global reaction to US President Donald Trump’s executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States”[1] of January 27, 2017, revealed great public sympathy for the fate of refugees and the principle of refugee protection. In the case of Europe, such sympathy has, however, been dismissed by politicians who have read concerns regarding security and integration as reason for introducing restrictive policies on asylum and humanitarian assistance. These policies are at odds with public sentiment. Drawing upon public opinion surveys conducted by Amnesty International, the European Social Survey (ESS), and Pew Global Attitudes Survey across the European Union and neighboring states, this article records a marked divide between public attitudes towards the treatment of refugees and asylum seekers and official policies regarding asylum and humanitarian assistance, and seeks to understand why this is the case. The article suggests that post-9/11 there has been a reconfiguration of refugee policy and a reconnecting of humanitarian and security interests which has enabled a discourse antithetical to the universal right to asylum. It offers five possible explanations for this trend: i) fears over cultural antagonism in host countries; ii) the conflation of refugees and immigrants, both those deemed economically advantageous as well as those labelled as “illegal”; iii) dominance of human capital thinking; iv) foreign policy justification; and v) the normalization of border controls. The main conclusion is that in a post-post-Cold War era characterized in part by the reconnecting of security and humanitarian policy, European governments have developed restrictive policies despite public sympathy. Support for the admission of refugees is not, however, unqualified, and most states and European populations prefer skilled populations that can be easily assimilated. In order to achieve greater protection and more open policies, this article recommends human rights actors work with the United Nations High Commissioner for Refugees (UNHCR) and its partners to challenge the above discourse through media campaigns and grassroots messaging. Further recommendations include:
Topic:
Security, Immigration, Border Control, and Humanitarian Crisis
Political Geography:
United States, Central America, and North America