Immigration Reform: Some Ideas…

Having neglected the Southern US border crisis for nearly three years while tending to various domestic and foreign issues, President Joe Biden now needs to take firm charge of immigration policy — for both substantive and political reasons.

Biden is under fire from both Republicans and fellow Democrats for a massive flow of illegal border crossers—1.6 million this year as of September—that Donald Trump says are “poisoning the blood of our country.” Democratic  governors and mayors say the federal government has done too little to help them handle the tide.

There are good suggestions making the rounds for improving the situation—far more effective and politically popular than Republicans’ punitive, all-enforcement approach—but Biden needs to advance them forcefully, visibly, and soon. I’ll get to these suggestions later.

It’s not correct that Biden has done nothing about immigration, but it took him until this January to visit the border and he hasn’t been back. Most Americans don’t know that he’s distributed $1 billion appropriated by Congress to aid cities and states, and he plans to ask for more. Or that 250,00 migrants have been deported this year, including 85,000 since May, up 65 percent from 2022. In August, Biden requested $4 billion from Congress to expand legal pathways for immigrants and control illegal entries.  

But the fact remains that border apprehensions are at an all-time high—1.75 million in Fiscal 2021, 2.2 million in 2022, and 1.65 million in 2023 (vs. 852,000 in Trump’s last year in office). And practically every Fox News show opens with video showing swarms of immigrants crossing the Rio Grande, stories about serious crimes committed by illegal entrants, fentanyl deaths, and interviews with overburdened Border Patrol personnel and border city officials.

It’s hard to argue with the charge that Biden, by promising to be “more humane” and “welcoming” than Trump, was interpreted as encouraging desperate victims of gang violence, poverty, and government corruption to brave the perilous journey to the U.S., usually having to pay unscrupulous cartels for guidance.

Many arrivals try to stay in the U.S. by seeking asylum status, a pathway designated for persons who face torture or persecution. As of last December, there were 1.6 million migrants awaiting hearings to determine their eligibility to stay in the U.S., work, get a Social Security card, and apply for a green card. Denial leads to deportation. Delay puts the applicants into limbo.

The system is overloaded. It now takes an average of five years to get a hearing and only 25,000 applicants are granted asylum each year. So many asylum seekers disappear into the U.S. rather than endure the delay or risk expulsion.

The Trump administration basically sought to end the asylum program, and House Republicans passed legislation to put applicants and their children in detention while awaiting a hearing. In general, the Republicans’ HR-2 reimposes Trump policies, calling for the “prevention of all unlawful entries” to the US.  

This February, the Biden administration proposed a two-year emergency policy designed to reduce the flow of asylum seekers by requiring them to apply in a third country as they travel to the US or at a legal border point of entry. Activist groups sued and the policy was struck down by a federal judge.

GOP presidential candidates all seek to restrict  illegal immigration and complete Trump’s border (another 1,500 miles), but Trump  is the most extreme. He calls for the FBI and other federal agencies to track down illegal immigrants for immediate deportation (there are an estimated 11.5 million of them), cancel legal procedures required for deportation, and use the U.S. military to invade countries harboring drug cartels. He’d also revive Title 42, the COVID-era measure that denied entry to millions of migrants.

Immigration is not the most important issue on American voters’ minds—the economy is—but, according to Gallup, it’s the No. 2 non-economic issue (after “poor government leadership”). And Biden’s approval rating for immigration is 31 percent, lowest for any issue. A recent NBC poll showed that Republicans are more trusted than Democrats on “dealing with border security” by 30 points—the largest margin on any issue.

Maybe Biden’s most risky action amid this situation was to agree to build an additional 20 miles on Trump’s border wall, reversing a 2020 campaign promise that “not another foot” would be added during his presidency. Luckily for him (so far) this reversal hasn’t been widely likened to George H.W. Bush’s politically fatal reversal on “no new taxes.” Biden said he had “no choice” but to spend money appropriated under Trump, but Bush also faced the necessity of finding money to close a budget deal with Democrats who controlled Congress.

So, what are the ideas making the rounds that Biden might adopt to improve the immigration system and Democrats’ standing on the issue?

One set was proposed in a paper prepared for discussion at a conference sponsored by Cornell University Law School in February  attended by 220 policymakers, experts, and advocates ranging ideologically from mid-right (the US Chamber of Commerce) to mid-left (such as the labor union SEIU).

The Cornell group recommended that the US government find and prosecute smugglers making billions from immigrants, and expand legal avenues for migrants who are not eligible for asylum on the basis of threats to their safety—such as work permits allowing them to make money here where labor shortages exist and return to their home countries.

To reform the asylum program, the paper called for Congress to pass legislation making it harder for those crossing the border illegally to apply for asylum and easier for those who apply at regular points of entry. The proposal also enlarged capacity for adjudicating claims.

Another, more expansive proposal—with a political strategy included—has been circulated by longtime immigration activist Rick Swartz, founder of the 200-member National Immigration Forum.

In recent years, Swartz has advocated piecemeal reform of immigration policy, declaring comprehensive reform politically impossible. His latest proposal is a list of policy changes that have attracted significant bipartisan support in the past, though failing to get enacted.

These include allowing “Dreamers” — children born in the U.S. to illegal parents young people brought to the US by migrants who entered illegally — to remain in the United States for 10 years and seek permanent residence. Also proposed is legalization of up to 2.4 million undocumented agricultural workers, billions in impact aid to communities burdened with increased immigration flows, increases in adjudicators of asylum claims to reduce backlogs, and reductions in backlogs delaying completion of legal immigration processes. And this broader package proposes permanent residency for tens of thousands of Afghans emigrating to the US after the fall of Kabul. Further: legalization for non-citizen military veterans, even for vets who have been deported.

Swartz says that immigration will be a crucial element in impending negotiations over keeping the government open. His political strategy is Senate-based, hoping to get 15 or 16 GOP Senators who’ve supported immigration reform in the past to cosponsor his ideas so they could get 60 votes in the Senate and put pressure on the House to support it.  

 Asked what GOP border security measures he’d include, he said, “whatever Biden can accept.” Asked what might happen if GOP senators wouldn’t sign on, he said, “that’s on them,” meaning they could suffer a political price for opposing reasonable reforms.

Not included in either set of proposals — but meritorious ideas that Biden should push — are expansion of the number of high-skilled H1B visas beyond the current 65,000 per year limit (employers regularly apply for 400,000 slots) and a move toward a more skills-based legal immigration system such as Canada, Australia, and New Zealand have.

Indeed, while the public certainly is exercised about the border crisis, a YouGov survey commissioned by the centrist Liberal Patriot in June gave voters three proposals on immigration policy. One, saying “people around the world have a right to claim asylum and America should welcome more immigrants into the country,” was supported by 24 percent of respondents. Another, “America needs to close its borders to outsiders and reduce all levels of immigration” got just 17 percent.

The third, “America needs to secure its borders and create more legal and managed immigration paths to bring in skilled professionals and workers to help our economy grow,” won out with 59 percent. That option is neither overly permissive nor overly restrictive. It could be the basis of a bipartisan compromise, but Biden has to push for it.