Tag: immigration

Early Returns on President Trump

During Trump’s surprising presidential campaign, pundits became fond of pointing out that Trump’s supporters took his often-shocking rhetoric seriously, but not literally, whereas his opponents took his rhetoric literally, but not seriously. Today, however, it is obvious that one should take Trump’s words both seriously and literally. In his first month Trump has been busy matching actions to words, temporarily banning immigration from seven Muslim-majority nations and ordering sanctuary cities to detain illegal immigrants, launching work on the U.S.-Mexican border wall, and preparing to lift the ban on the CIA black sites where the United States carried out “enhanced interrogation techniques.”

For those who voted for Trump this first month must surely be a heady viewing experience. For much of the country, however, Trump’s efforts are taking things in the wrong direction, as even his most extreme campaign proposals become reality. From the perspective of the polls, Trump’s first month has met decidedly mixed reviews.

On immigration, for example, Trump signed a short-lived executive order threatening to halt federal funding to so-called “sanctuary cities” that offer protection to illegal immigrants if they do not detain illegal immigrants and turn them over to federal authorities. And before signing two executive orders directing the construction of the U.S.-Mexican border wall, Trump argued that the United States is “in the middle of a crisis border” and that “A nation without borders is not a nation.”

Most Americans see things differently. When asked about illegal immigrants currently living in the United States, a CBS News Poll this month found that 74% of the public thinks they should be allowed to stay, while just 22% thinks they should be required to leave. 61% believe illegal immigrants should eventually be allowed to apply for citizenship. The same poll found that 59% oppose Trump’s plan to build a wall along the U.S.-Mexico border, with 37% favoring it.

Why the Government Cannot Ban All Immigrants from a Certain Country

I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Signing the Executive Order to Find Out What’s In It

The flawed implementation of President Trump’s executive order banning immigration from seven majority Muslim countries brings to mind then-Speaker of the House Nancy Pelosi quip about Obamacare that “we have to pass the bill so that you can find out what is in it.” Now it seems President Trump had to sign the order to find out what was in it.

Every day, the president and the administration appears to be discovering new implications of the vague order, and laws are being made up on the fly with press releases and emails, rather than through our country’s democratic process. The executive order purports to “suspend entry into the United States, as immigrants and nonimmigrants… aliens from [seven] countries.” Nearly every word choice leaves room for uncertainty, creating the inevitable confusion and chaos that followed.


Consider the first word, “suspend.” Because the order allowed for case-by-case exceptions, no one knows who is actually “suspended” from entering. The administration is only slowly revealing some criteria for these waivers in press conferences and press releases. The exceptions are also apparently not being applied at consulates where a categorical ban on all visa applications and interviews is in effect.


The second word, “entry,” would seem not to apply to those already inside the United States, yet the administration is applying the ban to them anyway, formulating the policy in an unpublicized email to employees—many of whom were shocked by the announcement.

Conflicted Public Reaction to Trump’s Immigration Executive Order

Last Friday, President Trump issued an executive order temporarily barring entry of refugees, visitors, and immigrants—including those with green cards—from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. During this delay, the government is tasked with making its screening process more extensive. The order indefinitely bans refugees from Syria.

As Henry Enten notes, we’ll have to wait until we have more polling data to ascertain how the public will judge the action, but polling over the past year gives us some clues.

Slim but Shy Support Most polls throughout 2015-2016 found about 56% of Americans opposed Trump’s call to temporarily ban Muslim immigrants from entering the United States. However, these polls tended to be conducted by live telephone interviewers. In contrast, polls conducted online by reputable firms like YouGov and Morning consult, find a plurality of Americans in support.

Aggregating over 40 telephone and online polls conducted over the past two years finds Americans opposed to the ban 56% to 39% in surveys conducted by phone, but a plurality in support 49% to 39% in surveys conducted online. This suggests that people taking surveys by phone feel uncomfortable sharing their true feelings and thus fib to the live interviewers. But, privately taking a survey online encourages people to share what they really think. In the polling world, this is called “social desirability bias” evoked by social pressure to not appear prejudiced to the live interviewer.

Of course, the difference cannot be entirely attributed to survey mode since the questions weren’t worded the exact same way. Nonetheless, it’s suggestive that there is a “shy immigration restrictionist” effect going on. (Remember the shy Trump voter?)

Americans Don’t Support an Outright Ban on Refugees Existing data suggest Americans do not support a permanent ban on refugees. Most telephone and online surveys found that Americans oppose not taking any refugees at all and a plurality (46%) say the “US should open our borders to refugees of foreign conflicts” according to an Ipsos/Reuters Jan 2017 online survey. At the same time, Americans tend to support taking fewer refugees rather than more, when given the option. For instance, both an Ipsos/Reuters Jan 2017 online survey and a Marist Apr 2016 telephone survey found 53% of Americans want the US to take in fewer refugees.

Wording Impacts Support Strength As you can imagine, survey question wording impacts responses. Support for immigration restriction increases when refugees and immigrants are described as coming from “terror prone regions” or when respondents are told that government needs time to enhance security measures. For instance, Rasmussen, measures the highest degree of support (57%) when it asked if respondents support or oppose a “temporary ban on refugees from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen until the federal government improves its ability to screen out potential terrorists from coming here.” This question presupposes the government screening system is already poor and the new administration could meaningfully improve it. If these are the assumptions going in, support will be higher. When national security concerns are invoked and at the top of people’s minds they are more supportive of immigration restrictions.

Support for immigration restriction decreases, however, when the described policy implies a religious test. Surveys register lower support (48%) if the policy is described as a “temporary ban on all Muslims traveling to the United States” (from Morning Consult).

What Is Trump’s ‘America First’ Doctrine?

At noon on January 20th, Barack Obama stepped aside, leaving Donald Trump as the leader of the free world. In his inaugural address, Trump pledged to implement an ‘America First’ doctrine. But while the implications for trade and immigration are relatively clear, his speech brought us little closer to understanding what this will mean for foreign policy.

Indeed, thanks to the incoherence of the president-elect’s foreign policy remarks during his campaign, the range of potential outcomes is wide. But Trump’s past comments suggest four potential paths that his ‘America First’ Doctrine could take.

The first option is true isolationism. Though it remained unclear throughout the campaign the extent to which Trump truly understood the historical baggage that came with the term ‘America First,’ many commentators assumed that he would indeed pursue a classic isolationist policy. And Trump seems to mean it literally in some cases: only a week into office, he has already sought to erect trade and immigration barriers. He may also seek to withdraw from the world in military terms, abandoning alliances, and refusing to engage in even the diplomatic resolution of international problems which don’t directly concern the United States.

Yet elements of Trump’s own statements call this assumption into question. From his insistence on increased military spending to his promise in the inaugural address to eradicate radical Islamic terrorism ‘completely from the face of the Earth,’ Trump has repeatedly implied that he is likely to pursue a relatively hawkish foreign policy.

Trump Looking to Local Police for Immigration Enforcement

Last Friday, President Trump issued a misguided executive order affecting migration from seven majority-Muslim countries. In December 2015 Trump called for a “total and complete shutdown of Muslims entering the United States,” until (as his fans never tire of pointing out) elected officials “can figure out what is going on.” News from last week confirms that Trump’s rhetoric related to Muslims was not just campaign bombast; it was a serious policy proposal. Another immigration proposal touted during the campaign was also codified into policy by executive order last week, with Trump directing the Department of Homeland Security (DHS) to expand an interior immigration enforcement program that will grow the federal government’s role in state and local law policing while harming police departments’ relationships with the communities they are tasked to serve. 

Under §287(g) of the Immigration and Nationality Act, local and state police departments can enter into agreements with Immigration and Customs Enforcement (ICE) to enforce federal immigration laws. Thirty-four law enforcement agencies in 16 states are now taking part in the 287(g) program. Up until 2013 this program included “task force” agreements, which allowed participating officers to arrest suspected immigration law violators in the field, and “jail enforcement” agreements. Under “jail enforcement” agreements officers at state and local correctional facilities can seek to identify aliens via interviews and checking their biographic details against DHS databases.

Currently, only jail enforcement agreements are in place. The Obama administration abandoned the “task force” agreements at the end of 2012 amid worries about their negative effect on police-community relationships and accusations of racial profiling.

Trump said that he would “expand and revitalize” 287(g) during a speech last August. An executive order signed last week makes it clear that the Trump administration is serious about such a revitalization and expansion, including a reinstatement of “task force” agreements.

Three Trends to Put Trump’s Anti-Immigration Executive Orders in Context

President Donald Trump has issued two executive orders on immigration so far—both of them undermine immigrants’ ability to live and work peacefully in the United States. The first focuses on the border crisis, mandating the construction of a virtually pointless border wall and cracking down on asylum seekers, and the second ramps up enforcement against immigrants residing illegally inside the United States. Here are three trends that put these orders in context.

1. The administration will target asylum seekers during the largest U.S. asylum crisis in decades. More people came to the border last year to claim asylum than at any time since the Mariel Boatlift brought 125,000 Cubans to Miami in 1980. Figure 1 provides those numbers back to the 1990s when asylum law was last changed. In addition, it shows the huge number of unaccompanied children who are entering—all of whom are automatically considered asylum seekers and are referred for a formal hearing. The influx reflects the tremendous violence in Central America—specifically, El Salvador, Guatemala, and Honduras. These asylum seekers are not “illegal immigrants.”

They are not attempting to sneak into the United States. They voluntarily turn themselves into Border Patrol at the border. These numbers are somewhat lower than those in a Homeland Security report obtained by the Associated Press that found 170,000 in 2014 and 140,000 in 2015, compared to 120,000 and 90,000 UACs and asylum seekers who made credible fear claims in those years in Figure 1.

Figure 1: Unaccompanied Alien Children (UACs) and Asylum Seekers to the United States Claiming Credible Fear in Home Country (FY 1997-2016)

Sources: Rempell (1997-2008); USCIS (2009-2016)

The border wall executive order seeks to prevent these asylum seekers from having their claims heard. It will “end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” The administration sees asylum law as a loophole to prevent deportations as opposed to a protection to prevent deporting vulnerable people. The order requires new regulations to “ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited.” It is not “exploitation” if the immigrants follow what the regulations require. Changing the regulations to make it more difficult to receive asylum does not end “abuse”—it ends the legal opportunity to receive safe haven in the country.

2. The administration will attempt to construct a border wall during a time with the fewest border crossers since World War II. The only measure of illegal immigration going back decades is the number of people apprehended by the Border Patrol. More apprehensions typically mean more people are attempting to cross, but more agents make it easier to apprehend people, so it is important to control for Border Patrol’s manpower. As Figure 2 shows, the number of people caught per border agent has not been this low since World War II, and it has consistently fallen year after year since 1993.

Last year, each border agent caught only 21 people all year, less than 2 people each month—the lowest level since 1943. Moreover, as previously mentioned, at least 1 in 3 of all of these “apprehensions” came from asylum seekers voluntarily turning themselves over to the agents. By all measures, the border has never been as secure.

Figure 2: Number of Apprehensions Per Border Agent (FY 1940-2016)

Source: Immigration and Naturalization Service, Customs and Border Protection

Nonetheless, President Trump’s executive order requires the construction of a wall along the southern border and the hiring of 5,000 new border agents. While he will need Congress to fund a portion of this order, it is not clear what these agents will be doing, especially if asylum seekers will be summarily removed.  

3. The administration will return to targeting non-criminal unauthorized immigrants at a time when deportations are the lowest in a decade. President Obama rightfully earned his reputation as the Deporter-In-Chief for removing far more immigrants from the interior of the United States than any other president in history. But by 2016, the number of removals had dropped to their lowest levels since 2005, as Figure 3 shows. Removals of individuals without a criminal conviction have also fallen to the lowest level since at least 2002.

Figure 3: Immigration and Customs Enforcement (ICE) Removals from the U.S. Interior By Type

Sources: MPI (2003-2013); ICE (2014, 2015, 2016)

This shift occurred thanks to Homeland Security policy memos that instructed agents to focus mainly on convicted criminals and recent border crossers. Although “criminals” included a large number of nonviolent and low-level offenders, it was a positive development. Immigrants who avoided run-ins with the law could mostly live in peace.

Despite President Trump’s post-election promise to focus only on criminal kingpins and “gangbangers,” his executive order on interior enforcement prioritizes the removal of many who have no criminal convictions at all. Indeed, it goes so far as to state that arrests should be made if an immigration officer even believes that the person has committed a “chargeable offense” without actually having been charged. It also prioritizes those who have ever misrepresented their immigration status, which would likely include almost all unauthorized immigrant workers and the 40 percent or so of immigrants who overstayed visas.

These priorities are actually more expansive than the Obama-Bush policies of 2008 to 2012, which could mean that they will cause interior removals to more than triple their current level. It is worth emphasizing that these expansive policies will consume resources that could be dedicated to removing criminals.