Immigration; Refugees

Supposed FBI Investigations into Refugees Shouldn’t Scare You

This past Monday, President Trump released a new executive order shutting down the refugee program for 120 days and banning immigration from six majority-Muslim countries for 90 days. President Trump attempted to justify these changes by stating in part that:

The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

The government has refused to provide any additional details about these cases, but an investigation should not be seen as implying guilt. Almost all FBI terrorism investigations do not end with a terrorism conviction. Indeed, the numbers predict that of these 300 refugee investigations, only 1 will turn into a terrorism conviction and that conviction will not be for planning an attack against the United States. This claim about the FBI investigating refugees has turned out to be a groundless smear in the past, and history has shown that refugees have been less likely than others to commit acts of terrorism against the United States. 

These 300 represent less than 0.009 percent of all refugees admitted since 1975. As the Cato Institute’s recent report found, only 20 refugees from 1975 to 2015 have attempted, planned, or carried out a terrorist attack inside the United States. Only 3 carried out a deadly terrorist attack, and all of those were before 1980. During the 40 years from 1975 to 2015, the annual risk of death by a refugee terrorist to a U.S. resident was 1 in 3.64 billion. This makes them about 1,000 times less likely to kill a U.S. resident in a terrorist attack than other foreign-born people.

Unfortunately, this type of baseless fearmongering about FBI investigations into refugees is not new. The FBI told ABC News in 2013 that it was investigating “dozens” of refugees as terrorists. In the 26 months after the FBI made the claim, the agency arrested and convicted 31 individuals for “terrorism-related” offenses. Of these, a majority were U.S.-born citizens. Another 4 convictions were not even for terrorism offenses. In the end, the Bureau only arrested and put away for terrorism offenses 9 foreign-born residents total after it claimed “dozens” of open cases against refugees specifically. None of these individuals were planning attacks inside the United States.

So how often do FBI national security investigations actually turn into convictions?

The Statutory Illegality of Trump’s Executive Order on Immigration

I have previously reviewed the ineffective arguments that the Trump administration has used to rebut the statutory argument against its nearly complete ban on immigration from seven majority Muslim countries in State of Washington v. Donald Trump. This argument will have a more direct bearing on two other cases, one by the American Immigration Council in Washington (Ali V. Trump) and another by the American Civil Liberties Union in Maryland (IRAP v. Donald Trump). The formidable Josh Blackman, Cato adjunct scholar and Associate Professor of Law at the South Texas College of Law, thinks he may have found a couple of ways to save the statutory (as opposed to constitutional) case for the government. He explains them in a series of posts on his blog (see 1, 2, 3, and 4).

An Apparent Conflict

My argument has rested on section 202(a)(1)(A) of the Immigration and Nationality Act (INA), as amended in 1965 (8 U.S.C. 1152(a)(1)(A)):

Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

The Trump administration has insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:

The Government’s Bad Arguments in Defense of Discriminating Against Immigrants Based on Nationality

A federal judge in Seattle paused enforcement of President Trump’s executive order banning almost all immigration from seven countries in the State of Washington v. Donald Trump. The same judge will also hear a lawsuit brought by American Immigration Council (AIC), which makes the argument that I have made here and in the New York Times that the order is illegal as applied to immigrants coming to live in the U.S. permanently.

Washington’s main claims were constitutional, and it sought to have the entire order overturned. Nonetheless, the government did partially respond to the main argument in the AIC complaint, which is:

Section 202(a)(1) of the Immigration and Nationality Act [INA]…expressly provides for the non-discriminatory issuance of immigrant visas; it mandates that, with limited exceptions not relevant here, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

[INA section 202(a)(1)] was intended to protect the interests of both U.S. citizen and lawful permanent resident immigrant visa petitioners as well as immigrant visa applicants or holders. The EO discriminates against immigrant visa applicants or holders on the basis of their “nationality, place of birth, or place or residence,” and therefore is discriminatory and violates [INA section 202(a)(1)].

The government responded to these points by pointing to section 212(f) of the Immigration and Nationality Act, which reads:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Resolution of Conflict

There is an apparent conflict between the statutes. In the case of conflict, the rule of construction is 1) “to give effect to each but 2) to allow a later enacted 3) more specific statute to amend an earlier, more general statute,” Smith v. Robinson (1984).

Trump’s Exclusion of Immigrants from Specific Countries Is Not Legal

President Trump issued an executive order on Friday that includes a ban on the entry of virtually all nationals from several countries. The same day, the New York Times published my argument that the portion of the ban that bars immigrants or legal permanent residents violates the law, which bans discrimination against immigrants based on national origin.

Andrew McCarthy of National Review Online was kind enough to take the time to publish a response (“Trump’s Exclusion of Aliens from Specific Countries Is Legal”). Because Mr. McCarthy’s article demonstrates significant confusion over my argument, the facts, and the laws at issue, it surprised me to see National Review editor Rich Lowry also cite it favorably. Despite the weakness of its analysis, the piece provides me an opportunity to clarify and reinforce some aspects of my argument that brevity required me to excise from the Times.

1. The Constitution gives the power to make immigration laws to Congress. Mr. McCarthy writes:

Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether.” … In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution.

In other words, the president can ignore congressional limits in this area. He cites case law in which courts describe the president’s foreign affairs powers with respect to relations with foreign governments as expansive, but cites no case that concludes the president can ignore Congress to exclude immigrants. It is reminiscent of President Nixon’s famous argument that “when the president does it, that means it is not illegal.” It is Congress, not the president, that makes immigration law. “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over… the admission of aliens,” ruled the Supreme Court in Oceanic Steam Navigation Co. v. Stranahan.

Mr. McCarthy had no problem defending this view when the actions at issue were President Obama’s, which were also justified based on “security,” but now adopts it to defend President Trump’s. As my Cato colleagues wrote at the time, “it is not for the president alone to make foundational changes to immigration law—in conflict with the laws passed by Congress and in ways that go beyond constitutionally authorized executive power.”

2. President Trump cannot use the supposed “purpose” of a statute to override its plain meaning. Mr. McCarthy quotes the relevant portion of the Immigration Act of 1965 (8 U.S.C. 1152(a)) that amended the Immigration and Nationality Act of 1952, which clearly prohibits discrimination in the issuance of an immigrant visa based on national origin. But Mr. McCarthy states:

…the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.

Mr. McCarthy gives no citation for this claim—which contradicts everything the president and his advisors have been saying about the intent being to ban Muslims—but regardless of Mr. Trump’s intention, the result of his actions does affect the ethnic composition of the country, which was indeed one of the actions that Congress in 1965 thought it was banning.

But Mr. McCarthy is again claiming that the president can ignore the plain meaning of the laws of Congress, this time based on its supposed “purpose.” But as my colleagues at the Cato Institute put it, “Unenacted legislative intentions are not law under the Constitution.” It is the text on the page that makes law. Mr. McCarthy condemned this type of legal reasoning as a “post-law” argument when President Obama reasoned this same way in the Obamacare case, King v. Burwell, yet he eagerly adopts it now to defend President Trump.

Muslims Rapidly Adopt U.S. Social Values

Concerns about Muslim assimilation made news again this week when Donald Trump erroneously claimed that U.S. Muslim neighbors failed to report the San Bernardino shooters. But this persistent idea that U.S. Muslims are not assimilating could not be more inaccurate. In fact, U.S. Muslims—81 percent of whom are immigrants or children of immigrants—are the most socially liberal and religiously tolerant in the world and becoming more so with each passing year.

U.S. Muslims Are Adopting Americans’ Liberal Social and Religious Views

More than 80 percent of Muslim Americans are immigrants or the children of immigrants, according to the Pew Research Center’s 2014 survey. The large majority of these are immigrants who arrived since 1990. Figure 1 provides the countries of origin for U.S. Muslim immigrants. The fact that Muslim Americans are dominated by immigrants could lead to the conclusion that the views of Muslim Americans will reflect the views of Muslims worldwide. But this is not the case. They are rapidly adopting American social views and liberalizing their religious views to accommodate.

Figure 1: Countries of Origin for Muslim Immigrants (2014)

Source: Pew (2011)

As an example, the vast majority of Muslims around the world are fiercely opposed to homosexuality. Worldwide, the average country-level support across 39 countries is just 5 percent with 80 percent opposed. Yet as Figure 2 shows, in the United States in 2011, 45 percent of U.S. Muslims considered homosexuality morally acceptable—the highest in the world—compared to 47 percent who did not. While lower than the U.S. public generally, opposition to homosexuality fell 14 percentage points from 2007 to 2014, while acceptance gained 18 percentage points—a 32-point swing in less than a decade.

Why Refugees Find Jobs Faster in the U.S. Than Germany

Since Germany first accepted more than a million asylees into its country, the successes and failures of the decision were bound to reverberate around the world. Yet despite this openness at the borders, Germany remained stubbornly closed inwardly, delaying the integration of the people it chose to accept. Most importantly, it retained employment restrictions that prevent asylum seekers from obtaining the jobs they need to survive. Fortunately, America has a much better system with much greater success.

In 2015, Germany waited the longest of any country in Europe to restrict the flow of asylum seekers from the Middle East. Yet once they arrived, the asylees who immediately sought work in Europe’s largest economy were greeted by bureaucracy. The law initially forbade asylees from seeking work for 9 months after their arrival, but was reduced to 3 months in November 2014. Then, inexplicably, at the height of the inflows, the German government banned working if the asylee was forced to stay a reception center, which could be up to 6 months.

After the initial waiting period, asylees did not receive unrestricted employment authorization. Instead, they would have to find a “concrete” job offer—i.e. a firm must promise to hire them if the permit is granted—then apply for authorization. Even then, companies can only hire them during the first 15 months if the jobs are offered first to EU residents, and the federal labor department agrees that no one was willing to take. They also set asylee wages, which can price out low-skilled workers.

The hoops don’t end there. Asylees still have to get the approval of the immigration office at the municipal level. Under the law, it would take four years before they could compete equally with EU citizens.

On top of all these refugee-specific regulations, skilled workers are then tasked with proving that they can work in certain occupations. In order to obtain an occupational license, documentary proof of training—proof that’s often buried under bombed-out homes in Syria—is required. Some states in Germany allow asylees to demonstrate their skills in order to receive licensing, but others do not. “I am a dentist and could work, but what am I supposed to do? I am not allowed to work here!” one asylee told DW News.

Low-skilled immigrants haven’t avoided being targeted either. Germany introduced its first ever minimum wage in 2015—which disproportionately hits lower skilled migrants—and a study by the German government in August 2016 found that it had already cost 60,000 jobs.

The Cologne Institute for Economic Research in Germany produced a report in September 2015, calling for loosening the labor regulations, but it wasn’t until July 2016 that Germany passed a new law that suspended for three years the requirement that firms must offer jobs to EU residents first. Yet even so, the suspension will only apply in areas with low unemployment, and states and localities can still require discrimination against the asylee job seekers. They can also tell asylees where they must live—which could prevent them from following economic demand.

It is no surprise that this system has produced extremely high unemployment among the asylees in Germany—now almost a year after the bulk of the arrivals. Refugees generally in Germany show very slow economic integration, with less than half working after 5 years. Naturally, Syrians face many hurdles beyond bureaucracy in finding work, especially language and skill acquisition. But it’s clear that the restrictions play an important role in preventing employment.

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