Category Archive: Immigration

  1. Turning away Cuban refugees is a victory for Cuba’s dictatorship

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    President Obama is abandoning America’s five decade-old policy that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans are arriving at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, who both want to stop Cuban immigration to the United States.

    But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.

    Cuban Immigration Is a Win for America

    In 1966, Congress passed the Cuban Adjustment Act (CAA), granting lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one year). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole” — a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.

    This system has served the United States extraordinarily well. Because Cubans who enter illegally cannot apply for a green card, border security is enhanced, since they never try to sneak past Border Patrol. Instead, they just line up and turn themselves in at a port of entry. They show their Cuban passports, receive background checks, and then are admitted. The United States has very few unauthorized immigrants from Cuba precisely because all Cuban immigrants who make it into the country are paroled and adjusted to legal permanent residency.

    America — and specifically Miami — has benefited enormously, both economically and culturally, from the presence of Cuban immigrants. After the 1980 Mariel boatlift brought about 125,000 Cuban refugees to Florida, Miami’s population has grown much faster than other cities. Despite often arriving destitute, Cuban-Americans have achieved the same median income as all Hispanics and actually have the highest rate of home ownership. The Kauffman Foundation ranked Miami in the top two cities in the country for entrepreneurship in 2016, driven in part by its large immigrant population. Miami also has the best ranking in the state for upward mobility.

    Most importantly, U.S. immigration policy has allowed 10 percent of all Cubans to escape the most tyrannical regime in the Western Hemisphere. This policy has been a constant threat to and check against a regime that survives by preying on its own people, and, for this reason, the island’s dictatorship has repeatedly condemned it.

    The Excellent Reason Cubans Are Treated Differently

    President Obama says that the United States will now treat “Cuban migrants the same way we treat migrants from other countries.” But Cuba is not like all other countries. It is the only dictatorship on America’s side of the world. As I wrote in the Miami Herald last year:

    The basic principle that people should not be treated differently based on national origin is valid, but Cubans receive special treatment not due to where they are from, but due to how they are treated where they are from. Cubans aren’t treated uniquely because they are Cubans, but because, according to Freedom House, Cuba is the only “unfree” country in the Western Hemisphere.

    The communist system has no electoral process, political dissent is a criminal offense, corruption is rampant, independent media is banned, and all forms of everyday activities are regulated, including internal movement. Cuba is the 12th most unfree country in the world. It is less free than Iran and South Sudan. Even communist China received a higher score.

    No other country in the Americas comes close. In 2015, the pretend socialists in Venezuela were still 50th and ranked “partly free.” Haiti and Honduras came in at 57th and 62nd respectively. This is why Cubans are singled out.

    Congress stated in 1996 that the law would end when “a democratically elected government in Cuba is in power.” As long as Cuba remains unfree, America will continue to welcome Cubans. Rather than repeal this principle, Congress should expand it to any country in our part of the world that is unfree.

    What Happens Next

    The fact remains, however, that President Obama cannot repeal the Cuban Adjustment Act itself, which guarantees permanent residency after one year to any Cuban who has legally entered the United States. This change could result in Cubans filing asylum claims under the normal asylum system, as Central Americans do, and waiting in line for a year before applying for a green card under the CAA, as they always have. Ultimately, this could dilute the impact of the policy shift.

    Nonetheless, the current asylum system, which is already massively backlogged, will only grow more so as a result. At a time when a record number of asylum seekers from Central America are coming to the border, the United States is going to throw the Cuban refugees in with the rest, making a broken system that much more dysfunctional. It will also increase illegal immigration, as Cubans will know that they can no longer be guaranteed entry to the U.S., and those who expect their asylum claims to be denied will seek illicit means of entry.

    Some people claim that the only reason so many Cubans are coming right now is that they feared the administration would do exactly what it has just done. But the reality is that the rise in Cuban arrivals in recent years started before President Obama announced any changes in Cuban policy. Its true causes are 1) the Cuban regime’s relentless assault on human rights, and 2) its decision to end restrictions on travelling abroad, which has led many oppressed Cubans to seize the chance to leave.

    Despite President Obama’s hopeful message after the death of Fidel Castro, the Cuban government continues its oppressive policies. Nearly 10,000 people were arbitrarily arrested in 2016 alone, and there was a particularly large surge of arrests after Castro’s death, demonstrating that his dying changed little.

    Donald Trump — whose statement condemning the Cuban dictator after his death had more moral clarity than any single statement that the president-elect has ever made — should immediately reverse this policy upon assuming office. The United States should honor its commitment to remain open to the Cuban people for as long as the electoral process in Cuba remains closed to them.

    A version of this article first appeared at

  2. Trump’s ban on immigration from certain countries is illegal

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    Angelo A. Paparelli contributed to this post. 

    This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States. He altered the proposal this year to specify “suspending immigration from nations tied to Islamic terror.” He told CNN that this was actually intended as an expansion of the Muslim ban. Last week, he said, “People are pouring in from regions of the Middle East,” but that he would “stop that dead, cold flat.” He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.

    Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.

    Text of the law bans discrimination based on national origin

    At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump’s plan claim that Congress authorized such bans by pointing to a provision of section 212(f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:

    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.

    This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

    …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.

    While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump’s new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied. “Place” of birth is actually a broader restriction than nationality, meaning that even if Trump’s ban applied to subnational or regional levels, it would still be illegal.

    Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders. Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident. The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses, and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings, and immediate relatives of legal permanent residents. Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.

    Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all nonimmigrants—guest workers, tourists, and other temporary visitors—could conceivably be subject to this discriminatory policy. It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.

    Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.

    Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions. “I’m looking now at territory. People were so upset when I used the word Muslim,” he told NBC. “I’m okay with that because I’m talking about territory instead of Muslim.” If he maintains this position, he will clearly be in violation of the law.

    Trump’s plan is a more extreme overreach than anything President Obama tried

    Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason. By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.

    Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law. To be sure, there is an interesting parallel here between the Trump plan and President Obama’s attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.

    President Obama proposed using his general authority in section 274A(h)(3)(B), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children.  Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization. President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.

    Donald Trump’s plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so. This power grab is so much more far-reaching than President Obama’s that virtually any court will likely view it with great skepticism.

    It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry. If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.

    Legislative history supports a ban on discriminating by national origin

    The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants. During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned “the coming of Chinese laborers to this country.” In 1917, it “excluded from admission” all “persons who are natives… of any country… on the Continent of Asia” from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.

    In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality. President Truman vetoed the bill, inveighing against it as a violation of the “great political doctrine of the Declaration Independence.” He specifically objected to “powers so sweeping” that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as “public interest” (powers first included in a bill in 1950 that he had also vetoed). Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.

    All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits. Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to “eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era.” In other words, the law was intended to repudiate the 1952 act and all that came before it. The Judiciary Committee Report on the bill stated in its first line: “The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act.”

    President Lyndon Johnson summed up the law best in his signing statement:

    This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. … The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.

    Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place. Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.

    In other words, the explicit intent of the 1965 law was to “abolish” the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:

    the President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…

    The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act. Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would “eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution.” In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, “the basic discrimination” of the 1952 act. To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.

    Court precedent backs a ban on national origin discrimination

    The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin. The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.

    In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew “an explicit distinction between Vietnamese nationals and nationals of other countries.” It wrote:

    Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.

    The court stated that the government’s “proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity.” The court also disregarded the administration’s argument that “it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests.” It stated:

    Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.”…

    The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:

    In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.

    Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to “procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.

    Past presidential actions do not support the legality of Trump’s policy

    Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality. President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality.  As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.

    No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.

    In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors. A Washington Post report from 1980 discussed the ban applying only to “students, tourists and businessmen”—the main categories of nonimmigrants—and multiple articles from the New York Times framed the issue as only impacting “foreign visitors.” Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.

    Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa. It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump’s blanket ban.

    In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration. Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president’s actions were challenged in the courts, so their legality remains untested.

    The breadth of the Trump plan is unprecedented

    These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because “they have totally been” compromised by terrorism. CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with “terrorist safe havens” would eliminate all immigration from a dozen nations.

    President Obama’s attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president’s power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.

    For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.

    This piece was originally published at Cato at Liberty.

  3. Do American Muslims Believe In Religious Freedom?

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    Contrary to some political rhetoric you may have heard, American Muslims believe in religious freedom. In fact, American Muslims are even more strongly opposed to religion impacting govt than American Christians. Policy Analyst David Bier explains:

  4. Immigrants Actually DECREASE Crime

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    One common misconception about immigrants is the belief that they cause or increase crime. Join David Bier, a policy analyst from the Cato Institute, as he reconsiders this idea and examines the benefits of immigration.  

  5. Nativists created our immigration problems—they can’t fix them

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    Proponents of more restrictions on immigration—legal and illegal—talk a big game, suggesting more penalties for lawbreakers, more assets for the border, and more surveillance for the workforce. These, restrictionists say, will restore the rule of law. Yet while occupying the White House is new for them, the fact is that restrictionists largely dictated U.S. policy until recently. Not only have their ideas failed on their terms, they have backfired, creating more lawlessness than before.

    Creating the Problem

    Before the 1920s, America had no numerical restriction on the number of immigrants, so legal immigrants poured in. As a share of the population, total annual immigration flows were four times as great then as they are today. Restrictionists—members of the progressive wings of both parties—won the election of 1920 and immediately imposed a numerical cap. This reduced legal immigration by 80 percent, barring immigrants regardless of their health, wealth, or skills.

    This fateful decision spawned all of the problems that restrictionists have blamed on their opponents ever since. “While legal immigration has been curbed to the extent that advocates of the new policy expected, that of the illegal—the ‘bootlegging’—kind has probably increased greatly,” the New York Times reported in 1925. “Some officials estimate that immigrants have been coming in clandestinely at a rate of at least 100 a day.”

    Border patrols and deportations were increased to stop the flow of unauthorized immigrants, but they had little effect. “I’ve no doubt whatever that the man finally deported is back here,” the Assistant Secretary of Labor told the Times. “Easily 50 per cent of them return.” In July 1929, Congress gave in and provided “amnesty” or citizenship to the undocumented immigrants. Then, the Great Depression dried up demand for workers, temporarily resolving the issue.

    When the economy finally picked up again following World War II, illegal immigration returned. This time, Congress opted for a different approach: admit more workers legally. Under the Bracero guest worker program, illegal immigration almost vanished as the number of Braceros soared to almost a half a million in the early 1960s (Figure 1). Apprehended Mexicans were directed to border stations to receive cards to enter legally.

    Figure 1: Aliens Apprehended at the Border and Low-Skilled Guest Workers (Braceros & H-2s)

    graph-1Sources: Border Patrol; INS

    But the restrictionists wouldn’t allow the fix to last. Over the vigorous objections from the Border Patrol, they cancelled the program under the guise of protecting U.S. workers. Over the next decade, the entire legal flow (and then some) was replaced with immigrants entering illegally. By the 1980s, over a million people were crossing the border each year.

    A Parade of Phony Solutions 

    Restrictionists refused to accept responsibility for this chaos and demanded a new law to restrict the flow and fine employers who failed to check workers’ IDs. In 1986, President Ronald Reagan, who believed in more open legal immigration, signed the law, while extracting a legalization concession for unauthorized immigrants.

    But the law backfired. Before 1986, workers—first as legal guests or later as illegal migrants—would return home at the end of each harvest, and as Figure 2 shows, the total illegal population in the country grew only very slowly throughout the decade. (The drop after 1986 occurred due to the legalization.) But with more border guards, it became too risky and costly to circulate each year. Instead of not coming at all, immigrants came and built their lives here. “If enforcement efforts had remained at pre-1986 levels,” concluded Princeton University’s Douglas Massey, “there would have been 5.3 million fewer net undocumented entries.”

    Figure 2: Unauthorized Immigrant Population and Number of Border Patrol Agents


    Sources: Warren and Passel (1980); Census Bureau (14 and up only, 1983); Congerssional Research Service (1986-1988); Pew Research Center (1990-2006); Border Patrol

    The illegal population rose as fast as the number of border agents—both tripled between 1986 and 2000 (Figure 2). Not acknowledging their failure, restrictionists tried again, doubling the border agents over the next decade, which brought the level to ten times the amount in 1985. Immigrants continued to enter by the millions and the shadow population hit 12.2 million in 2007. As the cost of each crossing rose, cartels swooped in to capture the smuggling profits.

    At the same time, the requirement that employers check IDs only created another black market in fake documents. Ignoring past failure, restrictionists doubled down in 2008, demanding a border fence and pressuring employers to use E-Verify, an employment verification system that checks Social Security numbers against federal databases. Rather than expunging the black market in jobs and documents, E-Verify has only ballooned yet another black market in identities.

    Illegal immigration finally nosedived after the housing bubble burst, and the illegal population shrunk from 2007 to 2014. Meanwhile, ignoring the restrictionists, the Bush and Obama administration quietly resumed issuing many more work visas to Mexican workers. The result has been that just as many people were entering from Mexico in 2016 as in 2006, but most of them were doing so legally.

    The Trump administration might want to undo this progress. With each new failure, restrictionists have never admitted that their core policy—restricting legal immigration—was the cause of all the others. Never mind that the Obama administration set records for deportations, it was never enough. Enforcement is the only tool in the restrictionist shed. Their many botched attempts to clean up their own mistakes is proof that they simply cannot fix the problem today.

    This piece was originally published at Cato at Liberty.

  6. Trump’s real immigration policy

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    All of my political predictions about Donald Trump were wrong.  I predicted that he wouldn’t get the Republican Party nomination despite all of the polls to the contrary.  I followed the polls closely during the election and thought Trump would lose.  I was wrong again.  While certainly no mandate, Trump won the election.  Now the policies his administration will implement and push for are what matters.  We have very little to go on when it comes to predicting his actions.  Trump has no voting record on this and other issues.  His statements, actions, a policy paper, and his staff picks are the best indicators of this actions.

    My prediction is that Trump will increase the scale and scope of immigration enforcement, rescind President Obama’s executive actions or at a minimum not allow Dreamers renew their status, massively curtail or end the refugee program, and try to convince Congress to cut legal immigration.  I’ve been wrong about Trump in the past and I hope I’m wrong here too.  Let me lay out evidence that I think supports my pessimism and evidence that supports a more optimistic interpretation.

    Optimistic Take: Why Trump Could Not be THAT Bad

    Trump is not ideologically grounded except that he is a nationalist and a populist.  Those political instincts usually manifest an anti-foreign bias in trade and immigration but they don’t have to.  Trump has portrayed himself as a deal maker so it’s possible he’s staked out a harsh immigration position as a bargaining tactic to get concessions elsewhere.

    Trump’s personal experiences with his wives and businesses hiring illegal immigrants and guest workers may soften him.

    He’s also made some statements in favor of immigration liberalization.  In 2011 and 2013, Trump supported legalization for some illegal immigrants.  He said Republicans have to do “the right thing” during the 2013 debate over comprehensive immigration reform but refused to elaborate on what he meant by that.

    Trump flip-flopped on H-1B visas numerous times during his 2016 campaign, sometimes saying skilled migrants were great and that the United States needs more of them.  In every case I’ve found, he then backtracked from the pro-H-1B position, repudiated his earlier statements, or repeated that they are taking American jobs.  He’s also said that foreigners who attend U.S. universities should stay.  Some lobbyists think Trump will not support broad immigration reform but that he might be persuaded to support liberalizing high-skilled immigration.  Lobbyists should know those things but that could also be a public projection of confidence in order to maintain morale.

    In his major immigration speech on August 31, 2016, in Phoenix, he said:

    “And the establishment of our new lawful immigration system then and only then will we be in a position to consider the appropriate disposition of those individuals [illegal immigrants] who remain.

    That discussion can take place only in an atmosphere in which illegal immigration is a memory of the past, no longer with us, allowing us to weigh the different options available based on the new circumstances at the time.”

    That’s an improvement over a “they have to go” policy.  In the third presidential debate he said:

    “As far as moving these people out and moving, we either have a country or we don’t. We’re a country of laws. We either have a border or we don’t.  Now, you can come back in and you can become a citizen. But it’s very unfair. We have millions of people that did it the right way. They’re in line. They’re waiting. We’re going to speed up the process bigly, because it’s very inefficient.  But they’re on line and they’re waiting to become citizens.”

    That sounds like he wants to deport them or force them to leave but then they can come back through the legal system.  He’s made statements in support of letting the “good ones” come back a few times during the campaign, especially in the later stages.  Allowing them to come back, especially after deportation, would require significant legal changes.  His call to “speed up the process bigly” is encouraging though.  Trump could soften his deportation plan much sooner than he let on here if he’s confronted with the logistical and humanitarian nightmare of deporting more than 11 million people.

    Pessimistic Interpretation: Why Trump Will Probably be That Bad

    Trump is a national populist with a zero-sum worldview.  His long opposition to trade with Japan and now China and Mexico shows that he doesn’t understand how voluntary exchanges are mutually beneficial.  Opinions on trade and immigration are tightly correlated.  His 2013 statements on immigration reform could mean that he thought the Senate’s 2013 bill would destroy the Republican Party.

    Trump’s immigration position paper is detailed, specific, and terrible.  It supports drastic cuts in legal immigration and refugees as well as harsh new enforcement measures like a border wall, mandatory E-Verify, and a greatly expanded deportation force.  Many think this plan was inspired by Ann Coulter’s recent book on the subject and some of his statements support that theory.  In return, Coulter called Trump’s immigration position paper, “the greatest political document since the Magna Carta.”

    When Trump looked like he was wavering from his immigration position in the final week of August 2016, Coulter mocked him.  In her recent book In Trump We Trust, she wrote, “There’s nothing Trump can do that won’t be forgiven … Except change his immigration policies.”   Trump’s response was a blistering speech in Phoenix on August 31, 2016, where he doubled-down on his immigration stance and even read out portions of his position paper.  Coulter gave the speech her seal of approval, declaring it “better than Lincoln’s Gettysburg address.”

    Virtually every time Trump looked like he was wavering in his opposition to legal immigration or stepped up enforcement, he quickly reversed course.  When he has spoken off the cuff about immigration, it has almost always been negative and supportive of deportations, cutting legal immigration, and linking immigrants to crime.  If speaking off the cuff reveals Trump’s real opinions then they are largely consistent with his policy positions.

    Trump’s presumptive picks for positions in his administration are opposed to immigration reform, support more enforcement, and generally favor cutting legal immigration.  Steve Bannon, the former executive chairman of the nativist Breitbart News and chief executive office of Trump’s 2016 campaign, looks to be on the shortlist for Chief of Staff.  Breitbart’s immigration position is well known.

    Trump’s picks for his immigration transition team are uniformly supportive of increased immigration enforcement and, as far as I can tell, large cuts in legal immigration.  Kris Kobach is the first member of the transition team.  He is the Kansas secretary of state and architect of many of the immigration enforcement laws around the country in the last decade.  Just yesterday he said, “the wall is going to get built.”  The second member of the transition team is Danielle Cutrona, the chief counsel in Senator Jeff Sessions (R-AL) judiciary committee.

    The connection with Senator Sessions is important and it runs throughout Trump’s other appointments – the Senator himself could even be appointed to an important position.  He is the most outspoken Republican Senator who opposes immigration reform, supports enforcement-first policies, and favors slashing legal immigration.  Trump is reportedly also considering Stephen Miller, former communications aide to Senator Sessions, for one of many potential positions.  Rick Dearborn, Sessions’ chief of staff, is also being considered for leading the office of legislative affairs.

    There are also a few leaked lists circulating around DC that say Trump is supposedly considering Cindy Hayden as head of the Department of Homeland Security.  There isn’t much information available on Ms. Hayden except that she was Sessions’ former chief counsel on the Senate Judiciary Committee.

    Sessions’ praise for Ms. Hayden is deep and effusive.  Upon her departure from the Senate in 2008, he said, “Cindy was just fabulous, and I depended on her.  Day after day, her work and the respect she engendered throughout the country played a big role in the final result, in which the [immigration reform] bill was pulled down without passage in that form.”  Senator Sessions himself wasn’t alone in his praise.  He quoted his former chief counsel William Smith and executive director of the Americans for Limited Government Research Foundation at the time, “The only group I know that will truly celebrate her departure will be illegal aliens.”  Brian Darling, then director of Senate Relations for the Heritage Foundation, was quoted as saying, “Without Cindy and ‘Team Sessions’’ tireless efforts to educate the American public on the contents of the secretly drafted amnesty bill, the bill may have become law.”  Joe Matal, then-counsel for Senator Kyl was also quoted by Sessions as saying that, “If you look closely at the corpse of last year’s immigration bill, you will find a series of small squares holes in its back. Those holes were produced by Cindy’s heels, stomping that bill to death.”

    Trump has frequently cited the Center for Immigration Studies, a thinktank that produces nearuniformly shoddy research and supports cutting legal immigration.  It’s safe to assume that Trump facts, specific enforcement ideas, and message on immigration during his administration will be more influenced by them than any other group outside of the government.  Ending or severely curtailing refugee resettlement will be an early move.

    None of Trump’s actions since his election, from his statements to the people on his immigration transition team to those he’s considering for important positions, indicate that he is changing his position on immigration.  Trump looks like he partially wavered occasionally on the campaign when it came to high-skilled immigrants and some form of amnesty.  His instincts over the last several years show that his instincts aren’t uniformly nativist.  However, those few bits of optimism are overwhelmed by his other statements and actions to the contrary.

    Although I’m looking for reasons to be optimistic and I’m hoping my predictions about Trump continue to be as wrong going forward as they have been up to this point, the weight of evidence convinces me that his immigration policies will likely be just as bad as many of us feared.  I hope he changes and will gladly eat many humbles pies if he does but I’m not going to skip any meals in anticipation.

    This piece was originally published at Cato at Liberty.

  7. How Immigration Makes Everyone Richer

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    There’s no reason to fear the work of immigrants; it makes Americans richer, immigrants richer, and people world-wide richer.

    There are widespread fears that immigrants will steal local jobs and freeload off the welfare state… Professor Don Boudreaux tells us why these are myths.

  8. Immigration’s Impact On Economics & Culture In 2 min

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    There’s a widespread misconception of about the economics of immigration, according to Professor Steve Davies.

    Immigration creates a sense of fear, whether that’s immigrants taking local jobs, destroying economies, or disrupting the national culture, but Professor Steve Davies explains how most of these fears simply aren’t true.. Watch him discuss the predominant belief among economists about the topic.

  9. Senator Tom Cotton and Rep. Mike Pompeo spread four myths about immigration

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    This is the full text of a letter Prof. Howard Baetjer wrote the Wall Street Journal, an edited version of which the WSJ published on Oct. 6.

    Senator Tom Cotton (R-Ark.) and Representative Mike Pompeo (R-KS) argue for immigration restrictions in a Wall Street Journal opinion piece, “What We Learned in Scandinavia About Migrants,” on September 27. They reach wrong conclusions from wrong premises.

    Wrong Premise #1: Immigrants are a net burden on society

    Cotton and Pompeo write, “Norwegians understand that an open-border policy would strain their resources.” But, as Julian Simon has taught us, human beings are “the ultimate resource.” The human imagination coupled with the human spirit turn natural resources into goods and services.

    Immigrants don’t “strain a country’s resources” unless they are not allowed to work, whether by high minimum wages, occupational licensing, union restrictions, or direct prohibitions on immigrant labor, as in various European countries. If they support themselves by work, they create value for others. Any immigrant willing to live and work peacefully should be welcomed as a new resource.

    Wrong Premise #2: Immigrants are welfare junkies

    Cotton and Pompeo claim that Sweden has committed “more than 7% of its 2016 budget to migrant services, with costs set to steadily increase.” The assumption here is that government has to support immigrants.

    But that’s the welfare state mindset at work.

    Of course some immigrants will become a burden, as native-born citizens do, if invited into the arms of a welfare state. But governments do not have to pay for migrant services (education, housing, etc.) beyond screening out the bad guys. The welfare state subverts the welfare and dignity of immigrants as it does of the native born; it should be replaced by the kinds of private-sector endeavors its growth crowded out. In fact, during periods of rapid growth in America, “migrant services” were provided by previous immigrants from the same country, by ethnic fraternal associations, by churches, synagogues, civic associations, and by the migrants themselves. The government should just stay out of it.

    Wrong Premise #3: Immigrants erode national culture

    Cotton and Pompeo write of “the legitimate desire of Norwegians to preserve their nation’s culture and character” by restricting immigration, implying that Americans might want to do the same. But American culture and character differs fundamentally from that of Scandinavia. Norwegians identify themselves ethnically: a woman born in Iran, say, though she marries a Norwegian and lives in Oslo for a decade, is not considered Norwegian. But my friend Jared, the Kenyan-born janitor in my building in Towson, is American now, despite his broken English. And everyone accepts him as such.

    Americans identify themselves as those who have had the pluck to make a new life for themselves in “the land of the free” (along, of course, with those who were brought here in chains and won their freedom). Other than Native Americans, we’re all immigrants or descendants of immigrants. Immigration is fundamental to our nation’s culture and character. If we would preserve it, we should say to the Old World, now as in the past, “Give me your tired, your poor, your huddled masses yearning to breathe free.”

    That last word, “free,” brings me to my main criticism of Messrs. Cotton and Pompeo’s article.

    Wrong Premise #4: Immigration is against the economic and social interests of American citizens

    While I agree entirely that immigration policy should promote the interests of American citizens, Cotton and Pompeo mistake those interests. First, open immigration of peaceful people is overwhelmingly in our economic interest—on this there is broad agreement among economists. Second, the overriding social interest of Americans is preserving liberty. Our commitment to liberty is what has defined us from the arrival of the Pilgrims (immigrants!); it is that of which we are most justifiably proud.

    If we believe in liberty for migrants as well as Americans, we must grant them liberty peacefully to travel the world unmolested and to settle wherever they find homes to rent and enterprises to work for. But even if, mistakenly, we believe in liberty only for current American citizens, then we must support the liberty of American bus companies to carry migrants from the border, the liberty of American landlords to rent migrants a room, the liberty of American stores to sell migrants food and clothing, and the liberty of American businesses to hire migrants. We can’t block the liberty of migrants to come here peacefully without blocking the liberty of American citizens to interact with them here as we choose.

  10. The Immigration Debate, Explained with Kinder Surprise Chocolate Eggs

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    Having a debate about immigration in America can be about as productive as driving a Canadian car up a steep hill. Not only is the conversation fraught with deep, fundamental disagreements about culture, national sovereignty, and individual rights, but it is further complicated by the whole legal vs. illegal immigration thing.

    Opponents of immigration will sometimes qualify that they only have a problem with illegal immigration. After all, illegal immigration is a crime, and shouldn’t crimes be punished? We shouldn’t let criminals take our jobs, drain our welfare system, and populate our prisons! But the legal/illegal distinction only clouds the debate. And that’s because the premise is deeply flawed—namely, that if something is illegal, then it must be wrong or bad.

    Both supporters and opponents of immigration liberalization make this mistake, and understandably so. It’s a pretty easy philosophical error to make, so let’s pretend that instead of immigration, we’re talking about Kinder Surprise Eggs (those chocolate eggs with toys in them), which have been banned in the United States since 1938 under the Federal Food, Drug, and Cosmetic Act for having an embedded toy.

    Marty: Hey Chad, did you hear that Customs and Border Patrol just detained two Canadian men for trying to bring chocolate eggs into the States? As a chocolate candy enthusiast, I find this very distressing!

    Chad: These were no regular chocolate eggs. These were Kinder Eggs, illegal in this great nation since 1938. The bastards had what was comin’ to ‘em.

    Marty: No need to be so harsh, Chad ol’ buddy. Kinder Eggs are both fun AND delicious!

    Chad: Deliciously deadly maybe…

    Marty: Deadly?

    Chad: They’re a choking hazard. That’s the surprise. “Surprise, your 3 year old is asphyxiating!” Does that sound like Jolly Easter fun to you?

    Marty: Of course not, but only a handful of children have ever died from Kinder Surprises. Should we start arresting people for bringing Legos and beads, not to mention plums, cherries, and grapes into the country? 

    Chad: You make a good point.

    Marty: Great! So do you agree with me now that the Kinder Egg fiasco is distressing?

    Chad: No.

    Marty: Why not?

    Chad: Because Kinder Eggs are illegal.


    Marty’s so upset because Chad is making a fundamental error—assuming that just because something is illegal, it’s also bad (and should be punished). By doing this, Chad muddies up the conversation. Rather than discussing the benefits and costs of Kinder eggs and letting the discussion of whether or not to restrict them follow, Chad assumes that which he wants to conclude: that Kinder eggs should be illegal simply because…they are.

    What we do with the 11.4 million undocumented immigrants in America is an important question that deserves to be discussed. But the actual impact of immigration on the economy, culture, and politics of the country will take effect whether that immigration is legal or not.

    The consequences of immigration don’t discriminate. And if we want to have a productive conversation about immigration policy, neither should we.

  11. Low-Skilled Immigrants Are Still Not Harming Low-Skilled Natives

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    On Monday, I argued that a new report by the Center for Immigration Studies (CIS) entitled “Immigrants Replace Low-Skill Natives in the Workforce” provided no evidence that immigrants are causing low-skilled natives to quit working. In fact, the trends point toward immigration pushing employed natives up the skills ladder. In his response yesterday, the author Jason Richwine either ignores my points or backtracks the claims in his original report.

    Here are six examples:

    1. In his paper, Mr. Richwine writes that “an increasing number of the least-skilled Americans [are] leaving the workforce” (my emphasis). I pointed out that this statement is not true, that the number of high school dropouts not working has actually declined since 1995. But in his response, he drops the “increasing,” altering his claim to say that “low-skilled Americans have been dropping out of the labor force even as low-skill immigrants have been finding plenty of work.” This altered claim is true. Some low-skilled Americans have dropped out of the labor force during this time, just not more of them, which is the implication.

    2. In his paper, Mr. Richwine concludes that the share of male high school dropouts who are not working has increased. I pointed out that the share has increased only because natives are getting educated, not because the number of dropouts not working has increased. In response, Mr. Richwine tries to redeem his analysis by claiming that the fact that more Americans are graduating high school is “meaningless.” But in his paper, Mr. Richwine thought the distinction between high school graduates and dropouts was very important. As he explained:

    high school

    In other words, high school graduates are not the same as high school dropouts.

    He was right the first time. Even George Borjas, the restrictionist Harvard professor, separates high school dropouts from graduates when studying the effect of immigration because they perform different tasks in the economy. The result is that they have very different outcomes. Indeed, the labor force participation rate of native-born Americans in their prime is consistently 15 to 20 percentage points above that of high school dropouts. While Mr. Richwine is free to think that there is no distinction between high school dropouts and high school graduates, the labor market disagrees.

    Moreover, the skills upgrading during this time went beyond simply more natives graduating high school. In fact, the only skill categories that have seen a growth in the number of natives from 1995 to 2014 were those with some college education or a college degree. The number of natives with a high school degree or less decreased by roughly 10 million, while the number of natives who have received some college education or a college degree grew by roughly 10 million. This means that natives who are graduating high school are more often going on to get further education.

    3. In his paper, Mr. Richwine was seeking to explain an interesting trend—that the overall labor force participation rate for native-born Americans has gone down for prime age workers—and argues that more native-born high school dropouts not working explains much of this trend. I pointed out that this group doesn’t explain any of the trend since there are fewer native-born dropouts not working today than in 1995, but now he argues that there is no distinction between high school dropouts and high school graduates, so combining these two, how much of the decrease in the labor force participation rate for prime age natives over the last two decades can be explained by more lower-skilled workers abandoning work? Once again, the answer is zero—or actually less than zero since the number has declined.

    Net Growth in the Number of Prime Age Natives Not in the Labor Force from 1995 to 2014

    immigrants took our jobs

    Source: Census Bureau, Current Population Survey, March Supplement

    4. In his paper, Mr. Richwine claimed that low-skilled immigration was indirectly leading fewer low-skilled natives to work. I pointed out that actually all of the increase in the number of natives not working came from higher skilled categories. Now in his response to me, Mr. Richwine claims that this fact is also irrelevant because “no matter how many stories we tell about movement between categories, the picture [overall] is getting worse rather than better.” Actually, it is relevant. His entire paper was built around the supposed relationship between low-skilled immigration and low-skilled natives not working. Now he says it doesn’t matter which natives stopped working.

    5. After Mr. Richwine finished backtracking, he doubled down on the worst point in his original paper, asking, “Why should we assume that natives can increase their skills in response to immigration?” First, the simple fact is that natives have upgraded their education and skills in recent years as immigrants have entered lower-skilled fields. Lower-skilled Americans have repeatedly shown that they can increase their skills. Second, as I pointed out, there is reason to believe that this relationship is causal because immigration raises the relative wage of higher-skilled workers. Incentives matter, and increasing the rewards for graduating high school or college has incentivized lower educated Americans to climb the skills ladder.

    Still, Mr. Richwine argues that because “not everyone can become a skilled worker,” we should not “bring in more immigrants.” In this view, it doesn’t matter how many Americans benefit from immigration. Indeed, even if immigration helped those at the bottom much more than it hurt them by pushing them up the skills ladder, it shouldn’t be allowed unless every single high school dropout who isn’t even looking for work can—not only not be hurt—but benefit. What a strange argument.

    6.  Mr. Richwine explicitly concedes that his analysis provides no evidence whatsoever that immigrants are a threat to the employment prospects of natives. But he nonetheless offers the strange theory that if there were no immigrants, policymakers would act to help those low-skilled natives. While he offers no evidence for this theory either, it does appear to be the case that government becomes more active in labor market regulation and welfare state intrusions during periods of low immigration. Former Center for Immigration Studies board member Vernon M. Briggs Jr. even wrote that one cost of immigration liberalization is that it would have prevented Congress from passing left wing worker, family, and welfare legislation.

    If immigration is what is standing in the way of such legislation, then that is decidedly a good thing as well. These interventions have almost always done more harm than good. Indeed, as I showed in a recent post, a major reason for the dramatic improvement in immigrant labor market outcomes was the 1996 welfare reform that restricted their access to benefits. When government ignored them, they thrived. If the presence of immigrants encourage policymakers to do the same for natives (which they did to some extent in 1996), that is just another benefit of immigration.

    So in the end, Mr. Richwine is left with this argument: It doesn’t matter if immigrants don’t harm natives. It doesn’t matter if immigrants help natives overall. It doesn’t matter if immigrants help the worst-off natives without hurting any of them. Only if pro-immigration proponents can prove that immigrants not only don’t hurt but actively help all of the poorest educated natives who aren’t even looking for work should the United States allow any immigrants to come in. This is an argument of someone who could never—even theoretically—change his mind.

    This piece by David Bier first appeared at Cato at Liberty.