Immigration system creaks under its own weight—08-08-22

Immigration news, in context

This is the 132nd edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we discuss the myriad ways in which the increasingly bureaucratic and inefficient immigration system is grinding to a halt.

• In Under the Radar, we look at an investigation into the mechanics of the infamous family separation policy.

The Big Picture

The news: The U.S. immigration system continues creaking under its own bureaucratic weight, slowing down processes of every type and threatening to functionally collapse in the absence of concrete legal and procedural fixes.

What’s happening?

In this newsletter, we mainly talk about changing policies, litigation, regulations, and other formal and discrete shifts or realities in the immigration system, and put them into a broader context. Yet one of the most significant developments of the last several years in immigration is a slow-moving disaster, one which has no one particular cause and which cuts across agencies and systems: the bogging down of immigration processes themselves, exemplified by applications and court proceedings that take longer, are more chaotic, more error-prone, and generally produce worse outcomes for everyone.

Part of the problem downstream from policy choices and how outdated, arcane, and layered the immigration legal framework is. Some of it is simply technical, as the volume of applications and proceedings keeps growing and the staffs handling them haven’t kept pace. Some of it has to do with how absolutely disorderly and haphazard the standards and precedent have been in recent years, with the Trump administration making thousands of changes to internal rules and regulations, many of which were then blocked by federal courts, and sometimes reinstated, and blocked again, and so on. As regular readers will know, sudden shifts courtesy of litigation have not stopped during the new administration.

The upshot is that the system at every level is slowly grinding to a halt, from citizenship applications to removal proceedings. The Los Angeles’ Times Andrea Castillo put out a detailed story last week exploring not only some of the backlogs and bottlenecks, but characterizing the real human toll of this dysfunction, including people dying while waiting in interminable employment or family-based green card lines, courtesy of the per-country cap (a policy choice); the uncertainty and difficulty of remaining long-term in what are temporary or limited programs like temporary protected status and humanitarian parole (policy and executive choices); and the chaos of immigration courts, where everything from asylum claims to cancellation of removal for longtime residents are on the table in a setting rife with due process issues (a sheer bureaucratic management issue worsened by policy choices).

We realize this is all difficult to wrap your head around without a real concrete grasp of the system’s many tendrils and their functions, so let’s actually break it down somewhat. There are, generally speaking, two types of immigration processes that a person can take part in: defensive and affirmative. Defensive encompasses everything that is a defense against the government’s attempt to remove someone, and this takes place specifically within the immigration court system. The vast majority of asylum cases are defensive, as they’re filed in the context of migrants without status arriving at the border to seek protections, which causes them to be placed in removal proceedings that they have to essentially fight out of. Undocumented immigrants who are arrested in the interior of the country are also placed in immigration court proceedings.

The immigration courts, as we’ve discussed at length before, are not true independent courts but rather another executive agency, known as the Executive Office for Immigration Review, which falls under the purview of the attorney general, who acts as a sort of supreme court over the whole system. The growth in the court backlog has been eye-popping: the number of pending cases has tripled just since the end of fiscal year 2017, going from roughly 630,000 cases to over 1.8 million as of the end of June, according to data maintained by the TRAC project at Syracuse University (which is the gold standard for immigration data and which you should follow if you don’t already). As we’ll explain in more detail below, this is the result of a series of executive choices that are themselves the product of this non-independent structure, including Trump-era decisions that nixed ICE priorities, cut down on prosecutorial discretion, and added closed cases back to the docket. Increasing numbers of asylum seekers were also added to the growing backlog.

Defensive and affirmative are often non-exclusive, as some people who are in defensive proceedings are simultaneously filing for affirmative applications. The latter encompass everything that a person might file without it being a counter to a removal attempt, mainly visas but also residency and citizenship. Inside the U.S., almost all of this is handled by the U.S. Citizenship and Immigration Services, which has been overwhelmed with applications not only for this year but the last two, given the rollover of hundreds of thousands of unused green cards during the pandemic.

Like the U.S. Postal Service, USCIS is primarily fee-funded, meaning that most of its operating funds come from feed users pay and not from appropriations. That’s meant that, for the last couple of years, as applications generally collapsed, so did the agency’s budget. Now it’s expected to not only continue operating normally, but above its standard output while coming out of a difficult period. It hasn’t helped that Trump-era White House adviser Stephen Miller made it a personal mission to find ways to make applications more arduous, evidence heavy, and technically complex as a dissuasive measure. That impacts not only applicants but staff, who have ever-more to deal with with fewer resources. Even for policies that have been turned back by Biden or the courts, that still means going back and figuring out internal processes and guidances yet again.

Abroad, visas are generally handled by the State Department, which also takes care of the majority of a refugee application (though other agencies take part). Consulates around the world were shut down during the beginning of the pandemic and have had consistent staffing issues since then. Interviews and other necessary steps in immigration applications are as a result often put off by months. In the U.S., people can lose jobs as they wait for USCIS to process simple applications like the renewal of a work permit. Applications are sent back requesting evidence that has already been furnished. In the courts, cases scheduled for years in advance leave respondents in limbo as evidence grows stale and circumstances change. Sometimes, when there’s an opening on a judge’s calendar, the case gets suddenly advanced, with attorneys having very little time to prepare. You could fill a book with the ways in which the system has been gunked up, and how it’s impacting everyone, but that’s a broad overview.

How we got here

Our current immigration system is the result of a patchwork of legislation, policy choices, and the manipulation of both for political ends. From a policy standpoint, the United States’ immigration history can be divided into two distinct historical eras: one in which new immigrants were generally welcomed, which lasted until the nineteenth century; and one in which new and prospective immigrants were considered suspect, which continues to this day. This shift was primarily the result of changing racial dynamics. That’s not to say that there was no xenophobia until the late nineteenth century—Ben Franklin famously called German immigrants “generally some of the most ignorant Stupid Sort of their own Nation” and decried the influx of “swarthy” migrants from Spain, Italy, France, Russia, and Sweden—but rather that, until that point, there was little legislative effort to exclude migrants based on race.

The first efforts to restrict migration came from the west. While the east coast was getting an influx of new immigrants from Southern and Eastern Europe, California and other newly established western states were attracting immigrants from Asia—particularly China. The immigration restriction movement on both coasts was a confluence of moral panics over race, labor, and sexual politics. The first immigration restriction laws were explicitly racially motivated and designed to target Chinese migrants. By 1882, Congress had not only banned immigrants from China, but also passed an immigration act denying entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” That legislation is the basis of the public charge rule, which was not codified until 1999 and which still exists today. (Biden rolled back the Trump administration’s expansion of the public charge rule.) 

After successfully ending Chinese migration, Congress sought to reduce immigration from Southern and Eastern Europe as much as possible. There were several attempts to do this, including a ban on disabled immigrants, those deemed to be “afflicted with tuberculosis or with a loathsome or dangerous contagious disease,” anyone deemed “mentally or physically defective,” and a host of others in 1907; a joint congressional commission designed to study the effects of immigration, whose 1911 report recommended restriction; a literacy test for prospective immigrants, which was vetoed twice before finally being signed into law in 1917 (that legislation also created the so-called Asiatic Barred Zone, all but eliminating migration from Asia). 

These efforts culminated in the Immigration Act of 1924. Also known as the Johnson-Reed Act, that legislation implemented a per-country quota system that prioritized immigrants from Western and Northern Europe and dramatically reduced immigration from Southern and Eastern Europe. While it didn’t restrict migration from Mexico or anywhere else in the Western Hemisphere, the 1924 law did establish the Border Patrol. Five years later, the Undesirable Aliens Act of 1929—championed by segregationist senator Coleman Blease—made it illegal to cross the U.S.-Mexico border without authorization. The text from that law was later inserted into the Immigration and Nationality Act of 1952, which also created the H-1 visa category for non-immigrant laborers. It wasn’t until the early 2000s that the Department of Justice began its now-standard practice of prosecuting border crossers en masse—a practice that facilitated the Trump administration’s family separation policy.

The quota-based immigration system was scrapped with the passage of the Immigration and Nationality Act of 1965, also known as the Hart-Celler Act. That bill, along with the 1952 law, created the framework of the legal migration system we have in place today. It implemented a new formula prioritizing family-based migration and allowed migration from Asia and Africa for the first time in centuries. It also limited migration from the Western Hemisphere for the first time, contributing to the crisis we continue to face today: people who want or have to migrate to the United States often cannot do so legally. Even U.S. citizens who seek to sponsor relatives from abroad have to wait years—or even decades—before their relatives can come to the United States. People without jobs or family in the U.S. are out of luck, unless they happen to win the diversity visa lottery, a one-in-a-million chance. 

Undocumented migration is a policy problem; it’s the result of restrictive legislation and of years-long adjudication systems. The 1986 Immigration Reform and Control Act granted legal status to 2.9 million unauthorized immigrants who had entered the country before 1982, but it did nothing to change the underlying immigration system; it fixed one effect of the underlying policy, not the policy itself. It was also the last time Congress regularized status for undocumented immigrants. Subsequent immigration laws in the 1990s expanded the categories of deportability and inadmissibility. While laws passed earlier in the 20th century largely created our affirmative migration system, the 1990s laws—namely the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—bolstered the enforcement arm that underpins the defensive migration system. (For a more in-depth explanation on IIRIRA, we recommend this October 2021 edition of the newsletter.)

The common denominator here is discretion, at least with regards to enforcement. It’s difficult to change the affirmative immigration system without Congressional action—although the Biden administration has admitted 100,000 Ukrainians in just five months without any legislation being passed—but the executive branch has a huge amount of control with regards to the defensive system. It can choose not to prosecute illegal entry; it can allow immigration judges to administratively close deportation cases; it can, as Biden has attempted to do, change enforcement priorities. It’s not just a matter of politics; it’s also logistical. There are only so many immigration judges and USCIS employees. Every attempt to reduce migration by bogging applicants down with paperwork only fuels the problem further.

What’s next?

Agencies throughout the system are working to improve processing, but chaos breeds more chaos. Some attorneys theorize, for example, that USCIS sends out requests for evidence they already have as a pure stalling technique, which of course requires that the attorney send in another filing, which has to be processed again. The fact that they’re overwhelmed is pushing them to kick the can down the road in a way that triggers more delays and wastes more time, creating something of a spiral of dysfunction. The same is true in the immigration courts, where the ballooning docket leads to cases being moved around in ways that end forcing attorneys to seek continuances, wasting more time.

Aside from the complication, there’s a due process concern both to the delays and their attempted solutions. The gumming up of the works has real consequences, keeping people from reuniting with families and taking jobs, and sending meritorious asylum seekers back to danger. Fixes like dedicated dockets in turn can inflict some of the same harms, by rushing people through what is an incredibly complicated and delicate proceeding.

There is a staffing issue here, which is partly why the response has been to staff up — the immigration courts have emphasized the hiring of more judges and prosecutors, State has been attempting to redeploy consular staff to where it’s needed, USCIS has set ambitious hiring goals. Yet more important are the policy issues. All of these processes are complex by design. Realities like the per-country cap on employment and family-based green cards are baked into the law. Biden efforts like a formal process to seek prosecutorial discretion in the immigration courts have been blocked by federal judges.

The immigration system has been limping along for decades, but we’ve reached the point where, absent concrete legislative action to update its functioning, it might just stop working. It’s not looking particularly likely that this will happen anytime soon. Despite Congress’ recent spate of significant legislation, immigration reform has not advanced, either as a standalone measure or as part of reconciliations or must-pass bills like the annual defense bill. The closer it gets to teetering off the edge, though, the more the heat might turn up on legislators to act. Almost no one wants the system to completely grind to a halt, including Republicans who are being pressured by business allies.

Under the Radar

​​New report reveals timeline, details of Trump’s family separation policy

Anyone who follows immigration policy closely—especially during the Trump years—is likely familiar with the name Stephen Miller. As Trump’s senior adviser on immigration, Miller set the tone for the administration’s restrictive, often overtly racist policies. He was both hawkish and single-mindedly dedicated to the cause of reducing immigration, both legal and illegal, by any means necessary; as such, he’s often considered the architect of everything from the Migrant Protection Protocols to Title 42 to family separation.

Miller’s role shouldn’t be understated. But a stunning new investigation by The Atlantic’s Caitlin Dickerson reveals the layers of bureaucratic indifference, cynical careerism, and cruel incompetence that culminated in the family separation policy. Dickerson reports that family separation was first proposed in 2014, under the Obama administration. Tom Homan, at the time an ICE bureaucrat, suggested it to DHS secretary Jeh Johnson. Johnson rejected the proposal because, as he said, “it was heartless and impractical.” The government didn’t have the shelter space to house separated children. 

When the notion of separating migrant families came up again early on in the Trump administration, longtime DHS staff halfheartedly pushed back if they did at all, figuring its implementation so unfeasible that there was no point in taking it seriously. Their indifference—and in some cases, fear of being painted as not conservative enough for the Trump White House—was just as important to the implementation of family separation as Miller’s hawkishness. Under Trump, the policy became a reality despite its impracticality, first in El Paso, reportedly unbeknownst to DHS higher-ups, and later across the entirety of the border.