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Reversing Trump’s Assault on Legal Immigration

The Biden administration’s enormous post-Trump, post-Stephen Miller challenge.
March 9, 2021
Reversing Trump’s Assault on Legal Immigration
A U.S. Border Patrol agent delivers a young asylum seeker and her family to a bus station on February 26, 2021 in Brownsville, Texas. U.S. immigration authorities are now releasing many asylum seeking families after detaining them while crossing the U.S.-Mexico border. The immigrant families are then free to travel to destinations throughout the U.S. while awaiting asylum hearings. (Photo by John Moore/Getty Images)

As ever, Donald Trump is converting immigration policy into political theater—stoking xenophobia, callousness, and ignorance for his own malignant ends.

Joe Biden, Trump told CPAC last week, has “triggered a massive flood of illegal immigration to our country, the likes of which we have never seen before.” That issue, his creepy acolyte Stephen Miller assured Republican legislators, is their ticket for retaking control of Congress.

But in their wake lies the comprehensive wreckage of our system for admitting legal immigrants. As Homeland Security Secretary Alejandro Mayorkas told reporters: “To put it succinctly, the prior administration dismantled our nation’s immigration system in its entirety.”

Ideally, our immigration laws serve four salutary ends: reuniting families; revitalizing our economy; promoting diversity among new entrants; and protecting refugees from persecution. Here’s how:

Family-based immigration allows carefully screened sponsors to reunite with spouses, minor children, parents and, in limited numbers, other close relatives.

Employment-based immigration provides temporary or permanent admission to those with advanced degrees or “extraordinary ability” in the arts, sciences, education, athletics, or business; corporate executives or managers; skilled workers; unskilled workers in areas of need; foreign nationals who have served the U.S. government; or entrepreneurs who will invest at least $500,000 in a job-creating enterprise.

The Diversity Visa Program randomly allocates some number of visas (currently 55,000) to immigrants—and their immediate families—from countries with low immigration rates, and who have a high school education or at least two years working in their profession.

Finally, Refugee and Asylee Admission—a favorite Trump target—protects foreigners who demonstrate a “well-founded fear of persecution” due to race, ethnicity, religious or political beliefs, or national origin. Refugees apply from a temporary host country, typically through the U.S. embassy, for State Department review. Asylees apply at U.S. points of entry or after crossing the border, beginning an extended screening process with a 70 percent rejection rate.

China is now the leading country of origin for individuals making asylum requests. But many come from the Northern Triangle—Guatemala, El Salvador, and Honduras—where murderous gangs terrorize those Trump accuses of “infesting” our border, helping create catastrophic rates of homicide, violence against women, and victimization of minor children. Given its sustained instability, economic collapse, and persecution of political opponents, Venezuela also figures prominently in compelling asylum seekers.

Upon arrival, immigration officials determine whether an asylee’s claim is credible. Prior to Trump, they either awaited a final determination in detention, or were released in the United States on bond—often with ankle bracelets—while nongovernmental organizations helped them settle. Historically, 96 percent of released asylees appeared for their immigration hearing.

A 2020 Pew Research factsheet further contextualizes Trump’s fearmongering:

  • Roughly 45 million people in the United States—14 percent of our populace—are immigrants.
  • 77 percent are legal residents, but not all seek U.S. citizenship: 2018 yielded a relatively modest 800,000 applicants.
  • Our leading sources of immigrants are China, India, Mexico, and the Philippines—for Trump’s purposes, conveniently non-white.
  • Since 1980, we’ve admitted only 3 million refugees, and our undocumented immigrant population is declining—a trend that began long before Trump came to office.

Trump’s cynical malice enfeebles America. As the Mercatus Center notes, immigration has enriched our culture, economy, and geopolitical influence. Virtually all of us stem from immigration; one-quarter are first- or second-generation immigrants.

As of 2017, 43 percent of Fortune 500 companies were founded by immigrants or their children; immigrants established more than half the startups valued at more than $1 billion. Immigrants filed for one-third of our patents and held a third of our Ph.D.s in science, technology, engineering, and math.

Half the highly skilled workers and entrepreneurs in Silicon Valley are foreign-born. Without immigrants or their children, we could not sustain the population growth necessary to power our economy or fund our entitlement programs.

Further, Mercatus notes, antipathy toward immigration marinates in myth:

Today’s immigration rate is well below our historic average. Save for a marginal impact on Americans without high school diplomas, there is no evidence that immigrants depress wages or replace native-born workers.

Immigrants are less likely to commit crimes. They pay more taxes over their lifetimes than they consume in government benefits. And today’s immigrants learn English at least as swiftly as prior arrivals.

Fortunately, the great majority of Americans value immigrants and immigration. Observes George Will:

Today, anti-immigration sentiment is disproportionately concentrated among recent Republican voters who are timid nationalists dismayed by the decoupling of the nation from their conceptions of it. Strangely, they fear that the United States cannot be itself if it is as welcoming to immigrants as it was when they were making the United States the success that it is.

That a plurality of Republicans disdain immigration owes much to Trump’s incendiary attacks on undocumented immigrants. But this cloaks his comprehensive efforts to suffocate legal immigration—which, by 2020, he had sliced in half.

Among his weapons, the ACLU’s Immigrants’ Rights Project reports, were over a thousand administrative changes calculated to entrap immigrants in a tortuous administrative maze—many of which will take the Biden administration months, even years, to uncover and undo. Catherine Rampell cites one Kafkaesque example: A 6-page green card application became 20 pages, with 45 pages of instructions and copious demands for supporting evidence.

Applications could be rejected for a single blank space—say, because the applicant lacked a middle name, or a deceased parent’s address. Writing “NA,” instead of “N/A,” could prove equally fatal. In its first six months, Rampell reports, the “blank space” policy yielded a 50 percent rejection rate.

Trump’s “public charge” rule empowered officials to reject an applicant if they—or any family member—might receive government assistance “at any time in the future.” The bogus rationale was encouraging work; the real purpose was repelling immigrants, or rendering them too fearful to seek benefits which might help them secure housing, food, or healthcare for their families.

This was vintage Trump—cruel and stupid. Low-wage immigrants fill jobs essential to our economy. Further, the rule ignores studies showing that, over time, immigrants receiving benefits achieve higher rates of employment—and, as noted, pay for themselves.

Even as Trump’s derelictions sparked mass death by pandemic, he invoked COVID-19 to suspend green cards for legal immigrants—not on public health grounds but because, he asserted, they would usurp American jobs. This counterfactual order froze most legal immigration in 2020, including employment-based visas; erased pending visas for families and diversity entrants; and created a backlog which may last for years.

But Trump invoked his noisiest animus for non-white refugees and asylees. He cut annual refugee admissions by over 80 percent—110,000 to under 18,000—thereby excluding thousands of Iraqis who had assisted our government. He hamstrung his successor by slashing the personnel for processing refugees. His base-baiting Muslim ban mindlessly barred refugees from seven countries—including Syria’s slaughterhouse—while excluding the countries of origin for the 9/11 attackers and Muslim countries with whom Trump did business.

Already, Biden has reversed the Muslim and COVID bans; rescinded the public charge rule; and raised annual refugee admissions to 125,000. Now his administration must deal with the horrendous backlog of applicants Trump created; and the multifarious snares he embedded in the immigration bureaucracy.

But their ultimate nightmare is dealing with the tragic consequences of Trump’s war on asylees at the Mexican border—a concerted effort to abrogate the asylum process which previously protected the victims of violence and oppression.

Variously, Trump instituted policies which expelled asylees without allowing them to seek asylum; barred those who entered the country between checkpoints; and drastically reduced the daily number who could present themselves at the border. His “Migrant Protection Protocols” (MPP) sent asylees back to Mexico without screening, exposing them to the risk of kidnapping, physical violence, and sexual abuse.

He foreclosed asylees who traveled through another country without seeking asylum there. He peremptorily deported unaccompanied minors. He expelled thousands of asylees under a public health order. He facilitated the arbitrary expulsion of women fleeing deadly domestic abuse, and migrants escaping gang-related or endemic violence.

He closed immigration offices. He began processing new applications first, adding years to the wait time for prior applicants. He stripped immigration judges of their authority to release asylees from detention—exacerbating their physical and mental health challenges. He abrogated President Barack Obama’s $750 million program to ameliorate conditions in the Northern Triangle—the root cause of the dramatic increase in migration.

Finally, Trump’s “zero-tolerance” policy of prosecuting all asylees who crossed the border between checkpoints separated nearly 3,000 children from their families—deliberately traumatizing parents and children, however young, in the name of “deterrence.”

Somehow, Joe Biden must resurrect an efficient and humane system from the rubble—providing relief for thousands of asylees while coping with a fresh torrent of migrants and struggling to stem unauthorized border crossings.

The complexities of restoring decency amidst the mess engendered by Trump’s myopic and destructive policies are daunting. Of necessity, the new administration has discouraged prospective migrants, and retained the public health ban as a temporary expedient to manage influx and stem overcrowding.

Moreover, Biden faces an involuntary child separation problem which his administration inherited. Under existing U.S. law, minors arriving with adults other than their parents—including ostensible relatives—must be separated until immigration authorities determine whether the adults are who they claim to be. The aim is protecting children from human traffickers. But this is a growing problem which creates difficulties in providing adequate shelters and swift investigation, and the inescapable effect is to isolate kids at the risk of emotional distress.

Faced with all these cross-currents, the Biden administration is surging personnel to the border, and doubling the number of immigration judges and support staff. Concurrently, it has ended MPP; started processing asylees stuck in Mexico; prioritized newly arrived families with young children; released selected applicants with monitoring devices into the United States; erected temporary tent facilities and searched for living space so we can shelter others; protected unaccompanied minors; restored asylum for domestic violence survivors and those fleeing gangs and other chronic dangers; and instituted programs to control the spread of COVID among asylees.

Further, Biden proposes a $4 billion package to help Northern Triangle countries ameliorate violence and criminal activity; build prosperity; improve their education and justice systems; and help residents seek asylum without migrating.

Finally, Biden’s Family Reunification Task Force is working with governments and nongovernmental organizations to reunite families and, thereafter, explore paths to resettlement in the United States. Because Trump’s minions disdained recordkeeping, the deported parents of over 600 kids haven’t yet been found. Still, in its first weeks in office, the administration has reunited an estimated 105 families—a start.

It can expect nothing from the GOP save demagoguery about opening the border and coddling menacing migrants. Here, as in so many areas, the essential task of restoring America’s competence and compassion—and, thereby, our humanity—has fallen to Joe Biden and his party.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.