A Primer In Immigration
Understanding the President’s Executive Order (hold the sound bites)
Disclaimer: the contents of this post are my personal analyses of totally unclassified, publicly available information. My analysis does NOT constitute an official opinion of my employer.
I have a large binder in my office holding materials from a course that I attended. The course was designed for immigration adjudicators, and it was called “I-485 Blackbelt Training.” It was an optional course for senior-level adjudicators who work on “Adjustment of Status” applications. I work for United States Citizenship and Immigration Service (USCIS), and I’ve never been an adjudicator or investigations officer, so when my work schedule permits, I often attend these kinds of classes.
I only had time for 3 of the 8 days of training (EIGHT!). During that time, I was overwhelmed at the complexity of the kinds of cases that adjudicators might see (just for the form I-485). In my opinion, adjudicators have a tough, tough job of evaluating applications. Immigration law is confusing and eligibility is far less straightforward than it might seem.
I offer this preface to let you, dear reader, and every talking head in the media, off the proverbial hook for having absolutely no idea what President Obama’s recent executive order on immigration really means (because those talking heads are getting it all mixed up and politicizing it beyond recognition).
I will do my best to try to break it down so you can understand what is going on and why. As for my own expertise, I have two master’s degrees, one in Economics and one in National Security Studies. I work as an adviser in immigration. I learned a lot of what I know on the job and through my thesis research. When the thing gets published, I will link to it in this post. (December 2014: HERE IT IS.)
The following analysis aims to be fact-based and a-political. As for my personal opinion, I can see a good amount of sense in the executive order, especially from a national security perspective.
Don’t misunderstand: I do not think that the executive order (let’s just call it the “EO” from now on) is a long-term solution to our immigration situation — you know, that thing where we have an estimated 11 million people in the country who have no legal status to be here. This is a situation that requires thorough examination of root causes and analyses of alternative solutions… I know, I know. I’m such an optimist when it comes to believing that with an appropriate debate, we could actually come up with “the right thing to do.”
No: what I am about to explain to you is that in the absence of new laws and given the current budget constraints on immigration enforcement agencies, the EO simply offers guidance on prioritizing the deportation queue in a manner that is consistent with reducing risks to national security.
Sorry. In English: It’s about money and terrorists.
So here is your “Basic Primer for Understanding the President’s Executive Order on Immigration.”
Lesson #1. Who does what, now?
1) There are three components of the Department of Homeland Security (DHS) that deal with immigration. United States Citizenship and Immigration Services (USCIS) is the agency that processes applications and conducts investigations. It has NO enforcement authority. It is a fee-funded, operational agency. Only 4% of this agency’s budget is appropriated by Congress. Note: In the event that Congress fails to pass a budget (or a Continuing Resolution [CR]) to fund the government, USCIS’s major operations do not shut down. Application processing, interviewing, the production of “Green Cards” and Naturalization Ceremonies… these all continue as they are not appropriated by Congress.
Also note that this is the agency that is tasked with processing applications for “deferred action” (more on this, below). The president’s executive order poses a significant workload impact on this agency.
2) Immigration and Customs Enforcement (ICE) is an enforcement agency that has the authority and the means to conduct removals and deportations. ICE is 100% appropriated by Congress. It is — generally speaking — ICE’s insufficient budget that makes the EO necessary from the enforcement perspective. That is to say: while ICE has the authority and means to conduct removals and deportations, it does not have the resources to identify, locate, and remove 11 million people.
Aside from “essential personnel,” ICE would indeed shut down if Congress fails to pass a CR.
3) Customs and Border Protection (CBP) is also an enforcement agency. CBP officers check your passport at Ports of Entry (POE: airports, seaports, and land borders). Border Patrol officers on the Southern Border work for CBP. They are also 100% appropriated by Congress and would also shut down (save the essentials) if Congress fails to pass a CR.
Prior to the Homeland Security Act of 2002, adjudication and enforcement operations were conducted by the same agency, the former “INS” (Immigration and Naturalization Service), which was then part of the Department of Justice. The INS was officially abolished with the Homeland Security Act, and the three separate components were stood up. There are definitely pluses and minuses to separating us. On the one hand, the fact that our adjudicators do not have deportation authority may mean that they get better information from applicants who might otherwise fear telling the truth. On the other hand, for those of us who did not work for “legacy INS back in the day,” our siloed operations mean that extra effort must be made for us to share information and coordinate processes. Many of the “old timers” in my office have great stories from when they “did their time” at the airports. I’ve never worked the ports. I confess I’m excited for my upcoming behind the scenes tour at SFO. But I’m a nerd about this stuff. I digress.
Lesson #2: How did we end up in this situation?
Why do we have 11 million undocumented immigrants in our country, and why can’t we keep/kick them out? In my (humble but educated) opinion, we’ve got a perfect storm of factors that have led to our situation.
The first is a scarcity of enforcement resources.
We can’t KICK all 11 million out because ICE can only process a certain number of removals each year. Removal proceedings are complicated. It’s not just a matter of identifying someone who is not authorized to be here and then escorting them back to the POE where they came in. There are authorizations that must be filed, courts that must be consulted, and records that must be kept. It’s way complicated. Way. And ICE has been underfunded for years. Even if they got every dollar they asked for from Congress (which they don’t), it is “impossible” (to quote President Obama) to think that they would be able to remove everyone who is out of status in a timely fashion.
We can’t KEEP all 11 million out either, with the same root cause. There are only so many Border Patrol Officers on the border. (Don’t get me started on the ineffectiveness of fences, please. This was the biggest flaw [in my humble opinion] with Senate Bill S.744: it required the construction of a fence on the Southern Border. A fence is a waste of money and a bad idea [in my opinion]. In case you are wondering, the answer to protecting the border is actually drones, but I digress again).
Adding to the issue of underfunded enforcement, we do not have EXIT CONTROLS in this country. This means that unless someone specifically checks up on you (dear foreign visitor who was only supposed to be here for 3 or 6 months and has stayed longer), there’s no alarm bell that goes off to alert immigration authorities that you didn’t leave in time. It’s pretty darn easy to overstay your visitor’s visa or stick around at the end of your student visa. Just ask the 9/11 hijackers, most of whom were overstays on student visas. The Brits tried to build a system that would include such alerts on overstays, but the whole program failed miserably and was defunded in March of this year.
Okay, so with an understanding of our limited ability to enforce immigration controls, let’s consider the other problem: why are they coming?
Because we have a pretty solid employment black market. People come to the United States because it’s well-known that you can get paid under the table for doing work that most Americans wouldn’t (literally) stoop to do. This is due in part to our lack of enforcement protocols on employers. See, it takes two entities to make a market: the demanders (immigrants seeking work without authorization) and the suppliers (employers who will pay them). Part of a long-term solution to the immigration situation would be to fully deploy or mandate employment enforcement. The system already exists — it’s called eVerify. This system allows employers to instantly check the status of a prospective employee.
If we enacted mandatory use of this system, the employment black market would fizzle. This is an insanely political issue that puts pro-business members of Congress in a pickle. Mandating the use eVerify and enforcing businesses to hire only authorized workers would mean that businesses would be required to pay minimum wages. One might imagine that certain employers want the employment black market to thrive so they can hire undocumented employees and pay less than the minimum wage. They might even lobby members of Congress to leave mandatory eVerify out of immigration reform bills. Or something like that.
In any case, take two parts “limited enforcement resources” and one part “well-known employment black market” and you’ve got a great recipe for unauthorized immigration. To the tune of 11 million people, evidently.
Lesson #3: So what is this Executive Order all about?
The President nailed it, but most people don’t understand. I will break it down.
It’s about national security. ICE has a small budget. They can’t kick everyone out. The EO provides very specific enforcement priorities to keep our country safe by focusing limited enforcement resources where they can make the most impact.
Here’s a summary of what ICE was instructed on how to prioritize deportations:
#1: Terrorists, gang members, violent and organized criminals. Go after them first.
#2: Next go after the wife beaters, the drug dealers, and people who can’t seem to drive without drinking. And the ones who try to defraud the system.
#3: Then, other lesser offenders.
So what to do with all the other people who are here because of our fabulous employment black market who are otherwise law-abiding? ICE is probably not going to get to them, because they will be busy focusing on the three categories mentioned above. So, let’s officially put them in the BACK of the deportation queue. The EO allows certain categories of otherwise law-abiding undocumented immigrants (among them, people who came here as children or who are the parents of US Citizens) to apply for “deferred action” for 3 years. During those 3 years, they will officially NOT be deported. They can also apply simultaneously for a work permit so they can get a legitimate job. Some of these people may already be paying taxes, but if they file for deferred action and get a legitimate job, they definitely will.
Here’s what the EO DOESN’T DO:
· The EO does not create a legal status for undocumented immigrants. Only Congress can do that. It simply defers their deportation. It does NOT create a path to Citizenship. (It doesn’t preclude one at some future date, but it does not create one now.)
· The EO does NOT put people who came here without authorization “in line” for benefits in front of others who have been “following the rules.” The only impact that the EO may have on the rule followers is in the speed of their service (because my agency is about to get slammed with a workload it has never seen before).
So. That’s about all there is to understanding the EO.
CERTAINLY, this is not a permanent or long-term solution. But, given the current situation, under the current laws with the current resource constraints, in the absence of a comprehensive reform bill, this seems… reasonable. Helpful, even.
The media is having fun with sound bytes and threats of lawsuits and impeachments and such.
Hopefully this analysis gives you some tools to question the sound bites.
