A World Still Yearning to Be Free

Last week, in part one of my conversation with Ben Johnson, executive director of the American Immigration Lawyers Association, we discussed the Trump administration’s misguided “zero-tolerance” approach to asylum seekers at the border; the Biden administration’s embrace of at least one aspect of that approach, Title 42; and how the U.S. has failed our Afghan allies by not passing the Afghan Adjustment Act. But we also talked about the hope the U.S. continues to offer the world, and why millions still risk everything to come here. Below, Ben and I discuss specific ways to fix our broken immigration system and bring the more than 11 million undocumented immigrants in this country out of the shadows. As Ben explains, “[W]e can’t keep challenging the world to arrive at our southern border. We’ve got to figure out ways to create relief mechanisms and legal immigration channels away from the border.” The solutions are out there. Discussing them, in a rational and civil manner, is the first step toward implementing them. MJ: With millions fleeing Venezuela, Nicaragua, Guatemala, Honduras, and El Salvador, some argue we need a “Latin American Marshall Plan” to prevent states and economies from collapsing south of the border. Biden has talked about the need to address “root causes” after Trump cut off hundreds of million in aid. Has there been any progress on that front? BJ: I don’t know enough about the change in international strategies, but the Biden administration is clearly more engaged in the region than the Trump administration was. What we saw under Trump was not just an America First strategy, it was really an America Only strategy. So, yes, there is more engagement and more resources being focused on the region under Biden. And, certainly, Biden has leaned hard into the idea that we’ve got to address root causes. It makes zero sense to continue to focus on border strategy—whether it be a wall or Title 42—as the only way to address these challenges. In other words, we can’t keep challenging the world to arrive at our southern border. We’ve got to figure out ways to create relief mechanisms and legal immigration channels away from the border. The fact that Congress has not joined in the efforts to address this through legal channels of immigration, at a time when our economy is screaming for workers in key industries, is, again, a complete abdication of congressional responsibility. The Biden administration did announce another 65,000 H2-B temporary worker visas. But if we were smart, we would target legal channels of immigration to the places that are major drivers of migration and immigration and provide legal channels of immigration that we can tailor to fit our own economic needs. I promise you that there are even conservative governors and mayors across the country that are clamoring for workers. And if Congress could construct a way for those local economies to identify the workers that we need, and we matched up those needs with places like Venezuela and the Northern Triangle and Haiti, Cuba, and Nicaragua, we could stem a huge part of the flow coming into the U.S. And it would be mutually beneficial because we would be giving them legal ways to come to the U.S. to address needs that we know that we have and that they could meet. And then the migration could become more circular, the way that it used to be more circular. But I can hear restrictionists everywhere saying, “What’s to keep those workers from overstaying their visas and moving here forever?” Well, again, this is where the arrogance on our part comes in. Many of those folks still have family back home. They want to work to send resources back home. That’s how it always was. Then in 1996 we effectively sealed everybody into the U.S. by saying, “If you’ve ever been out of status and then leave, then you’re subjected to this extreme punishment of a 10-year ban or a lifetime ban.” That has forced people to stay here. Prior to that, people would arrive, work, send money home while they’re working, and then they’d return home. Before we got so addicted to an enforcement-only strategy, migration had been much more circular. Folks still want to be able to get resources in the U.S. and return home. And if we can find a mutually beneficial way to do that, we should. “The first thing we have to do is take the immigration courts out from under the thumb of the enforcement agencies. They are not an independent body. The judges in immigration court are employees in the Department of Justice. So it is not an independent review process. And under Trump the ‘strategies’ that were adopted to deal with the backlog were all about streamlining removal decisions. Because that was their political objective—to become a deportation mill, to pump out as many removal orders as humanly possible.” Our immigration courts are terribly understaffed and overworked. There’s just not enough judges and the backlogs are huge. It seems what we do is we break the immigration system and then we say, “This system’s broken, therefore we can’t have immigrants.” How do you rebuild the system so that it’s not broken and can handle the flow regardless of Congress’s failures? The first thing we have to do is take the immigration courts out from under the thumb of the enforcement agencies. They are not an independent body. The judges in immigration court are employees in the Department of Justice. So it is not an independent review process. And under Trump the “strategies” that were adopted to deal with the backlog were all about streamlining removal decisions. Because that was their political objective—to become a deportation mill, to pump out as many removal orders as humanly possible. They put time limits on judges and created all kinds of requirements that made no sense from a fairness or efficiency perspective, but were designed to get the result they wanted. Immigration courts should operate like other independent judicial bodies. They should have the ability to control their own dockets. Not being able to control their own dockets causes huge problems with regard to addressing a backlog. It also causes huge problems in terms of the integrity of those decisions. When Jeff Sessions was attorney general, he used his power to try to rewrite immigration jurisprudence. If he didn’t like a decision that was being made by the Board of Immigration Appeals, he could just send it to his desk and write the decision the way that he wanted. So, ultimately, the supreme court of immigration is the attorney general of the United States. And that is inherently unfair and contrary to, again, the judicial principles of checks and balances that otherwise inform our judicial system. The Board of Immigration Appeals needs to become an independent agency in order to be more efficient, but also so its decisions carry more integrity. Our proposal is to make it an Article I court. Right now, it sits within the executive branch, which is the enforcer of laws, not the maker of laws, which is an inherent conflict of interest. The way you could imbue it with some independence is not to move it fully into the Article III judicial branch, but move it into the Article I legislative branch. Set up a court that reports to and is overseen by Congress; that would give it independence relative to the executive branch that is enforcing those laws. That’s the best way, consistent with the Constitution, to give it the independence it needs to do its job properly. To address your broader question about enforcement and fixing a broken system, the most important thing is addressing the undocumented population already here. There are some 11 million undocumented people in this country—the overwhelming majority, 70%, of whom have been here longer than 10 years. That is a massive population of people for whom random and aggressive enforcement—such as deportation—doesn’t feel right or appropriate. It would have devastating effects on our economies. It would tear communities apart if those folks were ripped out of their communities. They’re integrated into our economies and our communities. We sit next to them in our houses of worship. We work shoulder to shoulder with them in our economy. Aggressive enforcement seems fundamentally unfair and overly disruptive. A march in favor of immigration reform in Dallas, Texas, May 1, 2010 (iStock). But if we hit the reset button and create a path to legal status for those 11 million, I firmly believe we would have a very different view of immigration enforcement. More options would be on the table in terms of saying, “Well, maybe it’s OK to enforce minor immigration infractions if you’re talking about enforcing it against the population that we haven’t allowed to establish deep ties in our community.” So, politically and substantively, the most important thing we could do is address the status of the undocumented in the United States. It would dramatically transform our options and our approach to immigration enforcement by removing a large population of people whom we can’t enforce immigration laws against in the same way that we would enforce immigration laws against new arrivals. Back in 2007, when ICE [Homeland Security’s Immigration and Customs Enforcement] was raiding meatpacking plants throughout the country, I went to Marshalltown, Iowa, and wrote a story for The Wall Street Journal about the 90 or so workers arrested there and charged with working under false documents. The mayor told me as many as one in five of the town’s residents were immigrants, and nearly 40% of the kids in school were. “When most people think of illegal immigrants,” he said, “they think of people crossing a river or a desert in the dead of night. But that all changes when the person being hauled off in handcuffs is your neighbor, your worker, your friend.” I visited a Catholic church there that was taking care of some of the immigrant children after their parents had been locked up. I attended mass and sat in the back pew, and all I could see were dozens of little faces looking back at me, the faces of Latino babies. The head of the local Chamber of Commerce said there were more than 40 immigrant-run businesses in the community. “We don't have a choice but to work hard to integrate our growing immigrant population into the community,” he said. “Cities like ours don’t have the luxury of sorting out who’s documented and who is undocumented—that is a federal jurisdiction.” Yeah, I totally get it. It’s frustrating that some folks look back on history and blame the situation we’re in now on the Reagan administration’s 1986 amnesty. The allegation is that, from that point forward, we’ve failed to enforce immigration law. And it’s that failure of enforcement, some argue, that has caused the situation we’re in now, and therefore we need more enforcement. That is a complete rewriting of history. We had plenty of enforcement post-1986, including a 1996 act that was horribly aggressive and overreaching in terms of enforcement strategies. What we did not do in 1986 is create legal channels of immigration that address our economic needs. In 1986, and then again in 1990, when we had a modification of the 1986 act, we actually reduced the number of visas available to less skilled workers even though the demographic reality was that more and more Americans were graduating from high school, pursuing college degrees, and moving out of the less skilled labor market. The restaurant industry, home healthcare workers, the service industry, hotels—all that was continuing to boom. But our own domestic labor force was shrinking every year. And yet we cut immigration channels for those workers to come into the U.S. legally to do that work. And—surprise, surprise—our economy attracted a lot of undocumented workers. The worst thing we can do is pit our economy against our immigration system. Because when our immigration system goes to war with our economy, the largest economy in the world wins every time. We need more economic reality in our immigration system. We need immigration flows to fill the gaps being created as our workers move out of those occupations that require less education and pursue opportunities in other areas. We are enforcing the immigration laws against people who objectively we want and need to be part of our economy and our communities. The absence of family unification for people who are already here, and our inability to identify workers that we need and bring them in legally, are the two fundamental problems facing our immigration system. “The emergence of ‘replacement theory’ on the fringes of this debate, within the extreme right, is distressing and disgusting on many levels. It’s so obviously a racist theory because what they distort and demonize is this moment in 1965 when we said that immigration cannot be restricted just to Western European countries—a change that has been so positively impactful, so transformative to our economy and our society.” Like that Iowa mayor said, a hell of a lot of small towns and local economies wouldn’t exist today without new immigrants—documented and undocumented. And I’ve just got to tell you, the emergence of “replacement theory” on the fringes of this debate, within the extreme right, is distressing and disgusting on many levels. It’s so obviously a racist theory because what they distort and demonize is this moment in 1965 when we said that immigration cannot be restricted just to Western European countries—a change that has been so positively impactful, so transformative to our economy and our society. We talk a lot about attracting the best and brightest from around the world. Well, prior to 1965 we didn’t really attract the best and brightest from the entire world. We attracted the best and brightest from the “white” part of the world. But after 1965 we really became a major player in the global battle for talent. And in every aspect of our life, it has transformed us. If we hadn’t made that change in 1965—and these are just a few of thousands of examples—we wouldn’t have seen the development of the cure for AIDS that came about because of an immigrant working in the United States. We wouldn’t have seen the development of Google, which was, again, an immigrant from Russia developing those technologies. So, contrary to “replacement theory,” we’ve benefited enormously—in every possible way—from our 1965 decision not to limit immigration to Western European countries. And that’s a good thing. Well, Ben, once again, you’ve given me hope. It’s always great to talk to you. Your passion and your commitment are refreshing and inspiring. I’m glad you’re doing what you’re doing. Well, that’s very kind of you to say. It’s the truth. And, once again, thanks for a fascinating conversation. My pleasure, Michael. Thank you. I’m a fan of your writing, and I wish you great success with The First Person. Thanks, Ben. Take care. You too, Michael. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.