“After years of talking about a broken immigration system, President Trump offered a framework for immigration reform in his State of the Union address. In the lead-up to the address, the White House issued a statement on January 17 honoring Barbara Jordan, the former Chair of the US Commission on Immigration Reform. The White House intimated that Barbara Jordan would have supported the proposals to be championed by the President. The statement is a gross misstatement of Representative Jordan’s views. The President’s position on immigration, and the language he has used, represent all that Jordan decried during her long career and, especially as Chair of the commission. The statement misconstrues the recommendations of the Jordan Commission as justification for deep cuts in immigration that would make it harder for family members, employees and refugees to enter the country. As the Executive Director of the commission, I can attest to the fundamental differences between the Trump policies and Jordan’s and the commission’s recommendations.
In its first report to Congress, the commission did indeed state, as the White House reported, that it is “a right and responsibility of a democratic society to manage immigration so that it serves the national interest.” However, the commission also concluded that “legal immigration has strengthened and can continue to strengthen this country.” Further, the commission “decrie[d] hostility and discrimination against immigrants as antithetical to the traditions and interests of the country.” Its recommendations sought to improve the admission process by ensuring the timely entry of immediate family members of US citizens and legal permanent residents (LPRs) as well as workers and refugees.
The commission’s approach on immigration and refugee policy was considerably at odds with Trump policies—those described in the State of the Union and those already taken through administrative action—in four major areas. First, the Trump administration supports deep cuts in the overall number of family visas, claiming it wants to eliminate “chain migration.” The Commission, on the other hand, viewed family migration as beneficial to the country. It was concerned, however, about the sustainability of the program because of the multiple categories with extremely long backlogs and waiting time. It recommended adding 150,000 visas per year to permit the more rapid admission of the spouses and minor children of LPRs, who faced waiting periods of as much as a decade. To accommodate these additional visas, the Commission recommended re-directing visa numbers currently allocated to adult children and siblings of US citizens and the diversity program after a transition period. The Commission did not see ‘chain migration’ as inherently problematic. Unlike the Trump position, the commission encouraged continued admission as LPRs of the parents of US citizens. As the Executive Director of the Commission, I understood that it would have been the height of hypocrisy to denounce chain migration, as my own grandmother, like millions of other immigrants before and after, had arranged for the admission of her parents and their younger children after her arrival in the United States as a young woman.
Second, President Trump has made the most significant reduction in the admission of refugees since enactment of the Refugee Act of 1980. The ceiling on admissions was set at 45,000 for the current fiscal year and actual admissions are not nearly on a pace to meet that low number. By contrast, the commission recommended a floor on admissions of 50,000, stating that foreign policy and humanitarian imperatives necessitated that the United States take a strong leadership role in assisting and protecting refugees worldwide. The commission saw resettlement of refugees as one of the core durable solutions to refugee crises and believed the United States should lead by example. It believed that consultations with Congress, as specified in the Refugee Act of 1980, would be an effective mechanism for increasing admissions beyond the 50,000 floor when necessary. Indeed, the commission recommended that the President have even greater authority to raise the ceiling on admissions in the type of refugee emergencies experienced worldwide today. Jordan and the commission were cognizant of the dire consequences of the inflexibility of US refugee policies in the 1930s when the government rejected thousands of Jewish and other refugees from Nazi Germany who subsequently died in the Holocaust. The Trump policies would bring back those dark days with a hard ceiling on refugee admissions even when crises require flexibility and American leadership. The need for American leadership on these issues seems altogether lost on the administration.
The Commission also supported effective protection of other migrants fleeing life-threatening situations. Jordan was personally active in ensuring protection of asylum seekers from Haiti, a country described by President Trump in highly derogatory terms. In 1994, she approached President Clinton directly to ask him to reverse the policies adopted in the Bush administration that returned Haitian boat people to Haiti without consideration of their claims for asylum. She specifically recommended that they be granted temporary protection, either in Guantánamo or in the United States, until conditions changed significantly inside Haiti or they met the criteria for asylum. She would have been among those denouncing the Trump administration’s abrupt lifting of Temporary Protected Status for Haitians as well as Salvadorans. She understood that TPS was not a perfect solution for those who were unable to return home because of the conditions in their countries and believed in the importance of finding durable solutions for them here or abroad. However, she would never have supported returning TPS recipients to the kinds of conditions that will confront them in Haiti or El Salvador.
Third, the Trump administration has argued that immigration should be based on ‘merit’ as measured by a point system that rewards education and English language skills. The president implied that Norwegians have greater merit than potential immigrants from Africa. Under Jordan’s leadership, the commission explicitly rejected a point system, explaining its decision as follows:
We believe that a system that relies on formulas and bureaucratic procedures for determining which immigrants meet the ability criteria for admission is not as effective in serving the national interest as one that relies on the judgement of American families and employers within a framework that protects US workers from unfair competition.
The Trump administration ignored one of the most important recommendations that the commission made on legal admissions. The commission believed strongly that admission numbers and priorities should not be set in stone as has been the case: the last major reform of the legal immigration system took place in 1990. Rather, it recommended that Congress should revisit admission numbers and categories every three to five years to ensure they still meet the nation’s interests. Proposals by other blue ribbon panels would do the same thing, including through a standing commission which would assess needs and increase or reduce admissions in accordance with current economic conditions. The Trump policies would trap the country with admission ceilings that may be completely inappropriate in the years ahead.
Fourth, the President has chosen to put most of his immigration enforcement eggs into two baskets—a border wall and irresponsible deportation initiatives. The commission, by contrast, called for a comprehensive enforcement strategy that set priorities for deterring unauthorized migration and, when necessary, removing those who were without status or committed particularly serious crimes. The commission was aware that even twenty years ago a large proportion of migrants illegally in the country had overstayed their visas. A border wall would do little to address that problem. Recognizing that most migrants entering without authorization or overstaying their visas did so for jobs, the commission recommended an electronic employment verification system and enhanced labor standards enforcement designed to sanction employers who knowingly hired and exploited undocumented workers. Today, with illegal crossings at the US-Mexico border at historically low levels, expending scarce resources on a border wall makes even less sense. The Trump deportation policies are also problematic. Rather than prioritize the deportation of those who commit serious crimes, as have prior administrations, the administration has chosen to deflect resources towards detaining and attempting to deport those that pose no threat to the security of the country, including people who have registered for such programs as Deferred Action for Childhood Arrivals (DACA) and TPS.
Under Jordan’s leadership, the commission also supported greater cooperation with other countries in managing migration and deterring illegal movements. As part of the comprehensive strategy, the commission recommended negotiation of trade agreements, such as the North American Trade Agreement (NAFTA), that could provide greater economic opportunities in countries of origin while protecting the rights of workers. The commission knew that opening up trade between the US and other countries was not a quick fix to illegal immigration but saw it as a necessary part of a long-term strategy to reduce the push factors causing people to move.
Whether Jordan would have supported DACA is unknowable as she did not address that issue directly. From her views on the importance of citizenship, I feel confident, however, that she would have been a strong supporter of a path to citizenship for the Dreamers. Always seeking bipartisan solutions, she would have applauded President Trump’s proposed pathway to citizenship for about 2.2 million Dreamers. She would have wanted that path to be as expeditious as possible—much shorter than the Trump administration’s proposed 10-year delay. Jordan proposed a new Americanization program that would facilitate naturalization by providing resources to help immigrants more rapidly learn the language and customs of their new home. She would have recognized that the Dreamers have already learned those lessons since they have spent the most formative period of their lives in the United States.
In conclusion, the Trump administration would weaken the United States by placing irresponsible constraints on family reunification, refugee admissions and employment-based admissions while doing little to address the real causes of illegal immigration. The president’s policies are the opposite of Barbara Jordan’s view that a robust level of legal immigration is in the national interest. Even more critically, Jordan would have been the first person to speak up against the discriminatory intent and language in President Trump’s proposals. In her own words, “I believe the fact that America is a nation of immigrants should be a source of pride and not a reason to ignite virulent nationalism.”
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Susan is a long-time friend, former client, and “academic superstar” who was my colleague at Georgetown. Indeed, Susan and our good friend Professor Andy Schoenholz were the “originators” of the “Refugee Law and Policy” course that I taught for several years as an Adjunct Professor at Georgetown Law. Small world!
Of course we need a “robust” legal immigration system not the irrational racially inspired cuts and trashing of “family based” immigration being pushed by Trump, Miller, Sessions, Cotton, and the rest of the White Nationalist xenophobic gang.
We currently have an estimated 10-11 million so-called “undocumented” residents living in the United States. The vast, vast majority of them are productive, law-abiding individuals who provide services that are literally the “foundations” of our economy. Since we are essentially at “full-employment” the idea that these folks are “stealing jobs from Americans” is preposterous.
The problem is not that these folks are here without documents. Rather, it’s that our laws have been so poorly designed that we did not allow for enough legal immigration at the right levels (many more in the so-called “unskilled” and “service” jobs). Consequently, our economy and market forces basically created an “extralegal immigration system” to meet the legitimate needs of U.S. employers and would-be legal immigrants.
Logically, that calls for an expansion, not a contraction, of legal immigration. By allowing U.S. employers to use legal immigration to fill certain positions, we would virtually eliminate the so-called “jobs magnet” for illegal immigration. Moreover, we would insure that those coming have been properly screened, documented, and will pay taxes immediately. At that point there would be fewer individuals crossing the border illegally, and we could be better assured that those coming outside the system did not belong. The system would finally become rationally related to our national interests and the interests of the immigrants, instead of working against these natural market forces! And, we wouldn’t need “the Wall”,” a militarized border, the “New American Gulag,” tens of thousand of additional immigration agents, or thousands of additional U.S. Immigration Judges to make the system work. Imagine how much that might help the national deficit!
PWS
02-09-18
