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1. What’s Wrong with Temporary Protected Status and How to Fix It: Exploring a Complementary Protection Regime

Author:
Bill Frelick
Publication Date:
02-2020
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
Temporary Protected Status (TPS) became part of the US protection regime in 1990 to expand protection beyond what had been available under the US Refugee Act of 1980, which had limited asylum to those who met the refugee definition from the United Nations’ 1951 Refugee Convention. The TPS statute authorized the attorney general to designate foreign countries for TPS based on armed conflict, environmental disasters, and other extraordinary and temporary conditions that prevent designated nationals from returning in safety. While providing blanket protection that very likely has saved lives, TPS has nonetheless proven to be a blunt instrument that has frustrated advocates on both sides of the larger immigration debate. This article evaluates the purpose and effectiveness of the TPS statute and identifies inadequacies in the TPS regime and related protection gaps in the US asylum system. It argues that TPS has not proven to be an effective mechanism for the United States to protect foreigners from generalized conditions of danger in their home countries. It calls for changing the US protection regime to make it more responsive to the risks many asylum seekers actually face by creating a broader “complementary protection” standard and a more effective procedure for assessing individual protection claims, while reserving “temporary protection” for rare situations of mass influx that overwhelm the government’s capacity to process individual asylum claims. The article looks at alternative models for complementary protection from other jurisdictions, and shows how the US asylum and TPS system (in contrast to most other jurisdictions) fails to provide a mechanism for protecting arriving asylum seekers who do not qualify as refugees but who nevertheless would be at real risk of serious harm based on cruel, inhuman, or degrading treatment or punishment or because of situations of violence or other exceptional circumstances, including natural or human-made disasters or other serious events that disturb public order, that would threaten their lives or personal security. The article proposes that the United States adopt an individualized complementary protection standard for arriving asylum seekers who are not able to meet the 1951 Refugee Convention standard but who would face a serious threat to life or physical integrity if returned because of a real risk of (1) cruel, inhuman, or degrading treatment or punishment; (2) violence; or (3) exceptional situations, for which there is no adequate domestic remedy.
Topic:
Immigration, Border Control, Citizenship, and Domestic Policy
Political Geography:
United States, Central America, and North America

2. Putting Americans First: A Statistical Case for Encouraging Rather than Impeding and Devaluing US Citizenship

Author:
Donald Kerwin and Robert Warren
Publication Date:
12-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article examines the ability of immigrants to integrate and to become full Americans. Naturalization has long been recognized as a fundamental step in that process and one that contributes to the nation’s strength, cohesion, and well-being. To illustrate the continued salience of citizenship, the article compares selected characteristics of native-born citizens, naturalized citizens, legal noncitizens (most of them lawful permanent residents [LPRs]), and undocumented residents. It finds that the integration, success, and contributions of immigrants increase as they advance toward naturalization, and that naturalized citizens match or exceed the native-born by metrics such as a college education, self-employment, average personal income, and homeownership. It finds that: Naturalized citizens enjoy the same or higher levels of education, employment, work in skilled occupations, personal income, and percentage above the poverty level compared to the native-born population. At least 5.2 million current US citizens — 4.5 million children and 730,000 adults — who are living with at least one undocumented parent obtained US citizenship by birth; eliminating birthright citizenship would create a permanent underclass of US-born denizens in the future. Requiring medical insurance would negatively affect immigrants seeking admission and undocumented residents who ultimately qualify for a visa. About 51 percent of US undocumented residents older than age 18 lack health insurance. In 2017, about 1.2 million undocumented residents lived with 1.1 million eligible-to-naturalize relatives. If all the members of the latter group naturalized, they could petition for or expedite the adjustment or immigration (as LPRs) of their undocumented family members, including 890,000 “immediate relatives.” Their naturalization could put 11 percent of the US undocumented population on a path to permanent residency. The article also explores a contradiction: that the administration’s “America first” ideology obscures a set of policies that impede the naturalization process, devalue US citizenship, and prioritize denaturalization. The article documents many of the ways that the Trump administration has sought to revoke legal status, block access to permanent residence and naturalization, and deny the rights, entitlements, and benefits of citizenship to certain groups, particularly US citizen children with undocumented parents. It also offers estimates and profiles of the persons affected by these measures, and it rebuts myths that have buttressed the administration’s policies. For example, the Trump administration and restrictionist legislators have criticized the US immigration system’s emphasis on family reunification for its supposed failure to produce skilled workers. Yet the article finds that: The current immigration system, which prioritizes the admission of the nuclear family members of US citizens and LPRs, yields a legal foreign-born population that has occupational skills equal to those of the native-born population. The legal foreign-born population living in 24 US states and Washington, DC, and those from 94 source countries have higher percentages of skilled workers than the overall population of native-born workers.
Topic:
Immigration, Citizenship, and Domestic Policy
Political Geography:
United States and North America

3. Transitory Legality: The Health Implication of Ending DACA

Author:
Marie L. Mallet and Lisa Garcia Bedolla
Publication Date:
06-2019
Content Type:
Journal Article
Journal:
California Journal of Politics and Policy
Institution:
Institute of Governmental Studies, UC Berkeley
Abstract:
This paper examines the effects of the rescission announcement of the DACA program on the health outcomes of Latino DACA recipients in California. Research shows that undocumented immigrants face poorer health outcomes than their documented counterparts and U.S. citizens, and that being offered legal status (e.g. DACA) considerably improves their health outcomes. Even though studies have examined the impact of shifting legal status on incorporation, to our knowledge no studies have considered the effects of announcing the rescission of the DACA program on its recipients. However, this is important because it may have implications on their health outcomes. This study addresses this gap by using in-depth interviews with 43 Latino DACA recipients living in the California San Francisco Bay Area in 2017 and 2018. Our findings suggest that rescission announcement of DACA has led to worsening health outcomes for DACA recipients. Specifically, we find that it created what we call a state of transitory legality among the 1.5 generation, which causes DACA recipients to experience health outcomes that are worse than those before DACA. Our results are important in the field of sociology, public policy and heath care because they show the negative effects of reversing inclusionary immigration policies on the health outcomes of undocumented Latino immigrants.
Topic:
Health, Immigration, Citizenship, Immigrants, and Public Health
Political Geography:
United States and California

4. DACA, DAPA, and Discretionary Executive Power: Immigrants Outside the Law

Publication Date:
06-2019
Content Type:
Journal Article
Journal:
California Journal of Politics and Policy
Institution:
Institute of Governmental Studies, UC Berkeley
Abstract:
In June 2012, President Barack Obama announced the creation of DACA, a program which instructed executive branch officials to exercise their administrative discretion to defer the deportation of eligible applicants. Two years later, in November 2014, President Obama announced the DAPA program, which expanded DACA and extended this exercise of discretion to parents of U.S. citizens or permanent residents. Both announcements were met by controversy. Critics charged that, by altering the legal regime from one in which undocumented immigrants were to be deported to one of “executive amnesty,” President Obama exceeded his authority, turning him into an “emperor” or a “king.” The President’s supporters insisted, rather, that President Obama was acting fully within his executive authority. Understanding this debate requires one both to delve into the complicated legal context, and to look beyond legal doctrine. The controversy reflected broader concerns about discretionary executive power and the law, linked to anxiety regarding the sovereign’s head of state as “he who decides on the state of exception.” It also derived from specific concerns about President Obama as the embodiment of the sovereign: his racialized body, depicted as illegitimate and foreign, furthered the perception of his policies as illegal. Lastly, the fact that undocumented immigrants are not perceived as members of the body politic helped to produce this vision of DACA and DAPA as lawless action. In this telling, the sovereign actor, the beneficiaries of his action, and the act itself were all cast as illegitimate through a mutually reinforcing logic; all were exceptions that stood “outside the law.”
Topic:
Race, Immigration, Law, Citizenship, and Immigrants
Political Geography:
United States and California

5. DREAM Act-Eligible Poised to Build on the Investments Made in Them

Author:
Donald Kerwin and Robert Warren
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This paper presents the results of a study by the Center for Migration Studies (CMS) on potential beneficiaries of the DREAM Act of 2017 (the “DREAM Act” or “Act”). The study reveals a long-term, highly productive population, with deep ties to the United States. In particular, it finds that: More than 2.2 million US residents would qualify for conditional residence under the DREAM Act. An additional 929,000 — who are now age 18 and over — arrived when they were under 18, but have not graduated from high school and are not enrolled in school and, thus, would not currently qualify for status under the Act. The DREAM Act-eligible can be found in large numbers (5,000 or more) in 41 states and more than 30 counties, metropolitan areas, and cities. Potential DREAM Act recipients have lived in the United States for an average of 14 years. Sixty-five percent (age 16 and above) participate in the labor force, with far higher rates in Wisconsin, Massachusetts, Utah, Arkansas, Illinois, Tennessee, and Oregon. This population works heavily in sales and related occupations; food preparation and serving; construction and extracting; office and administrative support; production; transportation and material moving; and building/grounds cleaning and maintenance. Many of the DREAM Act-eligible are highly skilled and credentialed. 70,500 are self-employed. Eighty-eight percent speaks English exclusively, very well, or well. 392,500 have US-citizen children, and more than 100,000 are married to a US citizen or lawful permanent resident. Twenty-nine percent has attended college or received a college degree. The DREAM Act-eligible include 50,700 Temporary Protected Status (TPS) recipients from El Salvador, Haiti, and Honduras, 45 percent of whom live in the Miami metro area, Los Angeles County, the Washington, DC area, Houston, New York City, the San Francisco metro area, and the City of Dallas. The study also underscores the immense investment — $150 billion — that states and localities have already made in educating these young Americans. It argues that over time and with a path to citizenship the return on this investment will increase by virtually every indicia of integration — education levels, employment rates, self-employment numbers, US family members, and English language proficiency.
Topic:
Migration, Border Control, Refugees, and Citizenship
Political Geography:
United States

6. The Case for a National Legalization Program without Legislation or Executive Action

Author:
Jeanne M. Atkinson and Tom Wong
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article presents the results of a study that finds that as many as two million unauthorized immigrants in the United States could have a path to permanent legal status. However, these immigrants may not know that they are eligible for legal status, much less be able to afford the costs or take the necessary steps to obtain it. The two million figure is drawn from an analysis of screening data from 4,070 unauthorized immigrants from 12 states. The study highlights the profound impact that a national project to screen for legal status would have on the entire US population, including eligible immigrants, their family members, and the country at large. The need for legal screening has become particularly acute in light of the Trump administration’s focus on apprehension and deportation of unauthorized immigrants without regard to their length of residence in the United States, family relationships to US citizens and lawful permanent residents (LPRs), or other positive factors. The proposed termination of benefits for many Temporary Protected Status (TPS) holders and Deferred Action for Childhood Arrivals (DACA)1 recipients would add more than one million individuals — approximately 325,000 (Warren and Kerwin 2017), and 700,000 (Krogstad 2017) people, respectively — to the pool of unauthorized immigrants.
Topic:
Immigration, Border Control, and Citizenship
Political Geography:
United States, Central America, and North America

7. The Marketization of Citizenship in an Age of Restrictionism

Author:
Ayelet Shachar
Publication Date:
03-2018
Content Type:
Journal Article
Institution:
Carnegie Council
Abstract:
Tough action and rhetoric are the stamp of U.S. President Donald Trump’s immigration policy. The decision in September 2017 to revoke the Deferred Action for Childhood Arrivals (DACA)—a program that shields young undocumented immigrants (“Dreamers”) from removal, granting them an opportunity to complete school, enroll in college, volunteer for the armed services, or join the workforce—proved to be the most contentious in a groundswell of executive orders, directives, memos, and wide-ranging enforcement efforts to curtail unauthorized presence.1 Critics describe such sweeping measures as amounting to an anti-immigrant crusade. Supporters, meanwhile, applaud them as taking the handcuffs off immigration enforcement officers and border patrol agents. With the rising tide of restrictionism and the government’s tough-on-immigration approach under the rubric of a “nation of laws,” it is easy to lose sight of the only immigration program that has been renewed and extended under the Trump administration: the EB-5 program, or the “golden visa.”2 The contrast between the DACA “Dreamers” and the EB-5 “Parachuters” reveals the sharp edge, and deep injustices, of current policies. In 2017 the president signed into law and renewed the extension of the EB-5 program, which offers the world’s wealthy a coveted path to securing lawful permanent residence (LPR) status, jumping the queue and gaining an easy pass through the otherwise increasingly bolted gates of admission. The price tag for securing a green card via the EB-5 program ranges from $1 million to a “discounted” rate of $500,000 if funds are for specially designated rural areas or areas of high unemployment.3 The American golden visa, like comparable schemes in other desirable destination countries, caters to the global 1 percent. It treats money transfers—in large quantities—as a currency for acquiring entry visas, residence permits, and, ultimately, citizenship itself. Unlike the Dreamers, who now face the risk of deportation from the only country they have ever known as home, these visa applicants have no prior “bona fide relationship with a person or entity in the United States.”4 Instead, they gain a privileged route to enter the United States and remain lawfully in the country based on their ability to transfer capital across borders. The contrast between the DACA “Dreamers” and the EB-5 “Parachuters” reveals the sharp edge, and deep injustices, of current policies. The former have already become part of the fabric of the United States—including its society and economy—through their ongoing, peaceful, and productive presence, yet the sword of deportation continues to hang over their heads. On the other hand, the latter benefit from expedited and simplified pathways to obtain full-fledged legal membership, even if they fail to establish any tangible connections to their new home country. The intrusion of market logic into the sovereign act of defining “who belongs” raises significant justice and equality concerns that require closer scrutiny. The United States is not alone in testing, blurring, and eroding the state-market boundary regulating access to membership. A growing number of countries are putting their visas and passports up for sale. The proliferation of these programs is one of the most significant developments in citizenship and immigration practice in the past few decades, yet it has received scant attention in the literature. In the following pages, I begin to address this lacuna by identifying the core legal and normative puzzles associated with this new trend, which I will refer to as the marketization of citizenship to highlight a dual transformation: the commodifying of access to membership and the hollowing out of the “status, rights, and identity” components of citizenship.5 Marketization is never merely an economic process; it is also deeply political, as it reshapes and reengineers the boundaries of and interactions between states and markets, voice and power, the inviolable and the mercantile. The intrusion of market logic into the sovereign act of defining “who belongs” raises significant justice and equality concerns that require closer scrutiny, both empirical and normative—the remit of this essay. I treat these new developments as a productive site to explore foundational questions about the character of citizenship and its transformation in today’s world. I begin by tracing the global surge in the marketization of citizenship, providing illustrative examples, before turning to explore the official rationales for the EB-5 and exposing their shortcomings. Moving from the positive to the normative, I develop several lines of critique that seek to show that this new trend is uniquely threatening to notions of citizenship reflecting the horizon of equality and participation, regardless of which theories of state and society—liberal, civic republican, or democratic—inform them.
Topic:
Migration, Immigration, Citizenship, and Borders
Political Geography:
United States and North America

8. Redefining American Families: The Disparate Effects of IIRIRA’s Automatic Bars to Reentry and Sponsorship Requirements on Mixed-Citizenship Couples

Author:
Jane Lily López
Publication Date:
01-2017
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
With passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the goal of discouraging illegal immigration and the legal immigration of the poor triumphed over the longstanding goal of family unity in US immigration policy. This shift resulted in policy changes that prevent some mixed-citizenship families from accessing family reunification benefits for the immigrant relatives of US citizens. Two specific elements of IIRIRA — (1) the three- and 10-year bars to reentry, and (2) the minimum income thresholds for citizen sponsors of immigrants — have created a hierarchy of mixed-citizenship families, enabling some to access all the citizenship benefits of family preservation and reunification, while excluding other, similar families from those same benefits. This article details these two key policy changes imposed by IIRIRA and describes their impact on mixed-citizenship couples seeking family reunification benefits in the United States. Mixed-citizenship couples seeking family reunification benefits do not bear the negative impacts of these two policies evenly. Rather, these policies disproportionately limit specific subgroups of immigrants and citizens from accessing family reunification. Low-income, non-White (particularly Latino), and less-educated American families bear the overwhelming brunt of IIRIRA’s narrowing of family reunification benefits. As a result, these policy changes have altered the composition of American society and modified broader notions of American national identity and who truly “belongs.” Most of the disparate impact between mixed-citizenship couples created by the IIRIRA would be corrected by enacting minor policy changes to (1) allow the undocumented spouses of US citizens to adjust their legal status from within the United States, and (2) include the noncitizen spouse’s income earning potential toward satisfying minimum income requirements.
Topic:
Immigration, Border Control, Citizenship, and Domestic politics
Political Geography:
United States, Central America, and North America

9. EU Pressure Insufficient to Gain U.S. Visa Waiver for Poles

Author:
Marek Wasinski
Publication Date:
04-2016
Content Type:
Policy Brief
Institution:
The Polish Institute of International Affairs
Abstract:
In a communication of 12 April, the European Commission assessed the potential political and economic consequences of suspending visa exemption for U.S. citizens. Lacking pressure from individual EU Member States, the Commission discouraged such a move and gave the EU Council and European Parliament three months to take an official position. It seems almost certain that the measure of applying pressure on a non-EU country will not be used to help Poland and four other Member States obtain visa-free travel to the United States or other countries with a similar restriction. However, if current trends continue, Poland should join the U.S. Visa Waiver Programme in five years.
Topic:
Economics, Politics, European Union, and Citizenship
Political Geography:
United States and Europe