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12. Proposed Public Charge Rule Would Significantly Reduce Legal Admissions and Adjustment to Lawful Permanent Resident Status of Working Class Persons
- Author:
- Donald Kerwin, Robert Warren, and Mike Nicholson
- Publication Date:
- 11-2018
- Content Type:
- Working Paper
- Institution:
- Center for Migration Studies of New York
- Abstract:
- On October 10, 2018, the US Department of Homeland Security (DHS) issued its long-anticipated proposed rule on inadmissibility on public charge grounds.1 The rule seeks to “better ensure” that applicants for admission to the United States as immigrants (permanent residents) and nonimmigrants (temporary residents),2 as well as applicants for adjustment to lawful permanent resident (LPR) status within the United States, will be “self-sufficient” and “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”3 Under the proposed rule, US Citizenship and Immigration Services (USCIS) officers would consider receipt of cash benefits and, in a break from the past, non-cash medical, housing, and food benefits in making public charge determinations. The proposed DHS rule details the factors — positive and negative — to be weighed in these decisions. Many commentators have sharply criticized the proposed rule, arguing that it would: • Deny admission and adjustment to large numbers of low-income persons who contribute substantially to the US economy, have US citizen and LPR family members, and present a very low risk of becoming financially dependent on the government. • Create a disincentive to the use of public benefits to meet the essential food, housing, and medical needs of US citizen, LPR, and other family members of persons who are directly affected by the rule. • Impede the legal immigration and integration of low-income, working-class immigrants and their families to the detriment of US communities and society. The authors share these concerns, but the study focuses more narrowly on the potential effect of the proposed rule on two populations, undocumented immigrants and nonimmigrants that would otherwise be eligible for LPR status based on a legally qualifying relationship to a US citizen or LPR living in their household. The Center for Migration Studies (CMS) report analyzes how these populations in 2016 would have fared under the proposed rule. 1 Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51114 (proposed October 10, 2018) (to be codified at 8 CFR Parts 103, 212, 213, 214, 245 and 248) [hereinafter “DHS Proposed Public Charge Rule”]. 2 Nonimmigrants are noncitizens admitted for a temporary period and a particular purpose, such as foreign students or temporary workers. 3 DHS Proposed Public Charge Rule § III A. 2 CMS Report November 2018 After placing the rule in historic context, the paper profiles these two populations and examines the characteristics that would mitigate in favor of and against their inadmissibility. The study offers a snapshot of these two groups based on estimates derived from the 2016 American Community Survey (ACS). It concludes that: • 2.25 million undocumented persons and 212,000 nonimmigrants would be directly affected by the proposed rule because they live with a US citizen or LPR family member who can petition for them. • These two groups live in households with an additional 5.32 million and 456,000 persons respectively, who would be indirectly impacted by the rule. • CMS’s estimates exclude several populations — such as the millions residing abroad who are waiting for a visa to become current (available) — that would be subject to the rule. Thus, the study substantially understates the number of persons who would be directly and indirectly affected by the rule. • A large percentage of the 2.25 million undocumented persons examined would be found inadmissible under the rule, although this population overwhelmingly consists of working- class persons. • As a result, the proposed rule should be viewed as a significant barrier to legal immigration and the integration of low-income immigrants and their US families. • Far lower rates of nonimmigrants — who earn more than the undocumented and have higher levels of education — would be found inadmissible under the rule. • The numbers and percentages of persons who would be found inadmissible under the rule cannot be predicted with precision due primarily to the discretion afforded USCIS officials in making inadmissibility determinations.
- Topic:
- Migration, Immigration, and Border Control
- Political Geography:
- United States and North America
13. Immigration and the War on Crime: Law and Order Politics and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
- Author:
- Partisia Macias-Rojas
- Publication Date:
- 01-2018
- Content Type:
- Journal Article
- Journal:
- Journal on Migration and Human Security
- Institution:
- Center for Migration Studies of New York
- Abstract:
- The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was a momentous law that recast undocumented immigration as a crime and fused immigration enforcement with crime control (García Hernández 2016; Lind 2016). Among its most controversial provisions, the law expanded the crimes, broadly defined, for which immigrants could be deported and legal permanent residency status revoked. The law instituted fast-track deportations and mandatory detention for immigrants with convictions. It restricted access to relief from deportation. It constrained the review of immigration court decisions and imposed barriers for filing class action lawsuits against the former US Immigration and Naturalization Service (INS). It provided for the development of biometric technologies to track “criminal aliens” and authorized the former INS to deputize state and local police and sheriff’s departments to enforce immigration law (Guttentag 1997a; Migration News 1997a, 1997b, 1997c; Taylor 1997). In short, it put into law many of the punitive provisions associated with the criminalization of migration today. Legal scholars have documented the critical role that IIRIRA played in fundamentally transforming immigration enforcement, laying the groundwork for an emerging field of “crimmigration” (Morris 1997; Morawetz 1998, 2000; Kanstroom 2000; Miller 2003; Welch 2003; Stumpf 2006). These studies challenged the law’s deportation and mandatory detention provisions, as well as its constraints on judicial review. And they exposed the law’s widespread consequences, namely the deportations that ensued and the disproportionate impact of IIRIRA’s enforcement measures on immigrants with longstanding ties to the United States (ABA 2004). Less is known about what drove IIRIRA’s criminal provisions or how immigration came to be viewed through a lens of criminality in the first place. Scholars have mostly looked within the immigration policy arena for answers, focusing on immigration reform and the “new nativism” that peaked in the early nineties (Perea 1997; Jacobson 2008).Some studies have focused on interest group competition, particularly immigration restrictionists’ prohibitions on welfare benefits, while others have examined constructions of immigrants as a social threat (Chavez 2001; Nevins 2002, 2010; Newton 2008; Tichenor 2009; Bosworth and Kaufman 2011; Zatz and Rodriguez 2015). Surprisingly few studies have stepped outside the immigration policy arena to examine the role of crime politics and the policies of mass incarceration. Of these, scholars suggest that IIRIRA’s most punitive provisions stem from a “new penology” in the criminal justice system, characterized by discourses and practices designed to predict dangerousness and to manage risk (Feeley and Simon 1992; Miller 2003; Stumpf 2006; Welch 2012). Yet historical connections between the punitive turn in the criminal justice and immigration systems have yet to be disentangled and laid bare. Certainly, nativist fears about unauthorized migration, national security, and demographic change were important factors shaping IIRIRA’s criminal provisions, but this article argues that the crime politics advanced by the Republican Party (or the “Grand Old Party,” GOP) and the Democratic Party also played an undeniable and understudied role. The first part of the analysis examines policies of mass incarceration and the crime politics of the GOP under the Reagan administration. The second half focuses on the crime politics of the Democratic Party that recast undocumented migration as a crime and culminated in passage of IIRIRA under the Clinton administration. IIRIRA’s criminal provisions continue to shape debates on the relationship between immigration and crime, the crimes that should provide grounds for expulsion from the United States, and the use of detention in deportation proceedings for those with criminal convictions. This essay considers the ways in which the War on Crime — specifically the failed mass incarceration policies — reshaped the immigration debate. It sheds light on the under-studied role that crime politics of the GOP and the Democratic Party played in shaping IIRIRA — specifically its criminal provisions, which linked unauthorized migration with criminality, and fundamentally restructured immigration enforcement and infused it with the resources necessary to track, detain, and deport broad categories of immigrants, not just those with convictions.
- Topic:
- Immigration, Border Control, Domestic politics, and Deportation
- Political Geography:
- United States, Central America, and North America
14. Twenty Years After IIRIRA: The Rise of Immigrant Detention and Its Effects on Latinx Communities Across the Nation
- Author:
- Melina Juarez and Sonia Bettez
- 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 studies the dynamics of detention, deportation, and the criminalization of immigrants. We ground our analyses and discussion around the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’s (IIRIRA’s) detention mandate, the role of special interest groups and federal policies. We argue that these special interest groups and major federal policies have come together to fuel the expansion of immigrant detention to unprecedented levels. Moreover, we aim to incite discussion on what this rapid growth in detention means for human rights, legislative representation and democracy in the United States. This study analyzes two main questions: What is the role of special interests in the criminalization of immigrants? And does the rapid increase in detention pose challenges or risks to democracy in the United States? Our study is grounded within the limited, yet growing literature on immigrant detention, government data, and “gray” literature produced by nonprofits and organizations working on immigration-related issues. We construct a unique dataset using this literature and congressional reports to assess what factors are associated with the rise of immigrant detention. A series of correlations and a time series regression analysis reveal that major restrictive federal immigration policies such as IIRIRA, along with the increasing federal immigration enforcement budget, have had a significant impact on immigrant detention rates. Based on these findings, we recommend three central policy actions. First, the paper recommends increased transparency and accountability on behalf of the Department of Homeland Security, Immigration and Customs Enforcement, and on lobbying expenditures from for-profit detention corporations. Second, it argues for the repeal of mandatory detention laws. These mandatory laws have led to the further criminalization and marginalization of undocumented immigrants. And lastly, it argues that repeal of the Congressional bed mandate would allow for the number of detainees to mirror actual detention needs, rather than providing an incentive to detain. However, we anticipate that the demand for beds will increase even more given the current administration’s push for the criminalization and increased arrests of undocumented individuals. The rhetoric used by the present administration further criminalizes immigrants.
- Topic:
- Immigration, Border Control, Criminal Justice, and Mass Incarceration
- Political Geography:
- United States
15. Immigration Governance for the Twenty-First Century
- Author:
- Ruth Ellen Wassem
- Publication Date:
- 01-2018
- Content Type:
- Journal Article
- Journal:
- Journal on Migration and Human Security
- Institution:
- Center for Migration Studies of New York
- Abstract:
- The governance of immigration has a checkered past, and policy makers’ efforts at reform rarely meet expectations. Critiques have echoed over the years and across the political spectrum. The current system of immigration governance is scattered around the federal government, with no clear chain of command. No single government department or agency captures the breadth of the Immigration and Nationality Act’s reach. At the crux of understanding immigration governance is acknowledging that immigration is not a program to be administered; rather, it is a phenomenon to be managed. The abundance of commissions that have studied the issues and the various administrative structures over time offers some wisdom on ingredients for successful governance. Based upon this research, options for effective immigration governance emerge. This paper studies the administration of immigration law and policy with an eye trained on immigration governance for the future. It opens with a historical overview that provides the backdrop for the current state of affairs. It then breaks down the missions and functions of the Immigration and Nationality Act by the lead agencies tasked with these responsibilities. The paper concludes with an analysis of options for improving immigration governance. Each of these options poses unique challenges as well as political obstacles.
- Topic:
- Immigration, Governance, and Border Control
- Political Geography:
- United States
16. Predicting Unauthorized Salvadoran Migrants’ First Migration to the United States between 1965 and 2007
- Author:
- Karen Pren and Nadia Flores-Yeffal
- Publication Date:
- 01-2018
- Content Type:
- Journal Article
- Journal:
- Journal on Migration and Human Security
- Institution:
- Center for Migration Studies of New York
- Abstract:
- Although Salvadoran emigration to the United States is one of the most important migratory flows emanating from Latin America, there is insufficient information about the predictors of first unauthorized migration from El Salvador to the United States. In this study, we use data from the Latin American Migration Project–El Salvador (LAMP-ELS4) to perform an event history analysis to discern the factors that influenced the likelihood that a Salvadoran household head would take a first unauthorized trip to the United States between 1965 and 2007. We take into account a series of demographic, social capital, human capital, and physical capital characteristics of the Salvadoran household head; demographic and social context variables in the place of origin; as well as economic and border security factors at the place of destination. Our findings suggest that an increase in the Salvadoran civil violence index and a personal economic crisis increased the likelihood of first-time unauthorized migration. Salvadorans who were less likely to take a first unauthorized trip were business owners, those employed in skilled occupations, and persons with more years of experience in the labor force. Contextual variables in the United States, such as a high unemployment rate and an increase in the Border Patrol budget, deterred the decision to take a first unauthorized trip. Finally, social capital had no effect on the decision to migrate; this means that for unauthorized Salvadoran migrants, having contacts in the United States is not the main driver to start a migration journey to the United States. We suggest as policy recommendations that the United States should award Salvadorans more work-related visas or asylum protection. For those Salvadorans whose Temporary Protected Status (TPS) has ended, the United States should allow them to apply for permanent residency. The decision not to continue to extend TPS to Salvadorans will only increase the number of unauthorized immigrants in the United States. The United States needs to revise its current immigration policies, which make it a very difficult and/or extremely lengthy process for Salvadorans and other immigrants to regularize their current immigration status in the United States. Furthermore, because of our research findings, we recommend that the Salvadoran government — to discourage out-migration — invest in high-skilled job training and also offer training and credit opportunities to its population to encourage business ventures.
- Topic:
- Migration, Immigration, Violence, and Humanitarian Crisis
- Political Geography:
- United States, Central America, North America, and El Salvador
17. Immigration Detention, Inc.
- Author:
- Denise Gilman and Luis A. Romero
- 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 addresses the influence of economic inequality on immigration detention. The US Department of Homeland Security (DHS) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This article connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions. The article begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private for-profit prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to the use of jail-like facilities that are the product offered by the private prison industry. The article then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger, but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities, regarding detention and bond patterns at a specific detention center that demonstrate this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by US Immigration and Customs Enforcement (ICE). During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero. The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released, without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty. The article urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich. Looking at immigration detention through the lens of economic inequality offers new lines of theoretical inquiry into immigration detention. It connects the discussion of immigration detention to scholarly critiques of for-profit prisons and the privatization of state security functions more generally. It also brings a new perspective to prior work in the immigration and criminal justice contexts, questioning the fairness and utility of requiring payment of monetary bonds to obtain liberty from detention. The article concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision making.
- Topic:
- Immigration, Economic Inequality, and Mass Incarceration
- Political Geography:
- United States
18. 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
19. Family Matters: Claiming Rights across the US-Mexico Migratory System
- Author:
- Jacqueline Maria Hagan, Ricardo Martinez-Schuldt, Alyssa Peavey, and Deborah Weissman
- Publication Date:
- 01-2018
- Content Type:
- Journal Article
- Journal:
- Journal on Migration and Human Security
- Institution:
- Center for Migration Studies of New York
- Abstract:
- The Immigration and Nationality Act of 1952 (INA) created an immigration system favoring the immigration of spouses, children, and parents of US citizens, thereby establishing family unity as the cornerstone of US immigration policy. Despite this historical emphasis on family unity, backlogs and limited visas for non-immediate relatives of US citizens and legal permanent residents, the militarization of the US-Mexico border, punitive measures for those who enter without inspection, such as the forced separation of children from their parents at the US border, and an aggressive policy of deportation have made it more difficult for members of Mexican binational families to unify. How do members of Mexican binational families manage the hardships that result from US immigration policies that prolong and force family separation? Immigrants and return migrants alike may not be aware of their rights and the legal remedies that exist to enforce them. Structural barriers such as poverty, legal status, fear of deportation, lack of proficiency in English, and lack of familiarity with government bureaucracies no doubt prevent many migrants in the United States and return migrants in Mexico from coming forward to request legal assistance and relief in the courts. Despite these barriers, when it comes to family matters, members of some Mexican binational families can and do assert their rights. In this article, we analyze an administrative database of the Department of Legal Protection of the Mexican consular network that documents migrant legal claims resulting from family separation, along with findings from 21 interviews with consular staff and community organizations in three consular jurisdictions — El Paso, Raleigh, and San Francisco — to investigate the sociolegal processes of claims. Our investigation centers on the mediating role the Mexican state — via its consular network — has developed to assist binational families as they attempt to assert their rights and resolve child support and child custody problems resulting from prolonged and forced family separation. We find that the resolution of binational family claims in part depends on the institutional infrastructure that has developed at local, state, and federal levels, along with the commitment and capacity of the receiving and sending states and the binational structures they establish. These binational structures transcend the limitations of national legal systems to achieve and implement family rights and obligations across borders.
- Topic:
- Military Strategy, Immigration, Border Control, and Family
- Political Geography:
- United States, North America, and Mexico
20. Proposed Public Charge Rule Would Significantly Reduce Legal Admissions and Adjustment to Lawful Permanent Resident Status of Working Class Persons
- Author:
- Donald Kerwin
- Publication Date:
- 11-2018
- Content Type:
- Special Report
- Institution:
- Center for Migration Studies of New York
- Abstract:
- On October 10, 2018, the US Department of Homeland Security (DHS) issued its long-anticipated proposed rule on inadmissibility on public charge grounds.[1] The rule seeks to “better ensure” that applicants for admission to the United States as immigrants (permanent residents) and nonimmigrants (temporary residents),[2] as well as applicants for adjustment to lawful permanent resident (LPR) status within the United States, will be “self-sufficient” and “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”[3] Under the proposed rule, US Citizenship and Immigration Services (USCIS) officers would consider receipt of cash benefits and, in a break from the past, non-cash medical, housing, and food benefits in making public charge determinations. The proposed DHS rule details the factors — positive and negative — to be weighed in these decisions.
- Topic:
- International Relations and Immigration
- Political Geography:
- America