Skepticism About Douthat’s Defining Challenge of the 21st Century 

As discussed in a prior post, New York Times’ columnist Ross Douthat argues that the  defining challenge of the 21st century is declining population in many of the world’s countries. [1]

Skepticism about this contention has been voiced by Wang Feng, a professor of sociology at the University of California, Irvin, even though he does not cite Douthat’s article.[2]

While conceding that “a shrinking global population . . . poses unprecedented challenges for humanity,” Feng says, “alarmist warnings are often simplistic and premature” and “can lead to hasty policy and human tragedy.”

Instead Weng says,  “The population declines seen today in some countries have come about largely as a happy story of greater longevity and freedom. Fertility rate worldwide dropped from more than five births per woman in the early 1960s to 2.3 in 2020. Credit greater investment in child and maternal health everywhere: A mother who successfully brings her child to term and an infant who survives to childhood lower birthrates because parents often don’t feel the need to try again. Greater availability of free or affordable contraception has also reduced unwanted births.”

Moreover, Feng asserts, “additional “women in the work force is a recipe for even greater productivity and prosperity and could help ease labor concerns among falling populations. More women than ever are rising to leadership positions in business, media and politics.”

“Compared with a half-century ago, people in many countries are richer, healthier and better educated and women are more empowered. “ This is associated with “[a]verage world life expectancy . . . [having] increased from 51 years in 1960 to 73 in 2019, and even more so in China, from 51 in 1962 to 78 in 2019. Increases of that magnitude reshape lives and open up opportunities unimaginable when life spans were shorter.”

“Fewer people on the planet, of course, may reduce humanity’s ecological footprint and competition for finite resources. There could even be greater peace as governments are forced to choose between spending on military equipment or on pensions. And as rich nations come to rely more on immigrants from poorer countries, those migrants gain greater access to the global prosperity currently concentrated in the developed world.”

Feng, however, concedes, “This new demography brings new challenges, including the need to offer quality and affordable child care, make college education more affordable and equitable, provide guaranteed minimum income and make societies more gender equal. Governments should abandon the mindless pursuit of economic growth in favor of well-being for citizens.”

Conclusion

 Whose side are you on? Douthat or Feng?

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[1] Douthat, Five Rules for an Aging World, N.Y. Times (Jan. 21, 2023); Another Defining Challenge of the 21st Century, dwkcommentaries.com (Jan. 25, 2023).

[2] Feng, The Alternative, Optimistic Story of Population Decline, N.Y. Times (Jan. 30, 2033).

Another Defining Challenge of the 21st Century 

Ross Douthat, a New York Times columnist, asserts that at least one of the defining challenges of the current century is “the birth dearth, the population bust, the old age of the world.”[1]

This assertion is based, he says, upon “various forces, the Covid crisis especially, [that] have pushed birthrates lower faster, bringing the old-age era forward rapidly.”  Additional support for this thesis, he says, is China’s recent announcement that “its population declined for the first time since the Great Leap Forward, over 60 years ago.” And “variations on that shadow lie over most rich and many middle-income nations now—threatening general sclerosis, and a zero-sum struggle between a swollen retired generation, and the over-burdened young.”

Douthat then asserts the following “Rules for an Aging World:”

  1. “The rich world will need redistribution back from old to young.” “[R]eform [of] old-age entitlements will become ever more essential and correct — so long as the savings can be used to make it easier for young people to start a family, open a business, own a home. And countries that find a way to make this transfer successfully will end up far ahead of those that just sink into gerontocracy.”
  2. “The big bottlenecks [of the new A.I. technology] aren’t always in invention itself: they’re in testing, infrastructure, deployment, regulatory hurdles.”
  3. “Ground warfare will run up against population limits [as we see today in the Russia-Ukraine war and the tensions over Taiwan].”
  4. A “little extra youth and vitality will go a long way.” For example, “countries that manage to keep or boost their birthrates close to replacement level will have a long-term edge over countries that plunge toward . . .half-replacement-level fertility.” The same “will be  true within societies as well.”
  5. A major challenge in this new age will be the international response to the projections that Africa’s population will “reach 2.5 billion by 2050 and [4.0] billion by 2100. . . .The balance between successful assimilation and destabilization and backlash [of the African diaspora] ….will help decide whether the age of demographic decline ends in revitalization or collapse.”

Reactions

Wow!, This is a new and frightening projection of the next 80 years for all of us on planet Earth today! We certainly have seen these challenges in states in the Middle West like Minnesota, Iowa, the Dakotas and Nebraska, and this blog has advocated for increased immigration in these states to counteract aging and declining populations.  Nearly everyone in the U.S. today and in the future should join me in a chorus, “I am a proud descendant of immigrants!!”

At the end of the Douthat column are many comments from readers. Here are a few of those comments:

  • Geoff Burrell of Western Australia said, “Aged 72 I tend to agree that longevity is currently a problem but hasn’t ‘age at dying’ decreased in western countries due to the pandemic, a trend that may continue for many decades as new Covid variants and climate change induced pandemics come along. The article also characterizes elderly people as a ‘burden’ but doesn’t recognize the substantial portion of any population’s wealth they hold, much of it, ironically, used to support younger family members. Immigration is also able to overcome most of the deficits faced by a population with an ageing society, though that requires a good immigration policy to ensure the country gets what it wants.”
  • Edwin, an American MD in Africa, thanks Douthat “for his recognition of the importance of Africa. Most of Africa’s low- and middle-income countries have 50% or more of their population under the age of 17 years. The education, health and stability of Africa’s children and adolescents is critically important, and will be a major determinant of global security in the 21st Century…” He adds, “Northern Nigeria, where I spend much of my effort, now has a huge number of people living in extreme poverty. Yet the young people in this area of Africa’s most populous nation have much promise. We in the West must prioritize the health, education and security of places like northern Nigeria.”
  • Nicholas Mellen of Louisville, KY agrees with Edwin. “An aging population? Allow migrants in. They’re young healthy and ambitious. The most productive and successful Americans are usually within the first 3 generations; these migrants will do the same: from Haiti, Honduras, Iran, Sudan, Venezuela, Russia, China, Afghanistan to name a few. You have to be brave, persistent, hopeful and lucky to survive the journey. So there’s how you rejuvenate an aging nation.”
  • Patrick Bohlen of Orlando, IL, says, “Allowing for more immigration is an obvious top 3 solution that would solve many of the issues brought about by the demographic shift. It will also be unavoidable with climited migration. . . . We don’t need higher birth rates, but we do need sane immigration policies that help address both the demographic and climate crises.”
  • Anne F of New York, concludes her comment, “We don’t need to be concerned about population decline as it is part of a long-term picture of sustainable human existence. Climate needs to be the focus.”

Surprising news relating to this subject was the recent release of information about the results of the 2021 Gallup World Poll based on detailed interviews with nearly 127,000 adults in 122 countries. “Globally, people’s desire to move reached its highest point in a decade, but interest in moving to the U.S. plunged. When asked where in the world they would want to migrate, 1 in 5 potential migrants — or about 18% — named the U.S. as their desired future residence. The new numbers marked a historic decline that began in 2017, when just 17% — the lowest rate ever recorded — said they’d want to move to the U.S. In previous years, the U.S. has polled between 20% and 24%.”[2]

The managing editor of this World Poll and one of the report’s authors, Julie Ray, attributed the decline in foreigners desire to relocate to the U.S. to anti-immigrant and anti-Muslim policies of the Trump Administration. A Palestinian man, for example, came to the U.S. for graduate study because he thought the U.S. offered “infinite opportunities, but soon he saw a U.S. “workaholicculture,” a lack of fulfillment and evaluating a person’s value by their job status.

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[1]  Douthat, Five Rules for an Aging World, N.Y. Times (Jan. 22, 2023).

[2] Abdeleziz, Fewer People Are Interested in Migrating to The U.S. Than Ever Before. Here’s Why, HuffPost (Jan. 26, 2023); Pugliese & Ray, Nearly 900 Million Worldwide Wanted  to Migrate in 2021, gallup.com (Jan. 24, 2023).

Derek Chauvin’s Appeal of State Conviction and Sentencing for Killing of George Floyd 

In  April 2021,  a jury in Hennepin County District Court returned a verdict that Derek Chauvin was guilty on all three counts (second degree murder, third-degree murder and second-degree manslaughter) of George Floyd. Then in June 2021 the court imposed a sentence of 22.5 years imprisonment on Mr. Chauvin for these crimes.[1]

After Chauvin found a new law firm that was willing to take an appeal in this state case, the Minnesota Court of Appeals on January 18, 2023, heard oral arguments in that appeal. A summary of that argument follows. [2]

Arguments to Minnesota Court of Appeals

Chauvin’s attorney asserted that Chauvin allegedly failed to get a fair trial in light of the extensive pretrial publicity about the killing of George Floyd and the trial’s being conducted in a courthouse “that’s surrounded by concrete block, barbed wire, two armored personnel carriers and a squad of National Guard troops all . . . there for one purpose: in the event the jury acquits the defendant.” As a result, the court abused its discretion in denying a change of venue.

Chauvin’s attorney also argued that during jury selection one juror allegedly lied about never participating in a protest in Minneapolis. But one of the appellate judges said he did not think this juror lied because he attended a Martin L. King, Jr. rally in Washington, D.C. while  admitting  he supported Black Lives Matter and seven times said he could be a fair juror. After all of that, Chauvin’s attorney chose not to strike him as a juror.

Chauvin’s attorney also argued that the prosecutors failed to prove sufficient probable cause.

On behalf of the prosecution, Neal Katyal from Washington, D.C. said Chauvin got “one of the most transparent and thorough trials in our nation’s history. Chauvin’s many arguments  . . . do not come close to justifying reversal. Judge Cahill managed this trial with enormous care and even if Chauvin could identify some minor fault, any error is harmless. The evidence of Chauvin’s guilt was captured on video for the world to see.

Katyal also said the juror in question accurately answered the questions and repeatedly insisted he could render an impartial verdict. And the defense did not use any of its three preemptory strikes to remove him, which indicated defense satisfaction with the juror.

Conclusion

The Chauvin appeal and arguments in the state case seem a waste of effort and money in light of Chauvin’s guilty plea in the federal case when he admitted in writing that certain facts were true . . .[and] established his  guilt beyond a reasonable doubt].”[3] Those admissions included the following:

  • Chauvin, ‘while acting under color of law . . . willfully deprived George Floyd of . . . the right to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a police officer. [Chauvin] . . . held his left knee across Mr. Floyd’s neck, back, and shoulder, and his right knee on Mr. Floyd’s back and arm. As Mr. Floyd lay on the ground, handcuffed and unresisting, [Chauvin] . . . kept his knees on Floyd’s neck and body, even after Mr. Floyd became unresponsive. This offense resulted in bodily injury to, and the death of, George Floyd.”
  • Chauvin “admits that in using this unreasonable and excessive force, he acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life. [Chauvin] . . . knew that what he was doing was wrong, in part, because it was contrary to his training as an MPD officer..”
  • Chauvin “also knew there was no legal justification to continue his use of force because he was aware that Mr. Floyd not only stopped resisting, but also stopped talking, stopped moving, stopped breathing, and lost consciousness and a pulse.’ [Chauvin] . . .chose to continue applying force even though he knew Mr. Floyd’s condition progressively worsened. . . . [Chauvin] also heard Mr. Floyd repeatedly explain that he could not breathe, was in pain, and wanted help.”
  • Chauvin “knew that what he was doing was wrong—that continued force was no longer appropriate and that it posed significant risks to Mr. Floyd’s life—based on what he observed and heard about Mr. Floyd.”
  • Chauvin “admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do.”

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[1] Derek Chauvin Trial:  Week Seven (CONVICTION), dwkcommentaries.com (April 21, 2021); Derek Chauvin Trial: Chauvin Sentenced to 22.5 Years Imprisonment, dwkcommentaries.com (June 28, 2021).

[2]  Hyatt, Derek Chauvin’s attorney asks Minnesota Court of Appeals for a new trial, StarTribune (Jan. 18, 2023); Karnowski, Court asked to void verdict against ex-cop in Floyd’s murder, AP News (Jan. 18, 2023).

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com  (Dec. 16, 2021). Comment: Federal Court Accepts Chauvin’s Plea Agreement, dwkcommentaries.com (July 7, 2022); Plea Agreement and Sentencing Stipulations, U.S. v. Chauvin, U.S. Dist. Ct., Dist. MN, # 21-CR-108 (Dec. 15, 2001).

 

U.S. and Cuba Resume Law Enforcement Dialogue   

On January 18-19, 2023, the United States and Cuba in Havana resumed their Law Enforcement Dialogue, which last operated, 2015-18 during President Obama’s efforts to re-establish a more peaceful and collaborative relationship between the two countries.[1]

The Departments of State, Homeland Security, and Justice co-chaired the dialogue for the United States.  The U.S. delegation included representatives from the Department of State’s Bureaus of Western Hemisphere Affairs and Office of the Legal Adviser; the Department of Homeland Security’s Office of Strategy, Policy, and Plans, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and U.S. Coast Guard; and the Department of Justice’s Office of International Affairs, and Federal Bureau of Investigation.  Officials from the U.S. Embassy in Havana also participated.

According to the State Department, this “type of dialogue enhances the national security of the United States through improved international law enforcement coordination, which enables the United States to better protect U.S. citizens and bring transnational criminals to justice. These dialogues strengthen the United States’ ability to combat criminal actors by increasing cooperation on a range of law enforcement matters, including human trafficking, narcotics, and other criminal cases.  Enhanced law enforcement coordination is in the best interests of the United States and the Cuban people.  This dialogue does not impact the administration’s continued focus on critical human rights issues in Cuba, which is always central to our engagement.”

The Cuban Foreign Ministry said that the Dialogue was held on January 18 and 19 and that they discussed “cooperation in the fight against scourges that threaten the security of both countries, such as terrorism, smuggling of migrants and immigration fraud, among others.” The Cuban Ministry added that their delegation transferred “information and proposals for cooperation . . . on the activities of persons based in the United States, identified as being linked to terrorism, illegal trafficking of persons and other illicit activities.”  Cuba also said the two countries “agreed to continue this dialogue and to hold other technical meetings between the law enforcement agencies of the two countries in order to materialize bilateral cooperation.”[2]

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[1] U.S. State Dep’t, United States and Cuba Resume Law Enforcement Dialogue (Jan. 19, 2023); US Sending Delegation to Cuba to Restart Talks on Law Enforcement, VA (Jan. 12, 2023); See posts listed in the following: sections of List of Posts to dwkcommentaries—Topical: Cuba [as of 5/4/20]: U.S. (Obama) and Cuba Relations (Normalization, 2014; U.S. (Obama) and Cuba Relations (Normalization), 2015;U.S. (Obama) and Cuba Relations (Normalization), 2016; U.S. (Obama) and Cuba Relations (Normalization), 2017.

[2] Cuba Foreign Ministry, Cuba and the United States discuss terrorism and migration, (Jan. 20, 2023).

 

U.S. Adopts Confusing New Program for Resettling Certain Foreigners

On January 19, the Biden Administration announced an additional program for the resettlement of certain foreigners, i.e., “refugees,” in the U.S. that directly will involve U.S. citizens, acting through the State Department’s U.S. Refugee Admissions Program (USRAP). This new program seeks to resettle refugees from Latin America and the Caribbean with the assistance of Americans “ranging from members of faith and civic groups, veterans, diaspora communities, businesses, colleges and universities, and more.” [1]

This new program already has its own website—Welcome Corps–which says that  more than 200 diverse organizations are signaling their support and that Americans will “work in groups of at least five  to welcome newcomers by securing and preparing initial housing, greeting refugee newcomers at the airport, enrolling children in school, and helping adults to find employment.” Most importantly, the individuals in these citizen groups will “offer a sense of welcome, belonging, and inclusion for families.”

The “Welcome Corps” website also describes its training program for “providing core private sponsoring services (e.g., housing, benefits and services access, cultural adjustment, etc.) and an overview of how to help facilitate the long-term integration of refugees, . . . the logistics of forming a Private Sponsor Group, fundraising, developing a Welcome Plan, and resiliency-building.” This training must be completed by at least one member of the Private Sponsor Group.”

Who Will Be Welcomed by the Welcome Corps? [2]

The initial Corps materials repeatedly use the word “refugee” to identify the foreigners it will be seeking to help relocate in the U.S. Those same materials also refer to  Latin Americans, Caribbeans, Afghans and Ukrainians as people they want to welcome to the U.S. Those are certainly laudatory goals.

But not all of those groups have been determined to meet the legal requirements for  “refugee” status under international and U.S. law as shown by the following:

  • International Law. On April 22, 1954, the international Convention Relating to the Status of Refugees went into force and became a binding treaty after its ratification or accession by the sixth state. Then after its amendment by the Protocol Relating to the Status of Refugees that went into effect on October 4, 1967, the international definition of “refugee” was the following: Any person who “owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who,not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

(Excluded from that international definition of “refugee” was “any person . . . [who] (a) . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . .          has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [and] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”)

  • U.S. Law. The U.S. did not ratify the previously mentioned Protocol (and by incorporation the previously mentioned Convention) until November 1, 1968, and 12 years later the U.S. finally adopted the implementing federal legislation (the Refugee Act of 1980), which defines “refugee” as follows: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” That federal statute also provided, “The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”

It must also be noted that this last Session of Congress failed to enact the Afghan Adjustment Act, which would have provided some temporary legal protection for Afghan evacuees who have not been determined to be “refugees.”[3]

Conclusion

It is utterly dumbfounding that the Departments of State and Homeland Security could erroneously use the important legal concept of “refugee” in this  matter of foreign policy.

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111 State Dep’t, Launch of the Welcome Corps—Private Sponsorship of Refugees (Jan. 19,2023); State Dep’t, U.S.  Refugee Admissions Program, (Jan. 19, 2023);  Welcome Corps Website, State Dep’t, U.S.  Refugee Admissions Program, (Jan. 19,2023); 200+ Organizations Signal Support for the Welcome Corps, New Service, Opportunities for Private Refugee SponsorshipThe Welcome Corps Essentials Training, Jordan, Biden Administration Invites Ordinary Americans to Help Settle Refugees, N.Y. Times (Jan. 19, 2023); Santana, (AP), Welcome Corps provides a new way for Americans to sponsor refugees, Ch. Sci. Monitor (Jan. 19, 2023).

[2] Refugee and Asylum Law: The Modern Era, dwkcommentaries.com (July 9, 2011); Refugee and Asylum Law: Office of the United Nations High Commissioner for Refugees, dwkcommentaries.com (July 10, 2011); Weissbrodt, Ni Aolain, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 1040-42 (4th ed. 2009).

[3] Need To Prod Congress to Enact the Afghan Adjustment Act, dwkcommentaries.com (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills, dwkcommentaries.com (Dec. 18, 2022); Congress Fails to Adopt Important Immigration Bills, dwkcommentaries.com (Dec. 28, 2022).

 

 

 

 

President Biden’s Argument for New Asylum/Border Policy

The Biden Administration’s new asylum/border policy was announced on January 5th. [1] That same day President Biden made the following lengthy statement about the new policy.[2]

“On my first day in office . . . I  sent Congress a comprehensive piece of legislation that would completely overhaul what has been a broken immigration system for a long time: cracking down on illegal immigration; strengthening legal immigration; and protecting DREAMers, those with temporary protected status, and farmworkers, who all are part of the fabric of our nation.’

“But congressional Republicans have refused to consider my comprehensive plan. And they rejected my recent request for an additional $3.5 billion to secure the border and funds for 2,000 new . . . asylum officers and personnel — and 100 new immigration judges so people don’t have to wait years to get their claims adjudicated, which they have a right to make a claim legally.”

“And the failure to pass and fund this comprehensive plan has increased the challenges that we’re seeing at our southwest border. . . .”

“People come to America for a whole lot of different reasons. To seek new opportunity in what is the strongest economy in the world. Can’t blame them wanting to do it. They flee oppression . . . to the . . . freest nation in the world. They chase their own American Dream in the greatest nation in the world.”

“And the story of America is the story of so many of your families — including mine, going back to the mid-1800s from Ireland.”

“Now, there are a number of ways to immigrate to America legally under our existing laws. For example, an American citizen — an American citizen can sponsor an immediate family member from another country. An American company can sponsor an employee from another country. There are visas for students to study in our colleges and other special categories.”

“And regardless of the legal pathway, . . they process them to require everyone be involved in following the law. That’s the notion. There are laws to get here legally. That includes another legal way for someone to come to America by seeking asylum because they’re fleeing persecution, like a lot of our ancestors did as well.”

“And for many people, that’s what’s happening at our southwest border now.”

“Over the past several years, thousands of people have been fleeing from Central and South America and the Caribbean countries ruled by oppressive dictators — including Cuba, Nicaragua, and Venezuela — and escaping gang violence, which has the same impact, in Haiti.”

“Currently, these four countries account for most of the people traveling into Mexico to start a new life by getting . . .to the American border and trying to cross.”

“But instead of safe and orderly process at the border, we have a patchwork system that simply doesn’t work as it should. We don’t have enough asylum officers or personnel to determine whether people qualify for asylum. . . . {W] don’t have enough . . .immigration judges to adjudicate the claims of immigrants.”

In fact, the previous administration used a rule called Title 42 to deal with . . . the pandemic, . . . to rapidly expel people who crossed the border. It was . . . designed to deal with the pandemic, but it’s used as a means to expel people at the border.”

“People turned away under Title 42, and they are . . . not barred from trying to come back. They’ve been turned away. They go back. They try again. They try again.. . . [T]hey can and they do try to re-enter the United States again and again, which makes the problem . . . at the border even worse.”

And under the [upcoming] United States Supreme Court decision . . . on Title 42 later this year, my administration will . . . make a decision, finally, what to do about Title 42. In the meantime, my administration will continue to use that authority as the Supreme Court has required.”

And until Congress passes the funds — a comprehensive immigration plan to fix the system completely — my administration is going to work to make things better at the border using the tools that we have available to us now.”

“Today, my administration is taking several steps to stiffen enforcement for those who try to come without a legal right to stay, and to put in place a faster process — I emphasize a ‘faster process’ — to decide a claim of asylum. . . .”

“Over the summer, we saw a huge spike in the number of Venezuelans traveling through — through Mexico and attempting to enter the United States without going through our legal processes.”

“We] responded by using and ensuring that there are two safe and lawful ways for someone leaving [their] country to come to America.”

“First, if they’re seeking asylum, they can use an app on their cell phone called CBP One. . . .  To schedule an appointment at a port of entry and make their asylum claim there without crossing the border unlawfully and have a decision determined by an asylum officer . . . [whether] they qualify.”

“Second, in October, we worked with the Mexican government to launch a new parole program. . . . The way this parole program works: One must have a lawful sponsor here in the United States who agrees to sponsor you to get here.”

“Then, that person has to . . . undergo rigorous background checks and apply from outside the United States and not cross the border illegally in the meantime.”

“If they apply and their application is approved, they can use the same app, the CBP One app, to present at a port of entry and be able to work in the United States legally for two years. That’s the process.”

“But if their application is denied or if they attempt to cross into the United States unlawfully, they will be returned back to Mexico and will not be eligible for this program after that.”

“If they apply and they do it properly, fine. If they . . . don’t apply and they try to come through, they’re not going to have an opportunity to deal with the program.”

“This new process is orderly, it’s safe, and it’s humane. And it works.”

“Since we created the new program, the number of Venezuelans trying to enter America without going through a legal process has dropped dramatically, from about 1,100 per day to less than 250 per day on average. That’s several hundred people on average every single day who are not crossing into America illegally.”

“Today I’m announcing that my administration is going to expand the parole program for people not only from Venezuela but from Cuba, Nicaragua, and Haiti.”

“Again, these four countries — Venezuela, Cuba and — Cuba and Nicaragua and Haiti — these four countries account for most of the people now traveling into Mexico to try to start a new life by crossing the border into the United States of America on the southwest border.”

“We anticipate this action is going to substantially reduce the number of people attempting . . . to cross our southwest border without going through a legal process.”

“In fact, today I’m announcing that Mexico has agreed to allow [the U.S.]up to re- — to return up to 30,000 persons per month who try, get caught, and get sent back from those four countries who are apprehended while attempting to unlawfully cross the . . . the southwest border.”

“My message is this: If you’re trying to leave Cuba, Nicaragua, or Haiti, . . . or have agreed to begin a journey to America, . . . do not just show up at the border. Stay where you are and apply legally from there.”

“Starting today, if you don’t apply through the legal process, you will not be eligible for this new parole program.”

“Let me reiterate: You need a lawful sponsor in the United States of America. . .  And you need to undergo a rigorous background check.”

If your application is approved and you show up at . . . when and where directed, you have access.”

“But if your application is denied or you attempt to cross into the United States unlawfully, you will not be allowed to enter.”

[We] should all recognize that as long as America is the land of freedom and opportunity, people are going to try to come here. And that’s what many of our ancestors did, and it’s no surprise that it’s happening again today.”

“We can’t stop people from making the journey, but we can require them to come here . . .in an orderly way under U.S. law.”

“The actions we’re announcing today will make things better — will make things better but will not fix the border problem completely.”

“That work will not be done unless and until the Congress enacts and funds a more comprehensive immigration plan that I proposed on day one.”

“Last year, I brought together 20 leaders . . .from the Western Hemisphere . . . to stabilize the flow of immigration, to expand pathways to immigration, and to manage . . .”the border humanely.”

“The leaders of the hemisphere have built on those efforts that I led when I was Vice President to expand economic assistance to nations in north Central America so people . . .can improve their economic prospects at home, instead of having to leave for the United States.”

“Most people would much rather stay in the country they are if they can feed their families, be safe, send their kids to school, and have opportunity.”

“It’s not like people are sitting around a table . . . somewhere in Central America and saying, ‘I got a great idea. Let’s sell everything we have. Let’s give it to a coyote, a smuggler. They’ll take us on a harrowing journey for thousands of miles to get to the United States, then we’re going to illegally cross the border. They’re going to drop us in a desert. And we’re — in a place where we don’t speak the language. Won’t that be fun?’”

“ [Vice] President Harris . . . led this effort to make things better in the countries from which they are leaving. And thanks to her leadership, she’s been able to generate more than $3.2 billion from the private sector to create jobs and opportunities in El Salvador, Honduras, and Guatemala to help people stay in their own countries . . . where it’ll be safer and they have some opportunities.”

“We’ve also set up joint patrols and law enforcement with Mexico and Guatemala that share real-time information on locations that smugglers are using to convince migrant groups to cross illegally.”

“We embedded our Border Patrol officers with Mexican patrols to detect . . . and raid human smuggling operations. . . . [T]hus far, there have — more than 7,000 arrests of human smugglers in the last six months. . . .”

“That’s not just human smuggling at the border. We’re focused on cracking down on drug smuggling, which is a serious and deadly . . . problem. . . .”

“My administration has allocated record funding that added hundreds of additional Border Patrol agents and installed new cutting-edge technologies to be able to use . . . like a X-ray machine, detailed to be able to look through these large containers to determine what’s in the container and — at the border.”

“For example, since August of last year, Customs and Border Patrol have seized more than 20,000 pounds of deadly fentanyl. That’s enough to kill — kill as many as 1,000 people in this country.”

“And next week, I’m going to travel to Mexico where I’m going to meet with President López Obrador. We have a big agenda that ranges from the climate crisis to economic development and other issues. But one important part of that agenda is strengthening our border between our nations.”

And I will visit the border myself this Sunday, in El Paso, to assess border enforcement operations, meet with the local officials and community leaders and the folks at the border [telling] me what they need that they don’t have, and make it public what they conclude they need they don’t have to try to convince my Republican colleagues they should do something.”

“And I know that migration is putting a real strain on the borders and on border communities.”

“We’re going to get these communities more support. And I want to thank all the nonprofits, the faith groups, the community leaders, and other volunteers who will make sure that vulnerable immigrants have what they need to survive, whether it’s food, warm clothing, shelter, medical care right after their arrival.”

“These religious and civic groups represent . . .our nation’s generosity — the best of our country. . . . And they’re a powerful rebuke to the hostility and even the hate which many people face when they arrive here legally.”

“. . . . Our problems at the border didn’t arise overnight and they’re not going to be solved overnight. It’s a difficult problem.”

“It’s clear that immigration is a political issue that extreme Republicans are always going to run on. But now they have a choice: They can keep using immigration to try to score political points or they can help solve the problem. . . .and come together to fix the broken system.”

“Before Congress adjourned for the holidays, some Democrats and Republicans, a few of them, got together — both sides, in the Senate — and decided they were going to put together a comprehensive plan on immigration.”

“But the Republican leadership . . . rebuked it and rejected it out of hand . . . just like they rejected my plan two years ago, just like they rejected my recent request for an additional $3.5 billion to secure and manage the border with more holding facilities , better transportation, additional funding for 2,000 new asylum officers and personnel, 100 new immigration judges to more rapidly adjudicate for people when they come here, and . . . so much more.”

“I’ll sit down with anyone who, in good faith, wants to fix our broken immigration system. And it’s hard. . . . But if the most extreme Republicans continue to demagogue this issue and reject solutions, I’m left with only one choice: to act on my own, do as much as I can on my own to change the atmosphere.”

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[1] Department of Homeland Security Announces Important Proposed Rules To Improve Immigration Laws and Border Security, dwkcommentaries.com (Jan. 5, 2023)

[2] White House, Remarks by President Biden on Border Security and Enforcement  (Jan. 5,2023).

 

Department of Homeland Security Announces Important Proposed Rules To Improve Immigration Laws and Border Security

On January 5, 2023, the U.S. Department of Homeland Security  (DHS) announced that it is continuing to prepare for (a) “the end of the Title 42 public health order” that calls for the U.S. to refuse to admit certain migrants at the U.S. borders and (b) the “return to processing all noncitizens under the Department’s Title 8 immigration authorities.” [1}

To that end, the DHS announcement stated the following:

  • “DHS is establishing new parole processes for Cubans, Haitians, and Nicaraguans, modeled on the successful processes for Venezuelans and Ukrainians, which combine safe, orderly, and lawful pathways to the United States, including authorization to work, with significant consequences for those who fail to use those pathways. We are also continuing the process with respect to Venezuelans.”
  • “Through the CBP One app, we are also providing a new mechanism for noncitizens to schedule appointments to present themselves at ports of entry, facilitating safe and orderly arrivals. Initially this will be used for those seeking an exception from the Title 42 public health order. Once the Title 42 order is no longer in place, CBP One will be used to help ensure safe and orderly processing at ports of entry.”
  • “DHS is increasing and enhancing the use of expedited removal under Title 8 authorities for those who cannot be processed under the Title 42 public health order. These efforts include surging personnel and resources and enrolling individuals under the asylum processing interim final rule published in March 2022.”
  • “As a complement to these efforts, and in response to the unprecedented surge in migration across the hemisphere and to reduce encounters at our border, DHS and the Department of Justice (DOJ) intend to shortly issue a proposed rule that will, subject to public comment, incentivize the use of the new and existing lawful processes available in the Unites States and partner nations, and place certain conditions on asylum eligibility for those who fail to do so.”
  • “DHS will continue to monitor developments on the southwest border and will accelerate or implement additional measures, as needed, consistent with applicable court orders.”

The DHS Secretary, Alejandro N. Mayorkas, commented on these changes: “We can provide humanitarian relief consistent with our values, cut out vicious smuggling organizations, and enforce our laws.  Individuals without a legal basis to remain in the United States will be subject to prompt expulsion or removal. Individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”

Country-Specific Enforcement Processes

Last October DHS established “a safe and lawful pathway” for Ukrainians and Venezuelans to enter the U.S. and “a consequence for failing to use that pathway,” and the January 5th announcement “establishes similar processes for Cubans, Haitian, and Nicaraguan nationals who face unique challenges in their home countries” while “the Venezuelan process also will continue.”

“These processes will provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, Nicaragua, and Venezuela to apply to come to the United States, without having to make the dangerous journey to the border. Through a fully online process, individuals can seek advance authorization to travel to the United States and be considered, on a case-by-case basis, for a temporary grant of parole for up to two years, including employment authorization, provided that they: pass rigorous biometric and biographic national security and public safety screening and vetting; have a supporter in the United States who commits to providing financial and other support; and complete vaccinations and other public health requirements. . . .These processes will allow up to 30,000 qualifying nationals per month from all four of these countries to reside legally in the United States for up to two years and to receive permission to work here, during that period.”

However, this new process “is contingent on the Government of Mexico’s willingness to accept the return or removal of nationals from those countries. It also is responsive to a request from the Government of Mexico to provide additional legal pathways for migrants, and it advances both countries’ interests in addressing the effects throughout the hemisphere of deteriorated conditions in these countries.”

Safe and Orderly Processes at Ports of Entry

“To facilitate the safe and orderly arrival of noncitizens seeking an exception from the Title 42 public health order, DHS is expanding use of the free CBP One mobile app for noncitizens to schedule arrival times at [the following] ports of entry: [Arizona: Nogales; Texas: Brownsville, Hidalgo, Laredo, Eagle Pass, and El Paso (Paso Del Norte); and California: Calexico and San Ysidro (Pedestrian West – El Chaparral).]”

“Individuals do not need to be at the border to schedule an appointment; expanded access to the app in Central Mexico is designed to discourage noncitizens from congregating near the border in unsafe conditions. Initially, this new scheduling function will allow noncitizens to schedule a time and place to come to a port of entry to seek an exception from the Title 42 public health order for humanitarian reasons based on an individualized assessment of vulnerability. This will replace the current process for individuals seeking exceptions from the Title 42 public health order, which requires noncitizens to submit requests through third party organizations located near the border.”

“Once the Title 42 public health order is no longer in place, this scheduling mechanism will be available for noncitizens, including those who seek to make asylum claims, to schedule a time to present themselves at a port of entry for inspection and processing, rather than arriving unannounced at a port of entry or attempting to cross in-between ports of entry. Those who use this process will generally be eligible for work authorization during their period of authorized stay.”

“During their inspection process, noncitizens must verbally attest to their COVID-19 vaccination status and provide, upon request, proof of vaccination against COVID-19 in accordance with Title 19 vaccination requirements.”

Enhanced Use of Expedited Removal

“We will comply with the court orders that require us to continue enforcing the Title 42 public health order. There are, however, migrants who cannot be expelled pursuant to Title 42 authorities and as a result are processed under Title 8 authorities. For those processed under Title 8, we are increasing and enhancing our use of expedited removal, which allows for the prompt removal of those who do not claim a fear of persecution or torture or are determined not to have a credible fear after an interview with an Asylum Officer, in accordance with established procedures.”

“This enhanced expedited removal process will include: dedicating additional resources including personnel, transportation, and facilities; optimizing processes across DHS and DOJ; and working with the State Department and countries in the region to increase repatriations. We also will continue to process individuals under the interim final rule published in March 2022 outlining procedures for U.S. Citizenship and Immigration Services to process asylum requests for noncitizens found to have a credible fear. Together, these measures will allow for the prompt removal of those who do not have a legal basis to stay and improve our overall preparedness for when the Title 42 public health order is lifted. Individuals removed under Title 8 are subject to a five-year bar on admission and potential criminal prosecution should they seek to reenter.”

Notice of Proposed Rulemaking

“DHS and DOJ intend to issue a proposed rule to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified. Individuals who cannot establish a valid claim to protection under the standards set out in the new rule will be subject to prompt removal under Title 8 authorities, which carries a five-year ban on reentry.”

“Taken together, these efforts will: reduce irregular migration by disincentivizing migrants from taking the dangerous journey to the southwest border of the United States and attempting to cross without authorization; significantly expand lawful pathways to the United States for vetted individuals; and reduce the role for – and profits of – smuggling networks that callously endanger migrants’ lives for personal gain.”

“These new measures complement ongoing efforts to increase refugee resettlement from the Western Hemisphere. The U.S. Government intends to welcome at least 20,000 refugees from Latin America and the Caribbean in Fiscal Year 2023 and 2024, putting the United States on pace to more than triple refugee admissions from the Western Hemisphere this Fiscal Year alone. This delivers on the President’s commitment under the Los Angeles Declaration for Migration and Protection to scale up refugee admissions from the Western Hemisphere.”

DHS “is taking these measures in light of Congress’s failure to pass the comprehensive immigration reform measures President Biden proposed on his first day in office and the economic and political instability around the world that is fueling the highest levels of migration since World War II, including throughout the Western Hemisphere. . . . The actions announced today are part of the Biden-Harris Administration’s ongoing commitment to enforce our laws and build a fair, orderly, and humane immigration system, and build on efforts outlined in the Department’s December 2022 Update on Southwest Border Security and Preparedness. Today’s announcements also show the imperative of partner countries working together, as agreed in the Los Angeles Declaration following the Summit of the Americas, to take action against smugglers and provide protection to asylum seekers. Hemispheric challenges require hemispheric solutions.”

“The steps we are taking reflect the constraints of our outdated statutes, which have not been updated in decades and were designed to address a fundamentally different migratory reality than that which exists today along the southwest border and around the world. As it has since its first day in office, the Biden-Harris Administration continues to call on Congress to pass legislation that strengthens border security, holistically addresses the root causes of migration, and improves legal pathways. We also encourage Congress to provide critical funding and advance bipartisan efforts to create a fair, fast, and functioning asylum system – enabling those who merit protection to quickly receive it, and those who do not to quickly be removed. In the absence of such action, the Administration is committed to pursuing every avenue within its authority to secure our borders, enforce our laws, and stay true to our values as we build safe, orderly, and humane processes.”

This Blog’s Reaction to the DHS Announcement

This blog recently has criticized the failures of Congress and the Administration to attempt to modify and update the many failings in our immigration laws.[2] Thus, DHS needs to be congratulated for making this timely and cogent announcement of ways to meet these challenges while all others involved in making, enforcing and complying with these laws need to rise to the challenges.

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[1]  DHS, DHS Continues to Prepare for the End of Title 42; Announces New border Enforcement Measures and Additional Safe and Orderly Processes (Jan.5, 2023).

[2] See these posts to dwkcommentaries.com: Need To Prod Congress To Enact the Afghan Adjustment Act (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills (Dec. 18, 2022); Comment: Retired U.S. Military Leaders Support Afghan Adjustment Act (Dec. 19, 2022); Congress Fails To Adopt Important Immigration Legislation (Dec. 28, 2022); Comment: Omnibus Act Creates 4,000 New Special Visas for Afghans (Dec. 29, 2022); Comment: Speculative Interpretation of Supreme Court Decision of Title 42 Case (Dec. 29, 2022); Comment: Other Reactions to Failure To Adopt Immigration Reform (Dec. 31, 2022); U.S. Procedures for Resettlement of Ukrainians (Jan.3, 2023).

 

 

 

 

 

U.S. Procedures for Resettlement of Ukrainians

“On April 21, 2022, President Biden announced Uniting for Ukraine, a new streamlined process to provide Ukrainian citizens who have fled Russia’s unprovoked war of aggression opportunities to come to the United States. This represents a key step toward fulfilling the President’s commitment to welcome Ukrainians fleeing Russia’s invasion of Ukraine.”

“Uniting for Ukraine builds on the robust humanitarian assistance the U.S. government is providing as we complement the generosity of countries throughout Europe that are hosting millions of Ukrainian citizens and others who have been displaced.”

To that end, on or about April 21, 2022, the United States Citizenship and Immigration Service (USC&IS) “announced a key step toward fulfilling President Biden’s commitment to welcome Ukrainians fleeing Russia’s invasion. Uniting for Ukraine provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily in a 2 year period of parole. Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States.”[1]

Financial Supporter[2]

“The first step in the Uniting for Ukraine process is for the U.S.-based supporter to file a Form I-134, Declaration of Financial Support, with USCIS. The U.S. government will then vet the supporter to ensure that they are able to financially support the individual whom they agree to support.”

The qualifications for such a supporter is “An individual who holds lawful status in the United States or is a parolee or beneficiary of deferred action or Deferred Enforced Departure (DED) who has passed security and background vetting and demonstrated sufficient financial resources to receive, maintain, and supports the individuals whom they commit to support for the duration of their stay in the United States.”

Eligible Ukrainians[3]

Beneficiaries of such support are those who meet the following requirements:

  • “Resided in Ukraine immediately prior to the Russian invasion (until February 11, 2022) and were displaced as a result of the invasion;”
  • “Are a Ukrainian citizen and possess a valid Ukrainian passport (or are a child included on a parent’s passport), or are a non-Ukrainian immediate family member of a Ukrainian citizen who is applying through Uniting for Ukraine;”
  • “Have a supporter who filed a Form I-134, Declaration of Financial Support, on their behalf that has been confirmed as sufficient by USCIS;”
  • “Complete vaccinations and other public health requirements,” and;
  • “Clear biometric and biographic screening and vetting security checks.”
  • “Immediate family members” in this process include: “the spouse or common-law partner of a Ukrainian citizen; and their unmarried children under the age of 21. NOTE: If a child is under 18, they must be traveling with a parent or legal guardian in order to use this process.”

Advocates for This Program[4]

Ilya Somin, a law professor at George Mason University, and his wife are sponsors of three Ukrainians (a husband and wife and their 2-year old daughter) , who arrived in the U.S. less than five weeks after the U.S. government had approved the Somins’ supporter papers. Somin and his wife learned of this new U.S. government program through Welcome Connect, a website that matches potential U.S.sponsors with Ukrainian refugees. As a result, Somin has become a strong advocate for this program.

He says that since April of 2022, at least 94,000 Ukrainians have entered the U.S. under this program. In contrast, the regular U.S. program for admission of refugees is “slow and burdensome” and admitted only 25,400 for all of fiscal 2022.

Nevertheless, Somin sees “two major shortcomings:”

  • “first, the residency and work permits last only two years. Experience shows that many refugees need permanent homes, not just temporary ones. Permanence also enables them to make greater economic and social contributions to our society.”
  • Second, the program is largely the result of executive discretion. If political winds shift and President Biden (or a successor) decides to terminate it, participants could be subject to deportation. Congress should pass legislation to permanently fix these flaws.”
  • Third, this program could be improved by further simplifying the paperwork. . . . Refugee-assistance charities should consider providing linguistic assistance to potential sponsors who don’t speak Russian or Ukrainian; they could potentially recruit volunteer interpreters from immigrant communities in the [U.S.]”

Observations

 This U.S. program for Ukrainians is praiseworthy, but ignores several caveats.

First, the Ukrainians are not “refugees,” as defined in international and U.S. law:  individuals who have been determined by government agencies to meet the legal requirements for such status: “any person who is outside any country of such person’s nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country  because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”(Emphasis added). [5]

U.N. organizations and the U.S. government have established legal procedures for determining whether an individual has proven that he or she meets these legal requirements for such status as a basis for asylum or other status. As a result, it takes longer to do that than it does for the simplified process for the Ukrainians. But now it takes much longer than it should due to huge demands for such relief and inadequate resources.

Second, the U.S.established a special program for Afghans who have fled their country and who come to the U.S. as evacuees (not refugees) with humanitarian parole or special immigrant visas of limited duration. This is similar to the new program for Ukrainians, and a bill (Afghan Adjustment Act) has been proposed to meet the special legal problems associated with this status. But as been discussed in this blog, that Afghan proposal failed to pass in the last Congress.[6]

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[1] U.S. Department of Homeland Security, President Biden to Announce Uniting with Ukraine, a New Streamlined Process to Welcome Ukrainians Fleeing Russia’s Invasion of Ukraine (April 21, 2022); U.S. Department of Homeland Security, Uniting for Ukraine (April 21, 2022);  U.S. Citizenship & Immigration Services [USC&IS],  Uniting for Ukraine (April 21, 2022).

[2] Id.; Eligibility for Uniting with Ukraine.

[3] Id.

[4] Somin, We sponsored refugees under a new Biden program. The results were astonishing, Wash. Post (Jan. 3, 2023); Somin & El-Chidiac, Americans should be able to sponsor refugees tho can stay permanently, Wash. Post (July 18, 2022).

[5] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137; 8 U.S.C. sec. 1101(a)(42);

[6] E.g., Congress Fails To Adopt Important Immigration Legislation, dwkcommentaries.com (Dec.  2022).

Congress Fails To Adopt Important Immigration Legislation

Previous posts documented Congress’ earlier failure this Session to adopt (a) the Afghan Adjustment Act to improve the legal status of Afghan evacuees in the U.S. and (b) important bipartisan immigration reform, one of which was offered by Senators Kyrsten Sinema (ex-Democrat & now Independent) and Thom Tillis (Rep., NC) that would have addressed the legal fate of so-called Dreamers and provided billions of dollars to secure the U.S. border with Mexico and improve processing of asylum claims.[1]

Nor were these failures rectified in the balance of the Session with its primary focus on what was known as the Omnibus bill, which is discussed below.

The Omnibus Bill[2]

On the evening of December 19, the 4,155 page Omnibus Bill was introduced in the Senate.  The bill provides $1.65 trillion to finance all of the federal government for the rest of fiscal 2023 (ending September 30, 2023). This includes $858 billion for defense, a 9.7% increase; $45 billion in new military and economic aid for Ukraine; new incentives for citizens’ retirement savings; increased funding for food stamps, heating assistance, Pell grants, Head Start, Child Care and Development Block Grant Program plus $40 billion in emergency spending (mostly to assist communities recovering from drought, hurricane and other natural disasters); and a ban on TikTok on government devices.

Other parts of this bill would make changes to Medicaid eligibility, the Children’s Health Insurance Program and Medicare provider payments.

According to a Wall Street Journal editorial, this is the “ugliest omnibus bill ever” and “[m]ajor changes in law deserve their own debate and vote. Instead, a handful of powerful legislators wrote this vast bill in a backroom. Members can use the need to fund the government as an excuse to say they supported, or opposed, specific provisions as future politics demands.”

 Senate Approves the Omnibus Bill[3]

On the afternoon of December 22, the Senate passed the Omnibus bill, with a bipartisan vote of 68-29. It did so after that morning’s defeat of two proposed amendments to extend the so-called Title 42 to continue a legal ban on admission of migrants at the U.S.-Mexico border. One of these proposed amendments was offered by Senator Mike Lee (Rep., Utah), which was defeated 47-50; the other by Senator Sinema (Indep., Arizona) and Senator Tester (Dem., Montana), which was defeated with only 10 affirmative votes.

House Approves the Omnibus Bill[4]

The next day, December 23, the House approved the omnibus bill, as amended by the Senate, without any additional proposed immigration amendments, 225-201. The bill thus now will go to President Biden, who is expected to sign it in coming days.

Later on December 23 the 117th Congress adjourned and will terminate on January 3, 2023.

Litigation Over Continuation of Title 42[5]

 While these legislative machinations were going on, there was pending litigation over the continuation of Title 42, which had been adopted by the Trump Administration to allow migrants to be quickly expelled back to Mexico after illegally crossing the border into the U.S. in order to prevent the threat of further spread of the coronavirus in the U.S. and which was scheduled to expire on December 21.

After such litigation had been dismissed by lower federal courts, the case went to the U.S. Supreme Court, and on December 19th Chief Justice John Roberts ordered a temporary ban against termination of Title 42 until the Supreme Court had acted on the issue.

Then on December 27, the Supreme Court, 5-4, issued an unsigned order that was supported by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett. That order (a) granted the application for stay of the District Court order, pending certiorari, that had invalidated Title 42; (b) granted the applicants’ suggestion that its application be treated as a petition for a writ of certiorari; and (c) directed the parties  to brief and argue whether the State applicants may intervene to challenge the District Court’s summary judgment order. The Court added that this stay “precludes giving effect to the District Court order setting aside and vacating the title 42 policy,” but “does not prevent the federal government from taking any action with respect to that policy” and the Supreme Court “does not grant review of those merits, which have not yet been addressed by the Court of Appeals.”

This unsigned order then concluded by directing the Clerk “to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session” and by stating that the Court’s “stay shall terminate upon the sending down of the judgment of this Court” and that the previous stay order by the Chief Justice is vacated.

Justices Sotomayor and Kagan, without opinion, stated that they would deny the application while Justices Gorsuch and Jackson dissented. The latter’s dissenting opinion stated as follows:

  • The Covid “emergency on which these orders were premised has long since lapsed.” The States which now are challenging the invalidation of title 42 “do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed.”
  • These States also “contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. . . . But the current border crisis is not a COVID crisis. And the courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymers of last resort.”

Immediately after the issuance of this Supreme Court order, White House Press Secretary Karine Jean-Pierre issued a statement that the U.S. government will “comply with the order and prepare for the Court’s review” while also “ advancing our preparations to manage the border in a secure, orderly, and humane way when title 42 eventually lifts and will continue expanding legal pathways for immigration. Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”

The Press Secretary then shifted to the need for “Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office.” Now “Republicans in Congress [have] plenty of time . . .[to] join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”

The Department of Homeland Security that same day issued a shorter, but similar statement.

Also that same day a Wall Street Journal editorial concluded that the Supreme Court’s order “gives the President more time to prepare for Title 42’s end. Whether he makes the most of it is a different matter, and the last two years don’t bode well.”

According to an Associated Press journalist, no one knows how asylum will work after an end to Title 42 with the “Biden Administration . . . conspicuously silent about how migrants who plan to claim [asylum] should enter the . . . [U.S.when Title 42 ends], fueling rumors, confusion and doubts about the government’s readiness despite more than two years to prepare. . . . Many expect the government to use CBPOne, an online  platform for appointment registration, . . . [but this may be] impractical for migrants without internet access or language skills. . . . [Moreover, once they are in the U.S., they are being given dates as far out as March 2024 just to complete initial processing. Then they have to contend with] “a court system that is backlogged by more than 2 million cases, resulting in waits of several years for judges to reach decisions” on asylum applications.

Prospects for Adoption of Immigration Reform in 2023 [6]

 The 118th Congress opens on January 3, 2023, with the Republicans having a small majority in the House of Representatives while the Democrats in the Senate will maintain their narrow control (51-49) with Vice President Harris’ ability to break ties when the filibuster rule requiring 60 votes is not invoked.

Indeed, a U.S. Justice Department brief of December 20 referred to “new policies tailored to the consequences of the end” of Title 42 and “a complex, multiagency undertaking with policy, operational, and foreign relations that has been paused or partially unwound in light of the administrative stay” of any such changes.

Advocates for the Afghan Adjustment Act “worry that . . . [this bill] will be dead in the water if pushed into a new session next year, when Republicans appear intent on scrutinizing the Biden administration over the chaotic Kabul evacuation. About 170 Afghans and 13 U.S. troops were killed in a suicide bombing during the operation. The United States killed 10 civilians in a botched drone strike days later.”

Contributing to this uncertainty will be the House Republicans pledge to investigate the Biden administration’s record on the southern border and to impeach Homeland Security Secretary Alejandro Mayorkas. Another problem would be responding to any court’s overturning the Deferred Action for Childhood Arrivals (DACA) program that has granted legal status to millions of people who were brought illegally to the U.S. as children. Especially despondent about this possibility is Greisa Martinez Rosas, a DACA recipient and executive director of United We Dream, the nation’s largest youth-led immigrant network. When she thinks about “ the millions of young immigrants, including DACA recipients, who have had to live their lives in a perpetual state of limbo, I am filled with righteous anger, which I channel into action and a discipline of hope that we are working to create the conditions for us to win and to build the futures we deserve.”

Conclusion

Comments with corrections or additional thoughts on these complex  issues are welcomed.

==================================

 

[1] Need to Prod Congress To Enact the Afghan Adjustment Act, dwkcommentaries.com (Dec. 17, 2022);

Apparent Failure of Bipartisan Immigration Reform Bill, dwkcommentaries.com (Dec.18, 2022).

[2] Freking, Lawmakers unveil $1.7T bill to avoid shutdown, boost Ukraine, Seattle Times (Dec. 20, 2022)..

[3] Romm, Senate approves $1.7 trillion omnibus bill to fund government, Wash. Post (Dec. 22, 2022); Hughes, Collins & Wise, Senate Passes $1.65 Trillion Omnibus Bill After Deal on Title 42 Votes, W.S.J. (Dec. 22, 2022); Cochrane, Senate Passes $1.7 Trillion Spending Bill, in Bid to Avert Government Shutdown, N.Y. Times (Dec. 22, 2022);

4/ Romm, House approves $1,7 trillion omnibus bill amid GOP objections, sending it to Biden, Wash.Post (Dec. 23, 2022).

[5] Federal judge strikes down Trump-era border policy known as title 42, Wash. Post (Nov. 15, 2022); Hackman & Wolfe, Judge Strikes Down Title 42, Used to Expel Asylum Seekers, W.S. J. (Nov. 15, 2022) ; Liptak, Chief Justice Roberts Briefly Halts Decision Benning Border Expulsions, N.Y. Times (Dec. 19, 2022); Marimow & Sacchetti, Chief Justice temporarily keeps pandemic-era Title 42 border policy in place, Wash. Post (Dec. 19, 2022); Hackman & Bravin, Supreme Court Temporarily Blocks Biden From Ending Trump-Era Border Policy, W.S.J. (Dec. 19, 2022);  Supreme Court blocks Biden from lifting Covid-era border restrictions, Guardian (Dec. 20, 2022); Spagat, How will asylum work after Title 42 ends? No one knows yet, Wash. Post (Dec. 20, 2022). Supreme Court, Order, Arizona v. Mayorkas, No. 22A544 (22-592) (Dec.27, 2022); Liptak, Jordan & Sullivan, Migrant Expulsion Policy Must Stay in Place for Now, Supreme Court Says, N.Y. Times (Dec. 27, 2022); Barnes & Marinow, Supreme Court leaves in place Title 42 border policy for now, Wash. Post (Dec. 27, 2022);Bravin & Hackman, Supreme Court Leaves Pandemic Border Controls in Place, W.S.J. (Dec. 27, 2022); White House, Statement by White House Press Secretary Karine Jean-Pierre on Supreme Court Title 42 Order (Dec. 27, 2022); Dep’t Homeland Security, Statement by the Department of Homeland Security on Supreme Court title 42 Order (Dec. 27, 2022); Sandoval, At a Crowded Border Camp in Mexico, Frustration and Shattered Hopes, N.Y. Times (Dec. 27, 2022).

[6] Spagat, How will asylum work after Title 42 ends? No one knows yet, abcnews.go.com (Dec. 20, 2022); Horton, Congress drops Afghan allies item, dimming evacuee hopes, Wash. Post (Dec. 20, 2022); Meyer & Caldwell, Why the Immigration debate is only going to get more tense, Wash. Post (Dec. 21, 2022); Rosas, Congress Has Once Again Failed Immigrant Youths, N.Y. Times (Dec. 22, 2022);

 

 

Apparent Failure of Bipartisan Immigration Reform Bill 

Minneapolis’ StarTribune published an editorial criticizing the apparent failure of Congress to pass a bipartisan immigration reform bill. A similar editorial appeared in Bloomberg News. The bill also was supported by columnist George Will.[1]

The Bipartisan Bill

The bill was developed by U.S. Senators Kyrsten Sinema (ex-Democrat & now Independent, AZ) and Thom Tillis (Rep., NC) “that would have addressed critical areas in immigration: the fate of so-called Dreamers, billions of dollars to secure the southern border, and better processing of asylum claims.” The “border-related items in the . . . bill were said to include more and better-paid Border Patrol agents, more funds for Homeland Security detention facilities and stiffer penalties for migrants who missed court hearings, along with better and faster processing of credible asylum claims.”

Reasons for Apparent Failure To Adopt This Bill

According to the StarTribune editorial, this bill “drew support from moderate lawmakers and several organizations.” But the two Senators were “unable to lock down the 60-vote supermajority needed to end the inevitable filibuster,” which prevented the inclusion of the bill in year-end appropriations legislation, all but ending any hope of immigration reform this year.”

The Bloomberg editorial notes that the proposal “aims to reduce strain on the asylum system by discouraging migrants from attempting to cross the border and expelling more of those who do.” For George Will, the bill would correct “two glaring wrongs that large American majorities recognize as such. They are the insecure southern border. And the decades-long callousness toward those called ‘dreamers.’”

This proposal “has angered immigration advocates and progressives in Congress, some of whom have already announced their opposition.” For George Will, these people ignore “the axiom that the perfect is the enemy of the good, [and who] will settle for nothing less than a ‘comprehensive’ solution to all immigration complexities.” Mr. Will also finds fault with criticism of the bill’s provisions to protect the “Dreamers” and the apparent proposed path to citizenship for the U.S.’ approximate 11 million unauthorized immigrants, two-thirds of whom have lived here for more than a decade.

There apparently was nothing in the Sinema-Tillis proposal relating to what is covered in the proposed Afghan Adjustment Act that was discussed in a prior post.[2]

Conclusion

An open invitation for comments is extended to those who are more intimately involved in this legislative conundrum.

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[1] Editorial, Another failure on immigration reform, StarTribune (Dec. 17, 2022); Bloomberg, Editorial, Congress Can’t Waste This Immigration Opportunity, Wash. Post (Dec. 15, 2022); Will, How the Tillis-Sinema immigration bill would right two glaring wrongs, Wash. Post (Dec. 11, 2022); Sotomayor, Goodwin, Sacchetti & DeChaulus, Congress working to strike last-minute immigration deals, Wash. Post (Dec. 5, 2022).

[2] See Wall Street Journal Editorial Supports Afghan Evacuees, dwkcommentaries.com (Dec.13, 2022); Need To Prod Congress To Enact the Afghan Adjustment Act, dwkcommentareis.com (Dec. 17, 2022).