Law – dwkcommentaries

Cuban Foreign Minister: Cubans May Not Legally Participate in Foreign Wars

Cuba’s Minister of Foreign Affairs, Bruno Rodriguez Parrilla, on September 15 publicly stated, “The unequivocal and invariable position of the Cuban Government, in accordance with national legislation, is contrary to the participation of Cuban citizens in any conflict, against mercenarism and against human trafficking.”[1]

This statement apparently was based on “section eight and Article 135 of [Cuba’s] Penal Code [specifying that] the crime of mercenarism qualifies for “any person who, in order to obtain payment of a salary or other type of remuneration or personal benefit, joins military formations, or private military companies, wholly or partially made up of individuals who are not citizens of the State in whose territory they propose to operate.” The statutory punishment for this crime is “ imprisonment for ten to 30 years, perpetual imprisonment or the death penalty.”

Comment on Cuba’s Actions in Ukraine[2]

Orlando Gutierrez Boronat, a Cuban-American and the Coordinator of the Assembly of the Cuban Resistance, writing from Kyiv, Ukraine, said it “is not plausible” that the presence of Cubans fighting for Russia in Ukraine is “the work of a criminal network.” Instead, “Moscow is assisted by an implacable enemy only 90 miles away” from the U.S.

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[1] Damage control: the regime says It opposes participation of Cubans in any conflict, Diario de Cuba (Sept. 15, 2023).

[2] Boronat, Cuba does what it does best—snuff out freedom, this time on Moscow’s behalf/Opinion, Miami Herald (Sept. 17, 2023).

More Conflicting News About Cubans Fighting for Russia Against Ukraine While U.S. Continues Anti-Cuban Policies

The last several days have seen more conflicting news reports about whether Cuba condemns or tolerates Cubans fighting for Russia in the Ukrainian war. There also has been an U.S.-Cuba meeting on various issues and U.S. refusal to cancel its designation of Cuba as a state sponsor of terrorism as well as the U.S. continued authorization of its embargo of the island.

Cuba and the Ukrainian War[1]

On September 14, Reuters reported that RIA, a Russian state-owned news agency, had stated that “Cuba is not against the legal participation of its citizens in Russia’s war in Ukraine.” RIA’s stated source was the Cuban ambassador to Russia, Julio Antonio Garmendia Pena, who was quoted as saying, “We have nothing against Cubans who just want to sign a contract and legally take part with the Russian army in this operation. But we are against illegality” and those recently arrested in Cuba “had been engaged in illegal activities and had broken the law.”

More details about the Ambassador’s statement were provided by the Miami Herald, which reported that he said the Cubans who had been arrested were “’swindlers’ who had broken the law” and “We are talking about bad people who, on the basis of such an important issue as a military operation, as relations between our countries, want to earn money, want to put money in their pocket and engage in illegal activities.”

A Cuban Foreign Ministry official in Havana, however, on September 14, issued the following statement:

“Cuba reiterates its firm historical position against mercenarism and upholds its active role at the United Nations against that practice. Cuban laws are very explicit in relation to the criminalization of crimes such as trafficking in persons, smuggling of migrants and mercenarism.”
“Cuba likewise reiterates that it is not a part of the war conflict in Ukraine. It also states that, following the uncovering of a trafficking in persons network operating from Russia, intended to recruit Cuban citizens settled in that country, as well as others residing in Cuba, so that they would join the military forces taking part in war operations in Ukraine, several attempts of this same nature have been neutralized and criminal proceedings have been established against persons involved in such activities.”
“The Cuban authorities maintain an exchange with their Russian counterparts in relation to these incidents, given the excellent level of relations that exist between both countries, with the purpose of clarifying these events.”

The Miami Herald also reported that a “U.S. State Department official said the administration is “concerned by reports alleging young Cubans have been deceived and recruited to fight for Russia in its brutal full-scale invasion of Ukraine. Russia’s need to use deceit to attract foreign fighters indicates both its military weakness and its disregard for human life. We continue to monitor the situation closely.”

In addition, the Miami Herald reported that the chairman of the Ukrainian parliament’s committee on foreign relations, Oleksandr Merezhko, stated, “the Cuban communist regime pretends that it has nothing to do with this ‘human trafficking.’ In reality, this totalitarian regime is on the side of the aggressor.”

U.S. Actions Regarding Cuba[2]

The U.S. State Department confirmed that on September 11, 2023, Assistant Secretary for Western Hemisphere Affairs Brian Nichols met with the Cuban vice foreign minister and discussed “human rights, migration, and other issues of bilateral interest” after a number of meetings with officials from the Cuban embassy in Washington. But the U.S. did not agree to terminate its designation of Cuba as a state sponsor of terrorism.

Another U.S. action continuing its hostility towards Cuba was President Biden on September 13, 2023, signing another year’s extension of the Trading with the Enemy Law, which is the basis for the U.S. embargo of the island. That document urged the Secretary of the Treasury, Janet Yellen, to enforce this sanctioning measure against the Cuban economy, and emphasized that the embargo “is in the national interest” of the United States.

Reactions

The U.S. needs to end its embargo of Cuba and its designation of Cuba as a state sponsor of terrorism. In addition, the U.S. needs to press Cuba to stop assisting Russia in its war against Ukraine and to publicly clarify Cuba’s policies and actions regarding Ukraine.

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[1] Conflicting News About Cubans Fighting for Russia, dwkcommentaries.com (Sept. 12, 2023); Cuba is not against its citizens fighting on Russia’s side in Ukraine, RIS cites envoy, Reuters.com (Sept. 14, 2023); RIA Novosti, Wikipedia; Torres, Cuban diplomat says island will not stop citizens from fighting for Russia in Ukraine, Miami Herald (Sept,. 14, 2023); Statement by Lleana Nunez Mordoche, Director for Europe and Canada of the General Division of Bilateral Affairs of the Ministry of Foreign Affairs of Cuba (Sept. 14, 2023). Damage control: the regime says it opposes the participation of Cubans in any conflict, Diario de Cuba (Sept. 15, 2023).

[2] U.S. State Dep’t, Department Press Briefing—September 14, 2023;

Torres, American and Cuban officials meet ahead of Cuban leader’s trip to UN meeting in New York, Miami Herald (Sept. 14, 2023); Spetalnick, High-Level US-Cuba talks yield no progress on top disputes, Cuban official says, Reuters.com (Sept. 14, 2023); Senior Cuban and US officials hold an unusual meeting in Washington, Diario de Cuba (Sept. 15, 2023); Capote, Biden ratifies the blockade with his signature: the genocide against Cuba continues, Granma.com (Sept. 14, 2023); White House, Memorandum on the Continuation of the Exercise of Certain Authorities under the Trading With the Enemy Act (Sept. 13, 2023).

Should the U.S. Modify Its Stance Against the Taliban in Afghanistan?

As discussed in a prior post, on August 22, 2023, the U.N. Assistance Mission in Afghanistan (UNAMA) reported that since the Taliban takeover of Afghanistan in August 2021, it had committed at least 800 human rights violations against Afghans who had assisted the U.S. In addition, that U.N. agency also noted that the Taliban had imposed the most radical gender policies, denying education and employment to millions of Afghan women and girls. [1]

Nevertheless, Graeme Smith, an analyst at the Crisis Group who has worked in that country since 2005 and who recently spent several months there, has said, “Most of the stuff we want to do [in that country] requires working with the Taliban.” In addition, in an article in Foreign Affairs, Smith urged western governments and institutions “to establish more functional relationships with the Taliban” that could include assistance with Afghanistan’s electricity grid, banking system and water management. Other experts and humanitarian groups have urged the U.S. to provide the Taliban with direct economic assistance to alleviate the country’s desperate poverty and hunger.[2]

Some positive points about the Taliban also emerged at a late July meeting of the U.S. State Department’s special representative for that country, Thomas West, and other U.S. officials with Taliban officials in Qatar. There was discussion of the country’s “declining opium poppy production and promising economic and counterterrorism actions and that there was openness to a technical dialogue regarding economic stabilization issues soon.” Note also was made of “recent [Afghan] data indicating declining inflation, growth of merchandise exports and imports.”[3]

At this U.S.-Taliban meeting, however, the U.S. also criticized the Taliban and the country’s “deteriorating human rights situation . . ., particularly for women, girls and vulnerable communities,” and its detentions, media crackdowns and limits on religious practices.

A New York Times columnist, Michael Crowley, also wonders whether the U.S. should modify its opposition to the Taliban while pointing out other positive aspects of Taliban rule: fears of an Afghan civil war have not materialized, and the Taliban apparently have prevented a return of a terrorist group that might threaten the U.S. and have cracked down on corruption and banned opium poppy cultivation. [4]

Reactions

These voices of moderation and practicality deserve consideration, especially if the U.S. could obtain Taliban cooperation on allowing peaceful removal of Afghans who had assisted the U.S. The successful implementation of these ideas might well lead to subsequent adoption of other partial measures of positive change.

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[1] U.N. Agency Reports Afghan Human Rights Violations Against Former U.S. Partners, dwkcommentaries.com ( Aug. 26, 2023).

[2] Smith, The World Has No Choice But to Work With the Taliban, Foreign Affairs (Aug. 11, 2023)

[3] U.S. State Department, Meeting of U.S. Officials with Taliban Representatives, (July 31, 2023); U.S. State Department, Thomas West, Special Representative for Afghanistan and Deputy Assistant Secretary, Bureau of South and Central Asian Affairs.

[4] Crowley, Two Years After Afghanistan Exit, Biden Resists Calls for More Taliban Contact, N.Y. Times (Aug. 30, 2023).

U.S. Afghan Special Visa Program Still Facing Immense Problems

In August 2023, the U.S. State Department’s Office of Inspector General released its report on evaluation of 2018-22 adjustments to the Afghan Special Visa Program, which was established in 2009 to resettle “Afghans who had worked on behalf of the [U.S.] in Afghanistan and had experienced an ongoing and serious threat as a result.”[1]

The Report’s Findings

“A. The Department Made Efforts To Streamline Afghan Special Immigrant Visa Processing Beginning in February 2021, but Challenges Remain.” More specifically, “as of December 2022, these actions had not eliminated the significant and growing Afghan SIV applicant backlog. Specifically, the Department increased staffing to process emails and determine applicant eligibility; coordinated with the Department of Defense to verify employment; incorporated new software to help process emails; eliminated a portion of the application process; leveraged posts worldwide for SIV interviews; and established remote consular operations in Doha, Qatar. However, because of an increased interest in the program after [the U.S. withdrawal from Afghanistan in] August 2021, the Department experienced an influx of applications causing a backlog for which the Department had inadequate staffing to process. Without additional dedicated resources to address the situation, the backlog in SIV applications will remain a significant challenge.”

“B. COVID-19 Caused Delays to Afghan SIV Processing and Increased the Backlog of Applicants.” More specifically, “the COVID-19 pandemic stalled the Afghan SIV application process, which in-turn increased the number of SIV applicants awaiting in-person interviews….

Embassy Kabul suspended visa interviews twice: from March 2020 to February 2021 and from June to July 2021 because of COVID-19 outbreaks. However, telework allowed the Department to continue some phases of SIV applicant processing.”

“C. The Afghan Special Immigrant Visa Program Faces Challenges and Would Benefit From a Strategic Performance Management Approach.” More specifically, “The Department relies on Taliban cooperation for SIV applicant relocation from the country because of a lack of a [U.S.] ground presence in Afghanistan. In addition, the Department has not developed and implemented a strategic performance management approach to resolving the Afghan SIV applicant backlog, and the Department’s Afghan SIV Senior Coordinating Official position has had periods of vacancy and frequent turnover since 2017. Developing and implementing a strategic performance management approach would benefit the Afghan SIV program and help address the SIV applicant backlog.”

“The reliance on Taliban cooperation because of the lack of US diplomatic ground presence in Afghanistan impacts the ability for Afghan SIV applicants to exit Afghanistan and arrive at a US diplomatic post for visa processing.” Indeed, “one of the biggest challenges to SIV applicants departing Afghanistan is the lack of freedom of movement out of Afghanistan, which is dependent on Taliban cooperation. The Taliban’s willingness to approve flights, to allow women to depart Afghanistan alone, to determine the number of aircraft Kabul International Airport can accommodate, and other factors impacted freedom of movement for Afghans.. . .”

As of April 2023, the Department estimates that 840,000 principal applicants and family members remain in Afghanistan with uncertainty where they are in the application process. As of August 1, the U.S. has “issued nearly 34,000 SIVs to principal applicants and their eligible family members while another 80,000 applicants are in process with tens of thousands having begun the applications.

The Report’s Recommendation

The Report then made the following Recommendation: “OIG recommends that the Special Immigrant Visa (SIV) Senior Coordinating Official, in coordination with the Bureau of Consular Affairs and the Joint Executive Office for the Bureau of Near Eastern Affairs and the Bureau of South and Central Asian Affairs, develop and implement a strategic performance management approach to improve the outcomes of the Afghan SIV program, including establishing goals and measures of success to evaluate progress against those established goals.”

The Department’s Management responded to that Recommendation as follows: “The Department concurred with the intent of the recommendation and requested that OIG revise the recommendation to read “the [Special Immigrant Visa (SIV) Senior] Coordinating Official, in coordination with the Bureau of Consular Affairs and the Joint Executive Office for the Bureau of Near Eastern Affairs and the Bureau of South and Central Asian Affairs, continue to implement procedural changes and allocate resources in service of meeting the Department’s Afghan SIV processing goals. The Department should use the efficiency improvements, Chief of Mission (COM) decisions, and visa interview sections included in the quarterly Congressional reports on SIV processing to track progress, referencing the Program Design and Performance Management Toolkit as needed.”

“Additionally, Department comments noted that ‘after reviewing the Program Design and Performance Management Toolkit [mentioned in the finding] …, the Department maintains that Afghan SIV … adjudication is a process, not a program. However, the Department is aware of the value in this toolkit and will utilize it as a reference, as needed, while we continue to assess existing [Afghan SIV] processing goals.”

Conclusion

This blog already has discussed the Taliban’s human rights violations against in-country Afghans who had helped the U.S. troops before their August 2021 withdrawal.[2]

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[1] U.S. State Dep’t, Office of Inspector General, Evaluation of Adjustments to the Afghan Special Immigrant Visa Program From 2018 through 2022 (Aug. 2023) Hansler, Challenges to Afghan special visa program remain two years after US withdrawal, State Dept, watchdog finds, CNN.com (Sept. 1, 2023) . See also Atwood & Hansler, State Department review of US withdrawal from Afghanistan includes far more findings than White House document, CNN (April 7, 2023)

[2] U.N. Agency Reports Afghan Human Rights Violations Against Former U.S. Partners, dwkcommentaries.com (Aug. 26, 2023); COMMENT: Dangerous Life in Afghanistan of Family of U.S. Interpreter, dwkcommentaries.com (Aug. 29, 2023).

Overwhelmed U.S. Immigration Court System

The U.S. immigration court system is overwhelmed with its current 2.5 million open cases with those seeking asylum waiting an average of 5.8 years for a trial or hearing on the merits. This primarily is due to shortfalls in the federal immigration budget.[1]

A leading example of these problems is the immigration court in Omaha, Nebraska with jurisdiction over cases in that state plus Iowa, which in recent years have drawn migrants, some with papers and some without, to work in slaughter houses and other agricultural jobs. Its three judges oversee nearly 32,000 cases that have been undecided for an average of 2.7 years while its asylum cases have an average wait of 5.8 years, the longest in the nation. [2]

An example of the pressure this overwhelmed system places on migrants is Guadalupe, a Guatemalan woman now 54 years old, who came to the U.S. on a tourist visa in 2017 and immediately requested asylum protection. After two months detention, she was released and moved to rural Iowa where she had an aunt and obtained a job at a clothing manufacturing company while her nights are often sleepless as she worries about her three children and seven grandchildren in Guatemala. Her first Omaha court appearance was in October 2017, when she obtained a final hearing date in 2020 that was postponed to 2022 because of the pandemic and then postponed again to May 2023 because the judge was not available. Now her next hearing is scheduled for September 2023 to set a date for her final hearing.

Conclusion

Clearly the U.S. Congress needs to authorize more spending to equip the U.S. immigration administration and its courts for expeditious handling of this large backlog of cases. Other important related issues for Congress are (a) promoting more immigration to meet U.S. need for more workers;[3] (b) providing more financial assistance to cities and states that are absorbing more immigrants:[4] and (c) amending U.S. immigration law and procedure.[5]

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[1] Caldwell, Millions of Migrants Stuck in Legal Limbo, Wall St. Journal (Sept. 1, 2023). However, the hard-right House Freedom Caucus is threatening to block an interim spending bill in Congress unless it includes a security crackdown on the U.S.-Meixco border. (Demirjian, Hard Right Injects Immigration Into Spending Fight, Raising Shutdown Fears. N.Y. Times (Sept. 1, 2023).

[2] See, e.g., List of Posts to dwkcommentaries—Topical: LAW (REFUGEE & ASYLUM).

[3] E.g., Wall Street Journal Editorial: U.S. Needs More Immigrants, dwkcommentaries.com ( July 25, 2023).

[4] E.g., New York City Pleads for Federal Financial Aid for New Migrants, dwkcommentaries (Aug. 11, 2023).

[5] E.g., Increasing Migrant Crossings at U.S. Border Call for Legal Change, dwkcommentaries.com (Aug. 16, 2023).

Increasing Migrant Crossings at U.S. Border Call for Legal Changes

This July more than 130,000 migrants were apprehended at the U.S.-Mexico border. The fastest growth in this immigration, with 40,000 of the total, was in the Border Patrol’s Tucson sector, which comprises most of Arizona, which was the most since April 2008. U.S. authorities attribute this increase to smugglers now guiding migrants to the border across the most remote and harsh stretches of the Arizona desert between Yuma and Tucson to avoid detection. [1]

Crossing in desert areas in the summer can be deadly, with ground temperatures well exceeding 100 degrees Fahrenheit at times, officials say. Such extreme conditions have led to a spike in 911 calls. Agents responding to such calls for help routinely find dozens or even hundreds of migrants in need of aid and trying to surrender to arriving border agents.

Cuba is experiencing growth in out-migration. Social-media advertisements on the island have recently increased offering door-to-door transportation to the U.S. through flights from Cuba to Nicaragua and ground travel across Central America and Mexico. Although new Biden policies require Cubans to have a U.S. citizen-sponsor for legal entry to the U.S., many Cubans do not have such sponsors and some officials say, “For ordinary Cubans, finding a sponsor who has money in the U.S. is Mission Impossible.”[2]

Another indication of this migrant pressure is the recent guilty plea by the owners of a Williamsburg, Virginia cleaning business who operated a “labor trafficking enterprise” that smuggled over 100 migrants from El Salvador, including minors, and forced them to work in U.S. under threats of violence and deportation.[3]

Recommended Changes

Andrea R. Flores, who served as an immigration policy adviser in the Obama and Biden administrations, says, “Until Congress finds the political will to act, the president should use his authority to relieve pressure on our asylum system and give migrants the ability to legally work once they reach the United States.”[4] To that end, she recommends the following:

“While far from perfect, the Biden administration’s parole program for Cubans, Haitians, Nicaraguans and Venezuelans could serve as a model for what is possible. This policy provides safer options to people who are unlikely to meet the legal requirements for asylum, but who still have urgent humanitarian reasons to flee their homes.”
The President should “use his authority to grant Temporary Protected Status to the hundreds of thousands of Venezuelans who lack work authorization, which would be a boon for immigrants and the communities that welcome them. A 2023 analysisby FWD.us, a bipartisan group founded by American business leaders that favors more humane immigration reform, found that T.P.S. holders contribute $22 billion in wages annually to the U.S. economy.”
“The administration should also act quickly to increase the number of appointments at ports of entry; add new countries eligible for parole; lift caps on countries with urgent resettlement needs, as it did for Ukraine; and invest resources in adjudicating asylum cases expeditiously.”

Noted commentator, Fareed Zakaria, points out the obvious: “America’s immigration system is broken.” [5]Therefore, he says the following: “The laws and rules around asylum must be fixed so that immigration authorities can focus on the small number of genuine asylum seekers while compelling the rest to seek other legal means of entry. At the same time, it’s important to note that the United States is facing a drastic shortfall of labor and must expand legal immigration in many areas for just that reason. We urgently need to attract the world’s best technically skilled people so that they can push forward the information and biotech revolutions that are transforming the economy and life itself. With unemployment rates around 50-year lows, it is obvious that we need more workers in many sectors of the economy, from agriculture to hospitality. If this is done in a legal and orderly manner, Americans will welcome the new workers.”

Therefore, he says Biden “should propose an immigration bill that is genuinely bipartisan and forces compromises from both sides. It would be one more strong dose of evidence that policy can triumph over populism.” Good luck on doing that.

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[1] Perez & Caldwell, Migrant Crossings on the Rise Again at U.S. Border,W.S.J. (Aug. 12, 2023); Miroff & Sacchetti, Border arrests surged in July, a blow to Biden immigration plan, Wash. Post (Aug. 1, 2023).

[2] Perez & Caldwell, Migrant Crossings on the Rise Again at U.S. Border, W.S.J. (Aug. 12, 2023).

[3] Paul, Laundry company owners guilty of trafficking migrants, minors for labor, Wash. Post (Aug. 13, 2023).

[4] Flores, We Know What Doesn’t Work at the Border. Here’s a Better Solution, N.Y. Times (Aug. 10, 2023).

[5] Zakaria, Immigration can be fixed. So why aren’t we doing it?, Wash. Post (Aug. 11, 2023).

New York Times Editorial: Trump’s Four Indictments Show His Disdain for American Democracy and His Unfitness for the Presidency

A recent New York Times’ editorial persuasively shows how Donald Trump’s four criminal indictments (to date) show his disdain for American democracy and his unfitness for the country’s presidency.[1]

Editorial’s Details

The new Georgia criminal indictment shows Trump was “leading what was effectively a criminal gang to overturn the 2020 presidential election in that state.” This indictment alleges that he “often behaved like a mob boss, pressuring the Georgia secretary of state to decertify the Georgia election and holding a White House meeting to discuss seizing voting equipment.” This indictment included these alleged crimes: “conspiracy to commit first-degree forgery, for arranging to have a false set of Georgia electors sent to Washington to replace the legitimate ones for Joe Biden, . . . conspiracy to impersonate a public officer and a series of charges relating to filing false statements and trying to get state officials to violate their oath of office.”

This indictment along with his other three indictments “offer a road map of the trauma and drama Mr. Trump has put this nation through. They raise questions about his fitness for office that go beyond ideology or temperament, focusing instead on his disdain for American democracy.”

Indeed, “Mr. Trump has put his ego and ambition over the interests of the public and of his own supporters. He has aggressively worked to undermine public faith in the democratic process and to warp the foundations of the electoral system. He repeatedly betrayed his constitutional duty to faithfully execute the nation’s laws. . . . [H]is actions, as detailed in these indictments, show that he is concerned with no one’s interests but his own.”

“A president facing multiple criminal trials, . . . could not hope to be effective in enforcing the nation’s laws — one of the primary duties of a chief executive. (If re-elected, Mr. Trump could order the federal prosecutions to be dropped, though that would hardly enhance his credibility.) A man accused of compromising national security would have little credibility in his negotiations with foreign allies or adversaries. No document could be assumed to remain secret, no communication secure. The nation’s image as a beacon of democracy, already badly tarnished by the Jan. 6 attack, may not survive the election of someone formally accused of systematically dismantling his own country’s democratic process through deceit.”

“[A] healthy political party does not belong to or depend on one man, particularly one who has repeatedly put himself over his party and his country. A healthy democracy needs at least two functioning parties to challenge each other’s honesty and direction. Republican voters are key to restoring that health and balance.”

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[1] Editorial: What if, Knowing What They Know Now, Republicans Don’t Vote for Donald Trump?, N.Y. Times (Aug. 15, 2023). Previous Times’ editorials set forth similar arguments against Trump’s again becoming our President: Editorial: Even Donald Trump Should Be Held Accountable (Mar. 30, 2023); Editorial: Donald Trump Should Never Again Be Trusted With the Nation’s Secrets (June 9, 2023); Editorial: A President Accused of Betraying His Country (Aug. 2, 2023).

New York City Pleads for Federal Financial Aid for New Migrants

At an August 9 press conference, New York City’s Mayor Eric Adams pleaded for federal financial aid for the city’s influx of new migrants.[1]

For fiscal 2023 the City spent $1.45 billion on shelter services for migrants and this June approved $2.9 billion for same for fiscal 2024, but already knows that will not be enough. The Mayor said it now looks like it will require $5 billion because the City had failed to include the new migrants now coming under the new Biden Administration’s asylum and immigration rules [2] and a 1996 federal law that requires asylum seekers to wait five months in the U.S. before applying for work permits.

Massachusetts is experiencing the same problem. Its Governor, Maura Healey, this week declared, “a state of emergency exists in Massachusetts due to rapidly rising numbers of migrant families arriving in . . . [the state] in need of shelter and services and a severe lack of shelter availability in the state.” She also denounced “a federal crisis of inaction” and asked for faster work authorizations. [3]

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[1] Editorial, The Blue State Migrant Crisis, W.S.J. (Aug. 9, 2023).

[2] E.g., Biden Administration’s New Restrictions on U.S. Asylum Law Being Challenged in Federal Courts, dwkcommentareis.com (Aug. 6, 2023).

[3] Press Release, Governor Healey Declares State of Emergency, Calls for Support for Newly Arriving Migrant Families, Mass. Govt (Aug. 8, 2023).

Are Anti-Trumpers “the Bad Guys”?

This is the question posed in a recent David Brooks column in the New York Times.[1]

He starts out with the admission (or confession) that he is an anti-Trumper who believes that members of this group are “the good guys, the forces of progress and enlightenment” while the “Trumpers are reactionary bigots and authoritarians” who see Trump as “the embodiment of their resentments.”

At least for purposes of argument, however, Brooks considers whether the anti-Trumpers are the bad guys by creating the “modern meritocracy” system.

Such a system started in the 1960s “when high school grads had to go off to fight in Vietnam but the children of the educated class got college deferments. It continues in the 1970s, when the authorities imposed busing on working-class areas in Boston but not on the upscale communities like Wellesley where . . . [the educated class] lived.”

The latter is “the modern meritocracy. We built an entire social order that sorts and excludes people on the basis of the quality that we possess most: academic achievement. Highly educated parents go to elite schools, marry each other, work at high-paying jobs and pour enormous resources into our children, who get into the same elite schools, marry each other and pass their exclusive class privileges down from generation to generation.”

“Everybody else is forced into a world down there. . . . Today middle-class children lose out to the rich children at school, and middle-class adults lose out to elite graduates at work. Meritocracy blocks the middle class from opportunity. Then . . . [the modern aristocracy] blames those who lose a competition for income and status that even when everyone plays by the rules, only the rich can win.”

“Armed with all kinds of economic, cultural and political power, we [members of the modern aristocracy] support policies that help ourselves. Free trade makes the products we buy cheaper, and our jobs are unlikely to be moved to China. Open immigration makes our service staff cheaper, but new, less-educated immigrants aren’t likely to put downward pressure on our wages.”

“We [the members of the modern aristocracy] also change the moral norms in ways that suit ourselves, never mind the cost to others. For example, there used to be a norm that discouraged people from having children outside marriage, but that got washed away during our period of cultural dominance, as we eroded norms that seemed judgmental or that might inhibit individual freedom.”

“After this social norm was eroded, . . . [m]embers of our class still overwhelmingly married and had children within wedlock. People without our resources, unsupported by social norms, were less able to do that.”

As Adrian Wooldridge points out in his magisterial 2021 book, “The Aristocracy of Talent, ‘Sixty percent of births to women with only a high school certificate occur out of wedlock, compared with only 10 percent to women with a university degree.” That matters, he continues, because ‘the rate of single parenting is the most significant predictor of social immobility in the country.’”

Brooks believes that most of our class [the modern aristocracy] are “earnest, kind and public-spirited. But we take for granted and benefit from systems that have become oppressive. Elite institutions have become so politically progressive in part because the people in them want to feel good about themselves as they take part in systems that exclude and reject [others].”

“It’s easy to understand why people in less-educated classes would conclude that they are under economic, political, cultural and moral assault — and why they’ve rallied around Trump as their best warrior against the educated class. Brooks understands that it’s not the entrepreneurs who seem most threatening to workers; it’s the professional class. Trump understood that there was great demand for a leader who would stick his thumb in our eyes on a daily basis and reject the whole epistemic regime that we rode in on.”

“If distrustful populism is your basic worldview, the Trump indictments seem like just another skirmish in the class war between the professionals and the workers, another assault by a bunch of coastal lawyers who want to take down the man who most aggressively stands up to them. Of course, the indictments don’t cause Trump supporters to abandon him. They cause them to become more fiercely loyal. That’s the polling story of the last six months.”

“Are Trump supporters right that the indictments are just a political witch hunt? Of course not. As a card-carrying member of my class, Brooks says, I still basically trust the legal system and the neutral arbiters of justice. Trump is a monster in the way we’ve all been saying for years and deserves to go to prison.”

Therefore, for sociologist Digby Baltzell and David Brooks, “the real question is: When will we stop behaving in ways that make Trumpism inevitable?”

Reactions

In this column, Brooks does not provide an answer to his “real question.” Maybe there will be a future column in which he does so.

This blogger, however, believes at least part of the “real answer” for the State of Minnesota and many other states lies in the declining and aging population of rural parts of the State and the resulting negative impacts on their economies and visions of the future.[2] This problem suggests the need for more immigration to help solve the need for more labor with immigrant visas requiring the recipients to live and work in the areas with declining population.

Another part of the answer for this State and others, therefore, this blogger believes, is developing a system to promote and maintain intimate social contacts between people in the two parts of the states and thereby developing better understanding of the two sectors and programs for addressing the needs of the people in the rural parts of the states. Such a system requires everyone to exercise mutual forbearance toward each other[3] and to recognize our failings (sins) and request forgiveness from God and those whom we have wronged.[4]

Readers are invited to provide comments to this post with other ideas for answering the “real question” posed by Brooks.

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[1] Brooks, What if We’re the Bad Guys Here?, N.Y. Times (Aug. 2, 2023).

[2] See, e.g., these posts in dwkcommentaries.com: Another Defining Challenge of the 21^st Century (Jan. 28, 2023);Skepticism About Douthat’s Defining Challenge of the 21^st Century (Jan. 30, 2023); COMMENT: Developments in Africa and Italy Accentuate Douthat’s Concerns (Jan. 31, 2023); Iowa State Government Encouraging Refugee and Migrant Resettlement Feb. 1, 2023); COMMENT: National Worker Shortages in U.S. (Feb. 3, 2023); Migrant Workers Being Paid Premium Wages in U.S. Tight Labor Market (Feb. 8, 2023); More Details on U.S. and Other Countries’ Worker Shortages (Feb. 9, 2023);Your Longevity Is Important for Many Reasons (Feb. 12, 2023); Other States Join Iowa in Encouraging Immigration To Combat Aging, Declining Populations (Feb. 22, 2023); COMMENT: More Support for Immigrants’ Importance for U.S. Economy (Feb. 23, 2023); U.S. High-Tech Layoffs Threaten Immigrants with Temporary Visas (Feb. 25, 2023); U.S. Needs To Ameliorate Brutal Jobs Endangering Immigrant Workers (Feb. 26, 2023); COMMENT: Layoffs in Overall U.S. Economy Are Rare (Feb. 27, 2023); COMMENT: Many Undocumented Immigrants Leaving U.S. (March 1, 2023); Protections for U.S. Child Labor Need Improvement (APRIL 22, 2023; Wall Street Journal Editorial: U.S. Needs More Immigrants (July 25, 2023); COMMENT: Americans in Their Prime Are Flooding Into the Job Market (July 26, 2023:COMMENT: Dire Shortages of Workers in U.S. Public Sector (July 27, 2023).

[3] E.g., Minneapolis’ Westminster Presbyterian Church: Presbyterian Principles: It is our duty to exercise mutual forbearance toward each other, dwkcommentaries.com (May 19, 2023).

[4] E.g., The Prayer Jesus Taught: “And forgive us for our debts as we forgive our debtors,” dwkcommentaaries.com (May 9, 2023).

Biden Administration’s New Restrictions on U.S. Asylum Law Being Challenged in Federal Courts

This year has seen many developments regarding the Biden Administration’s attempts to cope with the large numbers of migrants illegally crossing the U.S.-Mexico border. Here is a review of some of those developments.

Biden’s New Asylum Regulation[1]

On February 21, the Biden Administration announced a proposed rule that would require rapid deportation of an immigrant at the U.S. border who had failed to request protection from another country while en route to the U.S. or who had not previously notified the U.S. via a mobile app of a plan to seek asylum in the U.S. or who had applied for the new U.S. humanitarian parole programs for certain countries (Cuba, Haiti, Nicaragua and Venezuela). This rule was scheduled to take effect will take effect on May 11, with the expected termination that day of Title 42 which allowed the U.S. to swiftly expel migrants at the U.S. border.

This announcement stated that the new rule would “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.”

DHS Secretary Alejandro N. Mayorkas stated, “We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners. As we have seen time and time again, 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.”

Attorney General Merrick B. Garland added the following: “The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process. This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.”

The Administration said that without this new rule, immigration at the U.S. border would “increase significantly, to a level that risks undermining the … continued ability to safely, effectively and humanely enforce and administer U.S. immigration law.”

On May 12, 2023, these new restrictions on applications for asylum under U.S. law went into effect. Under these new restrictions aliens were disqualified for making such applications if they had crossed into the U.S. without either securing an appointment for an official U.S. interview at an official port of entry or without seeking legal protection in another country along their way to the U.S.

Reactions to U.S. New Asylum Rules[2]

Prior to this new rule, U.S. border patrol officials were daily encountering about 7,500 migrants trying to cross the U.S. border illegally. Since then the numbers have declined to about 3,000 per day, still historically high but dramatically lower than the 7,500.

There is abundant evidence that migrants have been applying for asylum in record numbers under this new rule and now are in long lines, taking several years, for their cases to be heard in Immigration courts. (At the end of fiscal 2022, there were nearly 1.6 million pending asylum applications.) Moreover, other migrants without legal support, are likely to miss the 12 month deadline for submitting the complicated application) and fall into the more perilous category of the undocumented.

In a joint statement, Democratic Sens. Bob Menendez (N.J.), Cory Booker (N.J.), Ben Ray Luján (N.M.) and Alex Padilla (Calif.) called on the administration to drop the proposed rule. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States.”

A similar reaction came from leading Democrat House members (Rep. Jerrold Nadler and Pramila Jayapal). In their joint statement, they expressed “deep disappointment” with the newly proposed rule and stated, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.”

Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said they applaud the expanded pathways for those four countries announced in January but question where that leaves migrants from other countries. She says it favors people with resources who can afford the necessary requirements of finding a financial sponsor and buying a plane ticket to the U.S. And some people are so at risk, they simply cannot wait in their country for a humanitarian parole slot. Critics have also highlighted technological problems with the app.”

The Federation for American Immigration Reform said that the rule isn’t designed to halt migrants as much as make the process more orderly: “In other words, the real objective is not to end large-scale asylum abuse, but rather to get them through the next election cycle.”

Justice Action Center’s counsel, Jane Bentrott, said the proposed rule “would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks. It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum.”

Lindsay Toczylowski, the executive director of Immigrant Defenders Law Center in California, criticized the inept operations of the government’s online system for scheduling an asylum application interview. “It’s almost like a lottery. You have to win a ticket to be able to seek protection in the U.S.”

An ACLU attorney, Lee Gelernt, who successfully challenged similar efforts by the Trump Administration, said that Biden’s new proposed rules had the same legal flaws as the Trump rules and that the ACLU would sue to block the latest move.

Challenge to New Asylum Regulations in U.S. District Court[3]

A lawsuit challenging the new asylum rule was filed with the U.S. District Court for Northern California. The U.S. Government obviously opposed this lawsuit and submitted an affidavit by Blas Nuñez-Neto, assistant secretary of homeland security for border and immigration policy, that described the real-world alternatives to the new rule: Customs and Border Patrol “facilities will be overcrowded once again, placing the noncitizens in our custody and the front-line personnel who care for them at risk.” Border communities “will once again receive large scale releases of noncitizens that will overwhelm their ability to coordinate safe temporary shelter and quick onward transportation.” And interior cities such as New York “will, once again, see their systems strained.”

Therefore, the U.S. Government argued that the Biden plan is necessary to the government’s “continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system.”

Nevertheless, on July 25, 2023, Judge Jon S. Tigar of the U.S. District Court for Northern California held that these new restrictions were “both substantively and procedurally invalid.” The Judge said, “The court concludes that the rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum.”

The judge, however, “immediately stayed his decision for 14 days, leaving the asylum policy in place while the federal government appealed the decision.”

An ACLU attorney for the plaintiffs said this ruling “is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger.”

According to the Homeland Security Secretary, Alejandro N. Mayorkas, however, “the administration strongly disagreed with the decision. With the policy still in place while the decision is appealed, he added, migrants who did not follow the current rule would face stiff consequences.” This result “does not limit our ability to deliver consequences for unlawful entry,” including prompt removal, a future bar on admission and potential criminal prosecution.”

Appeal About Asylum Rules in Court of Appeals[4]

The U.S. Government took an immediate appeal from Judge Tigar’s decision, and on August 3, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit decided, 2 to 1, that the pause or stay of the District Court’s decision invalidating the Biden Administration’s new asylum restrictions should continue for as long as it takes the appellate court to rule on the case. The appellate court also stated that it would “expedite its consideration of the government’s appeal and said that briefs from both sides would be due by the end of September at the latest. A hearing will follow.”

The two judges in the majority—William A. Fletcher and Richard A. Paez—did not explain their reasoning.

However, the dissenting judge, Lawrence Van Dyke, said that the majority judges did not give the Trump Administration the same deference when the court invalidated asylum restrictions, which were practically the same as those adopted by the Biden Administration. Van Dyke more colorfully said that Biden’s asylum restrictions were so similar to the Trump administration’s that it looks like they “got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”

A spokeswoman for the Department of Homeland Security, Erin Heeter, responded to this appellate ruling. She said, “We will continue to apply the rule and immigration consequences for those who do not have a lawful basis to remain in the United States. The rule has significantly reduced irregular migration, and since its implementation on May 12 we have removed more than 85,000 individuals. We encourage migrants to ignore the lies of smugglers and use lawful, safe and orderly pathways.”

Katrina Eiland, the ACLU lawyer who argued the case for the plaintiffs, had a different reaction. She said, “We are confident that we will prevail when the court has a full opportunity to consider the claims. We are pleased the court placed the appeal on an expedited schedule so that it can be decided quickly, because each day the Biden administration prolongs its efforts to preserve its illegal ban, people fleeing grave danger are put in harm’s way.”

Conclusion

We all now await the parties’ appellate briefs and oral arguments followed by the Court of Appeals decision and then potential further proceedings in that court and the U.S. Supreme Court.

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[1] Biden Administration Announces Proposed Restrictions on Asylum Applications, dwkcommentaries.com (Feb. 27, 2023). h

[2] Meko & Vitchis, New Migrants Have a Year to Apply for Asylum. Many Won’t Make It, N.Y. Times (July 3, 2023); Sullivan, Lawyers Say Helping Asylum Seekers in Border Custody Is Nearly Impossible, N.Y. Times (July 22, 2023);Shear, Turkewitz & Sandeval, How and Why Illegal Border Crossings Have Dropped So Dramatically, N.Y. Times (July 26, 2023);

[3] Jordan & Sullivan, Federal Judge Blocks Biden Administration’s New Asylum Policy, N.Y. Times (July 25, 2023); Hackman & Caldwell, Judge blocks Biden Administration Asylum rules, W.S.J. (July 25, 2023); Editorial: Why are courts messing up a Biden asylum policy that works? Wash.Post ( July 27, 2023).

[4] Shear, Appeals Court Allows Biden’s Asylum Restrictions to Continue for Now, N.Y. Times (Aug. 3, 3023); Sacchetti & Miroff, Biden’s asylum restrictions for migrants may remain in place, federal appeals court rules, Wash. Post (Aug. 4, 2023)