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July 2005, Volume 12, Number 3

DHS: Enforcement, Asylum

The 10.3 million unauthorized foreigners in the US reported in the March 2004 Current Population Survey were almost four percent of the 293 million US residents. There were 14 million members of US households in which the head or spouse was unauthorized, and they included 3.1 million US-born and US-citizen children.

About 57 percent--6.3 million-of the unauthorized foreigners are Mexicans and another 24 percent are from other Latin American countries. About two-thirds of the unauthorized in 2004 arrived after 1995. Many went to states in the Southeast, West and Midwest, while California's share of unauthorized foreigners fell from 45 percent in 1990 to 24 percent in 2004.

About 6.4 million of the 148-million US workers in 2004 were unauthorized, 4.3 percent. A third of unauthorized workers are employed in services, a third work in construction, installation and repair, and less than five percent work in agriculture, according to the CPS. Education levels are low: only 25 percent of unauthorized adults have a high school education or more.

An opinion poll found that a majority of Republican "enterprisers" and Democratic liberals say that high levels of immigration "strengthens American society." A majority of Republican social conservatives and Democratic disadvantaged say that newcomers threaten American values.

CBP. Accenture and its subcontractors in the Smart Border Alliance in May 2004 won a 10-year contract with a value of up to $10 billion to create a "virtual border" to screen millions of foreign travelers electronically. However, the US-VISIT (Visitor and Immigrant Status Indicator Technology) system, a key component of virtual borders, is in trouble, according to the Washington Post, since it fully checks only one percent of foreign visitors to the US. One reason for infrequent cross checks is that US-VISIT uses two rather than the standard 10 fingerprints.

US-VISIT is eventually expected to cover those arriving at 300 land, air and sea ports with 450 million crossings a year. In 2005, US-VISIT checked only 800 of the roughly 118,000 visitors a day who could be screened against the FBI database. DHS nonetheless asserted in May 2005 that US-VISIT was working, and had blocked the admission of nearly 600 people and led to the arrest of 39.

The US once again postponed the requirement that foreigners from 27 countries who do not require visas have biometric information such as fingerprints in their passports. The US does not require foreigners to have "e-passports," and does not have the equipment in place to check such passports, but wants foreigners who do not need visas to enter the US to have passports that include biometric chips with photos by October 2006.

The unofficial, civilian Minuteman project pronounced its April 2005 effort to discourage illegal entries in Arizona a success, and said that it had 15,000 volunteers ready to patrol the entire Mexico-US border. The number of CBP apprehensions in April 2005 was only 4,173, compared to 12,402 in April 2004. However, when civilians detain foreigners, local police and the foreigner's consulate must be called to ensure that the foreigner's civil rights are protected, adding several hours to their processing and return to Mexico.

California Governor Arnold Schwarzenegger praised the April 2005 Minuteman campaign, saying that the volunteers had done a "terrific job" to reduce illegal entries. There was speculation that Schwarzenegger was borrowing a tactic of former Governor Pete Wilson and using illegal immigration to boost his sagging popularity. Wilson, one of the few politicians to embrace and campaign for Proposition 187, handily won re-election in 1994.

The Arizona desert, the major crossing point of illegal entrants, has once again become a death trap for some migrants- 12 died in mid-May 2005, as temperatures topped 115 degrees. The US spent $15 million flying 14,000 migrants who were apprehended in Arizona to Mexico City and other interior cities in summer 2004, and plans a similar deep repatriation program in summer 2005.

In Spring 2004, a team of 12 Border Patrol agents conducted sweeps in southern California, apprehending over 420 unauthorized Mexicans and sowing panic. The Border Patrol said it visited day laborer sites in response to complaints, but papers filed in response to a lawsuit found there were none. The sweeps raised protests among politicians, church leaders and the Mexican government, and were stopped by DHS because the Border Patrol did not coordinate the effort with ICE, the agency responsible for interior enforcement. During the sweeps, 45 people were questioned and detained who turned out to be either U.S. citizens or legal permanent residents.

California has 2.5 to 3 million unauthorized foreigners and spends $5 to $9 billion a year to educate, medically care for and also to imprison them. There are about 1,700 Border Patrol officers on the California-Mexico border. The California Border Police Act was proposed in May 2005 as a way to hire 1,500 to 3,000 additional state officers to patrol the California-Mexico border and enforce employer sanctions laws. According to its legislative sponsor, if the Legislature does not act, the CBPA will be on the June 2006 ballot as an initiative.

The Department of Homeland Security will get a $30.8 billion budget for FY06, including $9 billion for border security. DHS in April 2005 proposed that Americans be required to produce passports to re-enter the United States from Mexico, Canada, Panama and Bermuda after January 2008. President Bush rebuffed this proposal, and said he preferred something between the current system, which requires returning Americans and Canadians merely to show a driver's license at the border, and the proposed passport requirement.

A FOX News Poll released on May 3, 2005 reported that 63 percent of those surveyed said that unauthorized migration was a "very serious" problem, and that 28 percent said it was "somewhat serious." When asked why, a third cited homeland security and terrorism, a third cited jobs and the economy, and a third cited both. Two-thirds of those surveyed supported putting troops on the border.

Sociologist Doug Massey argues that the US government has been and will remain unable to stop unauthorized Mexico-US migration, and that the best option is to accept inevitable Mexico-US migration and funnel it into legal channels. According to Massey, the probability of being apprehended while trying to enter the US illegally from Mexico was 33 percent from the mid-1970s to mid-1980s, fell to between 20 and 30 percent from the mid-1980s until 2000, and reached a low of five percent in 2002 despite the addition of Border Patrol agents.

Massey argues that 95 percent of those who attempt illegal entry succeed with the help of smugglers, but the increased cost of illegal entry encourages irregular Mexicans to remain in the US. The probability of returning to Mexico within 12 months of illegal entry fell from 50 percent in the mid-1980s to 25 percent today.

Massey believes that the solution to unauthorized Mexico-US migration is a two-year renewable work visa that would permit Mexicans to be free agents in the US labor market. Massey recommended that 300,000 work visas a year be sold for $400 each, and that fees collected from guest workers and their payroll taxes be spent to spur development in their countries of origin. Massey proposed a temporary status for unauthorized Mexicans that would let them earn immigrant visas and legal status for their unauthorized children in the US.

In May 2005 testimony, DHS said that it cost $179,000 for each new Border Patrol agent to complete a five-month training course, including related expenditures on weapons, training facilities and travel.

ICE. U.S. Immigration and Customs Enforcement is responsible for the enforcement of immigration laws within the US, including detecting and removing the unauthorized and those ordered deported (formally sending foreigners out of the US used to be called deportation and is now called removal). Some 161,346 foreigners were removed in FY04, up from 145,651 in FY03 and 116,026 in FY02. About half of those removed were convicted of US crimes, down from previous levels of two-thirds, as ICE gets more efficient at finding non-criminals who have been ordered removed.

To avoid removal, many foreigners apply to federal courts. The 9th Circuit, the largest federal appellate court with 24 judges, said that half of its cases in 2005 involve immigration issues. Foreigners first appear before immigration judges and can appeal their decisions to the Board of Immigration Appeals before proceeding to the federal courts. The BIA was reduced from 23 to 11 members in 2002, and the BIA increasingly issues one-sentence decisions upholding immigration judges. In 2003, the BIA reversed immigration judges in six percent of the cases appealed to it; a quarter of BIA decisions are appealed to federal courts.

Since the September 11, 2001 terrorist attacks, ICE has given priority to checking on employees at critical infrastructure workplaces, including airports, nuclear facilities and seaports. In May 2005, ICE arrested 60 unauthorized workers from Mexico and Central America employed by Brock Enterprises, which supplies maintenance workers to refineries and power plants.

The procedure for checking workers employed at critical infrastructure is similar to that used in Operation Vanguard in 1999 in Nebraska meatpacking plants, when I-9 employee verification forms were subpoenaed from 111 meatpacking plants and checked against Social Security Administration and INS records. INS told employers to ask employees with discrepancies to clear them up before agents came to the plant to interview them; agents interviewed only employees about whom there was doubt during work-place visits. However, in today's inspections, agents visit the work place and arrest those whose data does not match government records.

Generally speaking, however, workplace enforcement is declining. Between 1993 and 2003, the number of employers fined for hiring unauthorized workers fell from 944 to 124, and the number of workers apprehended at work places fell from 7,630 to 445. Such data reinforce the perception that there is no effective workplace enforcement of immigration laws.

Hispanic workers have high injury and death rates at US work sites, prompting federal and state agencies to step up safety training and inspections. Construction workers at the Seymour Johnson Air Force Base in Goldsboro were told to come to a mandatory safety meeting and, when they did, 48 were arrested as unauthorized, prompting complaints from safety officials that workers would be less likely to cooperate in the future (the safety agencies were not involved in the sting).

Since December 2004, the Basic Pilot Employment Verification Program, administered by USCIS, has enabled all US employers to check new hires against Social Security and immigration databases. As of June 2005, some 4,385 employers were participating. They say that, when they inform new hires of data mismatches, most do not return, and instead seek jobs with non-participating employers.

Mexican-American Robert Vasquez wants to make Canyon County, Idaho the only US county to use the federal Racketeer Influenced and Corrupt Organizations Act against employers of illegal migrants. His initiative illustrates the tensions within the Republican party. Senator Larry E. Craig (R-ID) wants to legalize unauthorized workers, while Vasquez wants to use RICO to go after their employers.

Not all Mexicans with legal immigrant status live in the US. The New York Times on June 7, 2005 reported that up to five percent of the legal immigrants living in some Mexican towns have rented their immigration visas and social security numbers to others who use them to enter the US. The article profiled a Mexican beekeeping instructor who fraudulently got an immigrant visa through the Special Agricultural Worker farm worker legalization while visiting his brother in the US in 1986-87. He got a farmer to give him a letter asserting he had worked over 90 days in the fields in 1985-86, got an immigrant visa, returned to Mexico, and rented out the visa and social security card. He gets money now from migrants working in the US. Later, he stands to get the retirement benefits that will accrue to his social security account.

Unauthorized workers prefer valid SSNs to invented ones in order to avoid having the SSA send out mismatch letters to their employers. For Mexican immigrants living outside the US, having earnings reported to a valid SSN can help establish "residence" if they want to move back to the US. US earnings attributed to them can also allow them to collect unemployment insurance benefits. Finally, if US earnings are low, there may be an income tax refund to split between the worker and the owner of the IDs.

A mid-June 2005 Washington Post review of federal anti-terrorism prosecutions found few persons linked to terrorism, but many foreigners prosecuted for immigration law violations like overstaying a visa or working with a visa that does not authorize employment. With over 10 million unauthorized foreigners in the US, Muslims say they are being singled out for strict enforcement of immigration laws. After September 11, 2001, some 768 Muslim men were processed in secret, and most were deported for violation of immigration laws after being cleared of connections to terrorism.

Today, activists charge that ICE is scrutinizing the paperwork of Muslims in order to find a reason to arrest legal immigrants and naturalized US citizens, and then offering them a "deal" on the immigration violation if they provide evidence on terror suspects. ICE says that since March 2003, more than 500 people have been charged with immigration violations after an initial report linking them to a terrorism or homeland security threat.

Asylum/Refugees. A Kenyan woman who requested asylum and was returned to Kenya in March 2001 won $87,500 in a settlement with the US government. The woman returned to the US as a tourist in September 2002 and later sued the U.S. government for returning her to face persecution, a suit that a federal judge in January 2005 allowed to proceed. The woman is from Kenya's largest ethnic group, the Kikuyu, and said she was persecuted for belonging to an organization that opposed the government of former President Daniel arap Moi.

Refugee status is granted to those with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. A South African family asked for asylum because a relative abused black workers and they feared persecution from his employees. The government said the family was not a "particular social group," but the 9th Circuit Court of Appeals, in a 7-4 decision in June 2005, said a family is a particular social group for purposes of determining whether they face persecution.

The US government had argued that, if families are particular social groups, then "victims of vendettas or feuds" around the world could claim asylum. However, the court said that asylum applicants "must still show that the persecution is at the hands of the government or persons or organizations that the government is unable or unwilling to control."

There are two major ways of obtaining asylum in the United States: the "affirmative" process and the "defensive" process. During their first 12 months in the United States, asylum-seekers who have not been ordered deported can submit an asylum application regardless of how they came to the country and regardless of their immigration status, the affirmative process. These applicants have interviews at one of eight asylum offices around the US, usually within 60 days of applying for asylum.

The defensive process is used by people who request asylum after a U.S. immigration court has ordered them removed from the country. Between 1993 and 1995, thousands of foreigners applied for asylum in order to get the work authorization then provided. Since 1995, there has been a six-month wait for a work permit, and applications have fallen while approval rates have increased. There were 46,272 asylum applicants in 2003 and 31,500 in 2004, when 32 percent were recognized as refugees. Under the Real ID Act of 2005 future asylum applicants would have to provide more evidence that they faced persecution at home. They could be more easily rejected if the asylum judge questioned their "demeanor" or "responsiveness."

A Somali refugee who was convicted of a US felony in 1999 was ordered deported in 2001. The US Supreme Court in January 2005 said that he could be deported even if Somalia had no functioning government to accept him. However, after arrival, local officials rejected him, and the private security firm that flew him to Somalia brought him back to the US. About 90,000 Somalis are in the US, half in Minnesota, and 4,000 are subject to removal.

There are at least 1,225 foreigners in long-term detention in the US from 100 countries who cannot be deported. Another Supreme Court decision forbids detention beyond six months unless deportation is imminent or there is a specific danger in releasing foreigners who cannot be removed.

Americans who want more done to reduce illegal immigration nonetheless often rally to the cause of individual unauthorized migrants. A now 17-year old boy from Fujian was smuggled into the US after his father reportedly paid smugglers $60,000, and became an outstanding student in US schools. After thee years of living in the US, there were protests when DHS tried to deport him back to China. The boy ask for asylum on the grounds that the smugglers would seek retribution because he went to school rather than worked and was unable to repay the smuggling debt; his case is pending.

Vienna Convention. The Vienna Convention ratified by the US in 1969, requires consular access for Americans detained abroad and for foreigners arrested in the United States. However, many state prosecutors do not tell foreigners that they have the right to seek help from their consular officials. The International Court of Justice in The Hague ruled in 2004 that the rights of foreigners were violated when they were sentenced to death in the US without being informed of their consular rights.

President Bush ordered states to comply with the International Court's ruling and hold new hearings for convicted foreigners who were sentenced to death. The US Supreme Court in May 2005 rejected an appeal from a Mexican on death row in Texas, saying that he had to wait until Texas completed a review of his case.

Barron's on January 3, 2005 reported that the underground US economy may add $1 trillion to the $11 trillion GDP, and that its size and growth suggests that the number of unauthorized foreigners is double the usual 10 million estimate.

Steven Greenhouse, "Immigration Sting Puts 2 U.S. Agencies at Odds," New York Times, July 16, 2005. Eduardo Porter, "Some Immigrants Are Offering Social Security Numbers for Rent," New York Times, June 7, 2005. Anna Gorman, "Employers of Illegal Immigrants Face Little Risk of Penalty," Los Angeles Times, May 29, 2005. Robert O'Harrow Jr. and Scott Higham, "U.S. Border Security at a Crossroads," Washington Post, May 23, 2005. Teresa Borden, "Asylum under threat?," Atlanta Journal-Constitution, April 27, 2005. Massey, Douglas. 2005. Backfire at the Border: Why Enforcement without Legalization Cannot Stop Illegal Immigration. Cato Institute.