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January 2017, Volume 23, Number 1

DHS: Unauthorized, DACA

Data released in Fall 2016 suggest the number of foreign-born US residents, including the unauthorized, rose to 43.3 million in 2015. Nine countries accounted for 25 million or almost 60 percent of the total foreign-born population. There are one million or more foreigners from nine countries in the US: Mexico, 11.6 million; China, 2.7 million; India, 2.4 million; the Philippines, two million; El Salvador, 1.4 million; Vietnam, 1.3 million; Cuba, 1.2 million; and the Dominican Republic and Korea, one million.

Foreign-born residents are 13.5 percent of the 320 million US residents. States with higher than average foreign-born shares include California, 27 percent; New York, 23 percent; New Jersey, 22 percent; Florida 20 percent; and Nevada, 19 percent.

Unauthorized. Pew estimated that there were 11.1 million unauthorized foreigners in the US in 2014; the unauthorized population has been stable since 2009. The number of unauthorized foreigners rose from 3.5 million in 1990 to a peak of 12.2 million in 2007 before falling toward 11 million. Unauthorized foreigners were 26 percent of the 43.6 foreign-born US residents in 2014.

In recent years, about 350,000 new unauthorized foreigners a year arrived, including 100,000 Mexicans; about the same number of foreigners were deported from the US.

Unauthorized foreigners are 3.5 percent of US residents; over 90 percent are 18 to 64. The 11 million unauthorized include 5.9 million or 53 percent Mexicans, followed by 1.7 million Central Americans and 1.4 million Asians. Over four million unauthorized foreigners are the parents of US-born children.

Some eight million unauthorized foreigners were five percent of the US labor force in 2014, down from a peak 8.3 million in 2007; the US labor force of 160 million also included 133 million US-born workers and 20 million lawful immigrant workers. Two states had more than a million unauthorized workers, California with 1.7 million and Texas with 1.1 million.

Nevada has the highest share of unauthorized workers in its labor force; a tenth of the state's workers are unauthorized. Many work in the Las Vegas casino industry and belong to unions; the 57,000-member Culinary Union is over half Latino. A quarter of Culinary Union members are hotel maids, who have 30 minutes to clean check-out rooms and 15 to clean stay-over rooms.

Workers can be categorized by industry or occupation. About 17 percent of those employed in agriculture were unauthorized in 2014, followed by 13 percent in construction and nine percent in hospitality. By occupation, 26 percent of those with farming occupations were unauthorized, followed by 15 percent in construction and nine percent each in production and services.

DACA-DAPA. The Deferred Action for Childhood Arrivals (DACA) program continues to generate litigation. Established by President Obama in June 2012, the program grants two-year work and resident permits to unauthorized foreigners brought into the US before the age of 16 and who have completed high school.

Some youth with DACA status are traveling to Mexico, since US Citizenship and Immigration Services (USCIS) allows travel abroad for humanitarian, educational or work purposes. Because they received permission to leave the US, they can and return legally and, if eligible, obtain immigrant visas by marrying Americans or finding employers to sponsor them without waiting the usual three or 10 years for visas after being illegally in the US.

In November 2014, Obama announced DAPA for parents of legal US children and expanded DACA to include more people and to grant both adults and youth three-year permits. A federal judge barred DAPA and expanded DACA from going into effect, and the Supreme Court in June 2016 deadlocked 4-4 on whether DAPA and expanded DACA were lawful presidential actions, leaving the judge's bar in effect.

USCIS issued some three-year permits to DACA youth that were withdrawn, prompting suits from some of the youth who were forced to exchange three-year permits for two-year permits. These youth are hoping that another federal judge decides the Texas judge's bar is not binding throughout the US.

Migrant advocates appealed to Obama to protect DACA recipients and others from removal. In December 2016, they urged Obama to pardon up to 200,000 legal immigrants with two or fewer misdemeanor convictions that make them deportable. If Obama were to act, the criminal convictions would remain, but there would be no civil immigration proceedings that could end in removal.

Trump said that he would reverse "Obama's illegal executive orders," but appeared to back away from that stance in the case of DACA youth when he said that he would do something that would "make everyone proud." Many state and local leaders have vowed to oppose federal efforts to cancel the legal status of DACA youth. There was speculation that Trump would allow DACA work permits to expire and not renew them rather than canceling them soon after taking office.

Border. Some 408,870 foreigners were apprehended just inside the Mexico-US border in FY16, up from 331,333 in FY15 but below the 479,371 of FY14. Apprehensions of Central Americans exceeded apprehensions of Mexicans in both FY15 and FY16. Apprehensions of Central Americans rose even more early in FY17 as asylum seekers said they were trying to reach the US before Donald Trump becomes president.

The US deported 333,000 foreigners in FY15, including 140,000 or 42 percent convicted of US crimes. Deportations peaked at 435,000 in FY13, when 46 percent of those deported were criminals.

Asylum. Some 409,000 foreigners were apprehended just inside US borders in FY16, up 23 percent from FY15. Those apprehended included 77,000 migrants in family groups from El Salvador, Honduras and Guatemala, usually mothers and children. Most say they are fleeing gangs from which their own governments cannot protect them to apply for asylum in the US.

Mexico deported 177,000 Central Americans in 2015 and granted asylum to 3,400. Most Central Americans who enter Mexico continue to the US, where many go before immigration judges without lawyers and have their requests for asylum denied. There were 116,000 asylum applications in FY16, up from 84,000 in FY15. About half of the applicants in FY14 were granted refugee status in the US.

The 300 immigration judges are employees of the US Department of Justice, and they handle an average 750 cases a year. A rising caseload coupled with a hiring freeze has led to a backlog of 520,000 cases at the 56 immigration courts at the end of 2016.

The Obama administration fast-tracked the 161,000 Central American asylum cases in the hope that returning mothers and children quickly would discourage others from setting out for the US. Immigration judges ordered deportation in 41,000 of the 67,000 Central American cases decided so far, but relatively few have been removed from the US because of the priority given to deporting criminals.

The New York Times on November 5, 2016 profiled several of the 80,000 foreigners who since 2012 applied for asylum, had no basis to receive refugee status, and elected to have their cases placed in administrative closure, meaning that they are unauthorized, known to the government, and allowed to remain in the US. Some qualify for work permits, and most hope for an immigration reform that would allow them to legalize their status. With US-born and thus citizen children, many households qualify for benefits such as food stamps.

In December 2016, there was an upsurge in asylum applications from unauthorized foreigners hoping to stay in the US at least temporarily. Immigration courts are backlogged, and asylum applicants can receive work permits and driver's licenses 150 days after filing. Lawyers charge $3,000 to $10,000 to file an asylum application.

ICE. Phoenix-area restaurant Uncle Sam's was ordered to pay $347,500 in fines for hiring unauthorized workers in October 2016, even though Immigration and Customs Enforcement (ICE) learned of the hiring via an illegal raid by Maricopa County Sheriff Joe Arpaio in 2013. ICE later audited Uncle Sam's and found unauthorized workers.

Boston-based American Cleaning used E-Verify to check the documents of newly hired janitors, but requested employment authorization documents only from non-US citizens, leading to a $195,000 fine from the DOJ's Office of Special Counsel for Immigration-Related Unfair Employment Practices in October 2016. Employers may not demand specific work-authorization documents from non-citizens.

Investors. The EB-5 program allows foreigners who invest at least $500,000 and create or preserve 10 or more jobs to receive immigrant visas. Advocacy groups say that the program has attracted at least $15 billion since the program was created in 1990.

The foreign investor program aims to attract investment into high-unemployment areas, but much and perhaps most of the foreigners' funds are flowing into luxury real estate projects. Since the 2008-09 recession, some developers have turned to the EB-5 program because foreigners seeking visas are willing to lend at lower interest than banks. There are over 22,000 applications from foreign investors seeking immigrant visas pending at USCIS.

China. The US issued 2.3 million tourist visas to Chinese in 2015, including "thousands" to pregnant women who come to the US to give birth so that their children are US citizens. Childbirth is a legitimate reason to travel to the US if the woman has sufficient funds, and there are "hundreds" of maternity houses in southern California that advertise the advantages of giving birth in the US to mothers-to-be in China.

Rowland Heights, Arcadia and Irvine are reputed to be places where the mistresses of rich Chinese men give birth. In China, single women are rarely given permission to have babies, and if they do, the children may not receive a residence permit for the place in which they were born, which restricts their access to schooling and government services.

Many members of the growing middle class in China see the US as a utopia, citing concerns about food safety and pollution at home. Pew reported that 95 percent of high-net-worth Chinese plan to spend at least some of their lives outside China.

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