Democrats and Immigration

Donald Trump loves to recast arguments he disagrees with in terms that are egregiously unappealing, and he doesn’t mind making it up. For instance: when NFL players kneel during the national anthem to protest unpunished police killings of unarmed black men, Trump recasts the protest as disrespect for military veterans and ingratitude for the players’ career success – which would be terrible, I guess, if it was true.

Trump argues for “strong borders” to combat illegal immigration, and he proposes a “big, beautiful wall” standing 30 feet high along the Mexican border from the Pacific Ocean to the Gulf of Mexico. Democrats aren’t enthusiastic about the wall, so Trump says they want an “open border” – that is, no border monitoring at all, no immigration enforcement whatsoever.

This illustrates two Trump themes. First, there are no small disagreements with Trump, no differences of degree. If you’re not 100 percent with Trump, you’re 100 percent against him. Second, there are no fair differences of opinion with Trump. If you don’t share his view, you have evil motives. If you’re against Trump’s wall, you’re for terrorism and gang violence.

There is, of course, no Democrat who advocates either open borders or violence. But while Democrats are generally more favorable to legal immigration than Trump is, and generally less alarmed by illegal immigration, there is no fully detailed statement of a Democratic Party position on immigration. Now that Democrats will be running the House of Representatives, they have to formulate an actual position on immigration. And since Democrats are not for open borders, that position has to involve excluding some people who would like to come here. That’s a hard fact, but it’s a fact.

In general, my top priority is protecting the people who are here and have been here for awhile. People who have made lives here, put down roots and built families and community ties, should usually be allowed to stay, whether they came legally or illegally. Other than new arrivals, deportations should be limited to those few who commit serious or violent crimes, and even those cases should be assessed individually.

For me, at the pinnacle of this group are the Dreamers – people who were brought to this country as children, and who have little or no remaining connection to the country they came from. Dreamers are the hardest test of the “what part of illegal don’t you understand” position, and the younger the harder. An infant bears no blame for being brought here, for going to school here, for growing up here and becoming culturally American. Deporting adults to countries they left as children and never really knew is cruel.

It alarms me to read of cases of immigrants who have been economically productive, sometimes married to citizens with children who are citizens, even people who built successful businesses that sustain good jobs, deported for something they did many years ago. It alarms me even more to read that the Trump administration is reconsidering the validity of the naturalizations of ordinary people who became citizens decades ago.

For those not already here, I have two priorities. First is the close family of citizens and permanent residents. I’m not talking about second cousins twice removed – I’m talking about the spouses and minor children of adults legally here, and the parents of minor children legally here. Our country’s values ought to favor the unity of close families.

Second are those seeking asylum. International asylum treaties generally protect people fleeing from religious or political persecution. I personally would add persecution based on race, ethnicity, sex and sexual orientation. But asylum laws don’t cover people fleeing harsh economic conditions, or even criminal violence. And while I would love to be able to take in and shelter every suffering person in the world – the truest expression of “Give me your tired, your poor” – I also understand the impracticality of such generosity. (Of course I would be more moved by Trump’s anti-asylum protestations if he joined his protests to proposals to alleviate the poverty and violence that impel people to flee.)

That said, I’m not all that concerned that Trump has drastically reduced the number of asylum seekers he will allow each year. I would prefer the larger numbers that Barack Obama allowed, but in the scheme of things the difference isn’t that great. In the short run, no number will be high enough to grant most requests, let alone all of them, and in the long run Trump will be gone and his successor can return to a more reasoned approach to the question.

Nor am I committed to the so-called “catch and release” policy. People who apply for asylum at our borders, as opposed to an American consulate abroad, are released into the country and given hearing dates if they can satisfy an initial inquiry whether they have a “reasonable fear” of persecution in their home countries. What bothers me is the wide variation in the application of supposedly uniform rules. Both the rate of “reasonable fear” inquiries approved and the rate of asylum claims granted vary ridiculously around the country. This tells me as a lawyer that asylum rules are unclear or inadequate, leaving too much discretion to bureaucrats and immigration judges.

Trump’s antipathy to the diversity visa lottery program, while silly because the program is so small, is not fundamentally problematic. The purpose of the program was to diversify the national origins of immigrants in the U.S., and the program, which dates to 1986, has amply achieved its purpose. More than 20 million apply annually for 50,000 green cards – the system mainly rewards luck, which for me at least is not a priority attribute for immigration.

Nor am I especially sympathetic to the work visa program. The program is supposed to allow employers to hire abroad for jobs they are unable to fill with American applicants. Too many employers use the program to hire workers at salaries that American workers would not accept. Trump himself routinely uses the work visa program to hire maids, waiters and cooks. It’s just not plausible that those positions can’t be filled with qualified Americans, although it is possible they can’t be filled with qualified Americans for what Trump pays: from $10.17 to $12.74 an hour.

If Nancy Pelosi were to ask my advice, I would tell her this. Offer to budget money for enhanced border security, including segments of a wall, where a wall is the most cost-effective option. Offer to curtail or even eliminate some of the lowest priority visa programs, like work visas and the diversity visa lottery. And offer to clarify and tighten statutory asylum criteria. In exchange, demand statutory codification of both DACA (Deferred Action for Childhood Arrivals) to protect the Dreamers, and DAPA (Deferred Action for Parents of Americans) to protect families. Demand funding for education and job training programs to qualify American for jobs that employers are filling abroad. Demand a minimum wage increase from $7.25 an hour to $10 now, rising over five years to $20 and thereafter indexed to inflation, to raise the floor below which employers can’t use foreign labor to undercut American wages. And demand a strict statute of limitations for deportation of illegal immigrants, with few and narrow exceptions, and an even stricter statute of limitations for re-examining citizens’ naturalizations.

Of course, Trump would never accept such a deal. Trump gains much more from complaining about the illegal immigration problem than he would ever gain from solving it.