Immigration Policy- Reporting from the Field Second Report

By Aileen Josephs

As an immigration attorney in Palm Beach County for over 25 years, I have been mainly helping nationals from the Northern Triangle ( Guatemala, Honduras, and El Salvador).   For many years, I have advocated for Congress to revamp our antiquated immigration system. The current system makes it virtually impossible for many that entered via the border, which for years was open, to self-adjust their status despite that many have been living and working in the United States for over ten years, are part of mixed-status families, and are our essential workers.  Much of this was explored in my previous policy paper. 

It is time for Congress to work together and find a way to bring undocumented immigrants out of the shadows.  The answers to the critical policy issues related to immigration have to be found by Congress. The President can act on immigration on a limited basis, mainly on national security, but Congress must promulgate the structure of our immigration system, and bipartisan compromise will be necessary. Bringing certain groups of those in our country out of the shadows- not necessarily with a path to citizenship-but a “regularization “  would be a good bargain as well as good public policy.   Granting legal status to the millions of essential workers, many of them parents of United States citizens and members of mixed-status families, will help our economy since these workers complement rather than compete with American workers. In fact, they are already an integral part of our workforce and economy. It will also help our national security know who is living in our homeland.

               After the campaign promises on this issue by the Democrats, the U.S. Citizenship Act of 2021, SB 348, and HB 1177 have been introduced by Senator Robert Menendez and Congresswoman Linda Sanchez.  According to many Republicans, this bill is “dead on arrival,” given that many Republicans will never want to grant a separate carved out path to citizenship to those that crossed borders or overstayed their visas. They rightly argue that such “amnesty” will promote more irregular migration, as it will reward those that did not enter via proper channels. Republicans are open to the “regularization “ of some undocumented, yet border security must always be addressed in tandem when offering such legalization to prevent future flows of irregular migration.   Regretfully, President Biden’s decision to terminate the “Remain in Mexico” program and the Migration Protocols signed by the Trump Administration with

1. https://palmbeachdemocracy.org/immigration-policy-reporting-from-the-field/
2. http://www.fvirpbc.com/letter_2_bipartisan_committe.shtml
3. https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/

Northern Triangle countries before he addressed the fate of the undocumented population here, has further complicated this issue. Now we have a crisis at the border during a pandemic. 

   The Democrat-controlled House has passed the American Dream and Promise Act and the Farm Workforce Modernization Act, and now the fate of this bill is in the Senate. For those bills to have any hope of becoming law, Republicans will demand that the situation on the border be attended to first, since Republicans will not move on a legalization bill without securing the border, now flooded with migrants.   A wise move would have been to allow those programs to stay in place while Congress attended the plight of those who have already been here for many years. Then, it would have been possible to work on solutions to address the asylum system and the border surges that transnational criminal organizations have promoted.

Congress now must not only address the plight of the millions already here for many years but at the same time urgently address our asylum system and the Flores agreement- a federal court decision- being exploited by human smugglers that know that if a person arrives with a child, it is most likely that the family unit will be released to the homeland since such Court agreement does not allow for the detention of children for more than 20 years. . The Trump administration issued the “Flores Rule” which allowed for accompanied children to be held more than 20 days in detention while the family unit was being processed. That executive rule has been discarded as well by the Biden administration. The Flores agreement is being used by these networks, making billions a year in the transport of vulnerable people, promoting the mass migration of unaccompanied minors at levels never seen before.  The exponential growth of unaccompanied children arriving at the border has also been fueled by changes in Title 42. Title 42, which allows Customs and Border Protection to expel undocumented migrants at the border to prevent the spread of the virus, is now making an exception for unaccompanied children. 

4. https://www.wsj.com/articles/the-biden-border-mess-11615756253
5. https://www.reuters.com/article/us-usa-immigration-border/u-s-facing-biggest-migrant-surge-in-20-years-homeland-security-idUSKBN2B81M5
6. https://www.unodc.org/documents/toc/factsheets/TOC12_fs_migrantsmuggling_EN_Plain.pdf
7. https://www.wsj.com/articles/the-democratic-partys-dangerous-immigration-experiment-11616537797
8. https://www.aila.org/infonet/flores-v-reno-settlement-agreement
9. https://www.federalregister.gov/documents/2019/08/23/2019-17927/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children
10. https://www.npr.org/2021/03/27/981730103/biden-says-nothing-has-changed-but-child-migrants-crossing-border-at-higher-pace
11. https://www.usatoday.com/story/news/politics/2021/03/26/biden-continues-title-42-immigration-policy-but-now-allows-children/4798100001/

Congress must tackle how to handle the mass migration of asylum seekers, the majority whose asylum applications- if they indeed file one-   will most likely be denied since only 14% of asylum applicants obtain this protection.

It is imperative for Congress and this administration to find a regional solution to this crisis and create a refugee program designed particularly for this region, to stir this migration of vulnerable and desperate men, women and children away from the criminal organizations promoting much of it.   The “Remain in Mexico” program began to address our broken asylum system that, if not attended, will cause a permanent border surge and continue to feed on the mass migration from the Northern Triangle and nationals of other countries seeking asylum. A criminal underbelly often organizes this flow of migrants.   The program can be reinstated and improved with the U.S., Mexico and the UNHCR, and other non-governmental organizations that help asylum seekers. Those migrants that do not meet the burden of proof to obtain asylum will then be returned to their home countries, where reintegration programs must be created. During the 2018 border surge, Mexico offered work permits and asylum to those attempting to reach the United States. This option should be revisited since this migration has to be treated regionally.  The vast majority are economic migrants, so Congress must enact legislation that reflects this migration. Our asylum system does not protect economic migrants. The vast majority that is being released into the homeland will most likely be the undocumented population of tomorrow since the vast majority of those released will not be granted asylum.

As explored in my previous policy paper, Congress should create a market-based guest worker program to bring in needed workers mainly from the Northern Triangle region to prevent future irregular migration. Like the “Bracero Program,” these temporary worker programs should be easily accessible to those who need them. The U.S. Embassies in those countries should process them via sub-offices created in the distant regions with a high incidence of irregular migration to the United States to begin stirring this migration from irregular to a legal one and promote what is called “circular migration.”   These temporary worker programs will provide economic migrants to have access to legal avenues of migration to the United States, rather than have to rely on human smugglers that exploit them with exorbitant fees and often extort them from nonpayment by taking the lands many of them put up as collateral, or threatening to kill their loved ones. The Trump administration signed a Memorandum of Agreement with Guatemala to improve the H-2A worker program and allow more Guatemalan nationals to enter the country temporarily to work in agriculture. A similar accord was signed with El Salvador. Those programs were not made accessible to those who need them, and the U.S. Embassy did

12. https://www.federalregister.gov/documents/2019/07/16/2019-15246/asylum-eligibility-and-procedural-modifications at 35.
13. https://palmbeachdemocracy.org/immigration-policy-reporting-from-the-field/
14. https://www.migrationpolicy.org/research/RMSG-CentAm-transnational-crime
15. https://www.npr.org/2018/10/29/661676110/mexico-offers-caravan-members-work-visas-if-they-stay-in-southern-mexico
16. https://www.migrationpolicy.org/research/what-we-know-about-circular-migration-and-enhanced-mobility
17. https://www.dol.gov/newsroom/releases/eta/eta20190730

nothing to promote them. Yet, it was a good step forward in creating legal avenues that reflect the migration from the Northern Triangle, mainly economic and which asylum does not protect.

                Any regularization program has to be balanced with a plan to promote legal migration in the future, particularly from the Northern Triangle countries since the caravans of mass asylum seekers showing up at the border since 2013 are primarily nationals of these countries.   As Congress reviews the proposed bills, there may be a need for a piecemeal approach, where border security and our current broken asylum system are addressed in separate bills.

The migration of unaccompanied children from the Northern Triangle has to be addressed in a holistic fashion and with a vision to attend to the root causes of this migration, since treating those causes is the only long-term solution.

In my previous policy paper, I recommended that Congress enact legislation that will admit each year a specified number of unaccompanied minors who can prove they have been abandoned, abused, and or neglected by their natural parents from El Salvador, Honduras, and Guatemala. In-country processing would occur in their respective U.S. Embassies allowing them to enter the USA under humanitarian parole. Congress can create this program to provide protection for 5-10 years to help change the migration of teenagers from irregular to legal and deter them from risking their lives by crossing borders alone in the hands of smugglers. It is time to think out of the box to address this vexing issue of unaccompanied teenage migration since those teenagers are abused during the trajectory to the U.S. border- and even when placed with legal guardians in the United States.

     I sit on the board of the Guatemalan Tomorrow Fund, a Jupiter, Florida-based nonprofit that raises money for a  rural boarding school in Rio Dulce, Guatemala that provides poverty-ridden boys and girls from grades 7-12  with practical vocational education and dignified employment in Guatemala.   The school also encourages them to support their families in their remote villages. This model has now been expanded to Guatemala City. With the support of the Guatemalan Government, Rotary Clubs in Florida, Texas, and Guatemala, and the help of many in the South Florida Jewish community, we have opened two  “shelter schools- called Casa Shalom- to create a program to provide accelerated education and employment training for deported migrant youth . We are looking to expand these “shelter schools”  and this educational model now focusing on the jobs of tomorrow. In the next 4-5 years, Broadband will provide internet access in the most remote areas, opening a digital market and employment

18. https://thehill.com/blogs/congress-blog/economy-a-budget/279407-immigration-reform-the-portable-guest-worker-visa-solution
19. https://palmbeachdemocracy.org/immigration-policy-reporting-from-the-field/
20. https://www.marionstar.com/story/news/local/2015/09/27/slavery-hidden-plain-sight/72756102/
21. www.thegtfund.org

opportunities for Guatemalan youth.    It is in this kind of programs where USAID  funds should be invested. We will soon be reaching to the highest levels of this administration and those involved in USAID to let them know of the new possibilities of this new digital market to obtain support to expand this school model throughout other regions in Guatemala and hone into this digital market to prepare Guatemalan youth from these poor rural areas with an adequate education for Guatemala’s needs. In this way, the country could create jobs and provide dignified employment. This type of program treats the root causes of the irregular migration of teenagers from this region. We hope that Congress and this new Administration begin to truly move away from the politics that constantly pull away from good policy on immigration.

22.https://www.state.gov/special-envoy-for-the-northern-triangle-zuniga-travels-to-guatemala-and-el-salvador/

Aileen Josephs, Esq. is a member of the Board of Directors of the Palm Beach Center for Democracy and Policy Research and an Honorary Consul of Guatemala in Palm Beach