Is the US immigration court system broken?

A man has his fingerprints scanned by a U.S. Border Patrol agent while others wait their turn. Reuters/Jeff Topping
A man has his fingerprints scanned by a U.S. Border Patrol agent while others wait their turn. Reuters/Jeff Topping

Is the US immigration court system broken?

Lindsay M. Harris, University of the District of Columbia

In the U.S. today, a single immigration case takes an average of 677 days simply to get to the initial scheduling hearing. The Conversation

There are more than half a million cases in the system, and just over 300 judges working on them. The Trump administration’s push to aggressively enforce immigration laws will make this backlog worse.

Since 2002, funding for immigration enforcement has more than quadrupled, from US$4.5 billion to $20.1 billion in 2016. During the same time period, resources for immigration courts have increased by much less – 74 percent.

President Donald Trump’s budget for fiscal 2018 and request for supplemental funds for fiscal 2017 indicate he will continue this trend of funding immigration enforcement but not adequately funding immigration courts.

His budget requests would add to the more than $40 billion that the Department of Homeland Security will receive this year. It would include $4.1 billion to start building a border wall and $2.65 billion to increase the number of immigration detention beds. In comparison, the fiscal 2018 budget requests $80 million to add 75 new immigration judges.

As a law professor, I have devoted my career to representing asylum seekers and studying our nation’s immigration courts. I witness the daily effects of the immigration court backlog on the lives of immigrants.

Backlogged immigration courts

The U.S. has 57 immigration courts nationwide. The judges in these courts preside over cases in which an individual is in the U.S. and the U.S. government alleges that they may be removable. This includes immigrants who have recently arrived and are seeking asylum protection, lawful permanent residents rendered potentially removable due to a criminal conviction and undocumented immigrants who may be allowed to stay in the U.S.

An asylum seeker outside immigration court with his lawyer in Los Angeles. REUTERS/Lucy Nicholson
An asylum seeker outside immigration court with his lawyer in Los Angeles. REUTERS/Lucy Nicholson

In 2015, the TRAC Immigration Project out of Syracuse University estimated that full resolution of cases in the backlog would take from 2 to 6 ½ years. Asylum applicants who are seeking U.S. protection from persecution in their home countries may wait five or more years simply for an interview to assess their claim.

The backlog has arisen largely because of an increase in the number of Central American women and children seeking asylum. Many families without authorization are sent to detention centers to be held while they undergo expedited removal.

The expedited removal process was created to bypass the immigration court system and allow for the swift removal of undocumented immigrants. However, if those immigrants say they’re afraid to return home, the Department of Homeland Security must give them a “credible fear interview” to determine if they are eligible for asylum. These individuals can then take their cases to immigration court.

Asylum officers are sent to detention centers to conduct credible fear interviews. Approximately 85 to 90 percent of families interviewed are granted the right to present their case in immigration court.

Asking asylum seekers to present their cases before both asylum officers and judges is repetitive and time consuming. It would be more efficient to either allow asylum officers to grant asylum after a credible fear interview when they see a strong case, or simply bypass this step and allow all asylum seekers to present their cases in court.

As of February 2017, there were only 527 asylum officers working in the nation’s eight asylum offices, even though the United States Citizenship and Immigration Services has authorized hiring as many as 625. The nonprofit Human Rights First estimates that 272 of those officers are needed just to conduct credible fear interviews.

Effects of the backlog

As I have detailed in my work, delays in processing immigrants cause hardships for asylum seekers.

While an asylum seeker is awaiting a decision in their case, they often face financial instability, difficulty finding employment and prolonged separation from immediate family members. Years of delay also make it more difficult for immigrants to find pro bono legal representation.

Meanwhile, the Department of Homeland Security Secretary John Kelly has cited the “historic backlogs” in immigration courts to justify increasing expedited removals.

There’s evidence that such expedited removals circumvent due process for asylum seekers. In some cases, U.S. border officials have even failed to properly implement safeguards to protect asylum seekers from being returned to harm or death. Recently, the U.S. government did not attend a hearing before the Inter-American Commission on Human Rights regarding Customs and Border Patrol illegally turning asylum seekers away from our southern border.

The nonprofit Human Rights First estimates that the U.S. needs at least 524 judges working to address the immigration court backlog, in addition to more law clerks and administrative support.

More asylum officers are also needed. Human Rights First estimates that with 800 asylum officers on the job, we could get rid of the backlog by 2022.

Solving the problem of our nation’s backlogged immigration courts should be a priority for any administration to ensure that the system functions in a timely and efficient manner.

Lindsay M. Harris, Assistant Professor of Law, University of the District of Columbia

This article was originally published on The Conversation. Read the original article.

Trump loses appeal, but travel ban fight isn’t over yet

Outside the Ninth Circuit Court of Appeals in San Francisco. AP/Haven Daley
Outside the Ninth Circuit Court of Appeals in San Francisco. AP/Haven Daley

Steven Mulroy, University of Memphis

Thursday’s appellate court opinion, which denied President Donald Trump’s appeal concerning his immigrant ban executive order, was unsurprising. It cautiously declined to upset the status quo, temporarily continuing to prevent the executive order’s enforcement nationwide. But it also allowed for further briefing and argument.

As a constitutional law professor and former Justice Department litigator, I see the court’s reasoning as suggesting deep skepticism of Trump’s position and, at the same time, spotlighting the main issues for the further appeals that will inevitably follow.

The order, then the ban

Among other things, the executive order bans for 90 days the entry of any nationals from seven majority Muslim countries. It imposes a 120-day ban on admitting refugees, and an indefinite ban on Syrian refugees. Further, priority is to be given to members of minority religions in their home state once the ban on admitting refugees runs out. This would have the effect of favoring Christians.

After a Seattle federal judge ordered a nationwide halt to enforcing the executive order on Feb. 3, the Trump Justice Department petitioned the three-judge appeals court to lift the injunction. The case went up on appeal on an emergency, preliminary basis.

Violating due process

In its Feb. 9 opinion, the panel of the Ninth Circuit Court of Appeals found it likely that the states of Washington and Minnesota had legal standing to sue, and that the executive order violated the due process rights of at least some of those it affected. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.”

However, because it was an emergency appeal by the government to immediately undo a temporary lower court order, the government had a heavy legal burden. The court’s preliminary decision that the government failed to meet that heavy burden doesn’t necessarily mean the court couldn’t change its mind later. Nonetheless, the tenor of the opinion sounded skeptical of the Trump position.

Almost half the opinion dealt with the government’s procedural objections about whether the case even belongs in court.
Citing Supreme Court cases, the appeals court ruled that the state universities represented by the state government lawyers could indeed sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. And, while the appellate judges acknowledged that courts should show deference to the president on national security and immigration issues, they sharply rejected the Trump administration’s gutsy and novel argument that the courts had no power to review the executive order, citing several recent Supreme Court cases.

On the merits, the panel came down most strongly on due process issues. The Constitution’s due process clause says that before the government can restrict someone’s freedom of action, it must give affected persons advance notice and a hearing.

Even noncitizen aliens have due process rights, if they are in the U.S.. The appeals court stated that the executive order most clearly violates due process because it affects holders of lawful visas and “green cards” who are present in the U.S., or who have been in the U.S. and are only temporarily abroad.

Lawyers for the government attempted to argue that the executive order didn’t really apply to green card holders, or even, ultimately, visa holders. They argued there was no need for a court order against enforcement. But the judicial panel was having none of it. In a hint of skepticism toward the administration’s reliability, the court expressed doubt that anyone other than the president had the authority to change the effect of the executive order. It said it couldn’t be sure the government lawyers’ take on the executive order would “persist” for long, “in light of the government’s shifting interpretations of the Executive Order.”

More fundamentally, the appeals court ruled, even people who the government clearly views as falling under the executive order – like those present in the U.S. illegally – still have due process rights.

The panel was more cautious regarding the establishment clause claim, where the state governments argued the ban clearly targeted Muslims, thus violating separation of church and state. It did say it was proper to give weight to the “numerous statements by the president about his intent to implement a ‘Muslim ban,’” but it was not prepared to say much more at this early stage of the proceedings.

Crucially, the appeals court declined to narrow the nationwide scope of the Seattle judge’s injunction against enforcing the executive order.

In a “sauce for the goose is sauce for the gander” moment, the judges noted the recent case where a single federal judge had controversially blocked enforcement nationwide of an Obama executive order on immigration. The conservative appellate panel in that 2015 case had ruled that a court order covering only that court’s part of the country would lead to an unwise “fragmented” immigration scheme rather than a “uniform immigration law and policy.”

Left unsaid

The opinion is also notable for what it did not discuss.

At oral argument, the parties had raised the possibility of remanding the case back to the trial court for the taking of more evidence. There was no mention of this in the final opinion.

Oral argument also dealt with a federal statute barring discrimination based on national origin regarding visas. I recently argued this was the strongest argument against the executive order, but the opinion contains no discussion of it. This might be because that legal claim would not affect non-visa holders like refugees and persons with green cards.

Ultimately, this is a clear defeat for the Trump administration. But, given the necessarily preliminary nature of these emergency proceedings, it may not be a permanent one.

Trump can continue to argue before this three-judge panel, appeal their decision to the full 29-judge-strong Ninth Circuit Court of Appeals, and, ultimately and predictably, move on to the Supreme Court. Given its fast-track nature, the case will likely reach the Supreme Court before the current vacancy is filled.
The Conversation

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article was originally published on The Conversation. Read the original article.

How a travel ban could worsen doctor shortages in US hospitals and threaten primary care

Exam room in a rural Alabama hospital. Brynn Anderson/AP
Exam room in a rural Alabama hospital. Brynn Anderson/AP

John Burkhardt, University of Michigan and Mahshid Abir, University of Michigan

The Ninth Circuit Court of Appeals in San Francisco on Feb. 9 upheld the restraining order on President Trump’s immigration ban. A key argument used by the States of Washington and Minnesota was the negative impact of the ban on higher education, but an important corollary is the impact on medical care in the U.S. While the world waits for a final decision on the matter, potentially from the Supreme Court, it’s worth looking carefully at the potential ramifications of the ban.

Regardless of the ultimate ruling, the travel ban has already had significant consequences for people from the seven targeted majority Muslim countries and American citizens. Doctors are among those people directly affected – and that has big implications for health care delivery in U.S. hospitals, particularly those in rural America and inner-city safety net hospitals.

Physicians who are citizens of these nations who were traveling outside the country at the time of the ban have been detained or refused access to the U.S.

Larger-scale, lasting effects of a ban on the graduate medical education system are likely to be even more severe and may further strain an already overstretched health care system and affect the care of communities across the U.S. Indeed, the president of the American Medical Association already has written a letter to the Department of Homeland Security, explaining how the ban could affect those who are already underserved by limiting doctors from other countries.

As physicians involved with educating and training the next generation of doctors, we see dire consequences for health care delivery in our country if the travel ban is reinstated.

A looming deadline

Even though the ban has been temporarily lifted, the timing could not be worse for international applicants hoping to train in the U.S. While new resident physicians typically begin on July 1, the match process that allots positions occurs much sooner. On Feb. 22, residency program directors must submit their rank list of which applicants they would like to have in their program.

Dr. Shane Prejean examines a patient at a Baton Rouge, Louisiana hospital as medical students look on. The area has a dire physician shortage.
Gerald Herbert/AP

Therefore, without clear signs that travel for foreign applicants will be possible by July, program directors who want to protect their training program from staffing shortages may decide against ranking these applicants. The loss of a single incoming class of international medical graduates will significantly decrease the number of residents in training and physician capacity in hospitals and health care systems across the U.S.

Graduates from outside the United States constitute 26 percent of the U.S. graduate medical training. These foreign medical graduates usually fill resident training positions that are left vacant after medical schools match U.S.-based students to residency programs.

Therefore, foreign graduates typically do not take spots away from graduates of American medical schools, but instead provide medical care in hospitals that will otherwise be understaffed. These include rural hospitals around the country, where it is especially hard to recruit physicians, and safety net hospitals serving the poor.

Primary care could be threatened

Even if all current residency positions could be filled with U.S. medical school graduates and eliminate the need for any additional resident physicians from outside the U.S., the projected demand for physicians in the near future will still not be met.

Physicians in graduate medical education provide a significant proportion of all health care in the U.S., with teaching hospitals accounting for 40 percent of charity care (US$8.4 billion annually) and 28 percent of Medicaid hospitalizations. Without sufficient residents to care for patients, teaching hospitals are ill-equipped to maintain this role for the poorest patients and may not continue to meet this critical societal need.

Physicians who are both foreign-born and U.S.-born and trained outside the country constitute more than a quarter of all practicing physicians in the U.S.

Dr. Ammar Hashim, born in Iraq, is the chief operating officer for several clinics in Houston.
Pat Sullivan/AP

While the country of origin of these doctors is not often reported on a country-by-country basis, a recent interview with the Association of American Medical Colleges reported 260 physicians in training were from the seven targeted nations last year.

Expanded travel bans could dramatically increase that number as, between 2008 and 2010, 16 percent of these international medical graduates taking a required licensing exam were from Middle Eastern countries.

A drop in primary care providers

These international physicians also disproportionately work in primary care fields that are the hardest hit by the ongoing U.S. physician shortage crisis.

Currently, primary care programs have 50 percent of their residency slots filled by nonallopathic students and international medical graduates, whose absence could cripple primary care capacity.

Having a primary care doctor leads to increased access to care, reduced emergency department visits, decreased hospitalizations and improved management of chronic conditions, and decreased acute care utilization can lower overall health care spending. Similarly, general surgery has seen a 13 percent decrease in U.S. graduates in the specialty; however, this shortcoming has been buffered by influxes of international medical graduates. Delays in scheduling operative cases have also been associated with increased health care costs, making adequate numbers of surgeons another cost containment strategy.

Without international physicians entering the graduate medical education workforce, it would require substantial changes to maintain the current level of physician staffing in health care systems, such as replacing physicians with midlevel providers which may further inflate health care costs.

While physician shortage is a challenge for many communities across the U.S., the pain will not be distributed equally among all Americans.

Minority and low socioeconomic status patients are more likely to suffer from increased physician shortages, are most likely to be impacted by increased wait times to get care, and stand to lose the benefit of having a primary care doctor that has also shown to confer benefits to at-risk populations.

President Trump’s immigration ban has the potential for immediate ramifications for the hospital and health care system workforce in the U.S. Long term, decreases in the number of international medical graduates in training will result in fewer primary care physicians and general surgeons, just as the country is likely to need more.

This immigration policy can have significant adverse impacts on health care delivery and the health of Americans. These consequences should be critically considered in related immigration and travel ban policy decisions moving forward.

The Conversation

John Burkhardt, Lecturer, University of Michigan and Mahshid Abir, Assistant Professor, Department of Emergency Medicine, Director of the Acute Care Research Unit, University of Michigan

This article was originally published on The Conversation. Read the original article.

The Best Legal Arguments Against Trump’s Immigration Ban

Demonstrators outside Terminal 5 of Chicago’s O'Hare airport on Jan. 29, 2017. AP Photo/Nam Y. Huh
Demonstrators outside Terminal 5 of Chicago’s O’Hare airport on Jan. 29, 2017. AP Photo/Nam Y. Huh

Steven Mulroy, University of Memphis

Is President Trump’s recent executive order on immigrants and refugees legal?

It’s a surprisingly tricky question.

The order arguably violates both a federal statute and one or more sections of the Constitution – depending on whether the immigrant is already in the U.S. In the end, opponents’ best hope for undoing the order might rest on the separation of church and state.

Trump’s order bars the entry of any refugee for 120 days, and Syrian refugees indefinitely. It also bans citizens of Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen from entering the U.S. for 90 days. This order potentially affects more than 20,000 refugees, along with thousands of students nationwide. Depending on how it is enforced, it could also impact as many as hundreds of thousands of green card holders, or immigrants with permanent residency.

Many opponents have challenged the order in court.

A U.S. District Court judge in Brooklyn, New York, issued a ruling that halted the enforcement of Trump’s executive order the day after he signed it. Judges in at least four other states followed suit.

Trump’s supporters defend the order’s legality based on a federal immigration statute passed in 1952 that allows the president to suspend the U.S. entry of “any class of aliens.” But, as a former U.S. Justice Department lawyer and a law professor, I believe there are at least four possible arguments challenging the legality of the order.

Anti-discrimination statute

There is, critically, another federal statute that outlaws discriminating against a person regarding issuing visas based on the person’s “nationality, place of birth, or place of residence,” which Trump’s order clearly does. This second statute was passed in 1965 and is more specific than the 1952 statute. What’s more, courts have enforced this anti-discrimination ban strictly. This is the strongest legal argument against President Trump’s order.

But Congress can amend or repeal the 1965 statute, as it can any law. A Republican-controlled Congress might do that, although concerns raised by some GOP lawmakers may make that unlikely.

Due process and equal protection

The recent court orders halting enforcement of the Trump order relied on a legal argument that it violated due process or equal protection under the Constitution. Due process means that people get procedural safeguards–like advance notice, a hearing before a neutral decision-maker and a chance to tell their side of the story–before the government takes away their liberty. Equal protection means the government must treat people equally, and can’t discriminate on the basis of race, alien status, nationality, and other irrelevant factors.

As the Supreme Court has said, even immigrants who are not citizens or green card holders have due process and equal protection rights, if – and only if – they are physically here in the U.S. That’s why the recent court orders on due process and equal protection help only individuals who were in the States at the time the court ruled.

Given the rushed, chaotic manner in which the recent order was drafted and enforced, with no set chance for affected individuals to plead their case, maybe there are some valid due process arguments against the ban. But presumably, those can be fixed by slowing down and letting people have their say. Once that’s done, the remaining issue is whether the executive order violates equal protection by intentionally discriminating against Muslims.

Trump denies the order is a “Muslim ban,” even though he called for exactly that during the campaign, and each of the seven countries subject to the ban is majority Muslim. In explaining why those seven countries were chosen, the order itself cites the Obama-era law stating that persons who in recent years have visited one of these seven terrorism-prone nations would not be eligible under a “visa waiver” program. Similarly, says Trump, the defining characteristic here is terrorist danger, not religion. That’s why only seven of more than 40 majority Muslim countries are affected. (Note that the Obama-era rule isn’t based on nationality, but rather on whether someone of any nationality visited the danger zone since 2011 – a criterion not outlawed by the 1965 statute.)

One problem with Trump’s argument is that the order also seems to prioritize admitting Christian refugees. It does this by saying that once the 120-day ban on all refugees expires, priority goes to those of “a minority religion in the individual’s country.”

Supporters can rightly argue this “minority religion” language is neutral. It never mentions Muslims or Christians. But, as that neutral language interacts with the country-specific ban targeting seven Muslim countries, the two can’t help but disproportionately help Christians. Indeed, just days before signing the order, Trump told the Christian Broadcasting Network he intended to prioritize Christian refugees.

Separation of church and state

That brings us to the final legal argument against the president’s order. By picking favorites among religions, it violates the separation of church and state under the Constitution’s Establishment Clause of the First Amendment. Though Establishment Clause law is often murky, one clear point is that the government can’t favor one religious denomination over another.

This may be the most important of the constitutional theories involved in this case because it may have the broadest scope.

The due process and equal protection arguments only help persons who are already in the United States. Theoretically, a court ruling on those arguments might invalidate the order only as it applies to such persons. But if the order violates the Establishment Clause by making a statement favoring Christianity, a court could strike it down entirely.

The Conversation

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article was originally published on The Conversation. Read the original article.

Trump’s Immigration Ban: Will it Undercut American Soft Power?

Activists in Portland, Oregon, protest President Trump’s ban. Clinton Steeds/Reuters
Activists in Portland, Oregon, protest President Trump’s ban. Clinton Steeds/Reuters

Jason Lane, University at Albany, State University of New York

The Trump administration moved over the weekend to ban all immigration from seven Muslim nations, including stopping the entry of students and scholars with valid study and work visas from those countries.

A large number of students come to study in the United States from these nations: Iran ranks 11th on the list of countries that send students to the United States. Iraq and Syria participate in a student leaders program supported by the US-Middle East Partnership Initiative. The program brings students to the U.S. to “expand their understanding of civil society, as well as the democratic process and how both may be applied in their home communities.”

Iraq also has an active Fulbright program – an international exchange program meant to “increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange.”

As a scholar of international education, I have seen the impact of American higher education abroad. While conducting field research in the United Arab Emirates on development of American branch campuses in the Middle East, I was struck by the response of the residents after George Mason University closed its UAE-based campus in 2009.

The setting up of the university campus was heralded as an expansion of American values overseas, and its closure was viewed as an example of “America withdrawing its support” for the region. I was asked, “Why did America choose to pull out of the region?”

In a region where higher education institutions are largely controlled by the government, it was difficult to explain that it was a decision of a single institution, not of the American government.

The fact is that over the decades America has made considerable investments in building goodwill around the world through higher education exchange efforts. Evident in the responses of the people in UAE was how the action of a single institution could erode those sentiments.

So, what might Trump’s ban mean for the U.S. role in international education? And will it undermine the use of international higher education as a soft power tool for the United States?

A soft power tool?

First, let’s look at the role higher education has played in expanding American influence and in building stronger relationships between nations.

In 1945, Senator William Fulbright from Arkansas sponsored a bill to fund a program to support “international good will through the exchange of students in the fields of education, culture and science.”

A statue of Senator William Fulbright at the University of Arkansas.
Clinton Steeds, CC BY

Today, the Fulbright program is probably the most widely recognized initiative in the world supporting international exchange, facilitating the movement of more than 360,000 students and scholars across more than 160 countries during its history. Its value is more symbolic – it represents the United States’ view about how international education can support democracy and encourage positive relationships between nations.

The free flow of students and scholars has served well the interests of the United States, including students from those with differing ideologies.

One of the most famous alumni of the Fulbright program was Russian student Alexander Yakovlev, who came to the U.S. to study at Columbia University in 1958 – the period of the Cold War. That same person would return to the USSR to become a close ally of Mikhail Gorbachev and eventually become the “father of glasnost,” the political philosophy (along with “Perestroika”) that eventually brought down the Iron Curtain.

More recently, during a standoff between the United States and China over the future of blind Chinese political dissident Chen Guangcheng, New York University stepped in to offer him a visiting scholar position in New York, thereby diffusing a tense situation.

Time and again international education has been a critically important soft power tool.

Students from banned nations

Coming back to international exchange –– it has played a significant role in promoting peaceful relations between nations for decades.

For most of the 1970s, Iran sent more students to the U.S. than any other country. The peak year was 1979-1980, when more than 50,000 Iranian students came to study in the U.S.

After relations between the two nations deteriorated following the fall of the shah of Iran, the number of students coming to the U.S. dropped dramatically, until there were fewer than 1,700 students in 1998-1999. However, in the 2000s, as relations with the two nations began to warm, the trend finally began to turn around, with the number of students more than doubling from 2010 to 2015.

The other nations on the banned list do not have nearly as robust numbers as Iran, yet they do send students to the U.S. Those numbers are growing overall. Both Iraq and Libya have more than 1,000 students currently studying in the U.S. Although other nations send fewer (there are only 35 Somali students) in total, there were more than 17,300 students from the banned countries studying in the U.S. last year.

What is noteworthy is that was a 7 percent increase over the previous year and a more than 300 percent increase from 15 years ago, when there were only about 4,000 students from those same nations. Iran led with more than 1,800 students, and Syria was number two with more than 700.

In fact, more than 10 percent (about 108,000) of the international students in the U.S. come from the Middle East and North Africa regions, the home to most of the banned countries. When they return home, these students serve as ambassadors of the U.S. and, while here, help us gain a greater appreciation for their culture.

Declining enrollments?

How these actions will impact the students is not clear, but we do know that major events can have lasting impact on international education numbers.

For about five years following the 9/11 terrorist attacks, the total number of international students studying in the U.S. declined. Much of this decline came from students in Muslim majority nations, who could either not obtain a visa or chose not apply for it. They also feared they would not be welcomed in the United States.

And this was at a time when the American president, George W. Bush, argued that “Ours is a war not against a religion, not against the Muslim faith. But ours is a war against individuals who absolutely hate what America stands for.”

Data have already suggested that the rhetoric of the current administration has weighed on the minds of students considering where to study abroad. A study by international student recruiting companies prior to the election found that 60 percent of the 40,000 students surveyed in 118 countries would be less inclined to come to the U.S. if Trump won the election (compared to only 3.8 percent who would be less inclined if Clinton won). And that was before the rhetoric turned into reality.

Even though the U.S. still retains the largest global market share of international students, that market share has been declining gradually. This is due to the increased competition from other nations and international student concerns about safety, cost and hospitality in the United States: In 2000, about one quarter of all international students globally came to the United States. Within a decade, that number had shrunk to 19 percent, and by 2012, the number had dropped to 16 percent.

Where is this all going?

An early policy paper by the Trump team seemingly called for the elimination of J-1 visas, which allow for international youth to pursue temporary work in the U.S. And the current administration has sent signals indicating that it would make it more difficult for immigrants to receive H-1B visas, awarded to individuals with specialized skills.

Both of these programs are used by universities to support student and scholar exchanges. It is not yet clear if the current administration will pursue policies in these area that will affect universities in the same way the ban has done.

A Temple University student holds up her sign during a protest in Philadelphia.
AP Photo/Corey Perrine

What is clear is that the recent ban has already sent a chilling effect across colleges near and far. Within one day, there were reports of students being trapped overseas and in the U.S. An Iranian Ph.D. student at SUNY Stony Brook was detained at JFK and almost deported.

Another Iranian, pursuing his Ph.D. at Yale, was traveling internationally to conduct research, and feared that he might not be able to return to his studies even though he was a green card holder (the administration subsequently reversed its ban on permanent residents from those nations). There is no telling how many others are blocked from returning having been away on break between semesters.

Protecting our nation is one of the most important roles of the federal government, and we do need to be thoughtful about how to establish effective immigration polices. However, the broad-based nature of the ban flies in the face of decades of support for the power of international exchange. Even a foreign policy hard line approach would typically be softened by an ongoing support of international exchange.

As Senator Fulbright said,

“Educational exchange can turn nations into people, contributing as no other form of communication can to the humanizing of international relations.”

The motivation for this ban is the concern that we might let in a terrorist. But what if we turn away the next great scientist or peacemaker?

The Conversation

Jason Lane, Chair and Professor of Educational Policy and Leadership & Co-Director of the Cross-Border Education Research Team, University at Albany, State University of New York

This article was originally published on The Conversation. Read the original article.

How Trump’s deportation plan threatens America’s food and wine supply

Grape pickers carry loads of cabernet sauvignon grapes to a trailer bin during harvest at the Clos du Bois vineyard in Geyserville, California. AP Photo/Eric Risberg
Grape pickers carry loads of cabernet sauvignon grapes to a trailer bin during harvest at the Clos du Bois vineyard in Geyserville, California. AP Photo/Eric Risberg

Justine Vanden Heuvel, Cornell University and Mary Jo Dudley, Cornell University

Mass deportations of up to three million undocumented immigrants are expected to begin in January, when President-elect Donald Trump takes the oath of office and begins to turn his campaign promises into government policy.

While Trump claims criminals are his primary target, reports suggest there aren’t enough of them to actually reach his goal. A prominent migration think tank estimates that only 820,000 undocumented immigrants have been convicted of a crime.

So that means Trump would have to deport several million immigrants without criminal records to reach his goal. And that’s likely just a start, given Trump’s promise to deport all 11 million undocumented immigrants in the U.S.

What he doesn’t seem to realize is how integral undocumented workers are to America’s food supply. Our scholarship at Cornell combined with research in other areas of agriculture reveal the significant impact his plans would have on the foods we eat and beverages we consume each and every day.

Who’s in the net

To meet the stated goal of two to three million deportations, law-abiding undocumented immigrants will likely be caught up in the net. These people work in a range of industries, accounting for about 16 percent of those employeed in agriculture, 12 percent in construction, 9 percent in hospitality and 6 percent in manufacturing.

Farm workers pick strawberries along a hillside in Oceanside, Calif.
AP PHoto/Lenny Ignelzi

In addition to the humanitarian and logistical issues associated with such a massive deportation, there’s another problem: The American economy relies on these industries and all the people they employ. If all undocumented workers were deported, our economy would be 3 percent to 6 percent smaller.

But the impact on agriculture and related industries, which account for 5 percent of U.S. GDP, is the most alarming, in part because about half of farm laborers are undocumented. They are the ones who toil in the fields and barns to produce the foods and beverages that are integral to the well-being and cultural fabric of our nation, despite the fact that they often can’t afford to purchase the products they help produce.

Last week, many Americans celebrated Thanksgiving with the traditional meal. But did they consider who produced that food? The succulent turkey, potatoes roasted to perfection, seasoned squash: undocumented immigrants produced most of it. Even the wine – or milk – that washed it all down was produced with immigrant labor. The Thanksgiving holiday tradition that holds so much cultural significance for many of us relies on farm workers who are in significant danger of deportation.

Since these immigrants do much of the heavy lifting in American agriculture, preserving the current workforce and ensuring a continuing supply of laborers is a top priority for producers – and should be for consumers who value the foods and beverages we currently enjoy on our dinner tables.

So what would happen if Trump goes ahead with his plans?

Stewards of the land

If you enjoy wine, consider this: The wine industry in the U.S. is heavily reliant on immigrant labor.

Vineyards employ the majority of immigrants who work in the wine industry, and these skilled workers do everything from planting and pruning the vines to hand harvesting the fruit and preparing it for market. They scout for pests and diseases, water and nutrient issues, and are stewards of the land. Their attention to detail in the timing and implementation of various viticultural practices plays a significant role in determining the characteristics of the resulting wine.

Some farm laborers work throughout the year with various tasks in grape production, but at the time of harvest additional workers are needed. Many of these workers have been working in the U.S. in other agricultural operations.

Were the current workers deported, who would harvest the fruit? With fewer workers available, labor costs would skyrocket due to competition among wineries for the remaining workers, and these costs would need to be passed onto consumers through an increase in bottle prices.

Immigration hardliners argue that in the absence of local workers the wine industry could turn to mechanization. Wine grapes can be – and often are – harvested by machines, but the cost of a mechanical harvester is approximately US$300,000, a price tag that is far too hefty for most small producers. Some vineyards are too steep and/or the terrain too rugged to safely operate a mechanical harvester. And mechanical harvest of fruit can change the characteristics of the wine.

Undocumented workers are an important part of the farm workforce.
AP Photo/Alan Diaz

Beyond the vineyard

Wine producers aren’t the only ones who are worried about a potential shortage of agricultural labor.

A study commissioned by the National Milk Producers Federation suggested that if federal labor and immigration policies result in a 50 percent reduction in foreign-born workers, more than 3,500 dairy farms would close, resulting in a significant decrease in milk production and an increase in milk retail prices of about 30 percent. Total elimination of immigrant labor would increase milk prices by 90 percent.

Growers of fruits, vegetables and nuts as well as producers of meat and other dairy products would be particularly hard hit by a lack of farm labor. A report commissioned by the American Farm Bureau Federation predicted a decrease in vegetable production of 15 percent to 31 percent and a drop in fruit production of 30 percent to 61 percent if undocumented workers are deported and the border is closed. The group also predicted a rise in food prices of 5 percent to 6 percent and a smaller supply of fruit, vegetables, meat and dairy available for sale.

Americans unlikely to fill the gap

Some may argue that these laborer positions could – and should – be filled by American workers. But the reality is that these positions are not considered desirable due to the physical demands and the need to work outside in inclement weather.

A stark example of the need for immigrant labor was apparent in 2011, when the North Carolina Growers Association had 6,500 farm jobs available, all of them in or next to counties with unemployment rates greater than 10 percent. Only 268 of the approximately 500,000 unemployed North Carolinians applied for a position. Ninety percent of them were hired, but only 163 showed up to work on the first day, and only 7 workers – of the 6,500 required – completed the growing season.

Clearly, these aren’t the jobs Trump promised, nor are they the jobs Americans want.

But while many Americans will choose to remain unemployed rather than accept a position as a farm laborer, ongoing research by the Cornell Farmworker Program shows that immigrant workers often enjoy this work. An undocumented worker at a dairy farm in New York reported:

“I like the work. I work very hard for many hours at a time and the work can sometimes be quite dirty, but I like being outdoors and with the animals. I worked in construction for a few months, but I prefer to be in a rural location where I can breathe fresh air. It reminds me of home.”

Not only do they enjoy it, but immigrant workers succeed at it too. “They’re reliable,” said an upstate New York dairy farmer. “Their work quality is excellent. They’ll do anything. They are polite. Everything. There is nothing to complain about.”

Time to stock up?

So while kicking felons out of the country is justifiable, it seems to us that deporting the law-abiding undocumented workers who help drive our economy by undertaking jobs that Americans refuse to do is not.

A better solution to the problem of our undocumented immigration, in our view, is to give unauthorized workers an opportunity to obtain permanent legal status – for the good of our economy. Our research shows that 85 percent of New York citizens support either temporary work permits or a path to legal citizenship for undocumented workers.

This election season may have driven many of us to drink, but if Trump’s deportation plan comes to fruition you can rely on one thing: the U.S.-produced food and wine that you enjoy with family and friends at your dinner table will become both more expensive and less available.

That leaves us with two options: writing our representatives to express concern about the deportation proposal or stocking up our cellars to prepare for lean years ahead.

The Conversation

Justine Vanden Heuvel, Associate Professor of Viticulture, Cornell University and Mary Jo Dudley, Director of Cornell Farmworker Program, Cornell University

This article was originally published on The Conversation. Read the original article.

What’s the history of sanctuary spaces and why do they matter?

Students protesting on campus in Davis, California, following the election of Donald Drumpf. Max Whittaker/Reuters
Students protesting on campus in Davis, California, following the election of Donald Drumpf. Max Whittaker/Reuters

Elizabeth Allen, University of California, Irvine

In the wake of the election of Donald Trump as president, faculty, students, and alumni across the country are pressuring their administrations to declare “sanctuary campuses” for undocumented students, workers, and their families.

Trump has said he would repeal the Deferred Action for Childhood Arrivals program (DACA). Under the program, those who came into the U.S. without documentation can apply for deferred action on their immigration status if they were under the age of 31 on or before July 15, 2015. These individuals are then allowed to work legally for two years, subject to renewal.

More than 700,000 immigrants who were brought to the U.S. illegally before the age of 16 have obtained temporary relief from deportation. In 2015, 65 percent of DACA recipients were in college or graduate school.

These students risk deportation if Trump follows through on his threat to “immediately terminate President Obama’s two illegal executive amnesties.” “Sanctuary campuses” could provide limited protection for such students. This would mean, at a minimum, that universities could refrain from offering information to Immigration and Customs Enforcement (ICE).

I am a literary scholar who writes about the literature and law of sanctuary in medieval England. Historically, sanctuary seeking demonstrates a moral duty – and even a legal obligation – to protect the vulnerable.

A place of ‘fearsome mercy’

In medieval England, from at least the 12th to the 16th centuries, sanctuary was defined as a legal procedure within both canon law (the law of the church) and secular common law. It was a last resort for those accused of crimes, often under chase by the community.

However, once fugitives crossed the threshold into the churchyard, the community that had failed to capture them was legally required to keep them safe and even feed them for up to 40 days.

Sanctuary protection granted accused felons mercy from the king of England. When they “fled to the church,” fugitives avoided trial and either mutilation or execution. Sanctuary could also protect noblemen from political retribution – King Henry III’s right-hand man, Hubert de Burgh, kept his life by seeking sanctuary three times after losing his government post.

Sanctuary delayed legal decision, which enabled people to negotiate alternatives. Sometimes the fugitive turned out to be innocent, or as in Hubert’s case, publicly declared obedience and reconciled with his king.

Churches provided a safe sanctuary in medieval England. The Church of St John the Evangelist, Elkstone, Gloucestershire.
Spencer Means, CC BY-SA

Yet the upshot of most medieval sanctuary cases was what one scholar has called “fearsome mercy.” After 40 days, fugitives usually had to confess their crimes and give up everything they owned, travel barefoot to the nearest port and live in exile for the rest of their lives.

Such sanctuary practices saved lives, both by providing time for negotiation and by allowing people to go into exile rather than stand trial. But more than that, they had a symbolic value: In providing such bare-bones safety, medieval sanctuary marked people’s vulnerability and made protecting them a sacred duty.

Although sanctuary for felons was outlawed by James I in 1623, the use of sanctuary to claim protection for vulnerable people continued into the 19th and 20th centuries.

Protest in the U.S.

Rather than providing a procedural exception within the law, sanctuary in the U.S. maps out a history of protest against unjust laws.

For slaves on the Underground Railroad (a network of routes and houses used by 19th-century slaves to escape the South) and later, for organizers during the civil rights movement, churches provided sanctuary space for organizing meetings.

Such sanctuaries could be dramatically breached, as in the case of the bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. The church offered a safe space for civil rights activists, but that sense of safety was shattered when a bomb planted in its basement killed four young girls. That tragic event exposed the violence of American racism and led to the Civil Rights Act of 1964.

The 16th St Baptist Church, Birmingham, Alabama.
iamNigelMorris, CC BY-NC-ND

Later, in the sanctuary movement of the 1980s, churches helped refugees from the U.S.-sponsored Central American wars enter the country. The refugees were provided shelter, medical care, employment and legal representation.

The administration of President Ronald Reagan had supported rebels in Nicaragua and El Salvador during the Cold War years as a way to resist socialist uprisings. This led to many human rights violations and an influx of refugees into the U.S.

The Reagan administration, however, refused to admit the atrocities that were being committed by the Central American governments. Instead, the administration labeled refugees from those countries as “economic migrants” and denied them entry into the U.S. That prompted religious activists, lawyers and migrants themselves to organize in open opposition to the Immigration and Naturalization Service (INS).

The sanctuary movement broke the immigration law in order to show that Central American immigrants were fleeing a U.S.-sponsored war. The Justice Department initiated several “sanctuary trials” against activists for criminal conspiracy and for aiding “illegal aliens to enter the United States by shielding, harboring and transporting them.”

In the last trial a 71-count criminal conspiracy indictment was started against 16 U.S. and Mexican religious activists in Arizona in January 1985. The sanctuary movement, however, turned the publicity surrounding the trial into a condemnation of the Reagan administration’s war in Central America and its treatment of refugees.

Although most of the defendants in these trials were convicted, none was sentenced to jail time. The legislature eventually turned in favor of harboring Central American refugees. In 1990 Congress passed legislation to grant Temporary Protected Status (TPS) to people in need of a safe haven.

Sanctuary has continually sought to make American law more just – even by working around or against the law. Sanctuary was instrumental in ending slavery and segregation at home, and in exposing human rights violations abroad.

Why does this matter now?

Today, there are practical limits to what colleges and universities can do without breaking the law. Just as the medieval law of sanctuary provided only bare-bones physical survival, so too universities can legally provide only limited resistance to deportation.

Still, in concrete terms, sanctuary campuses could restrict campus police inquiries, provide counseling services for undocumented students, refuse to offer information about such students to Immigration and Customs Enforcement (ICE) and set up online courses for deported students.

More than this, sanctuary campuses could recognize the vulnerability of their students and claim a moral right to protect them. Campuses could declare themselves free of bullying and hostility on the basis of immigration status, race, religion or sexuality.

I believe making such declarations could help counter recent campus attacks. In the wake of Trump’s election, colleges and universities have already been key sites of symbolic violence against immigrants and minorities. For example, racist hate messages about lynching were sent to black students’ cellphones at the University of Pennsylvania; a swastika and Trump’s name were painted on a wall at State University of New York College (SUNY) at Geneseo; a student at San Diego State University was harassed for wearing a hijab as her car was stolen; a student at Baylor was shoved off the sidewalk and called the n-word by someone claiming to “make America great again.”

Campus communities have already countered symbolic violence with symbolic protection. At Baylor University, the student who was shoved off the sidewalk was escorted to class the next day by a crowd far larger than necessary to keep her safe.

In declaring sanctuary campuses, administrators have a rich symbolic opportunity. When universities publicly resist attacks on immigrants, religious minorities and people of color, that speaks to their core purpose.

Universities are, by definition, sanctuaries. To declare them sanctuary campuses would emphasize that they are spaces where students and faculty are free to think in innovative, critical and varied ways without harm to one another.

The Conversation

Elizabeth Allen, Associate Professor of English, University of California, Irvine

This article was originally published on The Conversation. Read the original article.