The U.S. House of Representatives will vote this week on the “No Sanctuary for Criminals Act” (H.R. 3003). The bill’s primary purpose is to threaten and punish cities and states that fail to do the bidding of federal immigration agents. It would also make it more difficult to hold state and local officers accountable for violations of the Constitution committed pursuant to federal commands. 

H.R. 3003 would impose mandates on states

The heart of the No Sanctuary for Criminals Act would prohibit any policies that restrict state or local law enforcement officials from “assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of” immigration laws (pp. 2–3). It would also ban restrictions on collecting people’s immigration status, reporting them to the federal government, or complying with requests for that information from the federal government.

These provisions purport to remove the authority of state or local police departments or state or local legislatures to determine how their law enforcement resources are used. This violates a basic principle of federalism, which many conservatives have long championed, that the federal government should leave states to experiment with their own policies. I wonder whether Republican members of Congress would still support this legislation if they could imagine Democrats applying this same principle to federal gun laws in the future.

H.R. 3003 would attempt to compel compliance with federal grants

Supreme Court precedent suggests that Congress cannot actually enforce such a ban on state or local policies. Perhaps with this in mind, the bill attempts to enforce “compliance” with its possibly unconstitutional mandates by imposing monetary penalties. It would strip any non-compliant state or locality of any “grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization” (pp. 3–4).

The Supreme Court has held that there are limits to this type of federal coercion of states, but it’s still unclear where exactly those limits are. My colleague Trevor Burrus has written about the constitutional issues here with regard to a similar proposal a few years ago. As he wrote then:

The absolute monetary size of the grant certainly has something to do with coercion, but other factors can be taken into account… Therefore, it is legitimate to look not just to the size of the grants, but to the type of grants used to induce states into not passing [“sanctuary” laws]. Highway funding is one thing, but national security, law enforcement, and FEMA grants are entirely different.

Regardless of its constitutionality, however, the important issue here is that this type of heavy-handed approach to federal-state relations is at odds with federalist principles and many years of conservative and Republican rhetoric. Federalism is an important safeguard for liberty, and in its exuberance to obtain a certain policy result, Congress should not lose sight of this principle.

H.R. 3003 would deny state sovereignty

The legislation, however, would go even further. It would allow a private right of action against states by any individual or immediate family member of an individual who is a victim of a felony committed by an immigrant released from state or local custody against the wishes of the federal government (pp. 10–11). This could also run afoul of the Constitution because the Supreme Court has held that the federal government cannot abrogate state sovereign immunity except in certain very limited circumstances, such as to protect rights guaranteed by the 14th Amendment.

Regardless of the constitutionality, this provision is another incredible overreach, attempting to threaten states into following the bidding of the federal government on immigration. While the bill requires that the victims bring the claim within 10 years of the offense, there is no restriction at all on how long after the release of the person they may bring the claim. Indeed, nothing in the bill prevents a state from being subject to a lawsuit by a victim of a person released in 2017 who commits a crime in 2057.

Most importantly, states simply should not be liable for crimes committed by unauthorized immigrants that they release if they have no reason to believe that they are a threat. Each level of government only has so many resources. Requiring them to use those resources in ways that the federal government wants is wrong. If Congress bullies states or localities into spending their limited resources on locking up nonviolent immigrants and a violent felon gets away or must be released as a result, should the federal government be held liable for the consequences?

H.R. 3003 would prevent states from obtaining justice for crime victims and limit accountability for state constitutional violations

Finally, there is a provision that bans the federal government from transferring a person for prosecution to a state or locality deemed in violation of the mandates under the law (pp. 4–5). I don’t have a problem with not transferring every immigrant prisoner—I supported exercising such discretion in a prior post in certain cases—but an outright prohibition is wrong. It automatically denies these states or localities the ability to obtain justice for victims of crimes in their jurisdiction without any type of individualized evaluation. Even if you think that non-compliant states or localities should be punished, such an automatic denial of justice for victims is wrong. Should a murderer escape justice simply because the state refuses to hold non-felon unauthorized immigrants for the federal authorities?

The bill would also prohibit lawsuits against state and local officials who violate individuals’ constitutional rights by holding them at the request of the federal government. The bill would deem the officials to have acted on behalf of the United States and require all lawsuits to name the United States as the defendant (pp. 8–9). In several cases, courts have found that holding immigrants pursuant to a detainer can violate their constitutional rights. In one case, a U.S. citizen brought a case against a county in Pennsylvania for detaining him wrongfully, and the Third Circuit Court of Appeals found that localities had no obligation to hold a person on behalf of the federal government and that they could be found liable. The county settled for $95,000. There are several other cases of this kind.

This limitation on liability appears intended to obstruct local and state accountability for constitutional violations. How is that possibly a “conservative” idea?

The bill would exacerbate this problem by simultaneously allowing states a much longer period of detention without charges. The current Trump administration detainer form specifies that a person cannot be held for more than 48 hours. H.R. 3003 would allow states and localities to maintain custody in some circumstances for twice as long (p. 8).

The House of Representatives will vote on a bill this week titled “Kate’s Law” (H.R. 3004). While it is nominally an “immigration” bill, its principal aim relates to criminal justice—namely, an increase in the maximum sentences for immigrants who reenter the country illegally after a deportation. The bill is a waste of federal resources. It would likely balloon America’s population of nonviolent prisoners, while not protecting Americans against serious criminals.

Kate’s Law Would Not Have Helped Kate

The bill’s namesake is Kate Steinle, a 32-year-old medical sales rep killed in San Francisco in 2015. Her killer was Juan Francisco Lopez-Sanchez, who was in the country without status after five removals. Proponents of this bill—providing lengthier prison sentences for people who reenter the country after a removal—believe that this would have somehow helped Kate Steinle. This assertion cannot withstand a moment’s contact with the facts of the case, which I have previously laid out in detail here.

After his last three apprehensions, the government prosecuted Lopez-Sanchez for felony illegal reentry. He served 15 years in federal prison in three five-year increments. None of the facts of this case would have changed if he had served those 15 years consecutively. Indeed, because Lopez-Sanchez never actually made it across the border without being caught since 1997, the only reason that he ended up in San Francisco is because the Bureau of Prisons inexplicably decided to ignore a request for transfer from Immigration and Customs Enforcement (ICE). Instead, it shipped him to the city based on a 20-year-old marijuana charge—an offense that no longer even exists in the city. Thus, deterrence against reentry has no relevance whatsoever to this case.

The Provisions of Kate’s Law

This legislation introduced by House Judiciary Committee Chairman Bob Goodlatte (R‑VA) should not be confused with other bills of the same name introduced in the House and the Senate by Rep. Steve King (R‑IA) and Sen. Ted Cruz (R‑TX), respectively. The entire purpose of the prior iterations of “Kate’s Law” was to create mandatory minimum sentences for crossing the border illegally after a removal. Indeed, the alternate title for the bills was the “Establishing Mandatory Minimums for Illegal Reentry Act.” This new Kate’s Law, however, mercifully contains no mandatory minimum sentences—a sign that criminal justice reformers’ criticisms of them (including Cato’s) have started to penetrate the mainstream.

But the purpose of the law in the broader sense remains: trying to lock up more immigrants for longer periods. Most of the actual text comes from section 3705 of the Senate comprehensive immigration reform bill (S. 744) passed in June 2013, but the Kate’s Law authors have added several odious provisions. The heart of the bill would create a new 10-year maximum sentence for any person removed or denied entry more than two times who reenters. The current maximum for regular reentry is just 2 years. It would increase the maximum sentences for people who reenter after being convicted of various criminal offenses—including for immigration offenses—to up to 25 years.

Kate’s Law deletes two important provisions from the S. 744 language that would have protected from prosecution non-felon juveniles (p. 772–73) and humanitarian groups that provide immigrants caught in deserts or mountains food, water, or transportation to safety, which are sometimes the target of the “aiding and abetting” statutes (p. 774). Kate’s Law would also prohibit challenging the legality or validity of a prior removal order, which is a common defense in these cases. If the earlier removal was not valid, as in at least one case where a U.S. citizen was deported, it should not be the basis of prosecution.

Kate’s Law Would Further Overcriminalization

The U.S. Sentencing Commission estimated that the original mandatory minimums version of Kate’s Law would increase the federal prison population by almost 60,000 in 5 years—a massive 30 percent increase in the total federal prison population. Unfortunately, the House will vote on this new version—revealed late last week—without an estimate of either its financial impact or its impact on the federal prison population. But the law would likely completely reverse the recent 5 percent decline in the federal prison population, the first reduction since the 1970s.

Immigration offenses are already the top reason for a federal arrest, composing half of all federal criminal arrests—a share that has doubled since 2004. From 1998 to 2010, 56 percent of all federal prison admissions were for immigration crimes. Locking up immigrants requires taxpayers to pay to watch, house, clothe, and feed them, and unlike U.S. citizens who are released into the interior, they would otherwise be deported, so their incarceration does not even prevent other U.S. residents from being exposed their criminal behavior (assuming illegal crossing is a concern in that regard). 

While, naturally, locking people up has some deterrent effect on future crossings, Border Patrol doesn’t bother to keep good data on this impact compared to its other efforts. Given the costs of incarceration—both to the person incarcerated and to the U.S. taxpayer—this seems like a critical insight. In any case, if Congress were serious about discouraging illegal immigration, it would make legal immigration significantly easier. As I have shown, the availability of work permits has a major impact on illegal immigration. That would free Border Patrol to focus on the few criminals.

It’s clear that the motivation for Kate’s Law rests on the belief that illegal immigrants are more likely to commit serious crimes and so should be singled out. Yet as my colleagues’ recent paper demonstrates, illegal immigrants are much less likely to end up behind bars than U.S.-born citizens. Because unauthorized immigrants are required to serve sentences before their removal, this is the best indication that they are less likely to commit crimes that require jail time.

In the end, Kate’s Law is an improvement on its prior versions, but is still an unjustifiable use of federal resources. 

A pdf of this statement may be found here.

Statement for the Record

of David Bier of the Cato Institute

Submitted to

House Committee on the Judiciary

Markup of

“Refugee Program Integrity Restoration Act of 2017 – H.R. 2826”

June 14, 2017

The Refugee Program Integrity Restoration Act of 2017 (H.R. 2826) would restrict the liberty of Americans to welcome people fleeing violence and persecution around the world. It would enact a hard and inflexible limit on America’s generosity toward refugees. This arbitrary restriction has no basis in American tradition, individual Americans’ desire or ability to assimilate refugees, or the state of the world today. Indeed, it turns a cold shoulder toward the most severe refugee crisis in many decades.


The legislation adopts a flawed approach to refugee resettlement based on a fundamentally flawed premise: that refugees pose a significant threat to the lives of Americans. The facts cannot sustain the belief that widespread fraud has allowed the admission of large numbers of refugee terrorists. Only two refugees admitted since 9/11 have plotted or attempted attacks in the United States. Neither killed anyone. Looking over the last four decades, refugees have been far less likely to kill Americans in acts of terrorism in the United States than other immigrants or U.S.-born citizens, and none have since 1976.


Above all else, successful refugee integration requires a hospitable policy environment toward refugees. Yet this legislation would move America in the opposite direction: it politicizes refugee acceptance and imposes new constraints on integration for those few refugees that it would continue to admit. Rather than policies intended to promote rapid adoption of America’s way of life, this legislation would keep refugees in a state of long-term legal limbo without permanent status in the United States and allow certain localities to ban their resettlement in their jurisdictions. It notably lacks any provision for welcoming communities to accept refugees beyond its arbitrary cap.


These policies would have negative economic and fiscal effects on the United States. Refugees contribute significantly to the economy through employment, entrepreneurship, and consumption. While their upfront fiscal costs are higher than for other immigrants, studies have shown that they do eventually become net fiscal contributors. Rather than taking measures to reduce refugee dependence on welfare—such as relying on private sponsorship—or creating policies to encourage faster movement into the labor market—such as validating professional credentials prior to arrival—H.R. 2826 will actually make integration more difficult and costly.

H.R. 2826’s Numerical Limit on Refugees Is Not Grounded in America’s Capacity or the World’s Humanitarian Need


Sec. 2(a) of H.R. 2826 would limit individual Americans’ freedom to welcome refugees into the United States by imposing a new annual statutory limit of 50,000 refugees. Assuming that the federal government should directly determine the extent of Americans’ generosity toward refugees, it should consider two primary factors: the humanitarian need for resettlement around the world and the capacity of the United States to accept refugees.


Since its conception, the primary purpose of the U.S. Refugee Admissions Program (USRAP) has been—as the Refugee Act of 1980 put it—“to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern.”[1] Thus, the need for resettlement should factor highly into the government’s calculation of the refugee limit. Yet this legislation dramatically escalates a trend of the U.S. government toward accepting a smaller and smaller proportion of people displaced by violence and persecution around the world.


As Figure 1 below highlights, America has chosen to accept a rapidly decreasing share of displaced persons under the United Nations High Commissioner for Refugee’s mandate since the early 1990s.[2] H.R. 2826 would worsen this trend, essentially rejecting the highest share of displaced persons worldwide in the history of the modern U.S. refugee program. H.R. 2826’s cap for 2018 would constitute a share of internationally displaced persons nearly one-sixth of the historical average from 1981 to 2017 and a mere 4 percent of the historic high in 1981. 



Figure: Share of U.N. High Commissioner for Refugee Population of Concern Resettled in the United States, FY 1981 to 2018

Sources: United Nations High Commissioner for Refugees; U.S. Department of State


In absolute terms, this refugee crisis is the largest since World War II.[3] The raw numbers fail to capture fully the horrors that underlie them. The United Nations, the U.S. Department of State, and Congress have all found that the Islamic State is carrying out a “genocide” against Christians, Shia Muslims, and other religious groups in the region.[4] More than 7,000 refugees have drowned in the Mediterranean alone in 2015 and 2016.[5] In total, more than 10,000 displaced people around the world died in flight in 2016, the most on record.[6] Doctors Without Borders has found “catastrophic malnutrition” in refugee camps.[7]


H.R. 2826 would also be abnormal relative to the capacity of the United States, representing a major departure from its historic refugee intake. It would allow a per-capita admission rate almost half the average from 1980 to 2017, and 250 percent below the average rate under the Reagan and H.W. Bush administrations from 1981 to 1993.[8] Refugee inflows already add only a tiny amount to U.S. population growth. Had all 110,000 refugees come in 2017, it would have amounted to only a 0.03 percent increase in the U.S. population. Even in absolute numbers, 50,000 is almost 40 percent below the historic average of 80,000 from 1980 to 2017. Given that America is more populous and wealthier than ever, it is clear that H.R. 2826’s cap is not based on America’s capacity to accept refugees.


In most other immigration programs, the government determines the capacity and desire of Americans to accept immigrants directly. The Department of State, for example, does not attempt to calculate how many foreign spouses to admit indirectly. Instead, it admits those spouses whom Americans have chosen to sponsor and petitioned for their admission. If the Committee is concerned that the administration inaccurately estimates the capacity and demands of the public, it should allow U.S. residents and U.S. humanitarian organizations to petition for refugees and sponsor them directly.


Canada has successfully operated a private refugee sponsorship program since 1978, resettling more than 220,000 refugees with private sponsors during that time.[9] One government report found that privately sponsored refugees had better economic outcomes than government sponsored refugees.[10] In 2016, sponsors, including churches, nonprofits, and groups of five Canadian citizens, have helped resettle 18,000 Syrian refugees with private money—more than the entire United States government during the same period.[11] In recent years, other countries have also adopted this model.[12]



H.R. 2826’s Cap Is Inflexible to Changing Circumstances


H.R. 2826’s cap is thoroughly divorced from current realities, but even if the bill had based its cap on the current needs and capacity of the United States, its approach would still be wrongheaded. This legislation will have effects on refugee resettlement long after 2018 and its rigid refugee limit has no provision to adjust to changing circumstances or unforeseen emergencies that arise over time. Good governance requires that Congress create systems that are responsive to changes in the world so that its laws do not become anachronistic.


In 1980, Congress had the foresight to understand that it could not predict the future. Under the Refugee Act of 1980, the president establishes a refugee target at the start of each fiscal year after consulting with nonprofits, localities, and Congress.[13] This arrangement allows the administration to adjust flows based on a thorough accounting of the needs of the world and capacity of the country. Congress always has the opportunity to review, reject, or revise the target before it goes into effect.


The Refugee Act also reflects the reality that no one can predict even a few months into the future. Thus, it allows the president to raise the refugee limit in the middle of the year in response to certain refugee emergencies. This authority cannot be exercised without first consulting and notifying Congress, and the president must establish that the emergency was unforeseeable and that he cannot admit the refugees under the existing target.[14] H.R. 2826 authors themselves should understand the impossibility of predicting the correct future refugee limits, given that they proposed a 60,000 refugee cap less than a year ago in a bill by the same name.[15] Nonetheless, Sec. 2(b) would strike this important flexibility for the president.


Indeed, the bill’s only “procedure” for an adjustment in the refugee limit is its repeal by a future Congress. History amply demonstrates that Congress has had little ability or desire to revise its immigration laws despite vast domestic crises that these laws have created. The idea that it will pass new refugee legislation every single year—and possibly multiple times a year—in response to international crises simply cannot be believed. If the Committee does accept this view, then it should explicitly build that assumption into the legislation, stating that Congress must take action to establish a new cap or concede its duty to the Executive.



Refugees Are Not a Serious Terrorist Threat


H.R. 2826’s other provisions highlight that the reduction in the refugee limit is based on the premise that refugees pose a significant terrorism risk to the lives of Americans in the United States.[*] Yet this premise is false. Refugees not only have posed an infinitesimally small risk of terrorism in absolute terms—they have posed a much lower risk of terrorism to Americans than all other legal immigrants and foreign travelers as well as U.S. citizens themselves.


The Cato Institute’s 2016 report on immigration and terrorism provides the only estimate of terrorism risk by category of admission to the United States.[16] From 1975 to 2015, the chance of an American being murdered by a refugee terrorist in the United States was 1 in 3.64 billion per year. This risk is 135 times less than the risk of death from all U.S.-born terrorists, 1,000 times less than all other foreign terrorists, and 255,000 times less than the risk of death from a regular homicide in the United States (see the Table below). By no measure can the data support the conclusion that refugees are a major threat to the lives of Americans.


Nor is there any reason to believe that this risk will change significantly in the future. Refugee terrorists committed all three of their murders in the 1970s, and more than half of the 21 refugees who have even plotted or attempted an attack of any kind—include non-deadly ones—did so before 1990. Refugees have not involved themselves in any kind of plots or attacks of any scale that would have altered these estimates in any important way. At the same time, the U.S. immigration system has substantially upgraded its vetting procedures since 9/11, making the likelihood of a major terrorist infiltration even more remote today than in the past.



Table: Annual Chance of Being Killed in an Attack on U.S. Soil by Original Visa of Terrorist, 1975–2015

Sources: Alex Nowrasteh, “Terrorism and Immigration: A Risk Analysis,” Cato Institute: Policy Analysis No. 798, September 13, 2016.


The bill also emphasizes the risk of terrorists committing fraud to access the refugee program. Again, this risk is incredibly small. Only two refugees admitted since 9/11—Uzbek national Fazliddin Kurbanov and Somali national Abdul Artan—have plotted or carried out a terrorist attack in the United States. Neither killed anyone. While it is possible that they committed fraud to obtain refugee status, the government never presented any evidence that they did.[†] It is impossible to view these numbers and consider refugee fraud a major threat to Americans. 



H.R. 2826 Would Obstruct Refugee Integration


Given the fact that almost no refugees enter the United States as terrorists, the United States should focus heavily on successful post-entry assimilation and integration. Yet H.R. 2826 moves in the other direction, making it more difficult for refugees to integrate and assimilate into American life. Most importantly, Sec. 7 delays the ability of refugees to adjust from refugee status to permanent residency by two years and Sec. 8 makes it effectively impossible for the vast majority of refugees to obtain permanent residency in the United States.


Sec. 8 appears to create a system intended to discourage refugees from thinking of America as their new home. It would impose a new requirement that refugees prove that they still meet the legal definition of a refugee after three years of residence in the United States. By itself, this is already an unreasonable request because they have already firmly established themselves in the United States after three years. Moreover, being in the United States and removed from the conflict, refugees would have more difficulty obtaining evidence to support their claim. Sec. 3 would rescind their status if they returned home, so they could not even briefly return to obtain supporting evidence or find witnesses. 


Yet the bill would make this already difficult task next to impossible by requiring them to meet their burden with “clear and convincing” evidence, a standard of proof typically required only when someone’s civil liberty is at stake.[17] This would require refugees to meet the second highest standard of proof in the law—second only to “beyond a reasonable doubt”—in order to adjust to permanent residency.[18] It is even higher than the “more likely than not” standard used in most civil lawsuits.


Not only would very few refugees be able to provide “clear and convincing” evidence of their fear—which is an internal state—but the ones who enter under this bill would be even less likely to meet it. That is because the bill maintains the current lower standard of proof—“reasonable possibility”—to enter initially the United States as a refugee.[19] Refugees would enter having proven their claim under a lower threshold, and once in the United States, they would have a much higher burden to adjust to permanent residency. This strange process virtually guarantees the inability of most refugees to adjust to permanent status.[‡]


The United States has long benefited from its open labor market that rapidly incorporates refugees and other immigrants. A major difference between the U.S. refugee system and the German asylum system, for example, is that the U.S. refugees quickly receive permanent residency that allows them to compete on an equal footing. U.S. refugees are more than twice as likely to have employment during their second year in the United States as German asylees.[20] U.S. refugees in refugee status do have work authorization, but dozens of states limit professional licenses to permanent residents or citizens.[21] Thus, by keeping them in this second-class status indefinitely, H.R. 2826 would inhibit their ability to access the labor market, which is the most powerful tool for assimilation.


Various studies have demonstrated a relationship between the expected period of residency in a country and the willingness of immigrants to invest in skills relevant to that country.[22] Yet this legislation would make it clear that Americans do not accept that the United States is the refugees’ permanent home. Rather than investing in language and technical skills to succeed in the United States, H.R. 2826 would incentivize refugees to subsist on welfare while they await their return.



H.R. 2826 Would Negatively Affect the U.S. Economy


H.R. 2826 reduces the refugee limit from 110,000 to 50,000. Limitations on the entry of refugees are essentially a type of labor market regulation. Refugees, like all other immigrants, contribute to the economy through entrepreneurship, employment, and consumption—all of which benefit U.S. residents. Studies on refugees in the United States and other countries have found that refugees can create wage gains for native workers through their consumption or through skill complementarities.[23] They can also lower prices overall by decreasing the cost of production and creating a new pool of consumers without brand loyalties for which businesses must compete.[24]


The Cato Institute has used a conservative estimate of immigrants’ positive economic contributions to project that U.S.-born citizens benefit to the tune of at least $476 in wages per refugee.[25] Over the next decade, that would equal at least $326 million in economic costs directly to U.S.-born citizens specifically, assuming that the cap had continued to average 110,000 or greater during that time. To make economic sense, refugee terrorism would have to become a much more common phenomenon. Accepting both the most extreme cost estimates of deaths from terrorism and that the cap reduction would eliminate all deaths from terrorism by refugees, the number of deaths from refugee terrorists would still have to be 26 times greater in the future than it was in the past for the security benefits of the cap reduction to outweigh its costs.


One recent study found that despite their high upfront costs, refugees “pay $21,000 more in taxes than they receive in benefits over their first 20 years in the U.S.”[26] While the legislation is correct to request further analysis of refugees’ use of welfare, the appropriate response to fiscal costs is to find ways to reduce costs by promoting economic integration and finding ways to cost-share with the private sector. Canada’s successful private refugee sponsorship system allows private parties, churches, and nonprofits to sponsor refugees with private money, removing some of the fiscal burden from the government.[27]

Donald Trump fired off several tweets this morning about his executive order barring for at least 90 days all immigration or travel to the United States for six Middle Eastern and African nationalities, stating that he thinks it should actually be much broader. I have previously explained why President Trump’s national security justification for the order is completely devoid of evidence. But another fact that we highlighted in our amicus brief deserves attention here: that the order’s supposed “security” purpose is based on an entirely false legal premise.

The executive order claims that it is suspending entries to give the Secretary of Homeland Security time to study “whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.” It justified the specific countries by stating that their governments have shown less “willingness or ability to share or validate important information about individuals seeking to travel to the United States.”

Even if his claim about all six countries were true, this justification is entirely without merit because the applicant, not the government, has the burden to prove their eligibility under the law. In other words, the government has no obligation whatsoever to identify or gather information on the behalf of the applicant simply to “adjudicate” an application. 8 U.S.C. 1361 could not be clearer on this point:

Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.

Thus, if someone fails to obtain identity documents or criminal history certified by the relevant foreign authorities—as the law requires—then the consular officer can still adjudicate the application by issuing a denial. The U.S. government need not affirmatively determine anything about the applicant. Indeed, even if officers conclude that they know nothing about the applicants, this lack of knowledge still wouldn’t prevent them from denying the visa. Applicants must gather the relevant proof to establish their identity and eligibility on their own. If their foreign governments are uncooperative or unreliable, that redounds to the detriment of the visa applicant, not the U.S. government. It would certainly not prevent an individualized adjudication of their application.

But if a foreign government won’t cooperate, doesn’t that by definition mean that their nationals can’t ever meet their burden of proof? Not at all. A person may be a national of a certain country, yet have lived for many years apart from it. Indeed, in the case of Syria and Iran, a national may have literally never lived in their country at all yet possess such “nationality” as a legal matter. According to the United Nations, 11.2 million nationals of the six banned countries lived outside their country of origin in 2015. (Literally no applicant can actually travel directly from five of these countries because the U.S. has closed its embassies and consulates.)

Many of these people could easily fulfill their burden of proof through the country of residence. Other individuals could meet their burden because they had previously obtained evidence from their home governments before the outbreak of civil war or because the U.S. government knows their identities for other reasons, such as scientific achievements, past U.S. travel, or cooperation with counterterrorism efforts.

Nor is there any evidence for the view that consular officers have failed to enforce the burden of proof or that they are not reacting to changes in the availability of evidence. As the table below shows, the visa refusal rate for the most common visa class is much higher in each of the nationalities impacted by the ban (plus Iraqis who the first order barred). This shows that officers have taken into account these nationals’ unique circumstances. Moreover, the visa refusal rates increased, as you would predict based on the law, after the outbreak of civil wars in Libya, Syria, and Iraq when many documents would have become lost and reliable government records more difficult to obtain.

Table: B‑1 Visa Refusal Rate (% of Applicants) by Nationality

Source: Department of State, Adjusted Visa Refusal Rate

In sum, as courts decide whether the executive order was completely forthcoming about its purpose, they should consider the fact that its purported premise is, in fact, false. The government does not need to gather information to adjudicate visas because it has no legal obligation to gather anything since applicants bear the burden of proof. Neither can it claim that no national of these countries could ever meet its burden nor that consular officers are not enforcing this burden. Thus, despite his tweets to the contrary, the president is left without a true justification for this order.

Hudson Institute historian and political scientist John Fonte has written that immigrants are not patriotically assimilating. Fonte blames this supposed development on many factors but frequently credits changes in public school curricula away from the nation building Americanization Movement of the Progressive Era toward a multicultural ethos today. In previous posts, I have challenged Fonte’s claims about a lack of patriotic assimilation amongst today’s immigrants and have shown that his claims about the success of the Americanization Movement are based on anecdotes and that there as many that show it actually slowed assimilation.

A more subtle reading of Fonte’s work is that he is worried about immigrants and their descendants weakening American political institutions by not supporting them as much as Americans whose ancestors have been here for many generations. The General Social Survey (GSS) asks many questions of immigrants and their descendants that can help lessen Fonte’s worries. 

The following are responses to the question from the pooled years 2004–2014:

I am going to name some institutions in this country. As far as the people running these institutions are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence at all in them? [Insert Institution]

Figure 1 shows confidence in the executive branch of government by generation. Immigrants are more likely than any other generation to have “a great deal” or “only some” confidence in the Presidency and they are the least likely to have “hardly any.” The third generation appears to have the least confidence. Over the generations, confidence diminishes and then rebounds slightly for Americans whose grandparents were all born here (fourth generation and greater Americans). Immigrant confidence in the executive branch could weaken during the Presidency of Donald Trump due to his positions on immigration, relative to those of George W. Bush and Barack Obama, but we will have to wait until additional GSS surveys are released in the coming years.

Figure 1

Confidence in Executive Branch of Government

Source: General Social Survey. 

Immigrant confidence in the Supreme Court is also relatively high (Figure 2). Almost 38 percent of them have “a great deal” of confidence, more than any other generation, and 49.9 percent have “only some” confidence. Immigrants are the least likely to say they have “hardly any” confidence in the Supreme Court. Again, third-generation Americans are the most likely to have “hardly any” confidence in the institution.

Figure 2 Confidence in Supreme Court

Source: General Social Survey. 

Congress is extremely unpopular and this is reflected in the confidence results for every group (Figure 3). Immigrants are the most likely to have “a great deal” of confidence and “only some” in Congress. They are also the least likely to have “hardly any” confidence in Congress. Once again, third-generation Americans are the most likely to have “hardly any” confidence in Congress with 54.5 percent agreeing with that sentiment. Confidence in Congress rebounds slightly in the fourth generation.

Figure 3

Confidence in Congress

Source: General Social Survey. 

Confidence in the U.S. military shows a slightly different trend (Figure 4). Immigrants have a relatively large amount of confidence in the Executive, the Supreme Court, and Congress that then diminishes in subsequent generations. Immigrants have the lowest degree of “a great deal” of confidence in the military, the highest degree of “only some” confidence, and the second most likely to have “hardly any.” Later generations tend to have more confidence but the differences are small if you look at responses for “hardly any.”

Figure 4
Confidence in U.S. Military

Source: General Social Survey. 

Immigrant confidence in the Presidency, Congress, and the Supreme Court is actually higher than it is for subsequent generations while confidence in the military is a bit lower initially but climbs in every successive generation. Rather than having lower confidence in the institutions of American government, immigrants tend to have more confidence which is not what you would expect from reading Fonte’s research. A component of assimilation seems to be diminished confidence in American governmental institutions over the generations. Fonte does write that immigrant civic knowledge lags behind that of native-born Americans – perhaps knowledge or familiarity with our government’s institutions breeds dislike?

Another potential explanation for high immigrant confidence in American government institutions is that immigrants generally come from countries with worse political institutions than the United States. Their experiences with and observation of American political institutions leads to more positive opinions based on their relative experience in their home countries. Americans whose ancestors have been here longer do not know how good they have it relative to today’s immigrants who have personal experience with worse governments. As a personal anecdote, as a young adult, I remember complaining about the U.S. government and being told by my immigrant relatives that it is so much better here than in Iran. I have not forgotten that and it has made me more optimistic than most despite all of the obvious problems with our government’s institutions.

Yesterday, in IRAP v. Trump, the Federal Court of Appeals for the Fourth Circuit—which handles appeals from district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina—upheld a preliminary injunction against portions of President Trump’s Executive Order banning entry of individuals from six African and Middle Eastern countries. On critical points, the court’s opinion and the concurring opinions cite or rely upon Cato’s work about the order.

Ten of the 13 judges found that the plaintiffs were likely to succeed in showing that the order violates the Establishment Clause of the Constitution. The court’s opinion cites Cato’s amicus brief to resolve a preliminary matter: whether the executive order—it calls it “EO‑2”—“injured” any of the individual plaintiffs. The plaintiffs argued that one man in particular would be separated from his wife due to the order’s ban on visas. The government admitted that this would constitute an injury, but argued that the injury would not be “imminent” because he has offered no reason to believe that the ban on entry “will delay the issuance of [his wife’s] visa.” To this, the court responded (p. 35):

But this ignores that Section 2(c) appears to operate by design to delay the issuance of visas to foreign nationals. Section 2(c)’s “short pause” on entry effectively halts the issuance of visas for ninety days—as the Government acknowledges, it “would be pointless to issue a visa to an alien who the consular officer already knows is barred from entering the country.” Appellants’ Br. 32; see also Brief for Cato Institute as Amicus Curiae Supporting Appellees 25–28, ECF No. 185 (arguing that Section 2(c) operates as a ban on visa issuance).

Indeed, that is exactly what we argued: The executive order was designed to discriminate in the issuance of immigrant visas based on nationality, and it would at the very least delay their ability to travel to the country.

We also argued that the court should not take seriously the position that the purpose of the executive order was national security. Relying on my colleague Alex Nowrasteh’s policy analysis and subsequent blog post, we wrote, “not a single person from these countries has killed anyone in a terrorist attack in the United States in over four decades.” A separate amicus brief by nearly 30 former national security advisers, from both major political parties, cited Nowrasteh’s work and used similar language to our amicus, which the court cited (p. 61):

The Government’s argument that EO‑2’s primary purpose is related to national security, Appellants’ Br. 43–44, is belied by evidence in the record… According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8.

The Executive Order itself cited two specific examples of terrorist attacks that the president believed would be prevented by it. In our brief, we noted that the one case refers to two Iraqi nationals not subject to the new order and the other refers to a Somali national who came as a child. The court cited this evidence as well without citing Cato, but Judge Thacker in her concurring opinion (pp. 129–147) does cite us on this point (p. 136):

One example is from Iraq, but, as Iraq is not part of EO- 2, it does not support this ban at all. The other example involves a child brought to the United States as a two-year-old. As this two-year-old was ultimately radicalized in the United States and not abroad, this case is unrelated to better screening and vetting — the purported purpose of EO‑2. See Br. for Cato Institute as Amicus Curiae Supporting Appellees at 12–13.

Judge Thacker goes on to make a point that we emphasize in our brief. We wrote, “To the extent the Order is based on evidence at all, it is based on evidence regarding countries—more precisely, ‘conditions in six of the previously designated countries’—rather than nationals of those countries, who are the actual subjects of the Ban.” We pointed out that a person could be a national of a country that he has never actually lived in, concluding that, “Where government action imposes such overinclusive restrictions, “[i]t is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that [such] a law … seeks not to effectuate the stated governmental interests,” but rather to advance impermissible purposes.” Judge Thacker notes the same thing (p. 138):

Moreover, if the conditions in the six countries subject to EO‑2 truly motivated the Government’s travel ban, the Government would have based its ban on contact with the listed countries, not nationality. Under EO‑2, a person who is a citizen of Syria would not be allowed to enter the United States even if they had never set foot in Syria. However, a person who lived his or her whole life in Syria but never obtained Syrian citizenship, and had even recently lived near terrorist-controlled regions of Syria, would be unaffected and freely allowed to enter the United States. As a result, EO‑2 is at once both overinclusive and underinclusive and bears no logical relationship to its stated objective.

Since last year, I have argued that, setting aside the constitutional questions, the order as applied violates the letter of the law. Our brief argued the same. Since 1965, the Immigration and Nationality Act has banned all discrimination in the issuance of immigrant visas—or permanent residency visas—based on national origin or nationality. Some of the plaintiffs in this case were U.S. citizens or legal permanent residents petitioning for their spouses or family members, and the order would purport to deny or at least delay their ability to obtain a visa. That’s a violation of the law.

The district court found that the order did violate the law, but only insofar as it related to visa issuance, not entry. In other words, the government had to issue travel documents to the applicants under the 1965 law (8 U.S.C. 1152(a)), but could deny them entry under its separate authority in 8 U.S.C. 1182(f). As I wrote before, neither party had argued for this strange result, but it was a major win in any case for the plaintiffs. Once a person is inside the United States, the law guarantees their right to apply for asylum. As we saw the night the initial ban was rolled out, courts are willing to intervene to protect them.

The opinion of the majority for the 4^th circuit decided to set this issue aside because its decision on the constitutional issue would render the statutory argument superfluous. But two of the three judges who wrote concurring opinions on the issue did agree that the administration is violating the law to a greater or lesser degree than the District Court did. Judge Thacker defends the lower court’s reasoning against the government (p. 143):

The Government also contends it would be a “fruitless exercise” and would “make no sense” to enable issuances of immigrant visas pursuant to § 1152(a)(1)(A), when those aliens receiving the visas would nonetheless be barred from entering the United States once they reach our borders. Appellants’ Br. 31, 35. I fail to see how permitting a national of one of the Designated Countries to continue with her immigrant visa process would be fruitless, unless, of course, the Government intends to use the ban as a gateway to a much more permanent ban, ultimately sweeping in those nationals whose processes were halted by the order. See Section 1(a) (stating that a “Policy and Purpose” of the EO- 2 is to improve the protocols and procedures “associated with the visa-issuance process”). Moreover, being a visa holder, even if one may be temporarily inadmissible, carries with it a certain status with regard to EO‑2. See, e.g., EO‑2, § 3(c) (suggesting that one receiving a visa from U.S. Customs and Border Protection during the protocol review period could gain entry to the United States).

As importantly, however, both her opinion and that of Judge Wynn would actually go further than the district court’s view and strike down the ban on entry of immigrants as a violation of 8 U.S.C. 1152(a)’s prohibition on nationality-based discrimination. Judge Wynn’s concurrence in particular follows my line of reasoning (p. 120):

Interpreting Section 1182(f) to allow the President to suspend the entry of aliens based solely on their race, nationality, or other immutable characteristics also would conflict with 8 U.S.C. § 1152(a), which provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Congress passed Section 1152(a) in 1965, more than a decade after it enacted Section 1182(f), as part of a comprehensive revision to the Immigration Act intended to eliminate nationality-based discrimination in the immigration system.

Section 1152(a) deals with issuance of immigrant visas, rather than entry, which is governed by Section 1182. Nonetheless, reading Section 1182(f) as authorizing the President to deny entry based on invidious discrimination would place Section 1182(f) in conflict with Section 1152(a), which prohibits invidious discrimination in the issuance of visas. In particular, the Immigration Act authorizes the executive branch to refuse to issue a visa to any alien who “is ineligible to receive a visa or such other documentation under section 1182.” 8 U.S.C. § 1201(g). As the Government concedes, the President’s exercise of his authority under Section 1182(f) to deny entry to aliens from the six predominantly Muslim countries, were it lawful, also would bar, by virtue of Section 1201(g), such aliens from obtaining visas, including immigrant visas. This would be the very result Congress sought to avoid in ending nationality-based discrimination in the issuance of immigrant visas through its passage of Section 1152(a).

These two paragraphs are virtually identical to my argument. As I have noted before, the law also applies the procedures for “visas” to granting “status,” which is what happens at the border when you are granted entry. This interpretation avoids an absurd result and gives meaning and effect to each provision of law. Judge Thacker’s analysis of how to resolve conflict between two apparent conflicting statutes (pp. 144–146) closely parallels mine as well.

Judge Keenan disagrees, but her reasoning—that the ban on visas is different than a ban on entry—would support the district court’s decision. She fails to acknowledge this or address the points raised by Thacker and Wynn. None of the dissents deal with this issue at all. We filed a similar brief in the related 9th Circuit case over the executive order, Hawaii v. Trump, that is still pending.

Senator Ron Johnson, Chairman of the Senate Homeland Security and Government Affairs Committee, introduced a bill this month that would resolve a major concern for high-skilled temporary workers in the United States. It would allow them to change jobs, get promotions, or start businesses while waiting in line for permanent residency. It would also prevent their children who grew up in the country from being forced to leave if they reach adulthood before their parents become permanent residents. 

The legislation (S. 1040) would create a large number of temporary three-year work visas that would allow foreign workers, entrepreneurs, or investors to live and work in a state that sponsors them. States could sponsor people of all skill types and from any industry. They could renew their status if the state wanted to invite them back. Their employers could also sponsor them for permanent residency (“green cards”) under the existing immigration programs.

In some ways, the program has similar features to the H‑1B visa, which is a three-year renewable work visa for high-skilled foreign workers sponsored by a U.S. employer. Employers also have the option of sponsoring H‑1Bs for green cards, which allows workers to extend their H‑1B status indefinitely until they receive a green card.

As I have written before, however, one problematic provision of the H‑1B visa is that those workers whom employers sponsor for a green card cannot change jobs or even receive certain promotions without losing their place in the green card line. H‑1Bs also cannot be self-employed or start their own businesses. Because the green card line has a century-long wait for certain workers due to the per-country limits, these rules effectively bind them to their employer and their current position indefinitely. It prevents them from contributing to the economy to their fullest potential.

Fortunately, S. 1040 would prevent this situation from developing under the state-sponsored visa and fix the H‑1B. Sec. 3(c) would allow any foreign worker in the United States whose employer’s petition is approved to file an adjustment of status application to become a permanent resident. The application would remain pending until a green card became available, but during this time, the person shall “have a lawful status” and “following a biometric background check, be eligible for employment and travel authorization incident to such status.”

Employment authorization and status means that these workers could have full access to the labor market—change jobs or industries, get promotions or start new businesses. As an added bonus, it would eliminate another significant problem (that I’ve also written about). Under current law, H‑1Bs can bring their spouses and minor children with them as they work in the United States. The benefit is limited to juvenile children, however, and even if the child grows up in the United States in H status, they are forced out or deported if they reach the age of 21 before their parent receives a green card.

S. 1040 would also allow workers to bring their children unless the state said otherwise. But if S. 1040 becomes law, it would prevent those children from being forced out. When a worker reaches the front of the green card line and files an adjustment of status application, current law “freezes” the age of any of their minor children for immigration purposes while the government reviews the application and approves their green card. This really only protects them against administrative delays, not the big wait for a green card to become available.

Under S. 1040, rather than waiting until they reach the front of the line to file the adjustment of status, they could file as soon as their employer’s petition for them is approved. Thus, if the child were 12 at the time the employer’s petition is approved, the child would not lose their status even if the parent fails to receive their green card for decades. The Table compares the two approaches. As you can see, S. 1040 basically moves step 5 under current law up to step 2, allowing them to immediately take advantage of the adjustment of status protections.

Table: Green Card Process for Temporary Workers Under Current Law vs. S. 1040

These provisions will have a positive benefit on the economy. Harvard economist George Borjas has shown that the mobility of immigrants creates efficiency gains of $5 to $10 billion because they shift quickly to changes in the labor market. The entrepreneurship of immigrants also creates large productivity gains. Preventing the removal of the children would also benefit the economy. At the 2016 Intel Science Talent Search, the leading science competition for U.S. high school students, 75 percent of the finalists were children of H‑1Bs. America should not push these workers away.

Thus, Senator Johnson’s bill will prove a benefit not only to foreign workers in the future, but also to current aspiring immigrants. Letting immigrants achieve their highest potential would have major economic gains for the country. 

Updated 5/22/2017.