No deal expected on ‘irregular’ border crossings when Justin Trudeau hosts Joe Biden

Of note:

The Liberal government does not expect to resolve concerns about the northward flow of refugees at unofficial Canada-U.S. border crossings when President Joe Biden visits Canada in March, says Immigration Minister Sean Fraser.

Biden’s visit to Ottawa, his first official trip to Canada since becoming president, will likely be in the first half of March, although no date has been set for the bilateral meeting, sources say.

Prime Minister Justin Trudeau and Biden met recently in Mexico and at several international summits, as well as virtually since the Democratic president’s 2021 inauguration, and the two leaders set out a so-called “road map” in 2021 to guide bilateral actions in areas of co-operation.

But that road map of priorities does not expressly include any revision of a 2004 agreement called the Safe Third Country Agreement, even though the agreement itself requires continual review.

The agreement applies to refugee claimants entering at official border crossings and requires them to make asylum claims in the first “safe country” they arrive in. However, it doesn’t apply to those who sneak across or arrive at unofficial or “irregular” crossings, such as Roxham Road, near Saint-Bernard-de-Lacolle at the Quebec-New York border.

Those asylum-seekers are permitted to remain in Canada and file refugee claims. As a result, during the Trump administration’s crackdown on illegal immigrants south of the border, a flood of refugee claimants poured into Canada via irregular crossings. Asylum-seekers also try to enter the U.S. irregularly from Canada.

Canada has been trying, unsuccessfully, to get the U.S. to expand the agreement to all border crossings, which would close the loophole and end the incentive to use irregular crossings.

Quebec Immigration Minister Christine Fréchette told La Presse she hoped the issue would be resolved during the Biden visit, calling it is “essential” to “correct” the agreement to stem the flow of irregular migrants into Quebec.

Fraser downplayed any prospect of a resolution soon.

“There’s not necessarily a giant point of disagreement that we need to overcome” in talks with the U.S., Fraser said.

He said only that there is an “opportunity to potentially advance” the discussions, adding there are “regulatory” and “legislative” issues to resolve, which he declined to identify.

“There’s a mutual expectation that there can be open and frank and confidential conversations between parties, but there are regulatory processes as well that will have to take some time to play out before changes can be made official,” Fraser said.

Meanwhile, migrant and refugee advocates have challenged the constitutionality of the Safe Third Country Agreement at the Supreme Court of Canada, saying it violates the constitutional rights of those seeking asylum by turning them back to the U.S., where critics say they face detention if not outright deportation to unsafe countries of origin. The high court has reserved judgment.

Source: No deal expected on ‘irregular’ border crossings when Justin Trudeau hosts Joe Biden

Marshall: Biden gets real on immigration

One take:

No issue better illuminates America’s debilitating political stalemate than immigration. Everyone knows there’s a mounting humanitarian and law enforcement crisis on our southern border, but our political leaders find it safer to appease their most militant partisans than to work together to forge pragmatic solutions.

That may be changing. After ignoring an unprecedented surge of migrants for two years, President Biden has announced some modest steps toward restoring order. His reward for taking on this combustible issue is a fusillade of criticism from rightwing nativists who say he’s not serious and leftwing activists worried that he is.

Source: Biden gets real on immigration

A new program lets private citizens sponsor refugees in the U.S.

Welcome return:

Everyday Americans will be able to help refugees adjust to life in the U.S. in a program being launched by the State Department as a way to give private citizens a role in resettling the thousands of refugees who arrive every year.

The State Department plans to announce the program, dubbed the Welcome Corps, on Thursday. The agency aims to line up 10,000 Americans who can help 5,000 refugees during the first year of the program.

“By tapping into the goodwill of American communities, the Welcome Corps will expand our country’s capacity to provide a warm welcome to higher numbers of refugees,” according to the announcement.

The State Department has traditionally worked with nonprofit groups that specialize in refugee issues to help people from around the world when they first arrive in the country and face a dramatically different way of life. Under the program being announced Thursday, five or more Americans would be able to form a group and fill this role as well.

They would apply to privately sponsor refugees to resettle in America, and would be responsible for raising their own money to help the refugees during their first 90 days in the country. Assistance would include everything from finding a place to live to getting kids enrolled in school.

A consortium of nonprofits with expertise in refugee resettlement will help oversee the vetting and certification of people and groups who want to be private sponsors. They’ll also offer training so private sponsors understand what’s needed to help refugees adjusting to life in America. The consortium will be responsible for monitoring the program.

The new initiative will roll out in two phases, according to the State Department. Under the first phase, private sponsors will be matched with refugees already approved for resettlement under the U.S. Refugee Assistance Program. That will start during the first half of 2023.

In the second phase of the program, private sponsors would be able to identify refugees abroad that they would like to help and then refer those people to the Refugee Assistance Program and assist them once they arrive in the U.S.

The Welcome Corps program comes on the heels of a similar, smaller scale endeavor under which Americans were able to sponsor Afghans or Ukrainians fleeing their country. That program launched in October 2021 and has helped just over 800 people coming to America through a network of 230 certified sponsors.

President Joe Biden vowed in a 2021 executive order to restore the U.S. as the world’s haven and called for private sponsorship of refugees. The previous administration, under President Donald Trump, had largely rolled back the refugee program.

Source: A new program lets private citizens sponsor refugees in the U.S.

A family’s death trying to cross the U.S. border hasn’t deterred others — and more are taking the risk

Interesting flow in the other direction, as well as the details revealed in court documents:

Almost a year after a family from India froze to death near the international border in southern Manitoba, similar cases of people walking over to the U.S. are on the rise — but they involve people from a different country.

Since the tragic deaths of the Patel family in January 2022, monthly incidents on the other side of Manitoba’s international border have risen from eight to 30 in November, the most recent month for which complete data is available from U.S. Customs and Border Protection. That’s similar to the number seen before the COVID-19 pandemic.

The deaths of three-year-old Dharmik Patel; his 11-year-old sister, Vihangi Patel; and their parents, 37-year-old Vaishali Patel and 39-year-old Jagdish Patel put a spotlight on human smuggling operations involving Indian migrants using Canada as a stopover before illegally crossing south. 

But a growing proportion of people caught walking over the border are now coming from Mexico. In November, Mexicans made up almost three-quarters of incidents in the Grand Forks sector.

The number of Mexicans crossing into Canada to seek asylum has also spiked recently, as many flee their homes in search of jobs and safety. But statistics show most applicants from that country are rejected.

While flying to Canada just to walk back down into the U.S. is a long trip, some say it’s becoming more common for several reasons.

And in two recent cases involving Mexican migrants walking into North Dakota, authorities discovered the alleged smugglers before their trips were complete. Court documents revealed how those journeys mirrored the Patels’ — and the ways they turned out differently.

Fewer hurdles, more desperation

One advocate said the increase in Mexicans crossing the northern border of the U.S. may be partly due to increased security measures along the country’s southern boundary and a harsher detention system for those caught trying to cross in recent years.

“The Mexican border with the U.S. has been militarized for decades now…. I’m not surprised that people will try other ways to arrive [in] the U.S.,” said Maru Mora Villalpando, a community organizer and founder of La Resistencia, a grassroots organization that works with detained migrants in Washington state.

Those changes made it harder to cross certain parts of the southern border, she said, forcing people to instead travel through dangerous parts of the desert — or try their luck up north.

The increase in northern crossings may also be partly due to Canada lifting a visa requirementfor Mexican travellers in 2016, said Kathryn Siemer, acting patrol agent in charge of Pembina Border Patrol station in North Dakota.

“I think we’re still seeing some of the repercussions of that, where it’s easier to fly into Canada and then cross into the United States as opposed to trying to come north through the Mexico border,” Siemer said.

Matthew Dearth, a Grand Forks lawyer representing an alleged smuggler charged in connection with one of the most recent cases in North Dakota, said more people are getting desperate enough — as the U.S. government fails to act on immigration reform — to risk potentially severe criminal penalties for their vision of a better future.

“They’re going to do whatever they can do to try to get into the United States. Because they have family members here. They have opportunity here. It’s safe,” said Dearth, who’s originally from Winnipeg.

A call for help

Dearth’s client is charged in connection with a suspected smuggling trip that met its end after the man’s van got stuck in the snow in Cavalier, a North Dakota city just south of the international border, on the way to pick up a group of migrants, a U.S. court document filed in mid-November alleged.

Dearth’s client and the other man charged in the case then walked about a half hour in the early morning of Nov. 17, 2022, before they met up with the migrants, according to the affidavit filed on Nov. 18, 2022, in the United States District Court in North Dakota.

Much like when the Patel family tried to cross the border, freezing temperatures, snow and wind made it a difficult journey.

There were also two young children — in this case aged four and nine — among the group, according to the affidavit written by a Border Patrol officer involved in the case. But this time, someone decided to call for help.

In this remote part of the country, that’s not always possible, said Border Patrol agent Siemer. Cell phone towers are few and far between, and tall snow drifts can make it easy to get lost in the dark.

“If you’re out here for more than 20 minutes, and whoever you thought might be coming to pick you up isn’t there because they got stuck or didn’t show up, you are on your own and it’s very dangerous,” she said.

Following that call for help in November, a deputy arrived and found nine people dressed in heavy winter clothing. They asked officers to bring them to a hotel — which raised suspicions around smuggling. The group later admitted they were in the country illegally, the affidavit alleged.

None of the allegations against Dearth’s client, who is a U.S. citizen, or his co-accused have been proven in court. The Georgia man pleaded not guilty to conspiring to smuggle people across the border, which carries a maximum penalty of a decade in prison.

Financial woes

Dearth said there’s a general misconception that border smuggling is only carried out by organized crime groups looking to rake in cash.

Sometimes it’s done by people who made the crossing themselves and are trying to help friends or family make a better life. Other times, people are “down on their luck” and need the money, he said.

The affidavit claims Dearth’s client told authorities he worked in construction with his co-accused, and that’s how he first got the offer to make extra money smuggling people into the U.S. 

While he first turned it down, the affidavit alleged he changed his mind after a divorce and financial struggles.

The affidavit also claims the man said he and his co-accused smuggled four other groups over the same border in September and October and dropped them off at pre-arranged spots along the interstate highway. 

He said he typically made between $500 and $1,000 per person, and his co-accused was the one who made the arrangements, the affidavit alleged.

A cemetery meeting

In a case last month, two smugglers pleaded guilty after one of them hid in a ditch when Border Patrol agents pulled over their pickup truck full of migrants around a cemetery near Neche, another North Dakota community by the international border.

The Park Center Cemetery is surrounded by pine trees and visible for miles when the weather co-operates. It had recently been the site of other “illegal entry activity” when agents saw a truck approach the U.S. side of the border under cover of darkness early on Dec. 2, 2022, according to an affidavit filed Dec. 5, 2022, in the United States District Court in North Dakota.

The desolate site is miles away from any farms or houses on the U.S. side, and nearby creeks — some frozen, some still running — wind through farmers’ fields.

Agents said in the affidavit on that night, they watched another vehicle pull up on the Canadian side, and a group got out and walked toward the cemetery, then got into the truck.

When agents pulled the truck over, one of the people inside — Juan Pablo Huerta-Ramos, later charged as a smuggler — got out and ran. He was later found hiding in a nearby ditch filled with grass and snow, the affidavit said.

All nine people in the truck, including smugglers Huerta-Ramos and Martin Loyo-Estrada, later admitted to being Mexican citizens illegally in the U.S.

A broken leg, a family in Winnipeg

In an interview after his arrest, Loyo-Estrada said he’d lived in California for about nine years and had been a landscaper until a broken leg left him unable to work. A friend from Mexico then connected him with someone who offered him work smuggling people over the border.

Loyo-Estrada said that unknown person called him several times to give him directions during his trip from Los Angeles to Cavalier, which also included using Uber rides and hotels as he made stops in Minneapolis and Grand Forks. 

The few details investigators revealed about the Patels’ journey after arriving in Canada include similar elements — staying in several hotels and using a ride-sharing service to get around the Greater Toronto Area.

Loyo-Estrada said he was supposed to get paid $1,000 for each group of migrants he worked with and be reimbursed for his travel costs.

Huerta-Ramos told agents he was also living in California and had travelled from Los Angeles to North Dakota to smuggle over his wife and daughter, who were supposed to be in Winnipeg. He said his wife gave him a phone number for someone named Antonio, who he agreed to pay $2,000 to help get his family across.

He said he met two of Antonio’s associates in front of the Fargo airport and went with them to a Mexican restaurant, where he got a call from Antonio telling him his family was already in California — and asking if he’d help smuggle a different group across the border anyway. 

Both men pleaded guilty to conspiring to transport illegal aliens and re-entering the U.S. without permission after previously being deported.

A year later, questions remain

While a year has passed since the deaths of Dharmik, Vihangi, Vaishali and Jagdish Patel, many details about their journey are still unknown.

Investigators haven’t publicly released details about who they believe sheltered and shuttled the Patels around the Greater Toronto Area before they travelled to Manitoba to cross the border.

And it’s still unclear, even to police, what happened after Jan. 15, 2022, when the family left their Toronto-area hotel, up until their bodies were discovered four days later.

It is clear, however, that they were sent on a dangerous journey — and it’s the kind of story migrant advocate Mora Villalpando hears too often, as many who can’t wait for changes in the U.S. immigration system are forced to take risks to get there.

“What it tells us is that the U.S. is just increasing the danger for people that are trying to come,” she said.

“When you intentionally for decades created a funnel to a dangerous path through the desert, it means you don’t care about human beings.”

Source: A family’s death trying to cross the U.S. border hasn’t deterred others — and more are taking the risk

Survey: Religiously, Congress doesn’t reflect America

Of interest. Haven’t seen a comparable analysis of Canadian MPs but in general Canadian MPs are relatively more diverse than their American counterparts:

Religiously speaking, the incoming 118th Congress looks like America — that is, the America of decades past, rather than today.

Congress is far more Christian, and religious overall, than today’s general population.

Even though nearly three in 10 Americans claim no religious affiliation — a rate that has steadily risen in recent years — only two of the 534 incoming members of Congress will admit to as much.

Those are among the conclusions of an analysis by Pew Research Center of the 118th Congress, which was expected to start this week pending a House leadership vote.

The Congress “remains largely untouched by two trends that have long marked religious life in the United States: a decades-long decline in the share of Americans who identify as Christian, and a corresponding increase in the percentage who say they have no religious affiliation,” said the Pew report, released Tuesday. It was based on a CQ Roll Call survey of members of Congress.

Nearly 88% of members of Congress identify as Christian, compared with only 63% of U.S. adults overall. That includes 57% of congresspersons who identify as Protestant and 28% as Catholic, both higher than national rates. Also, 6% of members of Congress identify as Jewish, compared with 2% of the overall population.

While 29% Americans claim no religious affiliation, they’d have to squint to see themselves reflected in Congress. The only overtly non-religious members are U.S. Rep. Jared Huffman, D-Calif., who identifies as humanist, and Sen. Kyrsten Sinema, independent of Arizona, who says she’s religiously unaffiliated.

Pew listed 20 other members of Congress as having unknown religious affiliations, either because they declined to answer CQ Roll Call’s query or because the answers are otherwise muddled (such as in the case of New York Republican George Santos, along with much else in his background).

Historically, lacking a religious identity was seen as a political liability.

Only 60% of Americans told a Gallup survey in 2019 that they’d be willing to vote for an atheist — fewer than would vote for gays or lesbians or various religious or ethnic groups.

But Huffman said he experienced no political blowback.

“If anything, there’s a political upside,” he said. “People appreciate the fact that I’m just being honest.”

He said many colleagues in Congress find religion to be politically useful, “particularly across the aisle, how so many of them exploit and weaponize religion but seem to be totally divorced from any authentic connection to the religion they’re weaponizing.”

The ranks of Christians in Congress has dipped only slightly over the decades, though it’s a different story with the general population. Since 2007, Christians have gone from 78% to 63% of the population, while the non-affiliated rose from 16% to 29%, according to Pew. The trend line is even more dramatic when looking back to 1990, when nearly nine in 10 Americans identified as Christian, while less than one in 10 identified as non-religious, according to researchers at Trinity College in Connecticut.

In some ways, the two political parties conform to perception.

The Republican congressional delegation is a staggering 99% Christian, with the rest Jewish or unknown. Republicans — who have long embraced Christian expressions in their political functions and where an aggressive form of Christian nationalism has become more mainstream — include 69% Protestants, 25% Catholics and 5% other Christians (such as Mormon and Orthodox).

Democrats have more religious diversity, at about 76% Christian (including 44% Protestant, 31% Catholic and 1.5% Orthodox) and 12% Jewish. They have about 1% each of Buddhist, Hindu, Muslim and Unitarian Universalist representation.

But Democrats’ paucity of openly non-affiliated members contrasts starkly with a constituency to which it owes much.

Religiously unaffiliated voters opted overwhelmingly for Democrats candidates in the 2022 midterms. They voted for Democrats over Republicans by more than a 2 to 1 margin in House races, according to AP VoteCast, an expansive survey of more than 94,000 voters nationwide. And in some bellwether races, the unaffiliated went as high as 4 to 1 for Democrats.

“The fact that the (Democratic) leadership doesn’t reflect an open, secular identity is paradoxical, but I think it’s the nature of realpolitik,” said Phil Zuckerman, professor of sociology and secular studies at Pitzer College in Claremont, California. He said Democrats know that non-religious voters align with them on the issues, but party leaders also don’t want to alienate other, more religious parts of the party’s base, particularly Black Protestants.

Party leaders “speak to the politics of secular people but don’t want to take on the identity,” he said.

Zuckerman added that conservative Christians face the “branding problem” similar to what atheists once faced. Many voters, he said, have reacted against Christian nationalism, and young voters in particular are alienated by conservative Christian stances against LGBTQ people, while many voters of all ages have reacted against Christian nationalism.

He cited a prominent incident in 2020 when authorities forcibly cleared Black Lives Matter protesters in Lafayette Park in Washington, after which President Donald Trump walked to a nearby church and held up a Bible.

“When Trump held up that Bible in front of that church in D.C., he did more damage to the Christian brand than Hitchens and Dawkins and Harris combined,” Zuckerman said, referring to popular atheist authors.

In 2018, Huffman helped found the Congressional Freethought Caucus. It had a roster of about 15 members in the previous Congress.

“It’s people of different religious perspectives, but what brings us together is a common belief that there should be a bright line of separation between church and state and that we should make public policy based on facts and reason and science, and not religion,” he said.

He predicted that in time, more members of Congress would identify with secular values.

“It’s going to be a trailing reflection of this change that has been happening for a couple of decades now,” he said. ”It takes a while for politicians to figure out that it’s OK to do things like this.”

The Pew report analyzed one short of Congress’ capacity of 535 because one member, Rep. A. Donald McEachin, D-Va., died in November after being re-elected

Source: Survey: Religiously, Congress doesn’t reflect America

USA: The Outlook On H-1B Visas And Immigration In 2023

Good overview and we will see the degree to which change will happen given political polarization and deadlock:

For the seventh consecutive year, we should not expect Donald Trump to visit the Statue of Liberty and celebrate America’s tradition as a nation of immigrants. But what will Joe Biden, his administration and the Republican majority in the House do on H-1B visas and immigration in 2023? 

H-1B Visas, Immigration Fees and Employment-Based Green Cards

Higher fees and significant business immigration regulations are on the Biden administration’s agenda in 2023. “After the fee rule, DHS will prioritize proposed regulations on adjustment of status procedures and H-1B ‘modernization,’” according to Berry Appleman & Leiden. “A proposed wage regulation remains on the Department of Labor’s regulatory agenda, but the agency has not yet submitted a proposed rule for review and the timing is not yet clear.”

In computer-related occupations, the median salary for H-1B visa holders was $111,000 in FY 2021. The average salary for H-1B professionals in computer-related occupations in FY 2021 was $118,000, according to USCIS. A company may spend up to $31,000 to file an initial H-1B petition (for three years) and an extension for an additional three years, based on an NFAP analysis of government fees and attorney costs.

The summary of the adjustment of status regulation, which does not list a publication timetable, reads: “DHS proposes to amend its regulations in order to improve the efficiency in the processing of the Application to Register Permanent Residence or Adjust Status (Form I-485), reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas to include the expansion of concurrent filing to the employment-based 4th preference (certain special immigrants) category, including religious workers.”

The summary of the H-1B modernization regulation reads: “The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

A National Foundation for American Policy (NFAP) report concluded, “In formulating a new H-1B regulation, U.S. Citizenship and Immigration Services (USCIS) should avoid the Trump administration’s approach of narrowing what qualifies as a specialty occupation” and the agency should not redefine what constitutes an employer-employee relationship. 

“Congress designated the U.S. Department of Labor (DOL), not USCIS, to investigate and oversee the labor market protections for the H-1B visa category. By attempting to take on the duties of another agency, USCIS has engaged in questionable policy pursuits and expended vital resources,” according to former USCIS Director Leon Rodriguez, former USCIS Chief Counsel Lynden Melmed, and former Associate Counsel for the USCIS Vermont Service Center Steve Plastrik. The three wrote that USCIS does not need to enact new H-1B restrictions via memos or regulations since Congress has already imposed significant restrictions, including wage requirements and a low numerical limit.

The H-1B numerical limit is so low that in April 2022, the annual limit of, in effect, 85,000 new H-1B petitions for employers—about 0.05% of the U.S. labor force—led to USCIS rejecting about 400,000 (80% of) applicants. Even with layoffs at high-profile technology firms, one should expect H-1B registrations to exceed the 85,000-limit for FY 2024. The significant demand for technical labor across sectors of the U.S. economy should outstrip the annual limit. (“Most laid off tech workers are finding jobs shortly after beginning their search,” according to a survey cited by the Wall Street Journal.)

Employer fees will likely increase significantly under a new USCIS proposal. That will not be welcomed by those paying the fees. On the other hand, employers and individuals would like to see USCIS have sufficient resources to do its job. In December 2022, USCIS stated in a report that it reduced its backlog of cases but that more funding from Congress is needed. Berry Appleman & Leiden notes USCIS “cites the new fee rule as part of its plans to prevent the accumulation of new backlogs.”

Although the State Department has made progress, employers expect delays in obtaining visas to continue in some places, such as India. Visitor visas will likely remain particularly problematic.

DACA: Good News Not Expected

“The worst case, which unfortunately is a very realistic possibility, is that the courts will invalidate the Deferred Action for Childhood Arrivals (DACA) program,” said Andrew Pincus, an attorney with Mayer Brown, in a September 2022 interview. “That means that more than 600,000 people will lose the ability to work, to drive a car, to participate in society, and also that they will face the possibility of being deported to countries they have never known because they came here as children.” A DACA case is currently at the Fifth Circuit.

Passing legislation to protect DACA recipients in a Republican-controlled House will be challenging. “[Rep. Kevin] McCarthy is taking a very hard line on immigration policy,” reported Punchbowl News. “The California Republican is opposed to trading a pathway to citizenship or DACA for increased border security. This is the traditional trade both parties have envisioned for years.” Sen. Kyrsten Sinema (I-AZ) and Sen. Thom Tillis (R-NC) failed to gain enough Republican support for a compromise proposal on Dreamers at the end of 2022. 


The Biden administration resettled fewer than 26,000 refugees in FY 2022, nearly 100,000 below the 125,000-refugee ceiling it established. The refugee ceiling is the same for FY 2023, but to meet that level, “President Biden must make the resettlement program a priority, investing resources and political will in creative solutions to expedite processing,” according to the National Immigration Forum’s Danilo Zak.

Americans have stepped forward and offered their time as volunteers and money as sponsors to help those fleeing war and persecution in Afghanistan, Ukraine and elsewhere. The Biden administration has implemented the successful Uniting for Ukraine initiative that has allowed over 90,000 Ukrainians to be paroled into the United States with the help of U.S. financial sponsors, according to Michelle Hackman at the Wall Street Journal, with another 34,000 approved for travel. A more limited program was established for Venezuelans. 

The Border

The Biden administration has not made the case that America is dealing with a historic refugee crisis in the Western Hemisphere to counteract the narrative that the United States has simply failed to enact sufficiently harsh immigration policies. Border Patrol encounters in FY 2021 and FY 2022 were the highest on record but not wholly comparable to previous fiscal years that only counted apprehensions and did not have Title 42 restrictions in place.

Still, individuals and families from Venezuela, Nicaragua, Cuba and others have come to the United States in large numbers seeking asylum or employment. To the extent the Biden administration can funnel people into lawful paths to apply for work or asylum, Border Patrol encounters will diminish. More creative solutions may be needed to address the situation, including expanding the avenues to work and supplying refugee circuit rides in the region.

Supreme Court Cases

Judges will have a say on U.S. immigration policy in 2023. In 2022, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit by Texas and Louisiana that argues the Biden administration’s enforcement guidelines, as outlined in a memo, are unlawful. George Mason University law professor Ilya Somin expects the Biden administration to prevail. “But it’s not entirely clear whether it will do so on standing or on the merits,” according to Somin.

The Supreme Court will also decide the fate of Title 42 and a lawsuit by several Republican-led states. “In its order, the court . . . agreed to take up the states’ appeal this term,” reported CNN. “The court said it would hear arguments on the case during its argument session that begins in February 2023.”

Two Years to Enact Positive Immigration Reforms

The Biden administration can use the next two years to enact reforms to improve the U.S. economy and the immigration system. One such reform, recommended by University of North Florida economist Madeline Zavodny in an NFAP study, would allow all spouses of H-1B visa holders to work, not only those whose H-1B spouse is in the queue or in the process for permanent residence. “The United States can reap significant economic benefits, ease labor shortages, and attract more workers in the global competition for talent if it expanded current rules on work eligibility for the spouses of H-1B visa holders,” writes Zavodny.

The Trump administration failed to lock in many of its anti-immigration policies via regulation. The Biden administration has two years to publish regulations or enact new policies that would benefit immigrants, international students and the competitiveness of the U.S. economy.

Source: The Outlook On H-1B Visas And Immigration In 2023

ICYMI: Biden outpacing Trump, Obama with diverse judicial nominees

Of note.

In Canada, the Trudeau appointments 2016-22 are (2016 baseline in parentheses): 56 percent women (36 percent), 10 percent visible minorities (2 percent), and 3 percent Indigenous peoples (1 percent):

For the Biden White House, a quartet of four female judges in Colorado encapsulates its mission when it comes to the federal judiciary.

One of the judges, Charlotte Sweeney, is an openly gay woman with a background in workers’ rights. Nina Wang, an immigrant from Taiwan, is the first magistrate judge in the state to be elevated to a federal district seat. Regina Rodriguez, who is Latina and Asian American, served in a U.S. attorney’s office.

Veronica Rossman, who came from the former Soviet Union with her family as refugees, is the first former federal public defender to be a judge on the 10th U.S. Circuit Court of Appeals.

With these four women, who were confirmed during the first two years of President Joe Biden’s term, there is a breadth of personal and professional diversity that the White House and Democratic senators have promoted in their push to transform the judiciary.

“The nominations send a powerful message to the legal community that this kind of public service is open to a lot of people it wasn’t open to before,” Ron Klain, the White House chief of staff, told The Associated Press. “What it says to the public at large is that if you wind up in federal court for whatever reason, you’re much more likely to have a judge who understands where you came from, who you are, and what you’ve been through.”

The White House and Democratic senators are closing out the first two years of Biden’s presidency having installed more federal judges than Biden’s two immediate predecessors. The rapid clip reflects a zeal to offset Donald Trump’s legacy of stacking the judiciary with young conservatives who often lacked in racial diversity.

So far, 97 lifetime federal judges have been confirmed under Biden, a figure that outpaces both Trump (85) and Barack Obama (62) at this point in their presidencies, according to the White House and the office of Senate Majority Leader Chuck Schumer, D-N.Y. Among them: Supreme Court Justice Ketanji Brown Jackson, that court’s first Black woman, 28 circuit court judges and 68 district court judges.

Three out of every four judges tapped by Biden and confirmed by the Senate in the past two years were women. About two-thirds were people of color. The Biden list includes 11 Black women to the powerful circuit courts, more than those installed under all previous presidents combined.

“It’s a story of writing a new chapter for the federal judiciary,” said Paige Herwig, a senior White House counsel.

The White House prioritized judicial nominations from the start and Democratic leaders in the Senate moved quickly on them. Particular focus was placed on nominees for the appellate courts, where the vast majority of federal cases end, and those coming from states with two Democratic senators, who could find easier consensus in a process where there’s still significant deference given to home-state officials.

Democrats hope to speed up confirmations next year, a goal more easily accomplished by a 51-49 Senate that will give them a slim majority on committees. In the past two years, votes on some of Biden’s more contested judicial nominees would deadlock in committee votes.

Schumer said he also hopes to install more judges in appeals courts that shifted rightward under Trump, an effort that the majority leader described as rebalancing those courts.

“Trump loaded up the bench with hard right ‘MAGA’ type judges who are not only out of step with the American people, they were even out of step with the Republican Party,” Schumer said in an interview, using shorthand for Trump’s 2016 campaign slogan, “Make America Great Again.”

Despite their limited power to derail Biden’s judicial picks, some Republicans have fought ferociously against many of them, arguing that their views were out of the legal mainstream. The precarious 50-50 Senate meant several Biden nominees languished for months and were never confirmed before the Senate wrapped up its work this year.

Democrats also say certain judicial nominees, particularly women of color, were unfairly made into lightning rods by their GOP critics.

“The Republicans have just got a problem with this,” Sen. Dick Durbin, D-Ill., chairman of the Judiciary Committee, told the AP. “Not all of them, some do.”

Sen. Josh Hawley, R-Mo., a committee member, said Biden’s picks were “very, very left, but unapologetically so” and that his colleague’s assertions about Republicans were “absurd.”

Despite the strengthened Democratic majority. the White House could nonetheless struggle to seat some judges over the next two years.

For instance, Biden has made barely a dent in the number of vacancies for district court judges in states that have two Republican senators, confirming just one such person: Stephen Locher, now a judge in the Southern District of Iowa. Home-state senators still get virtual veto power over district picks. Advocates want Democrats to discard that tradition, arguing it only allows for Republican obstructionism.

Durbin has said he would reconsider the practice if he sees systematic abuse of it. But such roadblocks have been rare, he said, and influential Republicans give some deference to Biden on judges.

One matter Biden has not been willing to address: the structure of the Supreme Court.

Any push to reshape the high court has found little footing at the White House despite its the court’s tilt farther right under Trump.

In June, the 6-3 conservative majority overturned the landmark decision Roe v. Wade, eliminating the constitutional protections for abortion that had existed for nearly 50 years. In the same term, it also weakened gun control and curbed the U.S. Environmental Protection Agency’s ability to manage climate change.

Biden has argued the court is more of an “advocacy group these days.” But he has not embraced calls to expand the court, impose term limits or mandatory retirement, or subject justices to a code of conduct that binds other federal judges.

“I wouldn’t, in any way minimize the progress and the importance of what President Biden is doing on the lower courts,” said Chris Kang of Demand Justice, an advocacy group leading the push to expand the court. But “we need to look at the core problem, which is the Supreme Court.”

Source: Biden outpacing Trump, Obama with diverse judicial nominees

Indian tech workers in Silicon Valley protest immigration discrimination

Of note, another potential advantage for Canada;

With thousands of Central America refugees converging on the U.S. southern border, the issue of immigration is heating up this week.  It’s a fight that usually centers on a fear of Americans losing their jobs. But there are some immigrants who were invited here specifically because their skills are needed and they say even they are being let down by the system.

The thirty or so people who marched in San Jose Sunday were not immigrants demanding to enter this country. They’ve already been here — some for decades. They were recruited from India to work in the Silicon Valley tech industry using H1B visas.  Using H1Bs, employers can legally hire foreign workers who have specific skills and, once here, they usually qualify for a permanent green card within a year or two.  Unless, that is, they come from India…

“We all have applied for a green card and it has been approved.  Only thing is, we need to wait 150 years to get a green card,” said Akhilesh Malavalli.  “A hundred fifty years!  I’ll be dead.  I’ll be dead by the time we see a green card.”

There is a cap on the number of skills-based green cards that can be issued to any one country of origin and there are so many workers from India, getting one has become practically impossible.

Sunday, the workers protested in front of the San Jose home of congresswoman Zoe Lofgren, demanding that she fulfill a promise to bring a bill to the House floor for a vote.  HR 3648 would remove national origin as a consideration for getting a skilled-worker green card.

Source: Indian tech workers in Silicon Valley protest immigration discrimination

Mayorkas in El Paso: U.S. Immigration System Is Broken

Noteworthy reference at the end to Canada being a model:

As El Paso struggled Tuesday to cope with a growing migrant influx, the U.S. Homeland Security secretary visited the city and said the nation’s immigration and asylum systems were “broken.”

Alejandro Mayorkas met with Border Patrol agents, local government officials and nongovernmental organizations providing services to migrants. He spoke for about 15 minutes with reporters for KTEP public radio, El Paso Matters and the El Paso Times to talk about the ongoing challenges and the end of Title 42, a public health law that has been used since early 2020 to expel many migrants without giving them an opportunity to apply for asylum. A federal judge has ruled the program must end Dec. 21.

Mayorkas gave few specifics of how the Biden administration planned to address the soaring number of migrants arriving at the border. This interview has been lightly edited for clarity.

Question: We’re already seeing huge numbers of people crossing and some of the stress and strain on local resources. So what would you want to say about the preparations for the end of Title 42?

Mayorkas: So we’ve been preparing since late last year for the end of Title 42. I think it was in April of this year that we published an outline of all of our planning to give confidence to the American public that we indeed will be prepared for the end of Title 42. That’s what we do in the Department of Homeland Security. We are operational, we prepare for different scenarios and execute accordingly. (Sunday), of course, El Paso experienced a very significant influx by essentially a caravan of buses and we’ve been working immediately thereafter with our partners to the south with Mexico to ensure that doesn’t happen again.

Q: Do you expect there to be any new limits on asylum for migrants whether that’s by nationality or a different process in place other than arriving at the border?

Mayorkas: So we believe in the asylum system, we’ve worked very, very hard to reconstruct it after it was dismantled by the prior administration. There are a lot of discussions about different ideas and how to address the number of encounters that we’re experiencing at the border. No decisions have been made. But one of the things that we’re very devoted to and we’ve been devoted to since the very outset of this administration is not only rebuilding our asylum system, rebuilding our refugee processes, rebuilding much of legal immigration, but also building lawful, safe, orderly humane pathways. So individuals who are desperate do not feel that they must place their lives, their life savings, in the hands of smugglers who only exploit them for profit.

Q:  Can you elaborate on discussions with Mexico or other programs that you’re considering to manage that?

Mayorkas: So the reality is that the challenge that we’re experiencing at the border is not exclusive to our border. I was just in Ecuador and Colombia this past week, and they were speaking of the challenges that they themselves face. In Colombia, for example, they cited the fact that they have 2.5 million Venezuelans in the country. And so what we’re experiencing is a challenge of migration throughout the hemisphere, throughout the region, and it requires a regional solution. And we really kicked that off most forcefully, I think, at the Summit of the Americas in Los Angeles. Subsequent to that, we’ve been speaking with our partners in a bilateral and multilateral context. Because a regional challenge requires partnership and a regional solution.

Q: Any specifics?

Mayorkas: I think it’d be premature because no specific plans have been determined.

Q: Do you have a date for announcing those specific plans for ending Title 42 that would expand upon the six-point plan from April based on new developments?

Mayorkas: So we’re mindful of the fact that Title 42 is going to end early next week. We’re also mindful of the fact that we have to coordinate with our partners, not just the nonprofit organizations with which we work very closely, not just cities along the border, like El Paso, but also our international partners. So we’re moving as quickly as we can. These are very important decisions. They’re very complex. The migration challenge is very, very complex. So we’re moving as quickly as we can.

Q: Any thoughts of standing up something like for the Afghan refugees to manage huge numbers of other migrants or asylum seekers here, maybe at Fort Bliss?

Mayorkas: So no decision has been made. We’re looking at a whole host of things. One of the options that of course we’re taking a look at is the success with our program for Venezuelans that we’ve built on our success for Ukrainians. How can we build a lawful pathway for individuals so that they don’t have to traverse dangerous terrain in the hands of smugglers, but rather, we can prequalify them if you will. We can vet and screen them beforehand, assess their eligibility, and then have them travel safely to the United States to ports of entry in the interior by plane, which is what we’ve seen in a tremendously successful program for Venezuelans.

Q: What would you want to tell people away from the border who see these images of people just walking across wading across the river and say “it’s out of control”?

Mayorkas: Well, remember, what we are seeing is people who are claiming asylum. And we see them surrendering themselves to Border Patrol to assert their claims for humanitarian relief, as our laws provide. And what I would say is, so be mindful of that, number one, but quite frankly, it’s an extraordinarily powerful picture of why we need our immigration system reformed through legislation. Our asylum system is broken. Our immigration system as a whole is broken. It hasn’t been updated or reformed in more than 40 years. We look to our partner to the north that has a much more nimble immigration system that can be retooled to the needs at the moment. For example, Canada is in need of 1 million workers and they have agreed that in 2023, they will admit 1.4 million … immigrants to fill that labor need that Canadians themselves cannot. We are stuck in antiquated laws that do not meet our current needs. And they haven’t been working for many, many years.

Source: Mayorkas in El Paso: U.S. Immigration System Is Broken

The Danger of America’s Woefully Incomplete Hate Crimes Data

Of note. Canada’s reporting is more comprehensive of police forces although there is underreporting by the public:

The FBI’s annual report on hate crime in America, released Monday,shows that about 7,300 hate-crime incidents were reported in the United States in 2021. That number represents a drop of nearly 1,000 incidents from 2020—but experts say it’s a woefully incomplete picture of hate crimes in America.

That’s because nearly 7,000 of the country’s more than 18,000 law-enforcement agencies—including the New York Police Department and Los Angeles Police Department—failed to submit any hate crime data to the federal report. Only 15 of the 750 agencies in the state of California participated, and the state of Florida only reported a single hate crime for 2021. For the 2020 report, more than 80% of jurisdictions participated.
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“Hate crimes tear at the fabric of our society and traumatize entire communities,” said Jonathan Greenblatt, the CEO of the Anti-Defamation League, in a statement. “The failure by major states and cities across the country to report hate crime data essentially—and inexcusably—erases the lived experience of marginalized communities across the country.”

Huge gaps in hate crime stats

The FBI defines a hate crime as a “criminal offense which is motivated, in whole or in part, by the offender’s bias(es) against” a victim’s race, religion, disability, gender—or other characteristic. A 1990 law requires the government to track hate crimes, but it remains up to individual law-enforcement agencies whether they tell the FBI how many and what kind of hate crimes they encountered during a given year. This year fewer than two-thirds of police departments provided their hate crime data—a problem that was also seen months ago when the FBI released its 2021 overall crime report.

The biggest problem this year is down to a change in the way that the FBI is collecting crime data from local agencies. The National Incident-Based Reporting System (NIBRS), a new software that seeks to “improve the overall quality of crime data collected by law enforcement” is the big culprit. The FBI announced several years ago that it would transition to the NIBRS by 2021, and about $120 million was distributed to agencies to help phase out the previous Summary Reporting System.

Despite having ample time to make the transition, many jurisdictions waited too long and were unable to make the deadline to submit hate-crime numbers, says Richard Rosenfeld, the Curators’ Distinguished Professor Emeritus of criminology and criminal justice at the University of Missouri–St. Louis.

“The FBI had a choice,” he says. “It could either permit those agencies to submit data they had compiled under the old system so we’d have at least bottom-line measures for major crimes, or the FBI could have done what it did and insist that if you don’t meet the deadline, that your data will not be included.”

Rising hate crimes

Despite the FBI reporting a drop in total reported hate crimes in 2021, the previous year saw the highest number of hate-crime incidents recorded since 2001. The agency itself has issued guidance discouraging comparisons between the 2021 report and those of recent years, and noted in releasing the data that, in the jurisdictions that did participate, hate-crime incidents did not seem to fall.

“Although the hate crime statistics reported to us are lower in 2021, hate crime statistics overall are not decreasing, meaning of the agencies that are reporting to us, they are reporting an increase in hate crime,” the FBI said in a press call before the report’s release, according to VOA News. And states like New Jersey that previously released state-level hate-crime data found that 2021 saw record highs for reported bias incidents locally. California’s state count saw reported hate crime events increase by nearly a third from 2020 to 2021.

The missing data won’t just affect statisticians. It could also have an important impact on vulnerable communities across America.

Susan Corke, Director of the Intelligence Project at the Southern Poverty Law Center, which monitors the radical right in the U.S., warns that the lack of data is especially devastating in the context of armed white-nationalist groups backing candidates for election and winning positions of power. The FBI itself recognizes that these statistics are necessary to help provide lawmakers with “justification for certain legislation” and “help law enforcement address issues for their communities.”

“We want our political debates about crime and hate crime to be based on complete and accurate data,” Rosenfeld tells TIME. “When the data is subject to such uncertainties, then political leaders, advocacy groups, and others are simply able to concoct their own narrative.”

Rosenfeld and Corke both say that making it mandatory for local law enforcement to provide hate-crime statistics to the FBI would be a huge step in helping adjust the numbers in coming years. That decision could only be made by Congress.

President Biden previously signed a law that helped make the reporting of hate crimes more accessible in 2021, and created hotlines for hate crime reporting for non-English speakers.

For now, the Justice Department—which oversees the FBI—maintains that it will be committed to prioritizing the “prevention, investigation and prosecution of hate crimes.”

“No one in this country should be forced to live their life in fear of being attacked because of what they look like, whom they love, or where they worship,” said Associate Attorney General Vanita Gupta in a statement on Monday. “The department will continue to use all of the tools and resources at our disposal to stand up to bias-motivated violence in our communities.”

Source: The Danger of America’s Woefully Incomplete Hate Crimes Data