June 2023

Welcome to another edition of Emerson Collective’s Immigration Update, a monthly newsletter that spotlights some of the most important immigration-related developments during the prior month and tries to situate them in a broader context.

The U.S. immigration system is outdated, dysfunctional, and inflexible for a simple reason: Congress — and one party in particular — refuses to act. With systemic challenges and dysfunction multiplying, the executive branch has been forced to fill the legislative breach. Efforts to modify the system — whether to improve it and make it more humane (this Administration) or to collapse it entirely (the last Administration) — have become executive branch functions by default. And those administrative initiatives have, in turn, become litigation fodder on grounds that the executive branch is overstepping its authority to set policy.

The new status quo has federal agencies and the courts — the two wrong branches of government for this function — endlessly wrestling to dictate the direction of immigration policy. But the implications of this ongoing dysfunction are not merely technocratic. The broken system carries direct and urgent implications for millions of people who want to work, be reunited with their families, request asylum or protection from climate change’s disruption.

We started this newsletter to help monitor the constantly shifting political and policy dynamics swirling in the vortex of this dysfunction as well as the actual human stakes for people on the move. We hope that you find it useful and always welcome your feedback. In this edition, we discuss the 11th anniversary of DACA, findings and observations from a recent delegation we helped lead to better understand hemispheric migration, World Refugee Day, an important Supreme Court decision, and ramping up for a toxic 2024 election season.

Celebrating the 11th Anniversary of DACA

On June 15, we celebrated the 11th anniversary of the Deferred Action for Childhood Arrivals (DACA) program which the Obama administration created in 2012 to grant work permits and deportation protection to undocumented immigrants who were brought to the U.S. as children in the face of Congress’s inability to legislate a permanent solution.

From both a human and policy perspective, the DACA program has been wildly successful. Approximately 600,000 current DACA recipients are deeply embedded in communities across the country. These colleagues, friends, and family members have also proven to be powerful economic contributors. DACA recipients have added more than $108 billion in wages to the economy over the last decade and paid $33 billion in federal, state, local, and payroll taxes. Some 56,000 DACA recipients are also homeowners making $567 million in mortgage payments each year.

As mentioned in last month’s Update, however, DACA has been in legal peril for nearly six years and an active case is likely to end up at the Supreme Court in the next two years. Unfortunately, every indication from the Court’s recent jurisprudence suggests that a majority of Justices will terminate the program once the case is before them.

We marked this anniversary by once again reaffirming our deep commitment to DACA recipients and all Dreamers. Please join us in supporting the work of United We Dream and The Dream.US, Emerson Collective partners who continue to fight for permanent legislative solutions to ensure DACA recipients and undocumented youth can pursue their dreams without fear for their futures.

Please also join us in pushing for comprehensive immigration reforms that will create a pathway to citizenship for all of the undocumented individuals and families who contribute to our collective wellbeing and prosperity. They are every bit as American as each of us.

Displacement of People Throughout the Hemisphere Accelerates

Panama’s Darién Gap, one of the most inhospitable jungles on the planet and the isthmus that connects South and North America, was nearly impenetrable for millennia, serving as a land barrier preventing transit between the two continents. In fact, the 100-mile-long and 30-mile-wide area is the only stretch of the Pan-American highway that could never be built. In an unfathomable development, it has now become a migration artery for hundreds of thousands of people each year seeking a better life.

A few numbers tell the story:

• In 2021, 150,000 people crossed the Darien, more than the 10-year total from 2010 to 2020.
• Last year, 250,000 made the trek.
• In the first half of 2023, 200,000 migrants have already crossed, with the peak migration months of August, September, and October still to come.
• Of these 200,000 migrants, 10% are children under 5 years old, a trend that is rising
• Most people crossing are currently from Venezuela, Haiti, and Ecuador, but nationals from over 70 countries have traversed the Darien this year, highlighting the global dimensions of this dynamic

To better understand how and why migrants have breached such a punishing jungle barrier, Emerson Collective co-led with the Center for Democracy in the Americas a four-day, cross-sectional delegation of foreign policy, national security, immigration, and political experts and writers to the region. We collectively came away overwhelmed by the profound humanitarian implications and inspired to deepen our commitment to addressing the complex challenges ahead.

A devastating conversation we had with one family, a couple traveling with their young daughter and their 2-year-old grandson from another child, underscored the human stakes. When we greeted them and asked about their journey through the jungle, the parents were overcome with emotion, but the 10-year-old daughter flatly responded: “so much death, too much death.” The treacherous terrain — the rainiest location on earth — has become a grave for too many migrants: yet despite the danger, families continue to risk everything for the hope of a better life. The starkest of reminders that this is not a journey of choice but necessity.

The trip also reinforced that no quick fixes or straightforward solutions can address the breadth and magnitude of forces driving migration in the region and the fluid political and economic contexts in each country. Too often, the kneejerk government reaction to irregular migration is a singular focus on deterrence measures under the belief that use of force and penalties will alter the decisional calculus. The Darien Gap, however, provides more evidence that making it difficult — or deadly — for people to move won’t deter desperate, determined people. When no legal pathways are accessible, people will continue to pursue dangerous journeys, like they have by the tens of thousands through the Darien jungle.

The firsthand exposure buttressed our belief that establishing regional strategies to enable safe, dignified migration is imperative. The groundwork for a new migration management paradigm is being laid through implementation of the action pillars adopted by the 21 countries that signed the Los Angeles Declaration on Migration and Protection last June. This includes a significant expansion of legal pathways and regularization programs by all countries in the region, serious and sustained investment in economic stabilization and climate resilience to make migration a choice, and much more durable long-term and emergency coordination among governments and multi-lateral institutions.

This Administration has gone further in recognizing the imperative of engaging other countries around strategies premised on shared responsibility than any in the nation’s history. But without Congressional partnership in creating new legal pathways and deploying financial stabilization measures, there are limits to the role the U.S. can play.

Recognizing Historic Global Human Displacement

Our trip to the Darien Gap coincided with World Refugee Day, designated by the United Nations to honor refugees around the globe. Under U.S. and international law, to meet the criteria to qualify for refugee status, a person must demonstrate a “well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group.” Unfortunately, many people we colloquially think of as “refugees” because they are fleeing dire circumstances like natural disasters, famine, or severe social violence, do not meet the legal definition and therefore lack some of the protections accorded refugees.

The number of people forcibly displaced and the number of people qualifying as refugees has grown rapidly in recent years. More than 108 million people around the globe were forced to flee their homes in 2022, double the number of people displaced just 10 years ago. Of those, more than 40 million were refugees and asylum seekers, also more than double the number of people 10 years ago.

Check out Al Jazeera’s powerful visualizations modeling the global flow of refugees. One key datapoint to bear in mind is that more than three-quarters of all refugees and people in need of international protection are hosted by low- and middle-income states, belying the narrative that wealthy countries unfairly bear the burden of large-scale displacement.

With global temperatures rising and all of the attendant disruptive consequences, forced human mobility will only accelerate. And we currently lack the international will and the policy infrastructure to manage this large-scale movement of people. As with climate change itself, this evolving phenomenon presents a collective action challenge — and opportunity. Our response should be one that embraces the dignity of every person and ensures that people who must move can do so safely.

For more information and to help support refugees and others who have been displaced, please support our friends at the International Rescue Committee and Refugees International.

SCOTUS Rules States Lack Standing to Challenge DHS Enforcement Priorities

In a welcome decision from an increasingly reactionary Supreme Court the Justices ruled 8–1 that the Biden administration can set priorities related to the enforcement of immigration laws. While some observers were surprised by this outcome, assuming the conservative Court would reach an outcome aligned with the conservative governors who sought to block the policy, this was not a close case and should never have reached the High Court.

Literally every enforcement agency in the world sets priorities for good and obvious reasons. To maximize the goal of promoting safety in a world of limited resources, agencies focus on things like severity of the threat, pervasiveness of the problem, etc. This is not the exception; it is the rule.

The absurdity of the legal challenge, however, was magnified by how directly it contradicted the state’s rationale for suing DHS. The states argued that DHS was failing to keep Americans safe by not prioritizing the prosecution of every single immigration violator and by “opening the border”. The memo, however, directed agency officials to prioritize enforcement against people who presented risks to “national security, public safety, and border security.” By seeking to eliminate these priorities, the states were advancing a strategy that would have made their communities less safe and the border less secure.

The Court ruled that the states lacked standing to sue the agency because they could not demonstrate a cognizable harm that could be redressed through the legal process. While this makes obvious sense and highlights how politically motivated the decision to sue was, the Court’s analysis raised concerns for future cases that could come before it. Specifically, the exceptions it carved out from its analysis of states’ standing to challenge DHS policies suggests that it would reach a different, tragic conclusion when the DACA litigation arrives back at the Court.

This troubling interplay between the executive and judicial branches further highlights the dysfunction created by Congress’s failure to meet its responsibility and reform the system.

Americans Choose Humanity Over Hate, Despite GOP Rhetoric

As the 2024 Presidential election season begins to heat up, anti-immigrant rhetoric continues to intensify. In the first policy announcement of his campaign, Governor DeSantis doubled-down on the anti-immigrant policies of the prior Administration, promising to end birthright citizenship, finish building a southern border wall, kill people seeking to cross the border, and other extreme measures. This policy launch provides a window into the parade of horribles we can expect as campaigning for the GOP Presidential nomination begins in earnest.

This spectacle from political opportunists, however, belies the welcoming spirit of Americans around the country and the policies that are being rolled out at the state and local levels. Some highlights include:

• Wisconsin: Generally recognized as a welcoming place for new arrivals, due in part to the tone set by the state and local governments, EC partner Voces de la Frontera helps asylum seekers find a better life throughout Wisconsin. “Voces helped organize the “Rapid Response Welcome Coalition,” a group of 27 nonprofits, faith organizations and government entities in the greater Milwaukee area”, to help “provide food, shelter, clothing, medicine, legal support, translation services, hygiene kits, transportation, court accompaniment and advocacy.”
• New York: New York City is a well-known destination for new arrivals, but the entire state has been “welcoming immigrants and refugees from all over the world for centuries. There are 4.4 million immigrants in New York State, making up a quarter of the entire population. Immigrants are so embedded into New York’s culture that they own nearly 30% of all businesses …..and fill a quarter of jobs in health aides, registered nurses, construction laborers, accountants, and childcare workers. From Buffalo to Utica to Albany, they have seen how the economies of cities throughout New York State can be revitalized by welcoming immigrants to their communities — in fact, most refugees who resettled in New York State last year settled outside of New York City.”
• Illinois: “The Illinois Immigrant Impact Task Force, a group created by the General Assembly in 2021 to help immigrant communities”, released a report in April 2023 with recommendations for improving Illinois’s immigrant-focused services. “Recognizing the importance of immigrant communities, Illinois has responded with numerous state policies that support and enhance the contributions of immigrants. Laws and programs have been created that promote immigrants’ civic, social and economic integration.”
• Ohio: Global Cleveland, an organization that works to welcome migrants across the state, has worked to set up the infrastructure needed to provide migrants with access to employment, schooling options, and accessible housing.

As the campaign for the GOP Presidential nomination heats up and we are inundated by extreme policy proposals and dehumanizing rhetoric from a very loud minority, let’s choose to focus on the extraordinary kindness and generosity of everyday Americans.

People move both by choice and by necessity. We always have and always will. Today the forces accelerating that movement are compounding. Each country has a choice to make — embrace this fundamentally natural human exercise and the opportunities presented by migration or try to callously wall itself off and shrink its vision for a vibrant future. As we celebrate the nation’s anniversary this month, I will be reminded of the many generations of immigrants that have left their homes behind to help build and invigorate America.

In solidarity,
Marshall Fitz
Managing Director of Immigration