The Status of Immigration Reform

Saturday, April 28, 2018
Edgard Garrido/Reuters
Allen Orr

Treasurer, American Immigration Lawyers Association

Carlos Guevara

Senior Policy Advisor, Unidos US

Theresa Cardinal Brown

Director of Immigration and Cross-Border Policy: Bi partisan Policy center

Konstantin Kakaes

Fellow, New America Foundation

This event is part of the 2018 Conference on Diversity in International Affairs. Other videos from the conference and more information can be found here

KAKAES: Thank you all very much for coming, both to this session and to the conference. It’s a lovely Saturday afternoon out there, and appreciate your being inside here with us, and looking forward to a very interesting discussion. I want to remind everybody that this will be on the record and ask you to silence your cellphones and other electronic devices, whatever those may be.

I’m thrilled to have three very distinguished panelists here to speak about the issue of immigration reform and immigration more generally. My name is Konstantin Kakaes. I’m a term member here at the Council. I am somewhat relevant to this conversation, a child of immigrants myself. So these are issues I’ve lived with my entire life. And I also spent a number of years living in Mexico covering Mexico and Latin American for The Economist. And one of the major issues that would come up was—in the Mexican-American relationship—is immigration. So I spent a bunch of time up on—up on the border talking to people about that. But I’m far more excited about what the panelists to my right here have to say.

To my right is Allen Orr, who’s an immigration lawyer with his own firm, as well as the treasury of the American Immigration Lawyers Association. Theresa Cardinal Brown, from the Bipartisan Policy Center. And Carlos Guevara from UnidosUS. And there’s more about their bios in the packets that you have. So I guess we’ll just start talking a little bit. And we’ll talk for about half an hour and then open it up to questions from the audience.

So, to start us out, and we can just go from left to right briefly, we were chatting earlier that one of the things that always vexes me is that there’s never—there’s rarely clarity about where we want to get to with immigration. Very few people want completely open borders. Some do. They have clarity. Most people don’t. And there’s not a shared understanding—or even a clear understanding from any one person what should things look like. Who should be let into this country and how should they be let in. So we’ll have Allen start out with sort of how you—how you view that.

ORR: All right. So the camouflage is part of the conversation, right, because it’s really a battlefield for immigration lawyers right now and in immigration. (Laughter.) And so the concept is, you know, really heavy, because for me it’s really about the process and jurisprudence, which means allowing people who might not be documented to also have representation and equal access to justice. And so regardless of how the system sort of works, the process should remain balanced on both sides, whether you’re documented, undocumented, how you came in, when you came in. The result should sort of bear out equal results. And that’s sort of saying what I think of the system, that it really should be about justice and the laws.

For the long view of sort of understanding that is to make the system work, is there’s a concept now if this wall that we want to build across the border. But underneath that, there’s this invisible wall which the administration’s putting up for legal immigrants, so that the process is longer, the court system is backlogged, so people will be deterred. It also goes along with the Muslim ban, which sort of gives you an impression of why would I come here? Why do my clients want to have conferences in the United States? So you have to deconstruct that also physical restraint of thinking of people as “other” and then you can sort of get to better resolution.

BROWN: I would just tell you, Allen, earlier in my career I worked for the Immigration Lawyers Association. And I was a lobbyist for the Immigration Lawyers Association. And I remember sitting in the waiting room of a congressional office once with a bunch of other lobbyists. And they were—we were having a random conversation about who’s lower on the totem pole, lawyers or lobbyists? And I said: I’m a lobbyist for lawyers. (Laughter.) So I won that, for being the lowest.

One of the things that we’ve been doing recently at the Bipartisan Policy Center is actually asking the public this question. Given the divisiveness over immigration, what is it the public thinks our immigration system should look like? And we’re just now getting these results back, but I’ll give you a little preview of some of the things that I found very interesting in the responses. The first thing is that majorities of Republicans, Democrats, swing voters, no matter where you live in the country, the one describer they say of our current immigration system is out of control and antiquated. Those two things came up on a list of criteria. Those came up top. And I thought, that’s interesting. What does “out of control” mean?

So we had a couple focus groups to dive in on this. And one of the things they said “out of control” meant was that they feel like nobody’s in charge, that immigration is just something that is happening to our country. It’s not something we are managing in any way. And that can be both on the enforcement side or on the legal immigration side. We just—no one’s in charge. No one’s steering the ship. And then it’s antiquated in that it doesn’t seem to have changed at all. And they’re right about that. Our legal immigration system hasn’t really changed substantively since, like, 1990. How we deal with undocumented immigrants and enforcement hasn’t changed since 1996. So in 30-plus years we haven’t changed the fundamental rules of the game. Well, lots has changed in our country in 30-odd years. A lot of you were not even born.

So I think those are two things to think about when we think about moving forward in the system. Whatever we decide as a country we want to do, in order to get the political support necessary to change we have to convince the public that, one, we are going to control the system—that it’s going to have rules and they’re going to be followed for the most part—and we’re going to update it, that it’s going to meet our needs whatever we decide those are. So I think those are two really important things to sort of bear in mind when you think about the immigration discussion.

GUEVARA: Hi, everyone. Thank you. I want to echo—thank you for being here with us today on this beautiful Saturday for this very important conversation. Carlos Guevara with UnidosUS, formerly the National Council of La Raza. We’ve been in this—in many fights for the Latino community for the past 50 years as the largest Latino civil rights advocacy organization in the country. One of the issues that we focus on and that I work on is immigration. So this is actually a timely and interesting question that’s posed.

You know, one part of the job that we have is to elevate the very human cost of our current immigration system, specifically our enforcement system, and what that means for the five-plus million U.S. citizen children, for example, that live with one undocumented a parent, an increasingly younger Latino population, a population of Latinos that eight out of 10 is a U.S. citizen. So for us, one of the threshold questions, as we think about some of these thorny issues, is what is—so, two things. One is, what is the plan to deal with the issue right now? It’s one thing to construct a new system out of thin air, but the reality is, as some of the things I just mentioned to you guys, we have mixed—a big cohort of mixed-status families. We have about 11 million undocumented individuals currently here in the United States. So how do we come up with a new system or modify our existing system that accounts for the fact that, you know, we already have, you know, very thorny and complicated structures in our society, which immigration is already woven into.

And the second thing I would say—and then maybe we’ll talk about this a little more here—as we think about and reimagine what a new immigration system or the vision that we see for the future is, I agree with Theresa in that, you know, who is in charge or what needs to be the way forward and so forth. And I think that starts with what is the clear theory of the case for enforcement, both in the interior and at the border? I think part of the issue with the immigration question, as much as folks try to not politicize it, is inherently a political issue. So it seems to me that things on the enforcement get to be woven and changed and altered depending on what the circumstances and the atmosphere is in the country. So I would submit that we need to have a clear theory of the case that focuses on really prioritization of serious public safety and national security threats, not going after folks who have been here a very long time, and finding policies that really kind of make that a regimented thing for across administrations.

KAKAES: So I want to come back to something that you said, Theresa, in that there hasn’t been a major change in how we deal with immigration in decades. And one of the changes that has taken place is DACA, the Deferred Action for Childhood Arrivals, which, you know, was in the news this past week with the case in federal district court on Tuesday. And I was wondering sort of if you could walk us through sort of your view on the significance of DACA. Was it a change that—you clearly don’t see as a first-rank change. So where—in what ways has it worked well? In what ways has—do you think it can—has it not worked as well as you would hope? And also this sort of news from this past week. What do you see as the future of DACA in the legal system?

BROWN: So the one thing I would say—and the reason I don’t put DACA up there—is that it was an executive action. It was not statutory. It was not passed by Congress. And therefore, as an executive action, it was always subject to being overturned by another administration—always. The fact that it was litigated and that precipitated, you know, the blocking of the extension of DAPA, the expanded for the parents of—and the expanded DACA, or even the threat of litigation was enough to cause this administration to terminate the program.

This should have been Congress’s job. This is Congress’s job. And even when President Obama enacted DACA in 2012, he acknowledged Congress should do this. President Trump, when he came in, didn’t terminate the program immediately, as a lot of people thought he would, as a lot of people actually wanted him to on his side of the fence. And in fact—in part, because he said he wanted to give Congress time to fix it. And even when he announced the wind down, the whole six-month thing, that really wasn’t necessarily for the benefit of DACA recipients. It was more in the hopes that Congress would pass something. And then they didn’t.

So to me, the existence of DACA—you know, aside from the hope and benefits that it provided a group of people in the United States—the downside of DACA was that it was an admission that our Congress has failed to fix the problems. It has failed to address it. And I find that hugely disappointing as a—from a political matter. From a—from a policy matter, that’s a failure. Now, on the program itself, enormously successful, for a large number of people who have done amazingly well in the United States. And the fact that it could be pulled out from—the rug pulled out from them at any moment, to me, is tragic. It’s tragic. And again, it points back, to me, the reason that we have to get Congress to figure out how to solve this permanently.

GUEVARA: And if I may, I would add to that—so, regardless of how we feel about the institution of the policy from the first place, the reality is that we’re facing this issue and still haven’t resolved it. The real-world impacts are there. The court cases do provide a temporary extension of sorts, for folks who right now have had DACA at any point in the past to be able to renew at least for another two-year period. But ultimately, as Theresa alludes to, the only long-term permanent solution to this stuff is for Congress to get their act together. And it has been very frustrating in the past, now eight months or so, since the termination of the program, that every time we feel like we’ve gotten closer, the political rug, as it were, has been moved from folks, from at least the chairs that I sit in, you know, trying to advance this issue, you know, would like. So maybe we can talk more about that a little later.

ORR: And just to add to the conversation a little bit differently, and because I am who I am, race plays an issue in all of this. The real concern at the heart of it is the browning of America. And so the policies that we sort of promote cannot sort of be against the social change that is necessarily going to happen. In my view, when you sort of look at immigration enforcement across the board now, you look at the enforcement at the border, you look at enforcement of DACA, you’re looking at people who have been here for a long time. But you are not looking at people who are overstays.

And the more you sort of diversify those groups, you see a large difference within the ranks of those individuals. And I think the challenge is—if you were to say—if I were to say, think of an American, do you think of someone—what’s the race in your head? And that’s probably part of the problem for most people, because you don’t, most times, think of someone black or Latino. And the challenge is for America to live up to the promise and understand that it’s about shared values, not shared ethnic colors or groups.

KAKAES: And I want to ask you a little bit about that in historical context, Allen, in terms of—like, I don’t know what the value is in trying to sort of distinguish between xenophobia and racism, but there must be some difference. They’re both—like, neither is good. (Laughter.) But—I think we can probably all agree on that, if nothing else.

BROWN: Probably can.

KAKAES: But, like, looking at the Chinese Exclusion Act, looking at anti-Irish sentiment, looking at—to what extent is the reaction you’re talking about for economic demographic reasons the places where immigrants have been coming from it the largest numbers in recent years have been from Mexico in particular, and Latin America more broadly, which provokes—

ORR: Depending on what arena you’re talking about. In family, maybe that’s true. In business, that’s not true. You’re talking about Chinese nationals and Indian nationals, right?

BROWN: Yeah.

ORR: So the 1996 act was supposed to take care of this sort of concept of these racial preferences, which it didn’t completely. So there are still categorically countries that are—allow limited people to come to the country. If we were really an open society, and it’s about the need and we want this merit-based system, it would be about the merits of your case and where you’re from would have no bit in the conversation.

KAKAES: Could you walks us through sort of that—the sort of quotas you’re talking about for countries, how does that work, just informationally, today?

ORR: Well, I mean—(laughter)—that’s, like, a whole ’nother dynamic. (Laughter.) But among the world, just think of, there’s so many visas that are allotted a year. And in a(n) effort to control how many people get visas depending on family or depending on business, which are the two major ways to get here, they divide it up among the world. And then once divided among the world, they divide it among the countries. And because, like you said, Mexico’s next door, on the family side there’s always been a large number—contingency of Mexican nationals that have been here. So they’re sort of waiting longer than someone who would come from another country. But for me, I’m a business practitioner. So let’s talk in that arena for a minute.

Indian nationals have come here for a long time. They’ve been here. They come to school here. They graduate from here. We educate them. We make them smarter. We hire them for our companies. They create these great things that we like—the phones and all this sort of thing. And then we sort of say, we’ll give you an H-1B visa. And then we say, we’ll sponsor you for a green card. So I have individuals who started their green card process in 2005 who are just now receiving their green card. Could you imagine that? If I were Brazilian, or if I was English and I started last year, in some cases—the Trump administration have slowed down things—I could possibly have my green card. Could you tell me the reason why, in a fair society, someone who’s an Indian national, who has the same job that I do—and I’ve actually been here longer than they have—they get their green card before I get my green card? There’s nothing else to sort of sum that up to, in my reality, than—

BROWN: Well, I—one of the ways I look at that particular issue is that if you think about the quotas, it’s no country in the world can have more than 7 percent of the total. That means India has the same number of green cards annually as Singapore or Malta. Like, populations widely different. And, frankly, Malta isn’t sending hundreds of thousands of people to be educated in our—in our colleges and universities. We’d love to have them if they want to come, but they’re not. India is.

KAKAES: That might be all of their people, from Malta. (Laughter.)

BROWN: India is. Yeah. India is. And as you said, we’re educating them and sending them back. You know, I think—first of all, as you said, Konstantin, the fear of the other in immigration has been around since the beginning of our country—and I mean, the very beginning. Benjamin Frankly was afraid of the swarthy-colored Germans who would never learn English. Look it up, guys, that’s true. (Laughter.) You can Google it. So we have always has this ambivalence as a country toward whoever is different. And as you mentioned, you’d go through the periods of history—whether it was the Germans, whether it was the Catholics, whether it was the Irish, whether it was the Chinese, whether it’s the Mexicans—like, pick your—pick your flavor.

ORR: But I would—sorry, go ahead.

BROWN: Yeah. But—so, it’s not new. But every generation has to deal with it now. And we have to deal with it now. And I absolutely think that there is that fear of the other. Now, as you ask the average American—as I said, we’ve been doing this—you know, if they fear somebody because of their race or ethnicity or whatever, or the changing cultures—you get these sort of ambivalent answers, where they don’t want to appear racist, or they don’t want to appear that they’re—but they’re uncomfortable.

Now, you can call them racist, you can them xenophobic, and you will shut down all conversation with that person. But if you try to engage them and understanding why they’re concerned—and is it a concern of the other, is it a concern of change? What is it that is bothering them? And for a lot of people, it’s that they just see things changing faster than they feel comfortable, right? That’s—now, what does that mean for immigration policy? That means that whatever policies we want to come up with, we have to face that. And we have to figure out how that’s impacting our politics, and then figure out how we explain this to people to get them to come on board with the changes that are necessary. I’m not saying it’s good or bad. I’m saying that that’s what’s necessary to advance the issues.

GUEVARA: I would agree that we need a leap of faith in the way we talk about these things and being able to feel vulnerable and create spaces where we can do that.

BROWN: Yeah, that’s hard. (Laughs.)

GUEVARA: I would say that Theresa has started a project like that with various groups at BPC, which we joined. I know ILA joins as well. But I will—on this point of the legal immigration, something does feel different right now. And it’s the context under which this administration, maybe it is these underlying currents, the anxieties that folks have. And I think there’s a report that came out, I believe, the past two weeks about this issue. But this is a different moment, it feels like. And I would submit that perhaps from a substantive point of view—we’ll come back to the conversation about the DREAM Act and the—

KAKAES: Could I get you, Carlos, to clarify?


KAKAES: When you say “a different moment,” that’s—it’s something of an ambiguous phrase. And I want to sort of hold you to what is different about this.

GUEVARA: I think that—you know, yesterday we were reacting—I’ll just give you one example—reacting to Tennessee state legislature passing a copycat SB 4 Texas-style show me your papers piece of legislation, that’s on the governor’s signature for the next 10 days. SB 4 itself, a, I would submit, spiritual descendent of Arizona’s SB 1070, which caused a lot of pain for Latinos and immigrant communities in the state of Arizona. Charlottesville—

KAKAES: Just in case anybody in the audience doesn’t know, SB 4 and SB 1070—just a quick one-sentence—

GUEVARA: My apologies, apologies. These are—these are state measures that percolate. SB 4, specifically, is a measure that passed in the state of Texas that would have required—or requires certain—law enforcement to cooperate, this is an oversimplification of this—but to cooperate with the federal immigration authorities. It also purports to go after these so-called sanctuary cities that limit their entanglement with federal—for good reason, I would say—with federal immigration authorities. Because of developments in the Texas case, the SB 4 case, there have been now in two legislatures—Iowa and Tennessee it’s looking like—efforts to expand those. SB 1070 in Arizona, we would say is kind of the grandfather to a lot of these cases, back in 2010. This was—you might recall, I don’t know if folks here remember Sheriff Joe Arpaio and some of the aggressive anti-Latino, anti-immigrant policies that he instituted.

So this is just some of the stuff that we’re seeing at the state level. But then we have moments that are, frankly, very despicable and go really, in my estimation, forward with impunity, like Charlottesville, the pardoning of the aforementioned Sheriff Joe Arpaio. And these events and the rhetoric in our—in our politics these days I think create the atmosphere where a lot of this stuff can move forward and really have impact on the day-to-day lives of folks. What I meant that this—so it feels different, but it’s also playing out differently in some ways. I would say that one of the interesting things to watch—we’ll see what history says—in the conversation about the DREAM Act legislation, is the importance, I think, of this bill RAISE Act as an important marker bill that really set forward what the restrictionist views, in my mind, had in terms of restricting the legal immigration system.

We were talking about the quotas earlier and so forth. This bill would have drastically slashed legal immigration to the United States, and kind of created this point system, essentially by 50 percent. Reorganized and reimagined what the immediate family means. It currently means parents, children 21 and under, and so forth, to essentially exclude parents and make the definition of children under 18. I think that this was an important moment—we were just talking about this earlier—as something to watch. You know, wonder, well, is giving the president the money for his border going to be enough—his border wall going to be enough to potentially get a deal done? And I’m not so sure, because of this insistence on the legal immigration conversation, which at its heart is, to Allen’s point, I think based on some of these anxieties that we’re seeing about the changing of the country’s composition.

And also, just a quick plug, we also keep an eye on what’s going on administratively and rules that are advancing, like changes to these little wonky terms like public charge and so forth. That also—

KAKAES: So I want to ask a simple question to all of you and have you answer directly.

BROWN: That actually doesn’t have a simple answer but go ahead. (Laughter.)

KAKAES: Is it possible to stop illegal immigration without turning the country into a police state?

GUEVARA: That’s a simple question? (Laughter.)

BROWN: As I said, I don’t think there’s a simple answer.

KAKAES: I mean almost at the yes or no level is what I’m curious about.

ORR: Yes.

KAKAES: To stop it, so there’s zero—

ORR: Yes, right. If you have a system that allow for the flow of individuals to come in a legal way, most people don’t want to stay all the time. They want to come for work and leave. If the legal system worked, then the undocumented system wouldn’t be a concern. So the concept of people—sort of even now, this concept of caravans at the border, if they have a right to be here based on our laws that we sort of stand by and asylum claims, then hear the claims and adjudicate them. The concept that they’re five at one time or 500 should not matter to the equity for justice.

KAKAES: So to come back to that then—and I want to give the two of you a chance to speak to this as well—but a legal system that works, hinges on: Somebody says I want to come to the U.S., from whatever country. And the legal system will either say: Yes you can, under these conditions, or no you can’t. Some of the people to whom the legal system, however—even if it’s the best legal system that the best minds devise, will say no to somebody who nevertheless wants to come, who doesn’t say, OK, you said no, that’s great. I’ll go to Canada. Then will not some of those people try and come illegally? So I want to hold you to justify your yes.

ORR: To my net zero? Are you talking to me? (Laughter.)

KAKAES: Yeah. Because I find that—I find that frankly incomprehensible.

ORR: You find it incomprehensible because of the problem of the history, right? If you divorce yourself from the history.

KAKAES: No, I am divorcing myself from the history, right?

ORR: The concept of a large undocumented population is something that is the history of people not sort of turning to legal documentation. No one’s ever dealt with the problem from 1996 to ’65 to sort of say this—but there are large periods of time when there was not this sort of concept of this large, undocumented population. If you’re talking about net zero, there always will be someone who tries to get here. But overall, this concept of being this mass problem is just like a student. If you get a student with a lot of student debt and then you push them out and say, be successful in the world, they can’t. But if you say, oh my God, this is how you get an education, and then you send them out into the world to be successful, they’ll be successful. So it’s just a matter of—

KAKAES: That’s another whole—education is a whole ’nother conversation.

ORR: But I’m saying it’s a matter of view. So when you shackle yourself with the history that you have of this large undocumented population that just exacerbates itself to millions of people then you say: Oh, my God, we’ll never solve this problem. But if that population was dealt with in the DACA sense or some fair equity sense, and it didn’t exist, and there wasn’t a million people, it was 500 people, you would think: That’s nothing. That’s minimal.

KAKAES: Well, 500’s not zero, which is my—but I want to give Theresa and Carlos a chance—

BROWN: Well, go ahead. Carlos wants to jump in first, so go ahead.

GUEVARA: Well, let’s look at this idea of net migration. And let’s just look at what’s been going on in the border for the past 18 some-odd years. For starters, net migration from Mexico is actually a net negative right now. Most of the migration that we’re seeing of folks attempting to illegally enter the United States are folks who are coming from Central America, fleeing very dynamic situations that—and complicated situations in their home countries—rampant violence in Honduras, political turmoil now. We have to keep an eye on what’s going on with Nicaragua as well, with their unrest. So these are very dynamic—which are not new to migration, you know, flows generally across the world.

But net migration from Mexico itself has been below zero for some time. And a lot of that, as we look at—you know, whether it’s a police state or not—I would say no. I think there are other factors to consider there. And one of the biggest for Mexico, for example, is an improving economy. So how about we invest—and I would say that this is what we should be doing in Central America as well—is why don’t we help invest in those regional institutions to change the cost benefit analysis for someone who—notwithstanding the fact that it’s one of the most dangerous journeys. You know, there’s violence along the way, chances for kidnapping, extortion, and so forth. Where, notwithstanding all that, your decision point is: Yes, I want to go. How bad must it be in your home country that that’s your—that’s your outcome?

So why don’t we, you know, consider some of these broader policy solutions, and not just look at the hammers and closing these purported so-called loopholes, and looking just at the pull factors. That’s kind of the buzzword that’s used around here in D.C. But what about some of these push factors? And how do we look at this? And we only need to look at Mexico for things like an improving economy there, a growing middle class, and what that’s done in the past 18 years of migration for them.

BROWN: So I think I kind of agree on both sides here. You know, going back to what we found when we asked people, they said they feel like it’s out of control. But we asked them specifically whether you thought you could get to zero. And very few people said, yeah, just invest whatever—it doesn’t matter how much it costs, get it down to zero. Most of them said: Get it to a manageable level. Well, what does that mean? That’s exactly what you’re talking about. If we had a system where people arrived at the border, no matter how they arrived, their cases were able to be adjudicated, they were promptly decided, if they’re allowed to stay they stay if they’re not allowed to stay they are removed, and it never got overwhelmed, which is what people are saying right now.

If people had sufficient legal avenues to come that allowed them to come and, you know, meet our needs of economy, and families can reunify, and it didn’t take them 25 years to do that, then they would probably choose to do that. That’s a managed system. That’s a system where whatever the immigration flow is, it’s majority managed. And the rule of law, which people like to throw out, is followed for the most part. And then when there’s those exceptions, you can look at those exceptions and you figure out what to do with them. But the majority is coming through a legal—and has a legal process.

I think that’s really the key. We need to figure out—because, as I said, we haven’t changed any of our system in 30 years, but the world has changed around us. The countries have changed around us. The other thing, and is said this in the room before, that frustrates me very much is whenever I hear a politician say: We need to fix immigration, once and for all. Well, you can’t. Why? Because the world changes. Just like we’ve changed in the 35 years since we last dealt with immigration, it’s going to change sooner. Almost every other country in the world that has—is an immigrant-receiving country, like we are, they will adjust and tweak their immigration systems on an annual basis, maybe every couple years. Sometimes more often than that, when they see how things are changing. What are our needs in our economy. Oh, now we see that we need this. Oh, there’s an emergency somewhere halfway of the world and we need to receive more refugees? Then we can tweak our system to do that.

Ours isn’t. Unless Congress changes the law, we are stuck exactly where we are. So we can’t manage anything. If it doesn’t look the way it looked when we passed those laws 30 years ago, we can’t manage it. Our system doesn’t allow it. So we need to figure out a way to update things, but then allow for things to continually change as the world changes. Yes, 30 years ago Mexican migration was the concern. Now, it’s not so much. Now it’s Central American immigration. You know, we didn’t have a lot of Chinese and Asian immigrants coming here, you know, 35-40 years ago. Now they are. And so the system we set up back then just doesn’t make sense now. We have to look at these things on a dynamic basis.

KAKAES: So I’ve got dozens of more questions to ask, but I want to give everyone in the room a chance to participate in the discussion a well. Please do wait for the microphone to come to you. State your name. Try and keep your question more succinct than I managed to keep mine. (Laughter.) And do remember that this is on the record.

So let’s just start up front here and work our way. No one ever wants to sit in the front row, so I feel like there should be an award—a good reward for having done so.

BROWN: There you go.

Q: Hi. My name is Conchin Astina-Murthy (ph). I’m student at Georgetown University.

And I wanted to address one of the points that you made earlier about some of the underlying factors, and also the idea that over its history America has also defined itself by its whiteness and the concept of whiteness has changed over time, and that’s played a role in immigration policy. You know, Asians at one point and Indian immigrants were defined as white, then they were non-white. Middle Eastern immigrants, things like that. So—and recently the president has also made comments about wanting immigrants from certain types of countries and not others. So speaking to that sort of underlying dimension, how do you truly address immigration in a comprehensive way, when a lot of Americans do have—when our country is kind of created on that concept of whiteness and that underlying racism has not gone away? (Applause, cheers.)

BROWN: Good question. So being mindful of the panelists to my left and right, I’m going to be—speak just from my own perspective. We haven’t deal with racism well in this country for a long time—ever. Ever. And what I said earlier about every generation has to deal with it over again, we’re at that moment. We have—the problems didn’t go away. They were subsumed, especially when we had big periods of economic growth and we had lots of technology that was new, and we were innovating, and the dynamics of our country was changing. And suddenly we were dealing with issues like LGBTQ issues. And we felt like we were on this path. There was always an underlying current there that had not been dealt with. And this president just tapped that vein in a very public way and gave permission for those worst instincts to come out.

That is—that, to me, is the crux of where we are right now. How do we get a place where that is no longer—it never was acceptable, but should not be acceptable, that that’s just OK? At the same time, we can’t pretend that people don’t have those feelings. And that’s what I said before, if you want to shut down a conversation on immigration, accuse somebody of having a different point of view of being a racist. Whether they are or are not objectively, you will shut down that conversation. And once you shut down that conversation and say: I can’t talk to you because—then you can never move forward. You have said there’s no way we can figure this out. We can’t do anything. So we have to deal with both of these at the same time, somehow. We have to, you know, acknowledge that we still have these issues that we have to deal with and have to go forward, but we have to do it in a way that allows people to, frankly, recognize and deal with their own implicit or explicit racism.

GUEVARA: If I could just jump in quickly.

KAKAES: Please.

GUEVARA: You know, from the chair I sit, you know, I think the work will and must continue in terms of elevating the stories of the DACA recipients, the TPS holders. You know, by the way, this administration has, in the past couple months taken—


GUEVARA: Temporary protected status. Individuals who have been in this country, in some instances close to 20 years, lawfully. So between those two policies have slowly starting to go away.

KAKAES: Individuals from Central American countries?

GUEVARA: TPS primarily—the big bulk of them from El Salvador, followed by Honduras, and then Haiti. We’re talking about a million people that in the next few years are going from documented—some sort of legal status that the government has vetted and then screened and so forth, and essentially going back into the big haystack, if you will, if you want to look at it that way, which is kind of unprecedented. If you think about the administration, it’s actually growing the unlawful—the unauthorized population for the first time by at least a factor of a million. But I think from where we sit at Unidos, groups that represent Latinos, and work with brothers and sisters across various other communities, we have to continue to elevate these stories. And I’m heartened by the work that we’ve done, even though we haven’t attained that illusive relief for folks, to be able to bring that to the forefront of the consciousness.

But I do think that Theresa makes a very interesting point. We do have to have this opportunity, this trust—I don’t immediately see it, unfortunately—where we can have, you know, a sustained dialogue about some of these anxieties underpinning, you know, the democratic shifts and so forth from the other side as well. But from where we sit, the work will and must continue.

KAKAES: Allen, do you want to weigh in on this?

ORR: Yeah, so eliminate the nationality from the whole conversation with regard to the processing. Why does it matter? It should be with regard to the need and your classification as far as processing. That would be one of the greater sort of ways to sort of balance that out. And also for me, institute a statute of limitations on immigration, something that is unthought of and sort of what I’m sort of working towards. If someone has been here for whatever amount of time it is, it’s almost fair that that person should be allowed to stay. Twenty years—

KAKAES: So this is something like common law marriage as a—(laughter)—

ORR: It’s a common law marriage. More just like regular jurisprudence.

BROWN: We used to have it in law. We used to have in law. It was called registration.

ORR: Yeah. Regular jurisprudence. Yeah. So it’s just regular jurisprudence, where after a certain timeframe—

KAKAES: Adverse possession. Just thinking of sort of analogues.

ORR: Yeah. Adverse possession’s a little rough. (Laughter.) But—

KAKAES: I may misunderstand what that is, where if you occupy a building for a while then you get to claim ownership.

ORR: A space for a while. Yeah, openly, notoriously, and no one comes in and moves you out, then that’s the same thing. But I wouldn’t call it adverse possession.

GUEVARA: Different terms.

ORR: I would sort of call it—because that sort of has a taking from it. I call it just being legally here present. So a lot of people here pay taxes and sort of add to the system. And so the equities involved in that should not revolve around nationalities, as the equities in immigration shouldn’t revolve around nationalities, as our country isn’t based on that, right? And that’s where the concept comes from. And that’s why the boxes matter on the census. And that’s why there’s this new concept of sort of categorizing people to undocumented, documented. And when you go into the DACA categories, one of the things that I think is alarming is that you will find that women get DACA on a greater instance than men. And the reason why is, racism. And the way that African-Americans, Latinos, and Afro-Americans interact with police officers and how they get wound up in things that, you know, are sort of on a basic level.

So you sort of have to look at these policies not in a vacuum, but in the truth and say: How do I resolve these issues? How is the equity across the board? And what do we as Americans—I mean, that’s the biggest thing. You, as an American voter and as a representative, need to talk to people in your communities. And part of that is talking to people who disagree with you, to understand what their concerns are, because to them their truths are real.

KAKAES: All right. Another question? We’ll take from the front row here. And I’ll try an actually, in advance, hold our—so I know there are many questions from the audience—so hold our answers to be brief and give people a chance to ask more questions.

BROWN: That was a packed question. Let’s be fair. (Laughter.)

ORR: Yeah.

Q: Hello. My name is Leohana. I am a Rangel scholar, 2017.

I’m originally—I’m a first-generation immigrant from Guatemala. And in talking about country-specific kind of, I guess, racist policies that—in terms of TPS, Guatemalans never benefitted from TPS, to an extent. And so when we talk about—and if you look at Cuba, a lot of Cubans, like, have different privileges as immigrants in this country. So from a—I guess, a perspective of—is there a place where foreign relations plays a role with those countries individually? And how does that lead to more opportunities for immigration pathways? And I guess as someone who is looking to go into foreign relations, how do you bring that up into a conversation in terms of—or, is that a thing? And if you all could just—

KAKAES: So why do Cubans get special treatment?

Q: Yeah. (Laughs.) Well—yeah.

BROWN: Don’t want to go into that. So, one thing, but I appreciate your question a lot, because there has always been a foreign policy aspect to immigration. Congress, under the constitution, has the authority and power to write our immigration laws. But, for example, why are visas issued by the State Department, right? Because that—the welcoming—so Congress sets the rules, but who gets to come in was always seen as sort of the—an avenue of foreign policy. So we have relics of that in our immigration system. For example, there’s this thing called visa reciprocity, which says that if you apply for a visa from a country, your visa can be valid for the length of time and the number of entries that your country gives to Americans, if we apply in the same way. It’s this foreign policy kind of idea. So there’s pieces of foreign policy that have always been part and parcel of our immigration system.

Things like our refugee process, TPS. Temporary protective status was created in law to provide a way to temporarily allow people who had been in the United States when something terrible happened back home—think floods, hurricanes, landslides, volcanoes, civil war. That was the concept, that we’d provide this temporary status, because those countries certainly couldn’t have a lot of people coming back. But what that turned into, as those temporary statuses were extended decade after decade, was basically another way to allow people to immigrate to the United States. So we never actually did that. We kept them in this extended limbo, right? So the original purposes of that was supposed to be a sort of foreign policy aspect of this, became about an immigration issue.

You know, we certainly had issues with, you know, figuring out which countries would benefit from certain things. We passed laws in the ’80s and ’90s for Nicaraguans and other Central Americans that we hadn’t treated fairly because of different political alignments we had with governments at the time in the ’80s, right? We had to deal with that, first through litigation and then through legislation. So I don’t think you can ever completely take all of that out, but you can certainly create an immigration system that at least on its face does not have that sort of preferential ideas. But then you have to recognize what’s going on in the world. And you have to have flexibility in the system to adapt when there’s a humanitarian crisis or there’s a refugee crisis, or there really are legitimate foreign policy considerations that have to be dealt with that, as a country, we have to deal with our national interests. I think it’s sort of you need—you need both.

KAKAES: I mean, I would say, in that confluence, there’s a lot of sad human stories, I think, about—around immigration broadly. And some of the ones to me that I just find most heartbreaking are Iraqis and Afghans who had worked with the U.S. military and where, nevertheless, screwed up by—screwed over by the immigration system in this country, which is kind of that nexus.

If you guys are dying to chime in on this, or can take another couple of questions?


Q: Hi. My name’s Samantha. I’m a student in health communications and also recently a UNA-NCA graduate fellow.

Immigration reform and also refugee—the migration issues going on in the world are some of the things that we discuss often in terms of, like, relation to the U.N. And my question is revolving around, like, at a time when this administration is really restructuring the international efforts that it supports—specifically with, like, cutbacks to the U.N. and supporting different international efforts, like, how would you recommend—because you guys addressed—you talked about push and pull factors. How would you recommend they address, you know, those concerns around, like, you know, fears or issues here in the U.S. in, like, coordination with addressing push and pull factors, without having to have, like, prolonged, long-term involvement in other countries, because, like, those are some of the issues that have happened in the past—like, going abroad to work on different issues or, you know, resolve different crises, but then overstaying because, I don’t know, for whatever reason. So how do you—like, what recommendations would you give to this administration about how they can invest in combatting those push and pull factors, but at the same time not, like, staying—overstaying. And, I don’t know, do you think technology has a role to play in any of that?

KAKAES: All right. So the sort of point you made earlier, Carlos, about sort of investment to bring greater prosperity to Central America—how can you do that without being a sort of neoliberal imperialist, is the—(laughter)—sense I get of the question, to put it in a more pointed way?

GUEVARA: Well, I appreciate the question. I’ll take a first stab at it. I think in terms of influencing the current administration, I look no further than the president’s current chief of staff, who is very well-versed and respected as an authority kind of in the Central American region. In fact, used to advise Secretary Johnson, who was I understand here yesterday addressing you all, on the importance of looking at these issues holistically. I think there’s an argument to be made that, you know, regional cooperation is in the long term more cost effective vis-à-vis, for example, a border wall or investing lots of resources to staff up border patrol agents between the ports that we currently, at this point, don’t really need.

So I would appeal to—again, if we’re talking about these guys, this current administration, that cost-benefit and say, hey, if we work—if we work regionally, and we’ve done it before in the past, I think in the long run we’ll have greater success in, you know, changing that—or, at least that calculus, or at least giving people a little bit more opportunity, I think, through that calculus, of do I go, do I say.

KAKAES: I want to briefly draw you out on one point that just made in passing, Carlos, which is the border control agents. And, Theresa, you mentioned that nothing’s changed in 30 years. And I take your point that you’re talking about Congress, but one of the things that has changed is the number of border patrol agents. And I was wondering if you could just walk—because that, to me, is a shocking thing. And—

GUEVARA: So I think—I think back to my, like, Economics 101 classes. And my econ professor used to hold up his hands like this, supply and demand. (Laughter.) There’s a similar thing in terms of—yeah, I’m not an expert—where you have increases in border spending to include more border patrol agents. I think right now we are currently CBP is currently authorized for about 19,000 and change. Theresa will have a better number in there. At the same time, when the border numbers—we talked about this earlier in the past 18—past 18 years have declined. We saw a high of predominantly Mexican migration reaching a high of about 1.2 million or so—1.6 million or so in 2000, to just north of 300,000 last year. We’ll see where that ends up this year, but it’s trending around that same line.

So we’ve seen a tremendous increase in resources at a time when there’s been decreases in apprehensions between ports of entry. And the border patrol officers are the folks who, by and large, you know, enforce and work between those ports of entries. So one of the things, if I may, when I think about reimagining a new system, is something that takes into account modern realities at the border, at ports of entry, between the ports of entry, and the allocation of resources. You know, we do we really need this money, even though the politics might tell us—or the people who want to promote those polices anyway—that we need that or want that. But do the realities on the ground tell us that we need that? And that’s something that I would submit as part of Theresa’s master plan to get us to a system that works for everyone.

BROWN: So we—real quickly, we did a report in 2014, where we actually looked at how does the government measure success at the border. What are the metrics they use to figure out where stand in terms of our border security? And we found a couple of things. One is, we have never had a consistent set of metrics that we measure over time of what constitutes a secure border. We tend to use metrics that, frankly, tell us nothing on amount. So we talk a lot about how many apprehensions there are, right? How many people have we caught? Well, the great thing about that number is you claim success whether it goes up or down. If you’re apprehending more people, great. Great, we’re catching more of those people who are trying to come over. If apprehensions are down, that means fewer people are trying. Well, it could also mean that you’re missing more, right? If you’re catching more, you may be catching a greater percentage of those coming, that would be a success. If you’re catching less, maybe you’re catching a smaller percentage. That’s another way of looking at that number.

So we actually proposed a different set of metrics that would be a little bit more comprehensive, that would allow us to have a better sense of where things are at the border. But because the government really hasn’t—

KAKAES: What would that set look like?

BROWN: Oh, it would include a lot of things. First of all, there are ways to estimate how many people you’re not catching, that the government chooses not to do. They’re working on it, to be clear. They are trying. The Congress last year, year and a half ago, basically told them: You’ve got to start doing this. And so they’re trying. But you can estimate based on other things how many people you’re missing. You can certainly look at the total number of estimated undocumented people in the country. Is it going up or down? And it’s been pretty much stable to slightly declining over the last six or seven years. So that’s one metric.

You have to look at what’s happening between the ports of entry as well as at the ports of entry. You look at we’re now starting to get data on overstays, the issue that Allen raised earlier. So you put all those together and it gives you a much more comprehensive picture of how we’re doing on immigration enforcement. But if you don’t measure it, you can’t—then it’s very easy for somebody to just demagogue and say: Throw more people at the border or throw a wall at the border, because we need it, because it seems like there’s so many people coming in right now. And the answer is we are at our lowest number of people coming in, by any of the metrics that we’ve looked at, since the 1970s.

KAKAES: Let’s move on back on the aisle here. I don’t want to only take questions from the front. I’m tempted to only take questions from the front row, but I don’t want to.

Q: My name is Ryan Fonseca. I am a student at UCDC.

And my question is, how can we start up a conversation on allowing immigrants who have criminal records to say in this country and be able to come to this country?

KAKAES: when you say permanent records, you mean criminal records, or?

Q: Yes, criminal records?

BROWN: That’s a hard one. (Laughter.) We talked a little bit about this in the—one of the challenges of creating policy is that no matter what policy you create, no matter where you draw a line, somebody’s on the other side of that. And that person on the other side of that line may have the best, most sympathetic case in the world. But you have to create a rule. The problem is that we’ve been fighting over where the line is. And people who spend their lives looking at the individuals want the line to be way down here. And people who are looking at sort of the broader, how do you get the American public to support us, think the line has to be here. And it eventually gets negotiated out in the political process.

What I said earlier I think is important to remember. One of the things we found in our surveys is the public is generally willing to be very compassionate on a lot of these things. The majorities of all the parties support finding a legal pathway for undocumented to get right with the law—however you want to consider that—become legal. Most of them don’t know there isn’t one. They had this feeling that there’s a legal way for all these people to become legal, and they’re just not choosing to do it.

GUEVARA: Just do it, right. (Laughter.)

BROWN: And when—and if you say to them: There actually isn’t. They’re like, oh, why not? (Laughter.) Literally, I had—in Detroit I had a woman who said—looked at me and said: Why not? That’s dumb. Why not? They’re willing to be compassionate. But they—how they put it is, they don’t want to feel like they’re taken advantage of. So if no one follows any rules, then how can you be more compassionate, right? If you have a set of rules, and most people are following the rules, then when there’s a situation that warrants compassion, it’s much easier for people to be compassionate.

So I go back to what I said before. When people feel like there’s no rules to the system, and you’re asking us to be more liberal with the system? But there’s no rules anyway. What rules do you want me to let go of? So I think we have to have that kind of a conversation, which says, yes, there have to be rules. Yes, there has to be limits. Yes, we have to find a way that the majority of our system works within those rules. And then we can look at discretion in individual cases where it makes sense and figure out what we do with that group of people. But I think to have the opposite—the conversation in the opposite way, you’re going to have a hard time finding that bipartisan support to do it.

ORR: And—

GUEVARA: But I do think the markers are—oh, I’m sorry. Go ahead.

ORR: No, go ahead. I just think—you know, from my perspective, it’s sort of like the marijuana thing, right? If you’re black you get locked up. If you’re white, you get to sell it. (Laughter, applause.) So it’s also the reality of sort of understanding how the system works and having that conversation and to be real about it, because it’s just very real that America’s about locking up people. And when they start locking up people for profit, it’s the brown and black people. And that’s the reality. And that’s the same thing in the immigrant world. So I’m not going to sit and placate and say, oh, you know, there’s this—and it doesn’t involve—it does really matter where you live and who you are as to how you interact with the law and what you’re guilty of and not guilty of.

BROWN: Yeah.

GUEVARA: I do think those initial rules are important markers from which to push further. We’re starting to see some of that in some advocacy and awareness around the military vets who have been removed who, you know, are trying to apply for VA benefits, for LPR status, and so forth. Folks who acquired addiction issues after serving for some drug issues and so forth. And we’ve seen in Congress some of that advocacy and marker bills introduced and so forth. So I think those rules are very important. I agree with Theresa. But they should be places from which eventually we push.

BROWN: One thing I would—I would argue for: Our immigration law has no statute of limitations. So it doesn’t matter how long ago you had your, you know, one possession of pot, you know, conviction. It could have been 40 year ago when you were 18 and you’re now 52 trying to immigrate and it’s still there. Like, that makes no sense to me. There should—like I said the rules are there, you set the rules, but then you have a way to say, OK, here’s all my mitigating factors, right? Here’s all the reason why I’m thinking you shouldn’t apply that in my case. Have a fair process, let people plead their case, and have them adjudicated. Like, let’s set up the rules so that that can happen.

KAKAES: All right. We’ll come back to the front row here, please.

Q: Hi. Thanks. My name is Catalina (sp). And I’m in education. I work with Search for Common Ground. I did a Fulbright in education and went to Colombia about 10 years ago.

And my question gets at immigration policy that runs on skillsets, right? Because we’ve talked about nation-states and we’ve talked about, you know, foreign policy. But what about immigration that is aimed at bringing people into the country who are a lot like my dad, right, who have a very specific skillset, and cultivated that as a way to get into the country? You know, I wouldn’t be here if my dad hadn’t made those decisions way before I was born. And that’s influenced so much of my decision making and, you know, how I’ve approached education in my life, et cetera. But what are—you know, what aspects of that type of immigration policy work? And how are we building problems into the system by, you know, basically discriminating on, you know, assuming that we need certain skillsets and that there are other skillsets that are not valuable? Thank you.

KAKAES: All right. So why did Melania Trump get to immigrate to this country legally? (Laughter.)

BROWN: Because there was a very strong model lobby in 1990. (Laughter.) I was there. I met them. Very strong model lobby in 1990 that said: When you’re going to create this H-1B categories and it has to be professionals, that’s how models had come in for the last 20 years. What about us? And they’re like, OK, we’ll just carve out this little tiny category just for you. That’s how it works. (Laughs.)

KAKAES: All right. So the H-1B aside, I mean, they’re just these sort of visas of extraordinary talents. And so I guess one form of your question, and maybe Allen you can sort of speak to this since you work with clients, how does the immigration system conceptualize skill and talent? And in what ways is that—does that work somewhat well, and in what ways does it not work well at all?

ORR: Yeah, I sort of don’t like the dichotomy of sort of saying families more than skill, or skill or family business, or family. It just doesn’t work that way, specifically when it’s you and you’re dealing with someone who is in your family. And part of what the evaluation is based on is the reality and potential. And so if I’m from a wealthy neighborhood and I went to the best school, I have a great potential to go to Harvard and Princeton. I mean, I will go to Harvard and Princeton, the actuality. But I could also be from a neighborhood and meet someone along the way and still have the same potential to reach the same goal. So it’s a little bit about the equity that’s supposed to be American to sort of get that balance right.

And that’s why—I think Canada does an OK job of it. And we have those challenges that sort of exist here. And so there sort of needs to be the balance on both sides, because we are about family. And you—the understanding that if you are part of a family unit you generally do better, and you build the same social conscious. So that’s why family is so important. And then also understanding and meeting the business need is super important as well. So don’t sort of have that dichotomy in your mind in playing those games where they sort of do metrics, because anyone who says, oh, we’re going to have a system based on points—well, where are the points going to come from?

BROWN: Somebody’s got to figure that scale out.

ORR: Right. And what’s the underlying parts of that sort of feed? So I think immigration needs to be to meet the need of what we need in general, right? And the concept that we have right now is that we have too many immigrants here that are diluting what it means to be American, which is a problem for the Social Security system, for elderly Americans, for rural neighborhoods. And the concept—you know, I do Fox News. That’s my—one of the things I love. And they sort of say, well, they’re overcrowding our schools. They’re overcrowding our social systems. They’re overcrowding our—well, if we weren’t dropping bombs on people, then maybe our schools would be better. (Applause.) But the problem is not a small group of immigrants doing this business thing.

BROWN: It’s where we put the money. So going back to this survey that we did, we asked people: How do you define merit? This was interesting. We said how do you define—you know, the president’s talking about: I want a merit-based system. What does that mean? Well, the only system he’s said is that RAISE Act, which would slash immigration by 50 percent. But we said, what do you think—what do you think of merit? What is merit? Hardworking. Willing to contribute. Learn English, frankly. It’s there, people. We can’t deny it. They want people to learn English. High skilled, low skilled? Eh. You’re willing to come and work hard, you’re not going to go on the public dole and you’re going to learn English, fine, great. We want you here.

That—if they were forced to choose between high skilled and lesser skilled immigrants, they would choose high skilled. But honestly, in that—it surprised the heck out of me—that’s not what they’re looking for. So, you know, it might be that there’s support in this country for a points-based system. But as Allen said, if you look at the countries that have those systems, two things you have to bear in mind. One is, they tweak them every year—every year. They have a much better sense of what their economy is doing. How many people are we graduating in what degrees? Where do we think the jobs are? I mean, like, there’s a whole, like, administrative function that that’s just figuring out what the economy is going to need.

They give points for family relationships in their systems, so it’s not like it’s not family. You get extra points by having family. And they’re increasingly looking to, do you already have a job? Why? Because as much as they might think they’re doing a decent job of figuring out who’s going to be successful in the country, the number-one determinant of an immigrant being successful is if they can be employed at their skill level as quickly as possible when they arrive. So they’re turning it back into that sort of demand-based system. So our system does none of that. Our system tries to look at what we need in our economy basically by what employers ask for. We have tiered our system to say yes, if you’re higher skilled we want you here more and we have almost no visas available for lesser skilled categories. And we prioritize family over all of that. Is that a successful mix? Well, at the time, it was passed, that’s—may be it. But again, when was that passed? That framework was set up in 1965. It was tweaked in 1990. Are we still there now? Eh, I don’t know.

KAKAES: So, I apologize that not everybody who wanted to ask a question got to. I’m going to make up for it by giving all of you a chance to answer a question. Theresa, you all mentioned how Congress has been sort of paralyzed for a while. And there’s a lot of, oh, what can I do. And I want to ask you, how many of you were eligible to vote in the last election and didn’t vote. Raise your hand.

BROWN: Oh, he’s calling you out. (Laughter.)

KAKAES: Be honest. Only one. Well, that’s terrific. If all you guys are telling the truth, that’s excellent. And I’m heartened to hear it. And you should vote next time. (Laughter.) Don’t worry about not doing it last time. But do it next time, because that’s the one—that won’t change everything overnight, but that’s—you know, participation in democracy is at least a starting point.

So thank you all very much for coming both today and to the entire proceedings. And thank you so much to my fellow panelists here. (Applause.)


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