Good Law | Bad Law #90 – Unraveling the immigration debate: What are the facts? W/ Theresa Cardinal-Brown

Aaron Freiwald: Welcome back to Good Law Bad Law. My guest on this episode is Theresa Cardinal Brown. She's an expert in immigration and is the immigration director for the Bipartisan Policy Center a think tank in Washington D.C. and she's been in and out of the Bush administration the Obama administration working on immigration for more than 20 years. We walk through all the hot button issues relating to the immigration debate from the dreamers and DACA to President Trump's calls for a border wall. The separation of families at the border the impact on the economy. I didn't understand these issues halfway. As much as I do now I know you're going to enjoy this fascinating Timely and informative episode. Stay tuned.


Aaron Freiwald: My guest today on Good Law Bad Law is Theresa Cardinal Brown. She's the director of immigration and cross border policy at the Bipartisan Policy Center in Washington D.C. and of course we're going to be talking about immigration today. Theresa first of all thank you so much for being on the program.


Theresa Cardinal Brown: I'm glad to do it.


Aaron Freiwald: As you and I discussed a little bit right before we started today. I want to take a step back because if there's one issue that has commanded the headlines perhaps more than any other in the last many months it's been immigration. But what I often find is you know we watch the news media coverage and there's a lot of focus on headlines and the politics of this issue. But really lacking in the coverage is a fundamental explanation of what's really going on and why this issue is so important. So I want to tackle this issue with that in mind as we get started and we'll get into some you know issues more specifically about DACA and President Trump's interest in a border wall for border security and things like that. But before we do as we always do I want to get a little bit of background on you Theresa so give us some of your background. I know you've worked in both the administrations of President George W. Bush and Barack Obama. But give us a little background on yourself if you would.


Theresa Cardinal Brown: Well I've been working generally in the field of immigration for well over 20 years. I started out my very first job out of college was evaluating foreign educational credentials for immigration attorneys who wanted to help people get H1B visas. And that was way back in 1990. That led to a job as a paralegal with a couple of successive, fairly large immigration practices at law firms here in D.C. but in the mid to late 1990s I turned to work on immigration policy. So I did policy and advocacy with the American Immigration Lawyers Association and then for five years at the U.S. Chamber of Commerce. In 2005 I joined as you mentioned the government. I joined U.S. Customs and Border Protection in the policy office of the commissioner this was under President George W. Bush and I worked there helping CBP manage the new landscape under DHS for immigration and border policy in the post 911 environment.


Aaron Freiwald: That's the Department of Homeland Security DHS.


Theresa Cardinal Brown: Right Department of Homeland Security. And after a year or two working with CBP I then went to work directly for the Department headquarters DHS in their office of policy again doing immigration and border work. I transitioned for a little while to do international affairs specifically work on the U.S. Canada bilateral relationship under the George Bush administration things like the Security and Prosperity Partnership and under the Obama administration the Beyond the Border Agreement with Canada which dealt with an awful lot of a wide variety of homeland security issues but there was a lot of border and immigration related stuff as well. I left the government in 2011. Did my own consulting work for a couple of years and joined the Bipartisan Policy Center in 2014 where I've continued to work on immigration and cross border policy.


Aaron Freiwald: And tell us tell us a little bit about the bipartisan bipartisan policy center. What is that organization.


Theresa Cardinal Brown: Sure. So we are a D.C. based think tank or as our president likes to say I think and action tank. We were founded about 10 years ago by four former Senate Majority Leader Bob Dole, George Mitchell, Howard Baker, and Tom Daschle and the express mission of our organization is to try to bring proud partisans Democrats and Republicans together to develop policy answers to some of the most critical questions facing the country. And so we cover a wide variety of policy issues everything from energy to health care to national security and foreign policy financial regulation fiscal policy housing and of course immigration. We are by name and by design bipartisan. So everything we do is aimed at trying to figure out how we can get Republicans and Democrats to help agree to develop consensus and principled compromises that can be politically valuable.


Aaron Freiwald: And I know and I'd mention this to you as well before we got started. There was an article in Politico back in February where four experts in the immigration on the immigration policy issues were brought into a room. You were one of those four experts with the goal of trying to see what common ground could be reached among people from very different points of view on the immigration issue. And I thought that was fascinating and I have a similar goal as we work through some of the specific issues to try to identify where can change take place and where might there be common ground on what has become such a politicized issue. But before we do that again I want to start with what will sound like very softball type questions but I think important questions to make sure that we're on the same page so to speak as far as what the issue actually is. It's you know it's commonly said that we are a nation of immigrants and that the Statue of Liberty and all of us in one way or another came to this country as immigrants our ancestors did. But I want to focus today on the issue with our southern border since that's something that has commanded such great interest we will have to save for another day. Perhaps the issue of the travel ban and what that means for refugees coming from from other countries and particularly what it may mean for those coming from Muslim countries. But I want to really focus on on our southern border. And you know I had a conversation with a friend recently who had spent years working as a border patrol officer and he said to me you know if we would just enforce the laws we have on the books we would be doing much better. And so I want to work our way towards that idea and just set the table with the fundamental issues. Theresa so give us an overview. In the simplest terms what is the problem with immigration today. Why is this something we're talking about and spending so much time debating about what is the fundamental immigration problem today.


Theresa Cardinal Brown: So I think one of the reasons that the issue has become very politicized is in part because there's not necessarily agreement on what's wrong. You know if you ask Americans you know do you think our immigration system is working. You find very few who would say yes almost all of them would say the system is broken in some way but then if you ask them how it's broken that's where you start seeing differences and divergences. So there are some who would tell you that it's broken because as your friend the Border Patrol agent said we haven't been enforcing our laws and therefore we have a lot of illegal immigration people coming to the United States without authorization and remaining in the United States in an undocumented status. And that's the fundamental problem with our immigration system. You have other people who will say the problem with our immigration system is it's very difficult to come legally. We have a very complicated immigration system judges have said it's second only to the tax code and it's complexity it's very difficult for someone who wants to come and legally immigrate the United States to do so. There are very narrow pathways and it takes a very long time very expensive and frankly you can't do it unless you have an immigration lawyer to help you. And then there's another group of people who will say the problem with immigration is we just have too many immigrants that our country doesn't need so many people we let in a million legal immigrants a year. And you know who knows how many undocumented immigrants each year. And why do we need so many people they are competing with us for jobs and taking government benefits. And that's the problem with immigration. So while almost everybody says the system doesn't work if you ask them what's wrong people will come at it from their own personal angle. And that's part of the conundrum and what makes it a politically difficult issue because if you don't agree on the problem then figuring out what the solutions are becomes much harder. I think you know it's certainly a case that if you look at our particularly our recent history with immigration law the last time our legal immigration system was changed by Congress was in 1990. So you know a couple of generations ago frankly and our country has changed and the types of immigrants who want to come to the country of changed and the types of immigrants we may need in the country for our economy or our demography might have changed. So that's one of the issues we just have a system that's old and doesn't really reflect maybe what is necessary in today's economy. And then you also have you say and then you offer how the system where yes we've had a lot of pretty harsh laws on the books about what to do with people who go around that legal system. But as the legal system has become more atrophied if you will and not meaning there's been a basically over several decades a growing tolerance for sort of not really enforcing the laws very strongly because of the negative impacts that they have. So we focused a lot of our enforcement efforts at the border trying to prevent new undocumented migration to the United States. But inside the country we sort of said we're not going enforce necessarily too hard because negatives happen when you do that it disrupts communities it disrupts employers and their workforces it doesn't necessarily mean that people are leaving the United States they just move to other places and the impacts of doing that enforcement would be very expensive and very difficult. So you know I think that combination of factors that got us to where we are today.


Aaron Freiwald: Well and then you alluded to this I think but an additional issue that complicates the broad question of what to do about illegal immigration is the fact that you have so many millions of people already in the country illegally and what to do with those people what to do with those people what to do with those jobs what to do with their children members of their family and so on. Right. That is another hugely complicating factor to the problem.


Theresa Cardinal Brown: Yeah. Even if you were to just say what can we do to fix the legal immigration system. You're correct. You still have that very very large problem to deal with. And again that's another area where different people would suggest different solutions. But increasingly I would say that the public has come around to sort of understanding that deporting that many people is one unlikely and two maybe not the best policy. And I think a lot of Americans would like to be compassionate particularly because you look at that if you look at that population of people who are undocumented or unauthorized in the country over 60 percent of them have been here for 20 years like they have become part of America whether we wanted it or not but they have many of them are married to Americans and have U.S. citizen children. So it's not just about a person who is undocumented. It is about a family and a community that has grown around them and incorporated those individuals. And so you pull out that one person and you are affecting a whole lot more people than just that individual. And I think that's one of the reasons why a lot of a lot of the American public understand that just deporting everybody is not really the right solution. So they're looking at other avenues that having been said an awful lot of Americans also say yeah but we don't want to be in the same place 20 years from now. Right. So if we provide a legal way for those people to get right with the law what do we do to prevent this from happening again. How do we enforce the law so we get back to enforcing the law in a way that can keep this from happening again. I think those are two of the big policy questions and political questions that our leadership needs to figure out.


Aaron Freiwald: So we have to really break that down then we have to look at don't we. Separately the issue of what to do with those unauthorized individuals and their families already here. As you point out many of them having been here for many many years and what to do about I think what people now call border security to prevent further unauthorized illegal immigration into this country perhaps to strike a deal in Congress you may have to be talking about those issues together in some way. But but as you're laying out the issue for us those those seem to be very separate sets of problems.


Theresa Cardinal Brown: The answers are separate but as I mentioned sort of I think politically certainly they are aligned. And also I think in the minds of the public right as I mentioned you know we've done we've done some recent polling a lot of other groups have done polling and there's actually very broad support including among Republicans and conservatives for some path to legal status for many of those who are undocumented the United States as long as they can pass a background check and show that they're you know supporting themselves and they're trying to become part of our community. There's not a reason why we should be compassionate but they all Americans often don't want to feel like we're being taken advantage of. And if doing that isn't going to encourage more people to come unlawfully then how do we how do we balance that. You know the question of our legal immigration system here and how that works is also part of the issue as well because if our legal immigration system makes it much too difficult for people to get in does that incentivize people to come in illegally. And how do we switch that that incentive. How do we create a legal immigration system that encourages immigrants who can come and become American and can support us and become part of America and make America you know better as immigrants traditionally have done. But how do we create a legal system that fosters that that's sufficient for what we think America needs. And that's that's another question that's subject to debate what do we actually need. So you know the pieces are all sort of related which makes them very hard to untangle. Just on a policy level but even more specifically on a political level because as I mentioned at the beginning if you ask people what's broken about our system different people will say different pieces of the system are their priority for fixing or the most broken and those different priorities don't necessarily line up. So you have some people who would say we're number one priority should be figuring out how to legalize those who are here undocumented status and bring them out of the shadows and deal with that issue and others will say no our number one priority is how do we prevent more people from coming in and joining that group of undocumented immigrants in the United States and another group of people say no our real issue is fixing our legal immigration system so that we disincentive illegal immigration and we meet the needs of our country and then we can deal with the other thing so that difference in priorities creates a lot of the political dynamic that we see.


Aaron Freiwald: And of course the rhetoric from both sides or really from all sides. I think tends to exaggerate or distort the problem. You know everything from you know talk of a porous border letting in gangs and criminals and rapists and drug dealers to you know some of the you know some of the coverage on this whole issue of separating families which you know tears at the heart. But you know I'm thinking of the photograph that was on the cover of Time magazine of the little girl who is portrayed as having just been ripped from the arms of her mother until it turns out that isn't what happened. So you know there's a lot of almost frenzy it seems today on all sides of the issue that perhaps takes some attention away from what the real issues are and what the real solutions might look like. So I mean as we're still setting the table here in defining the issues. Theresa can you give us a sense of the scope of the problem. I mean it's I think fascinating and so important to bear in mind that 60 percent of those unauthorized immigrants have been here for 20 years. What are some of the numbers that we need to have in mind when considering on the one hand the issue of those already in the country and on the other hand those who continue to come unlawfully across the border what are the numbers that we're talking about.


Theresa Cardinal Brown: So first most estimates of the undocumented population in the United States put it at about eleven point three eleven point four million individuals. The majority of them are of Mexican nationality. But there's a significant percentage of them that are from Asia Central America and Africa. As I mentioned vast majority of them have been here decades some as long as 20 years some longer which means most of them came frankly in the early 1990s. Most of them are now part of families in the United States either families that came with them came later or that they created after arriving in the United States. The majority of them are in states that you would imagine. California Florida New York Illinois Texas but there's a significant number of undocumented immigrants that have now moved to other parts of the country primarily for work. So you have what we call a new gateway new gateway states which are seeing increases in immigration. Places like North Carolina and Georgia and Tennessee and Arkansas places also in the upper Midwest. So it's not just those traditional immigrant receiving states any more. You know a lot of them are working. We do know that some of those that if they're undocumented and they're working without authorization. They're doing it in any number of ways. They have started their own family businesses and working for themselves they may be working so-called under the table for other employers. They may have found a way to present legitimate documents that don't belong to them to gain employment or fraudulent documents. There's a lot of ways but we do know they pay an awful lot in taxes. The government estimates that they pay a large part in social security and Medicare that actually has helped keep those programs stable longer than they otherwise would have because they're paying into the system but can't get that benefit back. They are not entitled. So you know I think there's a lot of sort of maybe misconceptions about a lot of that. You know there's a subset of that portion the people that are known as the dreamers. These are people who came to the United States when they were minors as children many of them have grown up here have gone to our public schools. You know again since many people many of the undocumented population have been here 10 15 20 years. You can imagine if they came as four five year olds or infants or even 7 8 9 10 year old they have essentially become American as they've grown up in the states. The total estimate of that population is probably somewhere around 3 to 4 million. That's a little uncertain but that's that's one of the estimates out there. And that is the population you've heard a lot of people talking about the term dreamer comes from the bill that it's been introduced since the early 2000s called the development relief and education for affected minors act or dream acronym. And so these individuals have taken that moniker on themselves to call themselves Dreamers. So that's a little bit of statistics about the undocumented population in the United States. Let's now talk about legal immigration. So our legal immigration system has three primary pathways where people can come live and work in the United States permanently. So-called green cards right or lawful permanent residence. The first is based on family relationships. If you are a U.S. citizen you can sponsor a foreign national to come as your spouse as your minor child or step child as your parent. And there's no annual limit on the number of those green cards that can be made available. So as a U.S. citizen you're entitled to sponsor that essentially immediate family to come with no restrictions or no caps. However long it takes to process that. You can also as a U.S. citizen sponsor your adult married children and their families although there is a limit on that and you can sponsor your brothers and sisters who may reside abroad. So there is and there is an annual limit on that. And because there are annual limits on those categories depending on where you come from in the world you can wait anywhere from five to 20 to 25 years or longer to actually immigrate in those categories. If you have a green card in the United States you can also obviously sponsor your spouse or minor children. There are limits on that each year you can sponsor your adult children as well if they're unmarried or married. So that's the first round and about 60 percent of the green cards issued each year are based on one of those family relationships. The majority of new immigrants to the country are coming because they're related to somebody who already has immigrant status in the United States or is a U.S. citizen. Another 17 percent or so of our green cards are given to people who are coming based on their skills. They have a job offer or a number of what we call special categories. So that could be everyone from those who are extraordinary in their ability. The Nobel Prize winners the Olympic athletes two people have been sponsored in the United States for jobs that don't require much of an education. All of though there's a very small number of those visas available each year. It also includes certain categories for say religious workers so special categories in there but 17 percent of our Green cards each year from those categories that's called employment sponsored immigration. And then the remainder are people who are either granted asylum in the United States or admitted as refugees. And we can talk about the differences between those two. After a year having been granted asylum or having entered as a refugee they're entitled to apply for a green card as well. So those are the three main categories. Over the last decade and a half the average number of green cards issued each year through the legal system is about 1 million. It varies a little bit because I mentioned there are some categories that don't have caps but around 1 million green cards each year. So we have a population in this country 330 million that's not a very high percentage of our total population. There are a lot of countries in the world that admit far more immigrants as a percentage of their own population. Canada is one of them. We admit you know probably about less than 1 percent a year of our population and there are countries even developed countries around the world that issue close to 10 percent of their population in new immigrants each year. So by that measure we're not very high on the immigrant receiving list but by absolute numbers we do admit more immigrants than any other country


Aaron Freiwald: And needless to say. If you come to this country with a green card through one of those three pathways there then is an established pathway to become a U.S. citizen after some period of time. Right.


Theresa Cardinal Brown: Yes. So you have to first get a green card. There's no direct way to get citizenship but actually there are a couple if you are a foreign child adopted by a U.S. citizen you can get essentially immediate citizenship but for most people you have to have a green card first and then you have to be a green card holder for five years. In most cases before you're eligible to apply to naturalize which is the process of getting citizenship if you come and have a green card and are married to a U.S. citizen you can apply for citizenship within three years. So for most people it's a five year path after you've gotten a green card and to apply for citizenship you do have to pass some criteria. You have to show that you've maintained your green card that you haven't committed any serious crimes that you're a person of quote good moral character and there's a lot of legal precedent as to what that means. You have to reside in the United States for five years. You have to have been physically present in the United States for at least half of that time and you have to pass an English language test and a civics test. And then if you pass all of those measures you can apply for and be naturalized as a U.S. citizen.


Aaron Freiwald: So just on the issue of legal immigration. Those million or so individuals who come legally to this country with a green card or as a refugee or someone who is granted asylum. What is the problem with that today. Are there concerns that some have the number even though you describe it as relatively low compared to many other countries is the concern as far as that issue fits into the broader immigration debate that there still are too many immigrants coming to this country. Or is it that there are not enough that the limitations are too narrow or too restrictive in terms of people coming to this country lawfully.


Theresa Cardinal Brown: So so you will find people of both persuasions both those who believe that we let too many immigrants in the country and those believe we should we let not enough. And they come at it from very different perspectives. The people who believe we have too many immigrants in the country tend to rest their position on a couple of different arguments. One is an argument about the economy and how many immigrants are necessary in the economy and the idea that immigrants are taking jobs or if we allow more immigrants in more Americans will not be able to work or the wages that can be earned are driven down. I would say that the vast majority of economists who have looked at the issue of whether or not immigrants lower wages for American workers or compete directly with jobs with American workers say that's in general not the case that there's no broad evidence that widely spread in the economy Americans overall are hurt economically by the arrival of immigrants. There may be specific cases individual cases and some may be at more risk namely those that are more similar either in job skills or language ability to immigrants and that even the more recent immigrants but that those effects tend to be short term and relatively small over the long run.  That's not the case. But that is a widely held perception. There's also I think fears that some have expressed about frankly the changing demographics of the United States. The Census Bureau has said that by 2030 white Americans will not be the majority of people in this country that people of other races and ethnicities will be more of the population than white Americans. Many reasons for that including the fact that white Americans are simply having many many fewer babies. And also due to immigration. So that combination of factors is something that makes a lot of people uncertain about their place in the future and so they are seeking to reduce immigration for that reason. Again one problem is looking at the other side of that demographers will tell you that if we did not have immigration the overall American population not only would be aging much much faster. We already know we have a problem with our population getting older. But it would be actually shrinking. And that countries that have seen this kind of demographic where the population is aging shrinking have had significant economic issues dealing with that. So countries like Japan and Russia that have seen an aging and shrinking population and an aging shrinking workforce have seen a lot of economic problems that go with it. I mentioned earlier that immigrants contribute into Medicare and social insurance programs. Those programs are based on having the current workforce pay for the benefits of the current retirees and with a shrinking workforce and a growing aging and retired population. That ratio is going it is going down and that is a very big issue for the solvency of our programs if we don't have enough new workers coming in to the workforce to maintain the benefits of the current retirees. The system will become insolvent much faster. So immigration is seen by others as a way to counter that. So you can see their arguments that people are trying to make but a lot of the immigration politics frankly talk about the facts and numbers all you want but people tend to create their immigration positions based on their own perceptions of what has happened and that gets back to what you said earlier people who take sides in this debate try to shape those perceptions. So you you you shape those perceptions in a number of different ways. So you have some people who will you know focus on the fact that maybe there are some immigrants that commit crimes to make people feel that immigrants are a threat for criminality and others who will say that you know immigrants are just coming here and they are all you know that that child seeking asylum for their mother. The fact of the matter is immigrants are like any other population. The vast majority are not criminals. We know that. But yes there are some that are. And so the question for policymakers how do you create policy that adequately distinguishes. right. that it's fairly looking to protect us from those who might be trying to do us harm. However small a percentage that may be while at the same time figuring out an immigration policy that lets in those immigrants who can be good for America and are wanting to be good for America.


Aaron Freiwald: Well stay of that issue for a moment. Theresa because I think you're right. When we talk about perceptions about immigrants and about the immigration problem today one of the issues that people often refer to and it comes up in elections and campaign ads you know from President on down to dog catcher you know concerns about crime how perceptions aside what are the facts or what do we know of the facts relative to say this eleven point four million undocumented unauthorized immigrants in this country. Is there a disproportionate amount of crime in this population compared to the to the legal or U.S. citizen population. Is there anything we know about that factually.


Theresa Cardinal Brown: So from the studies that we've seen and there's you know I would say this is an area that new studies are being made every day that we historically did not have a lot of studies on this but it's a growing field of research. The majority of studies so far have said that immigrants on average do not commit crimes at any higher rates than Americans. In fact immigrants are less likely to commit crimes than Americans you can imagine for a number of reasons. One is until you're a citizen commission of a crime can render you deportable. If you're undocumented commission of a crime could render you captured by immigration enforcement and deported so most immigrants have a strong disincentive to commit crimes in the United States. There have been some studies that have tried to look at the population of noncitizens in jails. In federal prison it's true there are an awful lot of noncitizens. Most of that is because violations of the Immigration Act that can be charged criminally can only be charged in federal court. And so if you commit an immigration crime and are charged you will go to federal prison and the federal government under several administrations has significantly ramped up their prosecutions of people for immigration crimes. So immigration crimes in this case mean entering illegally can be a criminal offense and that's frankly the underlying issue with the family separation policy. The government decided they were going to do 100 percent prosecution of that crime for people who entered people who have re-entered a second time after being deported. That then becomes a felony crime and that crime has been prosecuted by governments since the Bush era. So that has led to a lot of people in federal prison. So I would argue that yes it's true there's more immigrants in federal prisons but that's not a true sense of who who commits crimes if you will because its skewed so much by the immigration prosecutions. And at local jail levels we have less information in part because we don't have a nationwide system that collects systematically collects data from local jails. Right it's not centralized. So it really depends on what states collect and localities. Because most jails in this country are actually run by counties not even by states. And so it's harder to get information on that but the data that we have seen again seemed to show that immigrants are less likely and that a lot of immigrant crime frankly is aimed at immigrant communities. Now if you look at border security again looking at federal crime statistics most communities along the border are actually safer than the average US city in terms of property crime or serious violent crime. So cities like El Paso have some of the lowest crime rates in the country even though they're right along the border. So again the evidence is not completely there but the evidence that we've seen are that immigrants don't necessarily commit crimes at any higher rates.


Aaron Freiwald: Now I know you said this Theresa but I just want to underscore the reason why we would why we see any number of illegal immigrants in federal prison particularly a significant number. As you said is because I'm not sure this is obvious to most people but the system of immigration laws that we have are federal laws and therefore those laws are enforced and people are sent to prison. They would be sent to a federal prison. Those being federal laws but talk about deportation a little bit because that again is one of those things that you hear a lot about. And I think there's a lot of myth and misunderstanding and distortion of fact about what I have read and I'm interested to know if this is grounded in factual reality is that the actual number of deportations has been increasing over the years. In other words if you were caught in this country committing a crime and you were here unlawfully you were deported in increasing numbers since the last 10 years or so is that is there something to that and what does the Trump administration doing in terms of deportation numbers.


Theresa Cardinal Brown: Sure. So the numbers of deportations increase significantly actually in the first part of the Obama administration. So the Bush administration had started ramping up some interior enforcement activity but really in the first four years of President Obama's presidency his administration really ratcheted up the number of apprehensions and deportations. So much so that they were deporting close to I think about half a million people at the end of the term. And it's still the total number of deportations under the Obama administration is higher than under George W. Bush or President Trump. So Obama has that record right now. He is what the president of the National Councilor often called in the deporter in chief in spite of changes in policy later in his administration that would have provided more relief from deportation. He still because of that first term deported more people.


Aaron Freiwald: Are those people who are deported and you said it was up to half a million a year under President Obama. First of all coming into this country crossing our southern border illegally without authorization is itself a crime. But what are the people who are in that number who are the focus of deportation proceedings people who've entered the country illegally or people who have entered the country illegally and then who committed some crime in this country.


Theresa Cardinal Brown: So that was a focus of a lot of discussion during the Obama era. The President stated that his priority was to deport people who were deportable because of immigration violations but who had also committed or been convicted of other crimes while in the country that that was the priority. His famous phrase was going after felons not family but I say that was debatable because many immigration advocates in looking at the data insisted that in addition to deporting people who had committed other crimes there were an awful lot of people who had not done so. That were also deported or whose crimes they may have committed were very very minor crimes like driving without a license right. So the one of the issues with that prioritization under the Obama administration was where are those lines. Who really is a priority for removal and who should not be a priority for removal. And that was the whole concept of prosecutorial discretion. In other words the administration argued that it had the right and the responsibility to determine who it would prioritize for removal because they did not. The government does not have. And this is true today sufficient resources to deport everyone in the country. Congress allocates the money for this process and has never allocated enough that would enable a government to deport everyone who is in the country so they must make choices about how to prioritize those choices again changed in the later part of the show than Obama administration. They issued some memorandum within the Department of Homeland Security that tightened that focus on those who had committed the most serious crimes after having come in the country and then the rates of deportation under Obama did go down in the last part of his administration. Now under President Trump they repealed those priorities and issued a new set of priorities that still focused on criminality but not to the same extent and basically said that anyone who is unauthorized in the United States either having crossed illegally or having entered legally but later overstayed or violated the terms of their admission could be deported. And so arrests inside the country have actually gone up under President Trump. But in part because most cases have to go through immigration court before the individual has been can be removed and the immigration courts are very backlogged. There's actually been fewer actual deportations under this administration than under Obama.


Aaron Freiwald: So more is that more of the deportation proceedings under President Trump are more of those for. And I don't want to mischaracterize what I'd call simple immigration violations entering this country illegally as opposed to for what I think you called criminality while in this country.


Theresa Cardinal Brown: Yeah the number of people arrested by immigration customs enforcement inside the country under the Trump administration who do not have another criminal record has gone up from where it was under Obama. They are still arresting those who do have crimes. But the percentages that do not have other crimes is higher under President Trump than it was the latter part of the Obama administration. So again many of them are just being arrested because they don't have status and are being put in deportation proceedings.


Aaron Freiwald: Well let me turn to the question of the eleven point four million people who are in this country now and as you pointed out earlier many of those have been here for many years as many as 20 years. They have families they have jobs. We talked about the economic impact of immigration. I would think that if more of those eleven point four million were legalized there would be even more economic benefit to the country. In terms of paying into Medicare and Social Security in terms of paying taxes generally. Why does it seem that there is now a renewed or an intensified focus on the fate of those people and as you said earlier there seems to be a I don't know if there's a consensus or if it's a majority or if it's a general sense that we want to be compassionate. We also want to be economically smart about what to do with these people and their families. What really are the arguments at this point in terms of the dreamers which also includes DACA which a lot of people you know have focused on the deferred action for childhood arrivals. That's DACA. What really are the fundamental debate points as far as what to do with these individuals millions of these individuals already in the country.


Theresa Cardinal Brown: Sure. So again you know the two sides. For those who support some form of legalization for this group there's a lot of arguments some of them are about you know the sense that you know look we just don't have fiscally it makes no sense to invest the resources that would be necessary to deport this number of people. And I think that's a huge argument. It's actually a very bipartisan argument here. Republicans say that as well like who support the fiscal responsibility of the government the fact that they have been here and become part of the community means that there is a sort of a humanitarian aspect to this as well. Right. Unless they've committed some other serious crime. If all they're doing is trying to stay here and work and they've already become they're married to U.S. citizens that trying to deport them would break up families that would harm communities and harm local economies and even the national economy is that what we want to do. So I think those are those are some of the strongest arguments for the advocates in favor of legalization. I think for those on the other side the biggest argument they have is the rule of law argument. These are people who have broken the law they have broken our immigration laws. And that rewarding them by providing them with a path to legal status would simply encourage more people to break the law and we need to stop that that cycle somewhere and you know there's no good time to do it but we should do it now. I think that's probably the the primary argument you hear against so-called amnesty. But again if you polling on this and there's been a lot of polling on this has shown that a majority of the American public does support some way to legalize the status of those here. Now there's a different question about whether those legalized should be eligible to later get citizenship. But at least in terms of making them legal there's there's broad majorities of support Republicans and Democrats for doing that in some way. Now almost all of that is contingent upon some pathway. In other words it's not just we're going to let you off the hook and you'll get a status right away. But you know you have to do a background check. You may have to pay a fine pay taxes that you owe maybe pass some English test like criteria. But you know I think again majorities would say that that seems like a rational thing to do. That doesn't mean they don't also have concern about whether or not it would encourage future illegal immigration. And so that's why those conversations are almost always coupled with what do we do about border security.


Aaron Freiwald: Well I have to take on two other issues with you before we wrap up because I think there's so much fire and smoke around these issues but I want to continue what I think we've been doing so far in this conversation so well which is push aside the smoke and the fire and really try to get at what what the real facts are and what the real issues and concerns are. One is the border wall. President Trump campaigned heavily on that made loud promises about a border wall and in the news this week is how seriously threatening it's hard to say but at least is verbalizing threats to risk shutting down the federal government unless he gets funding for his wall along the southern border. And secondly this issue of the separation of families which we've touched on. Let's maybe take them in reverse order. What can you break down that issue for us. I mean on the one hand it obviously is on a human level. It is just heartbreaking to think of parents and children being separated and children being placed in these detention facilities and so on. But it is also true that if you are an American citizen and you commit a crime and you go to jail you will be separated from your children necessarily. We may accept that by not focusing on that very much but I think that's also the reality. So how how does this issue break down and how does that play into the broader issue of border security and any hope of deterring future illegal immigration into the country.


Theresa Cardinal Brown: So this issue of you know the the punishment if you will for illegal immigration. I mentioned that in the mid 90s we passed a very harsh law called the Illegal Immigration Reform and Immigrant Responsibility Act that substantially increased the potential penalties for illegal or undocumented immigration to this country in the years since both under the Clinton administration that signed it into law. You know George H.W. George Bush I mean there hasn't been a heavy emphasis on enforcing all the pieces of that in part because strict enforcement of that law would have consequences that many felt would not be politically palatable. This administration has taken that very seriously and said no we are going to enforce the law. And one of those is what results in the family separation so as I mentioned what happened. It started in May when Attorney General Jeff Sessions announced that Department of Justice would prosecute every single person who attempted to come into the country illegally between the ports of entry a misdemeanor offense. Most people that go through that process are sentenced to no more than time served which could be a few days or a week. But once somebody is put into the criminal justice system criminal prosecution they are taken out of the immigration detention system and put to jail. Well for many many reasons in this country if you go to criminal jail they are not you cannot take children with you so if someone arrives between the ports of entry with a child and the adult is prosecuted the child necessarily is then separated from that adult. The child goes into immigration proceedings and I want to emphasize this is important something that a lot of people don't understand immigration removal proceedings deportation proceedings going for an immigration judge are not criminal proceedings. Those are administrative proceedings. The immigration judge is an administrative law judge. That judge is an employee of the Department of Justice. This isn't a criminal court even though it has some of the dressings of a criminal court. It is not a criminal court. That is an administrative process. So the child goes into that administrative removal process. Their case is now separate from that adult the adult goes into the criminal justice process goes before a U.S. magistrate judge probably with 70 or 80 other immigrants who arrived about the same time the sentence essentially describes time served then goes back into the administrative immigration process for removal but because the separation had already occurred their case is now separate from that of the child they arrived with. This is the crux of the of the litigation that's ongoing now the trying to reunite the parents with their children because the system once they separated those cases in the administrative system were not built to bring them back together. And so that's been a lot of this ongoing litigation.


Aaron Freiwald: But.


Theresa Cardinal Brown: I bring it back to.


Aaron Freiwald: Yeah go ahead. I'm sorry.


Theresa Cardinal Brown: Well I was going to say bring it back to so family separations. This idea of family separation the policy that caused that was this zero tolerance policy fully enforcing the ability to criminally prosecute people who cross the border. So this is why some people say that fully enforcing immigration law has consequences that may or may not be acceptable to the American public and the pushback that people saw to the separation that happened as a result of that is one of the reasons why we saw a lot of pushback bipartisan Republicans and Democrats saying you know this this may be enforcing a law but this isn't the way to do it. The bigger question and I think is important is are we trying to do this as punishment right or as deterrent and the government has kind of sent mixed messages on that. But many in the government has said we're trying to deter other people from doing that. But there is an open question about whether or not these policies actually deter people. And part of that is because the people who are arriving are very different than the people who used to come. So I mentioned back in the 1990s we had a large number of people coming in illegally this country over one and a half million a year were apprehended in the early years of the George Bush administration. Even the early part of the Obama administration we are way way below those numbers even in the last year we've seen some uptick in the number of people apprehended at the U.S. Mexico border. We're still talking about a maximum of 40,0000 people. That is way way below where we were in the early 90s. One point six million a year 40,0000 a year and it's a different group of people in the early 90s 99 percent were single Mexican men coming for economic opportunity. Almost no one asked for asylum. They they were apprehended they were deported. They may try to come back but it was single men now you know almost 40 percent of those arriving are the families or unaccompanied children or women. And a lot of them are applying for asylum once they ask for asylum. Then the process for dealing with them differs because they can't just be deported. They have to be given a hearing in their asylum claim in immigration court and that process takes a lot longer. So our immigration systems have not caught up with the changes in who is coming even though the absolute numbers are lower.


Aaron Freiwald: Well I think that's a hugely important point about the numbers of people coming. But on this issue of the increased numbers who are coming seeking asylum rather than economic opportunity what really is the alternative. Because we've seen in the front pages and on the television the images and everybody I mean I can't imagine a person who isn't horrified by those images but then the question is OK what are we going to do about it. Because while as you described the immigration court system is hopelessly backlogged right now it can't handle you know the numbers of people it has to deal with and process the criminal justice system was caught blindsided by this new priority scheme that that was announced in May by  the attorney general. So we  don't have the mechanism to handle and process these people so whether people are coming through this way or that way seeking asylum or on some other basis aren't they just leaking into the country while the courts kind of run around in circles trying to get their hands around the scope of the problem. And so what do you do. How do you know someone's someone's waiting for a date to appear before an immigration judge and off they go never to be seen again.


Theresa Cardinal Brown: Well there are alternatives to detention. You know one of them is literally called Alternatives to Detention and it can be everything from putting someone in an ankle bracelet to a community relations program where you have them check in with a non-profit organization and then check in with immigration and customs enforcement. Both of those programs one cost a lot less than detention. But two have proved significantly effective in getting people to show up for their immigration cases.


Aaron Freiwald: Why aren't we doing more of that


Theresa Cardinal Brown: So well I think Congress is trying to encourage ICE to do a lot more of that. However what the government says is that those programs don't have the same quote unquote deterrent effect that detention does. And I think this gets back to this question of deterrence. One of the open questions and we don't have a lot of data on this but there's a big debate is whether one deterring asylum seekers is legal right. We have legal obligations to allow people to apply for asylum it's both part of our domestic law and international covenants that we have agreed to as a country. So that's an open question and two realistically if people are believe they are fleeing for their lives what's it going to take to deter that population right from coming in the first place. Do they stay where they are if they're sure they're going to get killed or their child is going to get killed or they take a chance and try to apply for asylum. So we don't really know what deterrents might look like for this group of people and would the type of deterrents be the one that we are willing to accept as a country. It seems like the policy of family separation may not be one that we are willing to accept as a country in the name of deterrence. You asked what are the other options. One I mentioned is alternative detention two. We need to significantly invest in our immigration court. One of the reasons there's such a huge backlog is that as we have invested billions of dollars in border enforcement we have stagnated our immigration courts a number of immigration judges haven't risen in 15 years. Even as the number of cases going in has increased. So that's something that Congress could fix if they took even a small portion of what they are trying to invest in detention centers and removal operations. And invested that the immigration courts. We can make a big dent in that backlog. So that's something that Congress really needs to look at is just maybe you know significantly ramping up not only would be able to make a dent in the backlog but if we could start making those cases go faster. So it's not two years after you admitted into the country to wait on your immigration hearing before you know if you're going to be deported. But three months. Right. And if those cases are decided fairly quickly and you know whether you can stay or go and a significant number of them will probably not be able to stay and they are then deported. That then might change migration behavior. So that's something to think about. The other thing is we need to look at this in a much bigger picture. If if this is not if our future migration flows are not going to be significantly about Mexico but about Central America what are we doing in those countries. How do we support them and improve the conditions that are causing people to leave. That's both rule of law that's dealing with crime and gangs and cartels that's dealing with their economic situation. And you know what can we do in those sending countries so that we they don't feel the need to leave.


Aaron Freiwald: In other words the smaller investment money in invested in programs in those countries might go a lot further in deterring immigration than enforcement at the border.


Theresa Cardinal Brown: I believe that's true and it's certainly part of the conversation that doesn't get talked a lot about in the press and really needs to be if we're looking about how we manage migration you can't manage migration just at the border. You have to look at the entire continuum everything from what's going on in the sending countries what's happening along the transit routes how is Mexico dealing with the smuggling cartels and others that are facilitating this. Is Mexico willing to try to help us with accepting asylum applications from these people they have increased the number of asylum applications they're taking. What we do at the border matters and then what we do inside the country with our immigration courts what happens after somebody arrives and how do we process that case. It's the entire continuum that we need to look at not just what we do at the border.


Aaron Freiwald: All right let's talk about the last thing I promise we have to talk about because this back in the news this week again and may be one of President Trump's most signature campaign promises while he was on the campaign trail. Running for President which is the border wall and I know I read this article in Politico again and I want to post a link to that article in the description for this episode because it's a fascinating discussion about all the issues we've been talking about today. I know you have a fairly practical approach to the issue of the border wall itself but but as you've done on all these other issues so far today lay out for us. Theresa what this issue is and how it plays into all of what we've been talking about so far.


Theresa Cardinal Brown: Sure. So as most people know President Trump during the 2016 campaign promised to build a wall along the U.S. Mexico border to stop undocumented immigration to stop drugs and guns and criminals and everything else coming in from Mexico and he promised that Mexico would pay for the wall it was a signature campaign promise that came up at every one of his rallies build that wall was a huge chant. So for President Trump this is not I think even as much about what is a good policy but it is about fulfilling a significant campaign promise. So that is one of the reasons why he is so insistent on building the wall even though it's clear at this point that Mexico is not going to pay for it. He has asked Congress to pay for it. As you mentioned just this week again threatened to shut down the government unless Congress paid for the wall. So the wall itself even though he's talked about a big concrete wall if you remember last year Customs and Border Protection the Border Agency contracted with several people to build prototypes of what the wall might look like and some of them are solid and some of them are more fence like and they're determining which would be best. The answer is it's not going to be a single type of barrier all across the border and it may not be even everywhere along the U.S. Mexico border because the terrain along the border is very very different and in every location from you know in California all the way to Brownsville Texas in the Rio Grande. So you know what the wall might actually look like no one knows the total cost of the wall is also something we don't know because we don't know what kind of wall is going to be built or where that having been said I think if you ask the public about the wall most people see it more as a symbol that we are taking border enforcement seriously than actually a pragmatic practical answer to border security. And even if you talk to the people whose job it is to secure the border in the Border Patrol they will say yes we need a wall in some places. We also need other types of barriers other types of technology more people. Right. It's a combination of things that we need to secure the border.


Aaron Freiwald: I mean what about drones. I mean if we increased drone use a lot.


Theresa Cardinal Brown: Yeah there have been alternatives offered in Congress to the wall that include a lot of that kind of technology sensors and cameras and infrared and radar and yes drones and all kinds of things that can help secure the border not just the wall but for the president of course that kind of nuance doesn't come into his tweets right he's talking about the wall. And clearly he wants to be able to say that he's built a wall politically though again it becomes what is the tradeoff for the wall. Right. So last year and this spring there were attempts in the Senate and the House to try to address the status of the dreamers. Right. There was a threat. The president said he was going to wind down the DACA program that we talked about earlier that President Obama had put in place that temporarily protected certain dreamers from deportation and gave them work authorization and ask Congress to pass a law to fix it. Right. They tried almost every one of those pieces of legislation that were proposed with some sort of tradeoff between status for the dreamers and the DACA recipients. And wall at one point you know Democrats in Congress offered the President we will give you the 25 billion you want for your wall in exchange for the dreamers. The president didn't take that deal. He asked for more. He asked for changes to legal immigration and he wanted to change family migration. He threatened to end the so-called diversity lottery a program that has 50,000 visas a year allocated essentially by a lottery system to people coming from countries that have not had a lot of immigration to the United States in the past. You know he wanted those kind of changes he wanted changes to how people are arriving at the border are treated. And so those deals fell through. And were never able to come to you know come through. So here he is threatening again over the wall but then if you look at his tweets he's also again talking about changing the legal immigration system and closing so-called loopholes. So one of the difficulties of Congress addressing immigration. I go back to the beginning is what the people think is broken. And clearly the president thinks that certain things are broken but he's not looking at other pieces that other people have priorities that Democrats for example are looking at legalization. And that's one of the challenges so he's trying to threaten to shut down over these things. But Democrats are going to say well if you're going to get those things we want to have. We want to look at a pathway to citizenship for the undocumented or we want different kinds of changes to the legal immigration system and we don't want to see this idea that family migration has to be limited. Right so that's what politics is about. That's what legislating is about. Unfortunately the kinds of compromises that are necessary for big complicated legislation to go through are never going to satisfy all of the political base of both sides. And given that the president is insisting on certain of these things because he's looking ahead to his re-election or the Republicans have their own races or even Democrats have their own races. That's that's part of the issue is trying to come up with what is a package that can get enough people on board to pass that the president is willing to sign and that's proved you know not possible so far.


Aaron Freiwald: Well the other issue we will and we can end here as you pointed out we haven't had major immigration legal reform in 30 years and we often hear when this debate you know is engaged that we want comprehensive immigration reform. I think you've said it was we as we've worked our way through each of these issues. Each one is so complex to try to think about reaching some comprehensive solution to these varying and complex immigration issues. Maybe is just unrealistic. And I think as you've also pointed out times change demographics change as our economy changes. The places where people are are migrating from changes over time so why try to think in terms of trying to reach a comprehensive solution to all of these issues and maybe as a practical matter and I think you've you've commented on this and maybe we can wrap up by asking you maybe a deal can be made by giving President Trump his wall knowing that it's highly unlikely as a practical matter that wall will ever actually be built as a wall as a physical wall and get something for that get some of the things that you know whether it's Dreamer's and DACA and some of these other things that would really make a profound difference and try to strike a deal at a compromise in some way that includes giving the president his wall.


Theresa Cardinal Brown: And I think you're right. I mean that that seems to be a direction that things could go. And I think that's a direction that we would support. The challenge is and I think we've sort of touched on as well is that everything in immigration is somewhat related to other things right. Whatever you do is going to have impacts in other parts of the immigration system. So you know you do need to understand that if you're going to make these sorts of changes whatever deal that is that's going to have impacts that you're probably going have to deal with subsequent legislation. There's also the issue of everybody kind of wants to see their priority taken care of whatever that is. Whether it's changes to the legal immigration system or legalization of border secure they want to see their priorities taken care of. One of the issues we have right now is that there's so little trust between the parties in Congress or between Congress and the president that if they were to do a smaller deal on just pieces of it that any of that other stuff would ever get done. And so if you don't trust that there'll be more coming that that deal can pave the way for the rest of the system to be dealt with then your incentive is to hold up that small deal until your thing can get on board and that's what we have seen in less or until we can find a way to rebuild that trust that yes we are going to deal with all of these things maybe just not all at once but we will get to them. It's going to be very hard politically for members in Congress and for the White House to accept a smaller package if you will. And I think that's that's one of the big issues that is preventing Congress from actually moving forward on that.


Aaron Freiwald: And certainly now as we enter the high season going into the midterm elections in November it seems unlikely that anything on the broad spectrum of immigration issues is going to get done this year. Right it seems like if anything will be next year at the earliest.


Theresa Cardinal Brown: Yeah both parties are definitely playing up immigration in the way that's most favorable to them for the upcoming elections. So the president is reaching out to his base. He's promising more security. He's blaming Democrats for not getting it done trying to gin up his base in the midterm elections. And Democrats are doing the same. You know blaming Trump for the family separation policy and immigration. You know the whole the abolish ICE movement which we didn't talk about they're trying to gin up their base as well to come out and vote and the opportunities for legislation in Congress are limited impart. Because right now both parties are trying to figure out where their advantage is right. So if Democrats were to take back the House then it's to their advantage to wait to do any immigration legislation till they have control of at least one house of Congress and then they can mold immigration legislation more to their liking. Republicans are in the same way right. If if voting on immigration legislation now and making compromises that their base won't like will hurt their turnout in the midterm elections they don't want to take those votes right now. So right now the certainly the elections and the politics are the priority for those in Congress. And everybody's looking at every vote with an eye toward how it will play out in the midterms. I know there's a possibility depending on how things come out that in the lame duck after November when they will have to fund the government. There might be some deals that could be had then we have to see. But certainly the next serious window may have to wait 2019 and then have to see how willing the parties are to make those compromises and to try and make a deal and still stick to it.


Aaron Freiwald: Theresa. Theresa Cardinal Brown director of immigration for the Bipartisan Policy Center in Washington D.C. This has been a fantastic conversation. I will be paying close attention as the immigration debate continues and our listeners will too with the benefit of having you walked us through these issues so well and having explained things so thoroughly. Thank you so much for being on. Good law bad law. Can't thank you enough.


Theresa Cardinal Brown: You're welcome. It's a great conversation.


Aaron Freiwald: Thank you Teresa.