Immigration to the United States

"Each visitor to the United States must submit biographic data; present secure travel documents; be fingerprinted and photographed; and have their identities checked against immigration, criminal, and terrorist databases. These databases include the Consular Consolidated Database, which is a biometric and biographic database that includes all records, photographs, and fingerprint scans of all U.S. visa applicants worldwide. Most applicants are subject to an in-person interview to verify their information and intent to travel. Interviews are required for all applicants for legal permanent residence. These green-card applicants and some nonimmigrant visa applicants must also have physical and mental examinations. Anyone flagged for suspicious behavior or information, at any point during the application and admissions process, is referred for more in-depth review by intelligence and law enforcement agencies."

"[W]ith respect to affirmative cases, the immigration judge characteristics that had significant effects on asylum decisions, at least when we considered each characteristic one at a time, were gender, length of service as an immigration judge, veterans preference, prior public immigration experience, and prior experience doing immigration work for a non-profit organization. When all of the immigration judge characteristics were considered in a multivariate model, however, the ones that emerged as significant were gender and length of service as an immigration judge. Net of other factors, male immigration judges were less likely than female immigration judges to grant asylum in affirmative cases, by a factor of 0.6. Immigration judges with 3 ½ to 10 years of service were more likely than less experienced immigration judges to grant asylum, by a factor of 1.25. Immigration judges with more than 10 years of service were also somewhat more likely than the least experienced immigration judges to grant asylum, but here the difference was not statistically significant."

"Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of U.S. courts of appeals render about 79,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country. Given our national desire for equal treatment in adjudication, one would expect to find in this system for the mass production of justice many indicators demonstrating a strong degree of uniformity of decision making over place and time. Yet in the very large volume of adjudications involving foreign nationals’ applications for protection from persecution and torture in their home countries, we see a great deal of statistical variation in the outcomes pronounced by decision makers."

"Foreign nationals currently submit their own documentation and information to apply for a visa and/or admission. While foreign governments may have contributed information to the immigration, criminal, and terrorist databases through which every application is run, they do not for the most part submit or confirm information on specific applicants. However, the United States has information-sharing agreements with select governments that assist in decision-making for visa applications. All countries that participate in the Visa Waiver Program must agree to share information regarding whether their citizens represent a threat to the security or welfare of the United States, as well as to report lost and stolen passports to INTERPOL.4 In addition, the United States has more detailed information-sharing agreements with certain countries, including Australia, Canada, New Zealand, and the United Kingdom, including providing case-by-case biographic and biometric information."

"Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases. Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes."

"Differences in the extent to which applicants from various countries are granted or denied asylum in the United States is not surprising in light of the differences that exist among countries’ political climates and human rights records."

"Americans' confidence in assimilation suffered its first significant, though by no means fatal, shock during the wave of anti-immigrant nativism that swept the American political scene in the late 1840s and 1850s. The so-called Know Nothings (and their formal organ, the American Party) rode this wave to widespread, albeit relatively brief, electoral success by denouncing Irish immigration, in particular, which had surged to unprecedented levels beginning in the mid-1840s. The nativists of the 1850s were ultimately unsuccessful in their declared political goal of imposing harsh new restrictions on alien suffrage, including lengthy naturalization periods and even post-naturalization limits on the franchise. But their remarkably swift political ascendency signals the moment when a critical mass of Americans began to worry that a substantial proportion of European immigrants were fundamentally, irredeemably alien to the national character."

"This study analyzes databases of decisions from all four levels of the asylum adjudication process: 133,000 decisions involving nationals from eleven key countries rendered by 884 asylum officers over a seven-year period; 140,000 decisions of 225 immigration judges over a four-and-a-half-year period; 126,000 decisions of the Board of Immigration Appeals over a six-year period; and 4215 decisions of the U.S. courts of appeals during 2004 and 2005. The analysis reveals amazing disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country. For example, in one regional asylum office, 60% of the officers decided in favor of Chinese applicants at rates that deviated by more than 50% from that region’s mean grant rate for Chinese applicants, with some officers granting asylum to no Chinese nationals, while other officers granted asylum in as many as 68% of their cases. Similarly, Colombian asylum applicants whose cases were adjudicated in the federal immigration court in Miami had a 5% chance of prevailing with one of that court’s judges and an 88% chance of prevailing before another judge in the same building. Half of the Miami judges deviated by more than 50% from the court’s mean grant rate for Colombian cases. Using cross-tabulations based on public biographies, the paper also explores correlations between sociological characteristics of individual immigration judges and their grant rates. The cross-tabulations show that the chance of winning asylum was strongly affected not only by the random assignment of a case to a particular immigration judge, but also in very large measure by the quality of an applicant’s legal representation, by the gender of the immigration judge, and by the immigration judge’s work experience prior to appointment."

"The results of the cross-tabulation analysis confirm earlier studies showing that whether an asylum seeker is represented in court is the single most important factor affecting the outcome of her case. Represented asylum seekers were granted asylum at a rate of 45.6%, almost three times as high as the 16.3% grant rate for those without legal counsel. The regression analyses confirmed that, with all other variables in the study held constant, represented asylum seekers were substantially more likely to win their case than those without representation."

"Precise numbers of acts of terrorism committed by the foreign born are difficult to determine because there is no universal definition of terrorism. One review of jihadist-related terrorism cases, by the New America Foundation, found that U.S.-born citizens accounted for nearly half of those implicated. The report also found that every individual who conducted a lethal attack was either a citizen or legal resident. None emigrated or came from a family that emigrated from Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen, the seven countries designated in the executive order. A 2016 Cato Institute report analyzed instances of terrorism committed by refugees and found that the chance of being murdered in a terrorist attack committed by a refugee is one in 3.64 billion a year, based on records from 1975 through 2015."

"Regularly reporting charges, convictions, and similar information on foreign-born individuals would require a new reporting system, with involvement required from state and local governments. The current nationally used system is the FBI’s Uniform Crime Reporting (UCR) program, which has been in place since 1929. UCR encompasses thousands of state, local, territorial, and tribal agencies that report annually on violent and property crime offenses. It does not include information on criminal charges."

"The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane. “It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. ... Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”"

"Globally, the total number of refugees reached an estimated 11.4 million people at the end of 2007, of whom tens of thousands from over 100 countries came to the United States to apply for asylum. U.S. immigration law provides that non-citizens who are in this country—regardless of whether they entered legally or illegally—may be granted humanitarian protection in the form of asylum if they demonstrate that they cannot return to their home country because they have a well-founded fear of persecution."

"Just as the likelihood of being granted asylum varied across immigration courts, it also varied by nationality. The grant rate for affirmative cases exceeded 50 percent for asylum seekers from some countries, including Albania, China, Ethiopia, Iran, Russia, Somalia, and Yugoslavia. For other countries, including El Salvador, Guatemala, Honduras and Mexico, it was lower than 10 percent. Similarly, while about 50 percent of asylum seekers in defensive cases from Iran and Ethiopia were granted asylum and almost 60 percent of such cases from Somalia were granted asylum, the same was true of 13 percent or less defensive asylum cases from El Salvador, Honduras and Indonesia."

"If the adoption of the Alien Friends Act represented a dramatic short-term political triumph for the Federalist Party, however, it proved virtually inconsequential as a matter of national policy. The long-term importance of the Act lay instead in the galvanizing effect that it had on Republicans, spurring them to develop competing, and ultimately much more influential, accounts of the constitutional status of immigrants and governmental authority over immigration. Republican House leaders Edward Livingston of New York and Albert Gallatin of Pennsylvania spearheaded the opposition to the Act. They refuted at length the dual Federalist contentions that foreigners lacked constitutional rights, and that the Constitution permitted the federal Congress and President to usurp the authority of the states to regulate immigration. Republicans rejected the argument made by Otis and others that "the Constitutional compact was made between citizens only, and that, therefore, its provisions were not intended to extend to aliens." "[T]he Constitution expressly excludes any.. .distinction between citizen and alien," Livingston maintained, and it was "an acknowledged principle of the common law ... that alien friends...residing among us, are entitled to the protection of our laws." Citizens and aliens alike thus enjoyed "the same equal distribution of justice [and] ... the same humane provision to protect their innocence. "So indistinguishable was the constitutional status of aliens and citizens, Livingston warned, that the same rationale for subjecting "a few unprotected aliens" to the Act's "inquisitorial power" would "apply with equal strength ... in the case of citizens." The same "plea of necessity," he warned, could justify the banishment of both."

"Over the first half of the nineteenth century, even as Americans developed progressively sharper critiques of immigration, they nevertheless retained a basic faith in the fundamental moral natures of immigrants and in the capacity of American economic and political institutions to transform foreign migrants into patriotic republicans. The problems associated with European immigration were generally considered fatal neither to the nation's historically liberal immigration and naturalization policy, nor to the regeneration narrative that underwrote that liberality. So long as immigrants were properly diffused throughout the nation, contemporaries maintained, the warm bath of economic freedom and republican political fellowship would dissolve away the residue of Old World economic and political oppression, and infuse them with economic and political independence, habits of strenuous labor, and devotion to their adopted nation. It was only in the late 1840s and 1850s that a politically robust nativist movement gained broad support and political influence. There began to take hold a critique of immigrants as fundamentally, irredeemably foreign, animated by a deep suspicion that they either carried no "dormant seed of virtue" as a matter of nature, or, if they once had, that it had atrophied beyond any hope or revival. Although the nativist movement was ultimately unsuccessful in its primary policy demand-the extension of the period of residency required for naturalization-and was soon swallowed up by the Civil War and the increased demand for immigrant labor, it nevertheless represents an important chapter in the legal construction of foreignness."

"In contrast to the immigration restriction movement of the late-nineteenth and early twentieth centuries, in the 1850s even those critics who were most skeptical of immigrants' capacity for assimilation usually advocated limiting access to American citizenship rather than excluding immigrants from American territory. ' Foreigners' "opinions need to be recast before they [can] intelligently participate in public affairs," wrote the Know Nothing Anspach. "[E]ven a residence of fifteen or more years is absolutely essential in most instances before a man can vote intelligently," he counseled. Indeed, to the extent that leading nativists sought to reduce the number of immigrants entering the country, they proposed to do so not by restricting immigration per se, but rather by removing the "inducements" furnished by "[t]he existing laws of naturalization, by which the meanest serf of Europe could be converted into a voter in five years. "'This exclusive focus on naturalization stands in sharp contrast to the anti-immigrant program of the 1880s and 1890s, in which foreign laborers' very presence on American territory-and particularly their participation in the labor market-threatened to corrode republican institutions. Despite the intensity of the nativist fervor, it faded from political prominence as rapidly as it had emerged. The nation's enduring, if increasingly cautious, faith in assimilation combined with the surging labor demands of the Civil War to submerge for another generation the immigration illiberalism of the 1850s."

"Addressing consistency in the application of the law, former Attorney General Robert Jackson told Congress in 1940: “It is obviously repugnant to one’s sense of justice that the judgment meted out . . . should depend in large part on a purely fortuitous circumstance; namely the personality of the particular judge before whom the case happens to come for disposition.” Yet in asylum cases, which can spell the difference between life and death, the outcome apparently depends in large measure on which government official decides the claim. In many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge."

"Asylum decisions, whether by asylum officers or immigration judges, involve both a judg-ment about whether the applicant’s story, if true, would render the applicant eligible for asylum under American law and an assessment as to whether the applicant is telling the truth about his or her personal experiences of actual or threatened persecution. Among similar cases, we would expect some, but relatively little, variation from one experienced adjudicator to another in relationship to the legal assessment of a truthful applicant’s legal eligibility. Assessments of credibility are more difficult and subjective, so we might expect somewhat greater variability from one adjudicator to another with respect to this component of the decision. Nevertheless, a system that endeavors to prevent arbitrary adjudication should attempt to keep even this aspect of variability within a relatively narrow range. It is a difficult task indeed that the adjudicators face, as it is not only important to grant genuine claims but also to deny false claims. Successful false asylum claims undermine the integrity of the asylum system and reduce public support for the admission of genuine refugees."

"There are fifty-three immigration courts located in twenty-four states, and more than two hundred immigration judges sit on these courts. Asylum cases are assigned to immigration courts according to the asylum seeker’s geographic residence. The administrators in each immigration court assign cases to immigration judges to distribute the workload evenly among them, and without regard to the merits of the cases or the strength of defenses to removal that may be asserted by the respondents. For the approximately 65% of asylum seekers whose cases are referred by asylum officers to immigration court, the removal hearing allows them to present their claim de novo. The immigration court presents the last good opportunity for these asylum seekers to prevail. The immigration court also hears claims from individuals who raise an asylum claim after being placed in removal proceedings. For such individuals, the immigration court hearing is the only opportunity they will have to present evidence in support of their case. It is therefore of the utmost importance that immigration court proceedings be predictable and fair, as a loss in immigration court will likely result in removal—a possible death sentence for some asylum seekers whose cases are wrongly denied."

"If you’re a refugee, first, you apply through the United Nations’ High Commissioner for Refugees, which collects documents and performs interviews. Incidentally, less than one percent of refugees worldwide end up being recommended for resettlement. But, if you’re one of them, you might than be referred to the state department to begin the vetting process. At this point, more information is collected. You’ll be put through security screenings by the National Counterterrorism Center, the FBI, and the Department of Homeland Security. And if you’re a Syrian refugee, you’ll get an additional layer of screening called the Syria in-house review, which may include a further check by a special part of Homeland Security, the USCIS Fraud detection, and National Security directors. And don’t relax yet, ‘cause we’ve barely even started. Then, you finally get an interview with USCIS officers and you’ll also be fingerprinted so your prints can be run through the biometric databases of the FBI, the Department of Homeland Security, and the Department of Defense. And if you make it through all that, you’ll then have health screenings, which let’s face it, may not go too well for you, ‘cause you may have given yourself a stroke getting through this process so far. But if everything comes back clear, you’ll be enrolled in Cultural Orientation classes all while your information continues to be checked recurrently against terrorist databases to make sure that no new information comes in that wasn’t caught before. All of that has to happen before you get near a plane. This process typically takes 18-24 months once you’ve been referred by the U.N. to the United States. This is the most rigorous vetting anyone has to face before entering this country. No terrorist in their right mind would choose this path when the visa process requires far less effort."

"Before 9/11, consular and immigration officials were prevented from accessing various forms of intelligence through a complex arrangement of constitutional principles, statutes, policies, and practices. This problem was addressed by post-9/11 legislation, which dismantled firewalls between intelligence, consular, and law enforcement agencies, requiring that pertinent information gathered by the intelligence community be shared with consular and immigration officials."

"Under the Refugee Act of 1980, the federal government is required to “consult regularly” with state and local jurisdictions concerning the distribution of refugees (8 U.S.C. 1525(c)(1)). In practice, refugee resettlement has occurred with limited input by states, and sizeable numbers of governors have indicated their opposition to resettlement of some or all refugees in their state, especially since terrorist attacks in Paris in December 2015."

"[T]he State Department and DHS collect biometric and biographic information at the time applicants file a visa application, as well as biographic and (at times) biometric information when the individual arrives at a U.S. port of entry. DHS receives passenger manifests to establish exit data for individuals leaving by air and sea.Since 1996, Congress has enacted several laws requiring the creation of a biometric entry/exit tracking system to identify visa overstays. A biometric entry system, known as US-VISIT, was established after 9/11, and is operational at U.S. ports of entry and consular offices, now under the name of the Office of Biometric Identity Management. A counterpart exit system has not been built for a combination of reasons, primarily airport space constraints."

"An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard. Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases. In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation. Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad. Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do."

"[I]mmigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found. Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte. The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect out-comes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum."

"In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawless-ness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim. Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a dis-advantage – precisely because they came from Honduras. Country of origin is a big factor in de-termining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies. Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found."

"In the 19 immigration courts that handled almost 90 percent of asylum cases from October 1994 through April 2007, nine factors affected variability in asylum outcomes: (1) filed affirmatively (originally with DHS at his/her own initiative) or defensively (with DOJ, if in removal proceedings); (2) applicant’s nationality; (3) time period of the asylum decision; (4) representation; (5) applied within 1 year of entry to the United States; (6) claimed dependents on the application; (7) had ever been detained (defensive cases only); (8) gender of the immigration judge and (9) length of experience as an immigration judge. After statistically controlling for these factors, disparities across immigration courts and judges existed. For example, affirmative applicants in San Francisco were still 12 times more likely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts for affirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely to be granted asylum if their cases were decided by the judge with the highest versus the lowest likelihood of granting asylum in that court."

"The accuracy of an asylum decision is critical because of the decision’s potential impact on the safety of the asylum seeker and the security of our nation. An incorrect denial may result in an applicant being returned to a country where he or she had been persecuted or where future persecution might occur. At the other extreme, an incorrect approval of an asylum application may allow a terrorist to remain in the United States, a concern that was heightened by the attacks of September 11, 2001."

"The likelihood of being granted asylum differed for affirmative and defensive cases and varied depending on the immigration court in which the case was heard. Overall, the grant rate for affirmative cases (37 percent) was significantly higher than the grant rate for defensive cases (26 percent). The affirmative asylum grant rate ranged from 6 percent in Atlanta to 54 percent in New York City. The grant rate for defensive cases ranged from 7 percent in Atlanta to 35 percent in San Francisco and New York City."

"Immigrants were legally reconstructed as foreigners only in the final decades of the nineteenth century, as Europeans and Chinese migrants alike increasingly became understood as fundamentally and permanently alien to the American character. In the 1870s and 1880s, Americans' long-standing confidence in the assimilative power of American institutions came into progressively sharper conflict with the economic and social realities of industrialization, including the triumph of the wage system; the deskilling of labor; and increasingly intense wage competition, often from recent immigrants. As contemporaries grappled with this conflict, they generally focused less on these broad structural economic changes than on the alleged economic pathologies of immigrants themselves-specifically, a disposition toward "uncivilized" standards of life and labor. Without the requisite economic conditions and racial material, critics argued, simply exposing immigrants to republican political culture and institutions afforded little value as a force of assimilation. As post-Civil War Americans re-imagined their polity as a social and political body, the health of which depended on the collective natural endowments of its constituent members, immigrants' foreignness came to signify more than merely the absence of citizenship; it became, instead, a token off fundamental, indelible moral difference."

"In crafting a naturalization law, prudence thus counseled that immigrants undergo a period of probation before being admitted to the American political fellowship, both to provide foreigners sufficient time to absorb republican values, and to afford the nation an opportunity to assess their moral and political character. After a decade of extraordinary fluctuation in the requirements for naturalization, from a mere two-year residency in the Naturalization Act of 1790 to a high of fourteen years in 1798, Congress settled on a residency requirement of five years-longer than some idealistic advocates of the American asylum had preferred, but still remarkably liberal by historical and international standards. A five-year residency "occasioned the safest and surest transmutation," explained Pennsylvanian Republican Michael Leib. It would impart "knowledge and feeling," and furnish an "opportunity for the intercourse that amalgamated the aliens with us, and gave them a common interest.""

"The history of immigration law and politics in the nineteenth century is, in an important respect, a history of repeated and progressively sharper clashes between the regenerative model of assimilation and the seismic social and economic transformations of the industrial era: the concentration of population and industry; the emergence of a permanent, "dependent" wage-earning class; and, finally, the shifting origin of America's immigrants. In the eight decades between the nation's founding and the Civil War, Americans' relative confidence in the transformative power of immigration and in immigrants' capacity for moral and political regeneration directly shaped both the political construction of immigrants and their legal identity as objects of regulation. During that period, the perceived viability of the regenerative theory of immigration served as a referendum on the vitality of American republicanism itself. As went immigration, so went the Republic."

"The narrative of immigration as regeneration imagined the republican system itself, as well the economic arrangements on which that system rested, as a great hopper of assimilation with the capacity to transform the oppressed dregs of the Old World into patriotic republicans. The regeneration narrative evinced a certain optimistic, almost self-congratulatory confidence that the transformative power of geography and political institutions would preserve for all time the core republican values of personal independence and citizenly virtue. Notwithstanding the hopper's tremendous power, however, its machinery was also remarkably fragile. Its effectiveness depended entirely on the integrity of its various constituent parts: independent, virtuous citizenship rooted in individual economic proprietorship; the immersion of immigrants in social and political institutions that promoted the adoption of republican values; and finally, the moral and political natures of immigrants themselves. These were the essential conditions of the nation's liberal immigration and naturalization policy, and virtually from the beginning they appeared threatened by the same dangers that jeopardized virtuous republican citizenship generally: concentrations of population in great manufacturing centers; the clustering of immigrants into ethnic enclaves where, instead of assimilating, they allegedly formed distinct political identities and interests defined by their shared national origins; and finally, the emergence of a permanent class of "dependent" laborers."

"To observers with an eye on the nation's burgeoning cities, the confluent problems of increasing economic dependency, intense wage competition from foreign workers, and progressively greater concentrations of both economic production and population, were seismic historical upheavals that threatened to erode the very pillars of republican government. The Jeffersonian republic of economically independent, politically virtuous producer-citizens appeared to be slipping from view, crowded off the historical stage by new, characteristically "European" forms of economic social and economic organization. As Americans' confidence in the great hopper of assimilation wavered, critics of the United States's liberal immigration and naturalization policies typically invoked two intertwined arguments for curbing the nation's traditional generosity. First, they argued that the disappearance in recent decades of vacant lands and the increasing concentration of industry and population had skewed two of the hopper's integral components: immigrants' ready access to individual economic proprietorship, and their immersion in American life and labor. The effect was to radically impair the capacity of American economic and political institutions to transform Europe's outcasts into patriotic republicans. Second, and most often, however, critics pointed to the poor quality of the raw material that the assimilationist hopper was tasked to digest: the fundamental moral natures of immigrants themselves. A leading contemporary chronicler of the Know-Nothing movement, Frederich Anspach, was representative in blending an account of changing economic organization and settlement patterns with a palpable distain for immigrants' moral constitutions. When the naturalization laws were first formed, Anspach explained, "we were an infant nation . ..with an immense territory . . ..It was an object of paramount importance at the time, to have our lands occupied, our solitudes peopled, our roads opened, and our cities built." Faced with such exigencies, policymakers sought to encourage immigration by permitting foreigners to acquire property and, most importantly, providing for easy access to American citizenship. If former circumstances warranted liberality, however, "[s]uch is not our condition now." In the new, post-agrarian republic, where "[m]uch of our territory is peopled, our wide domain is rapidly filling up, our coasts are protected, [and] our cities built," the time had come to "guard against the evils which do accompany the unparalleled influx of foreigners." In order to prevent hastily enfranchised foreigners from "convert[ing] this asylum . . .into a despotism of oppression," Anspach counseled the erection of substantial new barriers to United States citizenship."

"As much as complaints of unassimilability grew more commonplace in the 1850s, however, the view that a large portion of immigrants were indelibly stamped by nature as alien to the American character had not yet taken hold among a broad swath of the American public, and failed to shape federal immigration and naturalization policy. Indeed, even writers who in one breath condemned immigrants' corrosive effect on the quality of American citizenship could, in the next, affirm their faith in assimilation. The renowned clergyman and author Edward Everett Hale, for example, described with alarm the "Celtic Exodus," and consequent "annual invasion" of the United States by "a horde of discouraged, starved, beaten men and women" whose "inferiority as a race compels them to go to the bottom."' Within a few pages, however, Hale pivoted sharply, adopting a markedly more optimistic vision of assimilation."[T]he country [is] richer for the coming of the foreigner," he declared, and "to attain the full use of this gift, the emigrant must be cared for." Rather than throwing up obstacles to immigration, Hale insisted, the nation "must open its hand to receive the offering of Europe." Once here, the immigrant should be welcomed warmly into the American political fellowship, not as a gesture of national generosity, but as a spur to assimilation. "The stranger cannot serve the country while he is a stranger," Hale counseled, but "must plunge, or be plunged, into his new home." "He must, for the purpose we seek, profit by the measure of its civilization. He must be directed by its intelligence. His children must grow up in its institutions. He must be, not in a clan in a city, surrounded by his own race." Notwithstanding Hale's dark assessment of the Irish "race" pouring in on the republic, his proposed solution was a familiar one: geographical dispersion. In order to "'stimulate the [nation's] absorbents,"' Hale urged, "private action and public policy in this matter should unite ...[so] that each little duct, the country through, may drink its share, of those drops which some do not taste at all, of the perpetual Westward flood.""

"Before the 1870s, the federal government exercised very little authority over immigration, neither establishing terms of eligibility for foreigners' admission into United States territory nor processing theirentry. Rather, the seaboard states-foremost New York and Massachusetts-administered the landing of immigrants, and each individual state determined the rights and privileges of foreigners residing within its territory. Even in the decade following the Civil War, most Americans continued to view the problems associated with mass immigration as an acceptable burden to bear in exchange for the overwhelming economic benefits reaped from the nation's traditionally liberal immigration and naturalization policy. Because such problems were understood to be local and discrete, the regulation of immigration continued to fit comfortably within the province of state police authority, under which states and municipalities regulated all aspects of public health, safety, morals, and welfare throughout the nineteenth century.' This Section maps the logic of immigration localism that shaped the regulation of non-citizens for the first half of the nineteenth century. That logic rested on two pillars: (1) a broad consensus that the regulatory challenges and political interests implicated by the presence of foreigners-the problem of economic dependency and crime, for example, or the desire to attract laborers or settlers-were fundamentally local in nature; and (2) the lack of any meaningful regulatory competition from the federal government."

"The New York Commissioners of Emigration ("Commissioners")-the state agency that administered the landing of three-quarters of the nation's immigrants from its creation in 1847 until 1891--championed European immigrants as an invaluable economic resource and the embodiment of free, independent labor. Commissioner Freidrich Kapp, one of the nation's leading authorities on immigration, explained in 1870 that the United States "owe[d] its wonderful development mainly to the conflux of the poor and outcast of Europe within it"-to "the sturdy farmer and industrious mechanic," who through their "toils and sufferings ...built up ... the proud structure of this Republic, which in itself is the glorification ...of free and intelligent labor."'" Kapp's sanguine assessment of immigrants' moral and economic character was embedded in his, and the nation's, enduring confidence in the regenerative power of free labor and republican institutions."

"Human judgment can never be eliminated from any system of justice. But we believe that the outcome of a refugee’s quest for safety in America should be influenced more by law and less by a spin of the wheel of fate that assigns her case to a particular government official."

"As part of its commitment to human rights, the United States offers asylum to foreign nation-als who flee to its shores and can prove that they are “refugees”—that is, that they have a well-founded fear of persecution in their own countries, and that their race, religion, nationality, political opinion, or membership in a particular social group is at least one central reason for the threatened persecution."

"Nationals from well over one hundred countries applied for asylum in recent years. Asylum officers have different nationality caseloads in the eight regions since applicants from various countries are concentrated to different degrees in certain regions."

"As explained in Part I, immigration courts are the “trial-level” administrative bodies responsible for conducting removal hearings—hearings to determine whether non-citizens may remain in the United States. For represented asylum seekers, these hearings are generally conducted like other court hearings, with direct and cross-examination of the asylum seeker, testimony from other supporting witnesses where available, and opening or closing statements by both sides. Approximately one-third of asylum seekers in immigration court are unrepresented; in these cases, the immigration judge must play a more active role in questioning the applicant and building the factual record. Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence apply in immigration court."

"We found that applicants had a significantly greater chance of winning if their applications included a request for protection of a spouse or minor child in the United States. Perhaps family applications are more persuasive, because judges don’t believe that married applicants would flee from danger and leave a spouse or child behind, or because the judges feel additional sympathy for spouses and children, or because they suspect that unmarried applicants are more likely to commit fraud or be terrorists. The reasons for the increased odds of prevailing if one has dependents in the United States merit further study. Perhaps the most interesting result of our study is that the chance of winning an asylum case varies significantly according to the gender of the immigration judge. Female judges grant asylum at a rate that is 44% higher than that of their male colleagues. The work experience of the judge before joining the bench also matters: The grant rate of judges who once worked for the Department of Homeland Security (or its predecessor, the Immigration and Naturalization Service) drops largely in proportion to the length of such prior service. By contrast, an asylum applicant is considerably advantaged, on a statistical basis, if his or her judge once practiced immigration law in a private firm, served on the staff of a nonprofit organization, or had experience as a full-time law teacher."

"We are very troubled, however, by the central finding of our study. Whether an asylum applicant is able to live safely in the United States or is deported to a country in which he claims to fear persecution is very seriously influenced by a spin of the wheel of chance; that is, by a clerk’s random assignment of an applicant’s case to one asylum officer rather than another, or one immigration judge rather than another. We think that an adjudicator’s deviation by more than 50% from the mean rate for similar cases in that adjudicator’s own office raises serious questions about whether the adjudicator is imposing his or her own philosophical attitude (or personal level of skepticism about applicants’ testimony) to the cases under consideration."

"The Trump administrations attack on asylum has been focused, dedicated, and deeply resourceful. And I now that those aren’t adjectives you’re used to associating with this administration, but in those one area, they’ve been truly disciplined about being truly evil."

"Invoking Title 42 has basically created a shadow deportation system that moves quickly and is accountable to no one. And they have used this a lot. Since March, there’ve been nearly 200,000 expulsions, in which asylum seekers were sent back without so much as a court hearing."

"Would-be refugees currently undergo a screening process which lasts from nine to 24 months. The process begins with the UN refugee agency performing an initial assessment based on identity documents, biographic information, and interviews. Fewer than 1 percent of applicants move on to the next steps. Those considered for admission to the United States are generally victims of torture, female-headed households, or other especially vulnerable cases. U.S. agencies collect identity documents and conduct biographic security checks, including name checks against CLASS, Security Advisory Opinions, and the interagency check. The National Counterterrorism Center, the FBI, DHS, and the State Department all screen the candidates. Specially trained refugee officers from U.S. Citizenship and Immigration Services (USCIS) interview the candidates to determine their eligibility under the refugee definition (see below) and whether they are admissible under the terms of U.S. immigration law, and conduct a further biometric check, in which the applicant’s fingerprints are again screened against FBI, DHS, and Defense Department databases. Finally, applicants who have cleared all other checks must undergo a medical screening and participate in cultural orientation programs before traveling to the United States."

"Protection from religious persecution is a central tenet of U.S. refugee policy. To be admitted as a refugee, individuals must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a social group. There is no preference to admission based on the type of persecution suffered. In fiscal year (FY)16, refugee admissions were almost evenly divided between Muslims and Christians: 38,555 and 38,292 respectively."

"The INA restricts admission of individuals who have engaged in certain activities related to terrorism, such as having been a member of a political, social, or other group that endorses terrorist activity or provided material support for a terrorist activity. These bars were greatly expanded under the USA PATRIOT Act and the REAL ID Act. The expanded bars resulted in delay or denial of the applications of thousands of bona fide refugees and asylum seekers, even if their barred action was acquiescing to a terrorist group’s demands while under duress, for example. In response, Congress in 2007 expanded DHS authority to issue exemptions. Since then, DHS issued exemptions with designations in the Federal Register or with policy guidance pertaining to specific situations or groups that would otherwise fall under the grounds."

"[T]here were stirrings in the North American colonies regarding who might be let in. Before the Revolution, grievances arose between the colonials and the Crown over two crucial aspects of immigration: on the negative side, the colonies claimed the right to exclude undesirables-notably Catholics, paupers, and felons; on the positive side, they claimed the right to naturalize desirable settlers who were not British subjects. It is noteworthy that some of these grievances were spelled out in the Declaration of Independence as arguments in support of the quest for sovereignty. Already incipient in the Colonial period, this situation was fundamentally altered by the formation of the United States-an independent overseas republic controlled by people of European descent which, on the whole, welcomed substantial immigration of putative settlers and workers from Great Britain and select Protestant countries on the continent. Despite some setbacks, the new country acted as a magnet, particularly for members of the "middling classes" of society, because it afforded the possibility of acquiring land at a much lower price than anywhere in Europe. In Europe this precipitated an emigration crisis to which all sovereigns (including the Swiss cantons and German principalities) responded by reinforcing sanctions against unauthorized departure."