Is targeted reform the key to fixing the U.S. immigration system? Cornell Law School Professor of Immigration Law Practice Stephen Yale-Loehr and Distinguished Immigration Scholars Randel Johnson and Theresa Cardinal Brown join host Chris Wofford to discuss border management and asylum policy, worker programs and DREAMer protections.
In the white paper "Immigration Reform: A Path Forward," Cornell Law School’s Stephen Yale-Loehr, professor of immigration law practice, and Distinguished Immigration Scholars Randel Johnson and Theresa Cardinal Brown explore targeted solutions to the migrant crisis—tactics they believe could earn bipartisan support.
Hosted by Chris Wofford, Keynotes senior producer for eCornell, this episode covers three areas for targeted immigration reform: border management and asylum policy, worker programs and DREAMer protections.
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Read "Immigration Reform: A Path Forward" on the Cornell Law School website.
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Chris Wofford: In the United States, comprehensive immigration reform has proven elusive, a seemingly insurmountable goal poisoned by divisive rhetoric and political infighting. That's why I invited three distinguished immigration scholars from Cornell Law School to take us through their new white paper entitled Immigration Reform A Path Forward, which outlines reforms that could be implemented in border management and asylum policy, worker programs, and Dreamer protections.
Chris Wofford: Even though comprehensive immigration reform looks unlikely to move forward in Congress anytime soon, these scholars make a strong case for targeted reforms that are urgently needed and, most importantly, potentially achievable. Here's my conversation with Stephen Yale-Loehr, Randel Johnson and Theresa Cardinal Brown from Cornell Law. Stephen Yale-Loehr, I'd like to begin with you. This paper was written and produced by a team of lawyers and scholars at the Immigration Law and Policy Program at Cornell.
Chris Wofford: Who are all of you and what do you do over there?
Stephen Yale-Loehr: Well, thanks to foundation funding, we've been able to put together a dynamite team of visiting distinguished immigration scholars, including Randel Johnson, Theresa Cardinal Brown, Amy Nice, Charles Kamasaki and Marielena Hincapie, who all have very distinguished immigration careers. But we decided that we could do a lot together that we couldn't do individually. Our views range from the left to the right, on terms of what immigration policy should look like, but we all work together very well, and this white paper is one of the efforts or the fruit of our labor, so to speak.
Chris Wofford: So the white paper is called “Immigration Reform: a Path Forward”. We are going to be providing the URL in the description and the program notes for this podcast. So, Stephen, what was the impetus or the driver for this report? What's the end game here?
Stephen Yale-Loehr: Well, the impetus was that we decided to do a conference at the National Press Club last February on immigration reform. For years, there have been efforts to do comprehensive immigration reform, cover all aspects of immigration reform. And based on the 200+ people who are at that conference, we decided that really comprehensive immigration reform is not possible anymore, but targeted reform could be possible. And we identified three areas that we thought are both politically achievable and are necessary if we want to start working on changing our broken immigration system. Those three areas are border management and asylum reform, worker programs, and the so-called Dreamers. And those areas, I think, are, form the basis of our white paper.
Stephen Yale-Loehr: And we'll be talking more about each of those three areas in detail in a minute.
Chris Wofford: Are we dealing with a set of circumstances that make these especially viable now? I'm asking because we're in a, we're in a difficult political climate. I'm wondering about the viability, of the feasibility, of, of getting these three things done. Why are they attractive to you and why are we focusing on them right now?
Stephen Yale-Loehr: Well, we think these are areas where the American public and members of Congress have said, both now and in the past, that we need to deal with these three areas, at least, as you'll hear about in more detail in a minute. The Dreamers, for example, have been around for 20 years, but we still don't have a legislative solution for them.
Stephen Yale-Loehr: Everyone is talking about border issues and there's certainly a need for more worker visas, as Randel will talk about. So we think these are three areas that if we can tackle these areas and get consensus on how to deal with these areas, then we'll be able to tackle some other aspects of our immigration system.
Chris Wofford: Theresa Cardinal Brown, I'd like to turn to you. Your area of focus in the paper is border management, security and also asylum reform. Migration across the southern U.S. border has changed dramatically in recent decades. Now there are new law enforcement dynamics at play. We have a drug smuggling crisis going on, concurrent with the migration challenge, right? And the problem seems to stem from the fact that we're addressing drugs and migration as kind of one thing.
Chris Wofford: Tell us why that might not be the best approach and what you recommend.
Theresa Cardinal Brown: Sure. And as you mentioned, I think this stems from the fact that in the last decade, especially, we have seen a dramatic shift in the type of migration and the migrants themselves that are coming across the US-Mexico border. So for 150 years, most of the migration across that border was Mexican, single adults, usually men, who were coming into the United States looking to work for a while and then go back.
Theresa Cardinal Brown: What we're seeing now is a significant increase in families, unaccompanied children, and from places, you know, in our hemisphere, Central America, South America and Caribbean, but also as far away as Cameroon and Uzbekistan, we've seen Afghans and Indians and Chinese come to the US-Mexico border. So, you know, the migration crisis as it is part of a global migration phenomenon that's happening right now.
Theresa Cardinal Brown: More people on the move and across the world than any time since World War II. We have to match that with, as you mentioned, we do have a drug crisis in this country, a fentanyl crisis, much of which is coming from Mexico. But what it's not happening is it's not really coming via the migrants. It is coming mostly through ports of entry, mostly smuggled by U.S. citizens or permanent residents who are less likely to be really significantly questioned when they come back in.
Theresa Cardinal Brown: But the fact that these are happening at the same time at the U.S. Mexico border has created this sort of merger, at least in the way people are talking about the border, when the solutions are drastically different for the two areas. So we're focusing primarily on the immigration aspects of these asylum seekers, many of which are turning themselves in.
Theresa Cardinal Brown: But we also address the criminality, too. There is one linkage, and that is the criminal drug cartels are also facilitating the smuggling of people, both for monetary gain for themselves, but also as a way of diverting our resources from doing the work of finding their drugs. So we do need to address both of them. But as I said, I think that we think the solutions are somewhat different.
Chris Wofford: So, Theresa, I want to follow up on that. These seem like common sense recommendations, but how realistic and attainable are these solutions, given how divided Republicans and Democrats are on immigration, the border, asylum? I know we're getting a little outside of our purview here as far as muster, you know, mustering up the political will to get something done in Congress.
Chris Wofford: But, you know, how about the attainability of these?
Theresa Cardinal Brown: Well, you know, right now, as we're recording this podcast, there are serious conversations happening on Capitol Hill about changes to our immigration policy at the border resources both for addressing drugs and migrants at the border as part of this big supplemental package. It's being mixed in with aid to Ukraine and Israel and aid to our Indo-Chinese allies.
Theresa Cardinal Brown
But it's happening right now, and there are serious members of Congress who are engaged in serious discussions. Of course, there's also politics involved. We know that. But the reality is, they're looking for solutions. They're looking for not just talking points, but what are things that actually can work to address these crises together. And our paper talks about, respectfully, certain changes that could, that are necessary to our asylum system, which was designed at the border at a time when a tiny fraction of everybody arriving was looking for asylum.
Theresa Cardinal Brown: And now it is the majority. And that system is completely overwhelmed. So we do need to have policy changes there. I mentioned the law enforcement impetus to go after the cartels for smuggling people. We also looked at the management of the system. It's decentralized. We have five different Cabinet departments and 20 some agencies involved in our immigration system.
Theresa Cardinal Brown: We want to have, at least in the White House, a centralized coordination office that we suggest an Office of Migration policy to help with this, because when Congress is looking at solutions, they're talking to 20 different agencies of the government about what those solutions look like. And those agencies don't always agree. The good news is that we have had interest in this part of the paper because those conversations are happening now.
Theresa Cardinal Brown: I couldn't give you at odds on whether or not they'll land the plane they're working on right now. But I will say this. We need Congress to act in this way. What we have seen through three administrations now are efforts by Presidents to try to address this crisis with the limited tools they have available to them under the immigration law.
Theresa Cardinal Brown: And the result of that has been limited success or no success, based on what they're doing, and a bevy of litigation against it, which is that we have not had any consistent policy. The only way we overcome that is if Congress says, this is the strategy we need to try at the border and they enact that strategy and fund it. That will help stabilize things at least.
Chris Wofford: Randel Johnson, your section of the paper tackles new worker visa programs. The situation is that we've got entire industries, healthcare as an example, that need skilled labor and trained workers. Tell us how you think about the problems and solutions as it relates to worker visas.
Randel Johnson: Yeah, Chris, you use the word new. Let me just state, I've been working on worker visa issues by going back to 2001 with Senators Hagel and Daschle and McCain, Kennedy and Rubio later, the most recent S.744, where I negotiated a deal with the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) on a broader, lesser scale program, I mention it to say that it was likely those issues more controversial back then.
Randel Johnson: And I do feel in a weird way, unlike other areas of immigration reform, we've made progress on the worker shortage issue. And the need to amend our laws to provide for a broader, lesser scale program, whether it's in healthcare or broader, which I'll talk about, I think it is more accepted than it used to be.
Randel Johnson: Now the paper goes in to do a couple of programs. But let me just mention that one of the reasons it's, I think, there's a growing acceptance is that, well, you hear about employers all the time, about worker shortages across industries. But I want to emphasize that the demographics are just unarguable. No one can contest that we have a lower birthrate and we have an aging society.
Randel Johnson: And therefore, whereas our society used to be sort of premised on a triangle of older people at the top and more workers coming in at the bottom to pay Social Security and frankly, to take care of the older workers, one of which I'll be at one day. That's changed into, like, a square. And we have less people being born and elderly population.
Randel Johnson: I mean, the demographics are clear. I won't go into it. But one, as baby boomers age, 10,000 people turn 65 every day with someone turning 65 every age seconds. These numbers were repeated in a front page above the fold article in the New York Times today called Desperate Families Seek Affordable Home Care, which I'll come back to. But this is a crisis.
Randel Johnson: The demographics are clear. The unions can argue about this and that. The right wing can argue about this and that. The demographics tell us we've got to have a solution and that part of that solution is increased immigration. And I think there's a greater acceptance of that now. The paper goes through a couple of ideas. I'll start with the health care one, because in health care services and I'm not talking about big pharma here and I'm not talking about the insurance companies, but health care services such as hospitals and also in-home care, where most people now recognize, I think they'd rather stay in their home than go into a hospital or elder care, that there's extreme shortage of people who are wanted to those jobs and come into homes and do the work. That's just a fact. And we think that, in that area, most Americans will understand that fact. And Congressmen can explain this simple fact on the House floor. And I worked in the House for ten years. It's got to be simple and straightforward, but this is a straightforward message.
Randel Johnson: Health care is important. Elder care is important. We have a shortage. Immigration has to be part of that solution. Let's do something. So it should be a fairly simple concept. To the extent anything is simple in Congress these days. So that's one of the solutions, which is a visa targeted at the health care services industry, which is actually unique in the fact that it's industry specific.
Randel Johnson: The other one is a broader solution focused on all industries in the lesser skilled area construction, restaurant, roofing that's been baked for some time in past legislation. We think the discussion we have in the paper at least proposes a base from which could be negotiated with the unions moving forward. We recognize it's not a solution, but it's a base from which good faith negotiations could be held.
Randel Johnson: And again, that's been baked in for some time now, probably more than 15 years in past legislation. The specifics, I won't get into, Chris, prevailing wage, etc., etc., of which there are many which have to be negotiated. The last one, a third one is, just, states rights in the sense of, as Theresa mentioned, Congress is in gridlock.
Randel Johnson: So state governors have come forward and said, okay, you guys can't get your act together. Let us propose a proposal to address our worker shortages by giving us some flexibility within the law to do compacts with other states or whatever that we can bring in the workers we need to service industries we have in our states. There's some flexibility to do that.
Randel Johnson: But frankly, it's all caught up in preemption now. And it's really some magic that just leads to endless litigation and makes lawyers rich, which makes Chris, Stephan and I happy. But it's not good for America. And so there's some flexibility here that could be granted to states to provide state based worker programs generally. And there seems to be a bipartisan consensus that's needed.
Randel Johnson: Again, there's some consensus on it, but it's very complicated when you dig into the details.
Chris Wofford: Randel, I have to ask, so how might the border visa proposals also help border security? Where's the connection there? How does that work?
Randel Johnson: Yeah, no, I'm glad you asked. It's not self-evident to most people, I think. But in reality, if you had an orderly worker program by which you could bring immigrants in to fill available jobs and these would be screened, checked, that would reduce the so-called job magnet that draws illegal immigration into a lot of the industries, in which employers hire people knowingly or unknowingly, sometimes knowingly, but often it's through the E-Verify system and it's unknowingly. But if you take away that magnet of jobs and fill it legally, that takes away the pressure or incentive for illegal immigration and that helps border security.
Chris Wofford: Stephan, I want to go back to you. The final section of the paper covers Dreamer protections and what's known as DACA or Deferred Action for Childhood Arrivals. Where are we at now with Dreamers and DACA?
Stephen Yale-Loehr: So we need to define our terms here. DACA is a specific program started by President Obama in 2012 for a specific set of children who are in the United States without status. And a larger group is the so-called Dreamers, people who were brought into the United States when they were young and are still here without status. The DACA program only helps those individuals who came before June of 2012, and there are about 6 to 700,000 of those individuals right now. Under the DACA program itself, they have a relief from deportation for two years and they can get work permits.
Stephen Yale-Loehr: But that's not the entire population of people who are here without status, who entered at an early age. It's been estimated by the Migration Policy Institute that about 2.3 million people would fall into that bigger Dreamer protection. The DACA program itself is under attack. It's been struck down by a federal court in Texas and is now on appeal.
Stephen Yale-Loehr: And people are worried that next year or so the Supreme Court might strike down the DACA program as being exceeding the President's authority to do something administratively. Congress has tried and failed to enact a legislative solution. And so our paper says we should attack the broader Dreamer population. And the way we want to do that is not give them a path to Green Card, because that's proven to be too controversial in the past, but give them a conditional status that allows them to be in the United States without fear of deportation.
Stephen Yale-Loehr: And we think that compromise, which is truly a political compromise, is something that, A, the American public would agree to and, B, that members of Congress could understand both on the left and on the right.
Chris Wofford: What are some of those conditions that are built in there?
Stephen Yale-Loehr: So, for example, right now, the DACA program says you can have a stay of deportation for two years. But if the DACA program were to end, then they might be forced into deportation proceedings. And we have a backlog of over 2 million people already in immigration courts. So that would just overwhelm our immigration courts even more. Our proposal would say that you would get indefinite protection from deportation and work authorization so you'd have a status in the United States, but it would not lead to a special Green Card status or citizenship status.
Stephen Yale-Loehr: They would have to work within the normal ways of getting a Green Card to be able to stay in the United States. And that is one political compromise that we hassled out, among the five of us, in drafting this paper. But we think it's something that the American people would agree to do.
Chris Wofford: The Dreamer protections in this white paper differ from previous proposals that have come before.
Stephen Yale-Loehr: Yes, they do. Previous proposals had focused just on the smaller DACA segment as opposed to the larger Dreamer population, and some of the earlier proposals would have provided a path toward a Green Card for those DACA recipients. Our program is both broader and that it helps all Dreamers, not just the DACA recipients, but narrower, in that it doesn't give them a separate path to a Green Card.
Chris Wofford: So, Stephen, Theresa, Randel, we can go around the horn here. I want to review the desired outcomes for this paper. You know, tell us what the next steps are. And I asked you in our pre-game huddle, what does success look like? So, Stephan, let's start with you.
Stephen Yale-Loehr: Success to us is having people in Washington, D.C. take our ideas seriously as part of the conversation. And we think we're doing that right now. First, we had to agree among us as to what we thought was politically viable, and that took a while. But we think that our paper does present a comprehensive way to address three key areas within immigration.
Stephen Yale-Loehr: And we're encouraged by the number of congressional staff and others in political opinions, op-eds that we've had that are taking our ideas seriously. So I would count it as a partial success already. And I'll take it as a total success when we are invited to the White House for the signing ceremony.
Chris Wofford: What kind of momentum do we see? You know, the paper is it, was released in mid-October I think. Here we are in December, we've got a little momentum going now. Theresa, where do you see things?
Theresa Cardinal Brown: Yeah, I mean, as I mentioned, the folks on Capitol Hill are discussing border changes right now. And we have been approached by some of the people involved in those talks for more information about our ideas. I think, you know, you asked about success working in Washington a long time. I define success a little bit, what I call the echo effect, which is you put ideas out there and you hope that you circulate them often enough that they become part of the generalized discussion of policy solutions to a problem.
Theresa Cardinal Brown: And then if that idea is floated back to you by a member of Congress or another organization like Up Now, now it's in the realm of possibility and acceptability. And, you know, I'm with Stephen. I'd love to go to a White House signing ceremony. I'm not going to hold my breath on that. But one of the other things I would just say is, you've mentioned several times in your podcast, Washington, D.C. right now is highly polarized.
Theresa Cardinal Brown: And that's not just members of Congress. The voices they are hearing from tend to be highly polarized. They tend to be people who say we need all of one thing and all of the other, like no compromise. And they're desperate for ideas that are not, you know, hold the line, just say no, right? Which is what they hear Democrats hear from their, you know, progressive members just hold the line, say no and Republicans hear from their side.
Theresa Cardinal Brown: Just hold the line, say no. When we come out with something that says no, there's a realistic compromise. And not only is this compromise realistic, but it actually will achieve the policy outcomes you say you want. They're hungry for that because they don't get enough of that from the voices they hear regularly. So I do think that's an important measure of success that members that are keen on trying to solve these problems are looking for justice or input.
Chris Wofford: Randel Johnson, what do you hope for?
Randel Johnson: Well, I was at the White House when we signed the Americans with Disabilities Act, so hopefully we can do a repeat on this. I'm hoping that we can get, well, one could talk forever as to why the stalemate and dilemma we have in Congress right now with the border security being tied up with Ukraine and Israel funding, need not have happened.
Randel Johnson: And this was a train coming at the Congress and interest groups in D.C. that was very predictable and it could have been headed off. That's another discussion. My idea is, success would be, they will reach a compromise and that we can get something done on border security, including asylum reform and parole, perhaps. But then we move on to some of these bigger issues that affect the employer community and workers, such as the worker records visa program that I've talked about, whether it's in health care or broader.
Randel Johnson: The health care visa one strikes me as obviously realistic and needs to be done, but I have friends in the construction community able to say, well, we need workers too, so we'll have to figure out those various politics within the business community as we move on. But yeah, I think something could get done if we can get this border security debate behind us.
Chris Wofford: Theresa, Stephen, Randel, thank you so much for coming in today. I applaud the work that you're doing at the Immigration Law and Policy program at Cornell. Go, Cornell Law. Thank you for joining me in the studio today.
Stephen Yale-Loehr: Thank you.
Chris Wofford: If you enjoyed this episode, be sure to subscribe so you don't miss new episodes as they are released, wherever you listen to podcasts. To learn more about legal issues around these pressing immigration challenges, check out the episode notes for more information on Professor Stephen Yale-Loehr’s Immigration Law Online Certificate Programs. Thank you for listening.