The following is testimony that I submitted to the Subcommittees on National Security and Government Operations, of the Committee on Oversight and Government Reform of the U.S. House of Representatives. A video of the March 23 hearing is also available above. (My testimony begins at 39:20.) 

I. Introduction

I thank Chairman DeSantis and Chairman Meadows and all the members of Subcommittees on National Security and Government Operations of the U.S. House of Representatives Committee on Oversight and Government Reform for the invitation and opportunity to testify today on the adequacy and enforcement of our nation’s immigration laws.

I commend the two subcommittees for holding this hearing in light of the December 2015 report of the Government Accountability Office (GAO) finding limited capabilities at both USCIS and EOIR to detect asylum fraud, reliance on a paper-based system for asylum applications at USCIS, and the absence of clear and specific fraud detection responsibilities for USCIS asylum officers.[1] Committee members are aware that in FY 2014 there was an unprecedented surge of unaccompanied alien minors (UAMs) and alien minors accompanied by alien adults claiming to be parents (family units), nearly 137,000 aliens in these two categories, who illegally entered the United States through our southern border.[2]  Initial reports suggest that we are headed for an even greater surge of UAMs and family units projected to illegally enter the United States in FY 2016.[3]

It seems almost self-evident that bureaucratic weaknesses in our border security combined with high numbers of undocumented aliens attempting to illegally enter the United States present compelling opportunities for foreign terrorists and criminals to gain entry to this country, and an enormous security risk for the American people.

U.S. Customs and Border Protection (CBP) has reportedly apprehended members of known Islamist terror organizations crossing our southern border, including Somali members of al-Shabab and other terrorist groups in Somalia, and members of terrorist organizations in Sri Lanka and Bangladesh.  Undocumented aliens from 35 countries in the Middle East and Asia have been arrested in the Rio Grande Valley in recent years.[4] Syrians in possession of stolen European passports intending to gain entry to the U.S. have been reported arrested in Central America,[5] and Syrians have been arrested at our southern border.[6]

So the concern of Congress for border security and how it can be improved is both timely and appreciated. 

II. Expedited removal

Before 1996, unauthorized aliens arriving in the U.S. could delay their removal by making a claim for asylum, which because of backlogs in processing and a shortage of detention space, often resulted in release on their own recognizance with an order to appear for a removal hearing before an immigration judge at a later date when their asylum claim would be considered.  Most such arriving aliens failed to comply with their orders to appear for their scheduled hearing.  In a famous report on the television program “60 Minutes” on CBS, Leslie Stahl showed that undocumented aliens were arriving at Kennedy International Airport every single day, and were routinely being released into the population the day of their arrival without any background check or assurance that they would appear for their scheduled hearing.

In 1996 Congress responded to that situation by enacting “expedited removal” for arriving aliens who either lacked proper documentation or engaged in misrepresentation in attempting to enter the U.S., a reform which had long been requested by U.S. immigration enforcement authorities.  The new provision nominally provided for the removal of such aliens without a formal removal hearing and without the order of an immigration judge. 

But in one of the classic bi-partisan compromises for which Congress is alternately praised and condemned, Congress combined tough, mandatory removal with an enormous loophole.  The statute enacted by Congress provided that, “If an immigration officer determines that an alien… who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) (misrepresentation) or 212(a)(7) (without documents), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum… or a fear of persecution.”[7] Clause (iii) of the new statute permitted the Attorney General to designate other, non-arriving aliens for expedited removal if they could not prove 2 years of physical presence in the United States. 

Clause (iii) was invoked in 2002 to extend expedited removal to aliens who arrived by sea but don’t have 2 years of physical presence.[8] Expedited removal was expanded again in 2004 to aliens who entered without inspection, within 100 miles of a land border, and who can’t prove continuous presence for more than 14 days.[9] That rule was further extended to within 100 miles of a maritime border in 2006.[10]

So expedited removal now clearly applies to recent alien arrivals near our land and maritime borders.  The problem is the loophole for any alien who “indicates either an intention to apply for asylum … or a fear of persecution.” 

The statute provides that aliens subject to expedited removal but who indicate an intention to apply for asylum or a fear of persecution shall be referred to an asylum officer for an interview.  The asylum officer shall conduct interviews of referred aliens either at a port of entry “or at such place designated by the Attorney General.”  If the asylum officer determines an alien has “a credible fear of persecution” then “the alien shall be detained for further consideration of the application for asylum.”  If the asylum officer determines an alien does not have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.”[11]

That sounds tough until a second loophole kicks in which provides that even these aliens determined by an asylum officer to lack a credible fear of persecution, “upon the alien’s request” shall receive a “prompt review by an immigration judge” of the lack of credible fear determination by the asylum officer.[12] So immigration judges are taken out of the expedited removal process at the beginning, only to be brought back in at the end before expedited removal can actually be executed.

III. Credible fear

The number of “credible fear” referrals has increased from less than 5,000 in FY 2008 to over 36,000 in FY 2013, to over 51,000 in the peak year of the border surge in FY 2014.  While the number of referrals dipped to just over 48,000 in FY 2015, the 21,492 referrals received in the first quarter of FY 2016 alone suggest that we may be headed for a new record this year.[13]  The percentage of all referred cases where credible fear was found by asylum officers has fluctuated from year to year but the trend has been generally upwards from 64.15% in FY 2008 to 77.72% in the first quarter of FY 2016.[14] So credible fear has not been very effective at reducing the numbers of unauthorized aliens waiting in line for immigration judge hearings.

The concept of “credible fear” was instituted by the former Immigration and Naturalization Service as an informal device for screening the large number of Haitians interdicted on boats on the high seas headed for the United States after the Haitian coup of 1991.  The idea was that people interdicted on boats who could not even articulate a credible fear that might qualify them for asylum would be repatriated to Haiti without further deliberation, and that Haitians who were able to articulate a credible fear of persecution would receive full asylum interviews either at the Guantanamo Naval Base in Cuba or elsewhere. 

As it turned out, this informal screening out device had a short life, quickly superseded by events.  Because the increasingly large number of Haitian migrants on boats became unmanageable, President Bush in 1992 issued an executive order that all migrants interdicted on the high seas should be repatriated directly without any refugee processing at all.  The executive order was challenged in court as a violation of both U.S. and international refugee law.  The district court upheld the executive order against the challenge.  The U.S. Court of Appeals for the Second Circuit reversed the district court.  And the U.S. Supreme Court by an 8 to 1 majority vote reversed the Second Circuit and upheld the executive order, concluding that neither U.S. nor international refugee law limits the President’s power to repatriate undocumented aliens intercepted on the high seas.[15]

So when Congress enacted “expedited removal” in 1996, I was surprised to see that Congress had incorporated the concept of “credible fear” into the statute, possibly in the hope that it might again serve as a screening-out device to reduce the number of arriving and recently arrived undocumented aliens allowed to join the line waiting to make asylum claims in removal proceedings before immigration judges.  Congress for the first time provided a statutory definition of “credible fear” as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.[16]

Congress also as part of the enactment of “expedited removal” for the first time included a definition of “asylum officer” in the statute as meaning “an immigration officer who—(i) has had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of application under section 208 (asylum), and (ii) is supervised by an officer who meets the condition described in clause (i) and has had substantial experience adjudicating asylum applications.”[17]

IV. Recommendations. What should be done?

1. All Border Patrol and other Customs and Border Protection officers should receive training in country conditions, asylum law, and interview techniques as part of their basic training.  All current Border Patrol and other CBP officers should be offered such training if they did not receive it in basic training.  Such trained and qualified officers should be authorized by statute to make asylum adjudications as part of the expedited removal process.
                                                                                                        
2. All references to “credible fear”, and involvement of immigration judges in expedited removal should be removed from the statute.  INA Section 235(b)(1)(B)(iii)(I) could then be amended to read:  “If an asylum-trained officer determines that an alien subject to INA Section 235(b)(1) is not a refugee as defined in INA Section 101(a)(42), the officer shall order the alien removed from the United States without any further hearing or review.”  Such trained officers should also be able to recommend asylum grants in appropriate expedited removal cases subject to supervision from an officer who “has had substantial experience adjudicating asylum applications” and who can exercise the statutory requirement of discretion in granting asylum on behalf of the Secretary of Homeland Security.                                                                                                                                                       
3.  Mandatory detention should be explicitly required by statute for all aliens in the U.S. subject to expedited removal until they are either removed or granted legal status.  Increased reliance should also be placed on INA Sec. 235(b)(2)(C)  which authorizes the return of arriving aliens to contiguous territory from which they arrived pending immigration proceedings.  The statute should be clarified to specify that, “In the case of any alien who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Secretary of Homeland Security may return the alien to that territory pending any proceeding to determine the alien’s immigration status.”
   
   
4. Just as the credible fear device may have been quickly devalued as alien smugglers gamed the system to spread the stories that “work” in demonstrating credible fear, so the asylum statute itself, INA Section 208, perhaps a useful addition to our immigration law when enacted in 1980, may also have lost value as the stories have spread that “work” in convincing an adjudicator to grant asylum.  Two years ago in testimony to another committee of the U.S. House of Representatives on February 11, 2014, I suggested that making asylum claims has become commonplace as a path to an immigrant green card for aliens without other alternatives, and that false asylum claims have become common and often deceive U.S. asylum adjudicators into granting asylum.[18] The perception that false asylum claims often work and at least delay removal of illegal aliens from the U.S., sometimes for long periods, adds to the benefit side of the cost/benefit analysis attracting illegal immigration to the U.S., and adds to the administrative and processing costs of immigration law enforcement and the U.S. taxpayers.

How did the U.S. meet its international law obligations under the Convention and Protocol on the Status of Refugees before 1980?  The answer is through withholding of deportation, now called withholding of removal, INA Section 241(b)(3), 8 USC Section 1231(b)(3).  That statute prevents the removal of an alien to any country if, “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”

I would like to see Congress consider enhancing Section 241(b)(3) by adding to it some of the benefits of asylum like work authorization and adjustment of status to legal permanent resident, and the following to join of a spouse and minor children, with the goal of replacing the asylum statute with a single enhanced withholding of removal state for the protection of refugees.  That statute has and will have a higher burden of proof than the asylum statute,[19] and should therefore be less susceptible to fraud. 

That concludes my testimony.  I’ll close by again thanking Chairman DeSantis, Chairman Meadows, and all the members of the two subcommittees for the invitation and opportunity to testify today.

—

Notes: 

[1] U.S. Government Accountability Office, GAO-16-50, “ASYLUM:  Additional Actions Needed to Assess and Address Fraud Risks” (2015).  See also Dan Cadman, “GAO Vets Asylum Vetting and Finds It Lacking”, Center for Immigration Studies, Dec. 9, 2015, http://cis.org/cadman/gao-vets-asylum-vetting-and-finds-it-lacking .

[2] U.S. Customs and Border Protection, “Southwest Border Unaccompanied Alien Children FY 2014”, http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2014 .

[3] U.S. Customs and Border Protection, “United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016”, http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016 .  See also Caroline May, “Border Surge Accelerates – On Pace to Exceed 177,000 Migrants By End of Fiscal Year”, January 12, 2016, http://www.breitbart.com/big-government/2016/01/12/border-surge-accelerates-on-pace-to-exceed-177000-migrants-by-end-of-fiscal-year .

[4] “Texas Officials Warn of Immigrants with Terrorist Ties Crossing Southern Border”, Washington Post, Feb. 26, 2015, https://www.washingtonpost.com/blogs/govbeat/wp/2015/02/26/texas-officials-warn-of-immigrants-with-terrorist-ties-crossing-southern-border .

[5] Alan Gomez, “Report:  U.S.-bound Syrians arrested in Honduras with fake passports”, USA TODAY, Nov. 19, 2015, http://www.usatoday.com/story/news/world/2015/11/18/report-us-bound-syrians-arrested-honduras-fake-passports/76016812/ .

[6] Beth Breeding, “Goodlatte & Grassley Press DHS for Info on Threat of Isis Entering U.S. at SW Border”, Nov. 24, 2015, http://goodlatte.house.gov/press_releases/818 .

[7] INA Section 235(b)(1)(A).   8 USC Section 1225(b)(1)(A).

[8] 67 Fed. Reg. 68924 (2002).

[9] 69 Fed. Reg. 48877 (2004).

[10] “DHS Announces Expedited Removal Along Northern Border and All Coastal Areas”, 83 Interpreter Releases 253 (2006).

[11] INA Section 235(b)(1)(A), (B).  8 USC Section 1225(b)(1)(A), (B).

[12] INA Section 235(b)(1)(B)(iii)(III).  8 USC Section 1225(b)(1)(B)(iii)(III).

[13] Data provided by U.S. Citizenship and Immigration Services (USCIS) on March 10, 2016.  See also Cindy Chang and Kate Linthicum, “U.S. seeing a surge in Central American asylum seekers”, Los Angeles Times, Dec. 15, 2003, http://articles.latimes.com/2013/dec/15/local/la-me-ff-asylum-20131215 .

[14] Ibid.

[15] Sale v. Haitian Centers Council, 509 U.S. 155 (1993).

[16] INA Section 235(b)(1)(B)(v).  8 USC Section 1225(b)(1(B)(v).

[17] INA Section 235(b)(1)(E).  8 USC Section 1225(b)(1)(E).

[18] http://judiciary.house.gov/_cache/files/ce51425e-3e89-4007-a98d-7153ac6f2b4c/jan-c-ting-asylum-fraud-testimony-final.pdf .

[19] See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).

Committee on State Government

Hearing on House Bill 1506

11 a.m., September 21, 2015

Room G-50, Irvis Office Building, Harrisburg

Testimony of Jan C. Ting, Professor of Law

Temple University Beasley School of Law

          I’m grateful to Chairman Metcalfe and all the members of the State Government Committee for the opportunity to offer testimony regarding House Bill 1506 designating English as the official language of the Commonwealth of Pennsylvania.

          I’ve always thought it a fluke that the United States has no official language. Why didn’t the founding fathers specify an official language in the U.S. Constitution? They probably didn’t think of it, since they had other more difficult issues to work on. Or maybe they did think of it, but concluded an official language was unnecessary because it was so obvious that the Constitution itself and the Declaration of Independence were in English, and all the business of the new government and all of its states were conducted in English.

          Regardless of the reason, the failure to designate an official language has allowed language minorities to demand translations of official documents and taxpayer funded translators in U.S. courts and other government institutions. Under the Voting Rights Act language minorities among U.S. citizens are entitled to vote on ballots translated into their own languages other than English.

          In other countries with more than one official language, like Canada and Belgium, all government documents must be published in both official languages and government translators provided at all official functions. But that has not quelled separatist sentiment from flaring up along language lines, and on-going battles over public signage and what language to teach to newcomers.

          The bureaucracy and parliament of the European Union, with its 23 official languages, is incurring high financial costs as it tries to translate every parliamentary bill and draft regulation into each language.

          In the U.S. with no official language, every language is equally official. So it could be argued that we actually have more official languages than the European Union. What happens when civil and criminal defendants insist on trials conducted in their own equally official language? Such claims have been made and upheld in courts in Canada and other countries with more than one official language.[1]

          That’s why a majority of the 50 states have designated English as their official language. Pennsylvania, and our neighboring states of New Jersey, Delaware, Maryland, Ohio, and New York are all in the minority of states without an official language.   (Hawaii has designated both English and Hawaiian as official. Other states have recognized Native American languages, French (Louisiana), or Spanish (New Mexico) as having special status distinct from official English.) Bills to designate English as the official language of the United States are regularly introduced in Congress, but so far without sufficient support for passage.

          House Bill 1506 designating English as an official language of the Commonwealth of Pennsylvania supports the argument that laws and other government enactments are legally sufficient and binding when enacted and published in English. Making English official does not preclude government from offering services in other languages if it chooses to do so. It does not outlaw the use of other languages. But it should limit taxpayer obligation to provide translation services to those areas where required for criminal justice or where specifically designated by legislation.

          I support and encourage Americans to study foreign languages, both for their own individual enjoyment and benefit, and because it’s in the national interest for Americans to speak and do business with, and try to understand, people all over the world.

          But having a single common language has always been a strength for a country as large as the United States. How else can Americans participate in public discussion of our common issues and problems?

          As immigration becomes easier and more common, maintaining the American advantage of a single common language becomes more of a challenge. Designating English as our official language for our state, and hopefully someday soon for our nation, will fill the gap left by our founding fathers and should help to keep some of the language conflicts, divisions and costs experienced by Canada, Belgium, and the European Union away from our shores.

          I again thank the chairman and the members of the committee for the opportunity to testify and express my support for House Bill 1506.

          What is a green card? The Migration Policy Institute says this: “Also known as green-card holders, immigrants are persons lawfully admitted for permanent residence in the United States who have the right to reside, work, study, and own property in the country. In contrast, foreign students, H-1B workers, and tourists are part of the large category of temporary nonimmigrant admissions.”[1]

          How many other countries even have green card immigration like the U.S., admitting immigrants as permanent, not temporary residents, with rights comparable to those of citizens, including a clear path to full citizenship? The answer is not very many. Most countries do not think of themselves as immigrant countries, and do not offer green card immigration in any formal program to any significant numbers of immigrants.

          I can think of just three other countries that have green card permanent immigration programs comparable in substance to that of the United States: Canada, Australia, and New Zealand. Not coincidentally, these three countries, like the U.S., also regard themselves as immigrant countries.

          While the U.S. annually issues around 1 million green cards for permanent residence,[2] Canada typically issues between 250,000 and 300,000.[3] Australia reports “net overseas migration” at 212,695 in 2014.[4] And New Zealand is reported as admitting around 50,000 permanent residents annually.[5]

          I specify permanent legal immigration comparable to the U.S. green card, but there’s a big dispute out there whether renewable temporary residence permits should be counted as permanent since, if renewed, they can effectively result in permanent residence. An OECD (Organization for Economic Cooperation and Development) spokesman is quoted as saying this in defense of OECD statistics doing just that:

          "The million annual entries in the USA are green cards, which grant permanent residence. Similar permanent residence statistics are used for Canada, Australia, and New Zealand. Most other countries grant renewable temporary permits which eventually lead (usually after 3 to 8 years) to permanent residence. We classify such entries as "permanent-type" because in practice the long-term stay rates for recipients of these visas/permits are similar to those for ‘permanent’ immigrants to USA, Canada, etc."[6]

          Obviously if you count temporary permits as green cards, you can get a bigger number of non-U.S. green cards, but they are not comparable. True green card holders don’t have to do anything to live permanently in the country issuing the green card. They don’t have to apply for renewals. And true green cards as issued in the U.S., Canada, Australia, and New Zealand, provide a clear path to full citizenship equal to that of all other citizens.

Green card holders are permanent legal immigrants. Holders of temporary residence permits are just that. In the U.S., holders of temporary residence permits are classified as “nonimmigrants”, even if they renew to stay longer.[7] So yes, the U.S. does issue more green cards for permanent legal immigration than all the rest of the nations of the world combined.

          Many American adults remember from our childhood the cartoon series “The Jetsons” which imagines a future where machines do all the work, and people just get to play and relax. But as Silicon Valley futurist Martin Ford points out in his new book “Rise of the Robots”, even in such a high-tech future, people will still have to eat and therefore buy food. How will they do that if there are no jobs left for people to do?

          This book is about how the technology revolution has eliminated, and continues to eliminate American jobs, and how that process is constantly accelerating. Automation, fast computers, robotics, and especially big data and artificial intelligence are all interacting to rapidly reduce or eliminate whole categories of American jobs.

          We can all think of blue collar jobs which have been automated and reduced in numbers if not totally eliminated. But the author tells us that the rapid advance of technology is not only threatening but eliminating all kinds of high-skill jobs, too. How many analysts does Wall Street need to employ if algorithms and fast computers can now make investment decisions by analyzing big data?

          We sometimes think of the technology revolution and offshoring, the transfer of jobs to countries with lower labor costs, as separate problems contributing to the loss of American jobs. But Martin Ford points out that offshoring is actually a product of the technology revolution. He describes offshoring as “virtual immigration”, except that unlike actual immigration which affects mainly low-skill American jobs, offshoring also provides low-cost replacements for high-skill American jobs requiring human judgement and experience.

          A whole industry has developed in India dedicated to the electronic capture of high-skill U.S. and European jobs, which can be done cheaper in India. And the author notes that the language barrier in China can and will be overcome with the development of simultaneous electronic translation, so that China can join the competition for the capture of high-skill American jobs. The few remaining elite jobs to be done by people instead of robots will have to be shared with India and China.

          Martin Ford describes as a myth the notion that all we have to do to avoid a jobless future is direct our youth towards science, technology, engineering and math. In fact, he says, we are already producing so many “STEM” graduates that they each year exceed the number of available jobs by 50%. The same phenomenon is evident in Europe.

          Forcing American workers to compete with robots, computers, and low-wage competitors in other countries, is what the author blames for persistently stagnant U.S. wages, rising inequality, increasing personal indebtedness, and a shrinking American middle class. Compare Ford’s explanation to that of Thomas Piketty in his book Capital in the Twenty-First Century, which attributes the same phenomena to the economic principle that return on capital exceeds the rate of economic growth.

          If Ford is correct about the future of high-tech innovation, we need to think about how to maintain consumption levels to prevent an economic implosion. He is receptive to the idea of a guaranteed minimum income for Americans even if their labor is no longer needed. He also likes the idea of a sovereign wealth fund, so all Americans can share in the rising profits from lower labor costs that are now accruing mainly to a narrow slice of our economic and technologic elites. And he thinks we have to restrict immigration.

The official unemployment rate is a still high 5.3%. But for African-Americans the unemployment rate is 9.1%. American teenagers looking for work have an unemployment rate of 16.2%. For African-American teenagers, the unemployment rate is 28.7%. Can we all agree that's an outrage, and at the root of the concern that "Black Lives Matter"?

In 2015 more than 46 million Americans are on food stamps, now called SNAP, the Supplemental Nutrition Assistance Program. That's more than one in seven Americans who need food stamps to meet their basic nutritional needs, up from 39 million is 2009 and 17 million in 2000.

Americans struggle with stagnant wages, rising inequality, increasing personal debt, and reduced opportunities for their children, even as the economy expands and the stock market regularly hits new highs. Some say the solution is to further grow the economy by reducing taxes and regulation. Others say the government should just force private employers to pay higher wages.

Here's a third solution: reduce immigration. Start by enforcing existing immigration laws, of which the Supreme Court has recognized that the "primary purpose in restricting immigration is preservation of jobs for American workers." Let's reconsider whether the U.S. every year must issue more green cards for legal permanent immigrants than all the rest of the nations of the world combined, including 80% of the world's permanently re-settled refugees.

Government data shows that 9.3 million new jobs have been added to the U.S. economy from 2000 through 2014, but that 18 million new immigrants, legal and illegal, entered the U.S. during that time, even as the native population also grew.

The Pew Research Center has projected that U.S. population will increase to 438 million by 2050 if nothing is done, from just over 300 million today, and that 82% of the increase will be due to 21st century immigrants and their descendants.

In Philadelphia we don't have enough money to fund our public schools. Across the country we don't have enough money to repair our roads, bridges, and other infrastructure. And we seem to be running out of water, not only in California but throughout the west. How will another hundred million American residents affect water and energy consumption, social services, and the environment?

The world is awash in migrants understandably seeking better opportunities and lives for themselves and their families in countries not their own. Americans must decide if borders, citizenship, and the nation-state still have meaning in the 21st century, and whether we have a greater obligation to improve the lives of our fellow citizens just because they are our fellow citizens. We can do that by enforcing the immigration laws and limits enacted by Congress in accordance with the U.S. Constitution.

          U.S. immigration law, as enacted by Congress pursuant to the Constitution, provides that any alien who has unlawfully entered the U.S. is inadmissible and cannot be legally admitted. Inadmissible aliens are subject to removal from the U.S. even if they commit no additional crimes other than illegal entry. And even if legally admitted, aliens are subject to removal/deportation if convicted of any of a wide variety of crimes including misdemeanors. The Obama administration and all civil servants in the executive branch share the president’s constitutional obligation to “take Care that the Laws be faithfully executed.”

          Attorney Vroom reported being bullied and harassed by officials in Washington when she raised concerns about the application of the Obama administration’s prosecutorial discretion policy. She said that Obama administration officials lowered her annual performance rating for moving too cautiously to authorize the release of undocumented aliens with criminal records. She sued the Department of Homeland Security, of which ICE is a part, for age and sex discrimination.

          The Department has agreed to pay attorney Vroom $400,000 taxpayer dollars to end her lawsuit. The Department has also agreed to upgrade her annual performance rating to “achieved excellence”. As part of the settlement Vroom will retire on October 1 after 30 years working for the federal government. The Department did not admit to any wrongdoing.

          This was reported by New York Times reporter Julia Preston, whose beat includes immigration. Her story was published as a single paragraph in the “National Briefing” feature at the bottom of page A13 of the print edition of the Times on Saturday, August 29, 2015.

When both Republican candidates drew the predictable criticism for their remarks, Jeb Bush explained that he was mainly talking about Asians, not Mexicans, in his use of the term "anchor babies", continuing to dig himself deeper into the hole he is in. Donald Trump, of course, doesn't apologize for anything.

The criticism of the term "anchor babies" is mainly against the implication that illegal alien parents have children in the U.S. with the intent to "anchor" themselves here as parents of U.S. citizens who should not be deported. There's no doubt, however, that illegal alien parents have children for many of the same reasons that parents everywhere have children. But there's also no doubt that having produced U.S. citizen children in the U.S., illegal alien parents hope to gain legal status in the U.S. as the parents of U.S. citizen children.

Proof of that hope for legal status was seen in the enthusiastic reception for President Obama's November, 2014, executive order for Deferred Action for Parents of Americans (DAPA), and the disappointment which followed the federal court injunction preventing it from taking effect until legal and constitutional challenges are resolved. President Obama estimated there would be 5 million beneficiaries if and when the injunction against DAPA is lifted.

According to the Pew Hispanic Center, one of every 12 babies born in the United States has at least one parent who is in the country illegally. The Washington Post and others have reported on widespread "birthright tourism," in which pregnant tourists come to the United States to give birth before taking their babies with permanent U.S. citizenship home with them to be raised in their own culture, but with the right to return to the U.S. at anytime, and to sponsor parents for immigration to the U.S. at age 21.

The current interpretation of the 14th Amendment allows all such children, whether born to illegal aliens or temporary tourists, automatic U.S. citizenship. Many elected officials in addition to Trump and Bush have begun to question whether that interpretation is correct and whether it should and could be changed.

What the 14th Amendment says is: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. ..." The 14th Amendment does not say - or mean - that everyone born here is a citizen.

There are, in fact, many examples of people born in the United States who are not automatically citizens under the 14th Amendment. In every such case, the denial of birthright citizenship is based on the parents' status.

For example, even if they're born in U.S. hospitals, there is no dispute that the children of foreign diplomats are not citizens of the United States because they are not "subject to the jurisdiction thereof" when born in the U.S.

Children born on U.S. soil to alien enemies during a hostile occupation are not citizens for the same reason. For example, the Japanese military occupied two of Alaska's Aleutian Islands during World War II. A Japanese child born there at the time would not be a U.S. citizen.

Children born in the United States to Russian spies returned to Russia with their parents in a prisoner exchange a few years ago. Are those children entitled to return to the United States as citizens after graduating from Russian spy school? Or should they, too, be regarded as having been born to alien enemies in hostile occupation, and therefore not citizens?

After the adoption of the 14th Amendment, the U.S. Supreme Court held that children born to American Indians were not considered U.S. citizens because of their allegiance to the tribes, even though born in the U.S. See Elk v. Wilkins, 112 U.S. 94 (1884). That exception was eventually overturned by federal legislation - which suggests that Congress has a role in the interpretation and application of the 14th Amendment.

If Congress has the power to determine who is and is not subject to the jurisdiction of the United States under the 14th Amendment, what should it do? Should it legislate that children born to illegal aliens are not in fact subject to that jurisdiction? Or that children of temporary tourists are not born U.S. citizens for the same reason?

The answers depend on whether we want to encourage or discourage various categories of noncitizens who might enter the country.

The United States has the most generous policies on legal immigration in the world. We give out more green cards granting legal permanent residence to foreign nationals - typically around a million a year - than the rest of the world's nations combined. We also admit 80% of all the permanently resettled refugees in the world. It has always been our policy to encourage the assimilation and naturalization of legal immigrants, and clearly their American-born children should enjoy birthright citizenship.

But what about those who enter the country legally on temporary tourist visas but have no ties or loyalty to the United States? We want to encourage tourism, and most birthright tourists are in fact fairly affluent. But do we want to encourage people raised in foreign countries by foreign parents to enter the United States as citizens because their parents were birthright tourists? If not, perhaps Congress could try to limit this phenomenon by making tourist visas unavailable to pregnant foreigners who intend to give birth here.

Birthright citizenship for the children of illegal entrants and temporary visitors is an outlier in 21st century immigration and international law. Most countries in the world do not so provide. And among the developed countries of the world where migrants wish to enter, only the U.S. and Canada have birthright citizenship. None of the democracies of the European Union have birthright citizenship. Nor do Japan, Australia or New Zealand.

As anyone who follows the news knows, the world is awash with migrants seeking security and a better life in countries not their own. The developed countries of the world must decide how to respond to this large-scale unauthorized migration.

We as Americans must decide whether we have a greater obligation to our fellow American citizens than we do to all the other residents of the world. We must decide whether the nation-state and the concept of citizenship continue to be important in the 21st century.

To that end, discussion of the real and complex legal issues surrounding the 14th Amendment should be encouraged, not arbitrarily cut off. Ultimately, we and our elected representatives must decide whether we want to open the borders or enforce the numerical limits on immigration that Congress has adopted. Birthright citizenship needs to be part of the discussion. Pretending we have numerical limits but not enforcing them is not a viable policy.

54 Lane 1285
Avenue Joffre,
Shanghai, China.
June 4, 1941.

Dear friends,

It is amazing how fast time slips by and how much has happened in this chaotic world of ours during this year of my silence. I am indeed ashamed of myself for not having written to you for a whole year, but I hope you will not doubt that I have constantly wished to do so. I also wish to tell you how much I appreciate the letters you have written to me giving us news of your goodselves [sic] and our mutual friends. Even though they come at long intervals, they always give us the greatest pleasure and a sense of nearness to a friendly land where we spent many happy years.

One of you stated in her letter, 'It would be a miracle if you are still alive!' How true was that statement; for a miracle did happen about 10 p.m. on October 16, 1940, when our hospital had a direct hit and I was buried under the debris, but escaped any injury.

You have probably read about the devastation Chungking was subjected to last year. As soon as the fog season was over, Japanese bombers visited us on every fair weather day and rained their loads of destruction at their pleasure. For alas, we have little, or no active air defense except an inadequate number of anti-aircraft guns and still fewer combating planes. At first, we had hoped that a defenseless city with no military objectives might be spared, for in April and May only airfields and factory districts were hit. But the attack on the schools and universities at the end of May heralded a wholesale, systemic destruction that was to come to Chungking in the following months until late in the fall when the fog again drew its protective curtain upon our much battered city.

For five days at the end of May, deliberate bombings of the educational institutions were undertaken. These included the Chungking University, the Central University, Futan University, Futan Middle School (at a different location) and the East Szechuan Teachers College. On Chungking University campus alone, three hundred bombs fell These are their objectives; they cultivate our thinking youthful leaders, the backbone of our spirit of resistance. It is this fiery spirit that they try to quench with bombs; while in the occupied areas, they spread addicting drugs, gambling, and other vices to accomplish the same.

Part of the populace was soon evacuated. Those staying behind had to endure through the hot summer months the daily pounding of their homes and offices. Every time the all clear sounded, some would come out of the dugouts homeless, but if it did happen to you, despair and sadness would not enter your heart; it would only find you ready to re-establish yourself and redouble your effort to carry on your work. Fires started from hundreds of incendiary bombs of August 19th and 20th swept through the city uncontrollable, leaving at least three fourths of the business section of the city in smouldering ruins.

As one walked through the streets the next day, one had the strangest feeling of visiting an ancient, deserted city with only broken pillars and walls to remind one of its once flourishing population. Only with the greatest difficulty and the keenest imagination could one locate one's favorite teashop or frequented silk store; for, as far as one's eyes could see, there lay only charred wood and scattered bricks. Here or there, the owners had returned to resurrect from the debris perhaps a broken pot or two.

When the fog season came, it could be said that not one house in Chungking had been spared from damages of some sort, from complete demolition to shattered roofs or windows. But reconstruction followed very closely upon the heels of destruction. After each bombing disrupted power lines and water mains were immediately repaired; roads cleared of the debris and bomb holes filled; roofs retiled and windows papers. Business, education, and government would carry on in spite of everything. As soon as there was a lull in the raids, temporary types of buildings began to spring up, like the bamboo shoots after a shower, on the razed ground, utilizing the very bricks that had been scattered from the walls which had stood there once. So that when one walked among the crowd on New Year's eve down the widened main streets lined with colorful shops, it required a still keener imagination to visualize its appearance after the baptism of fire. The rebuilding of Chungking serves as a symbol of our spirit of resistance. For with an inferior war machine we are bound to see our land devastated and our homes destroyed, but we will reconstruct our homes each time it is destroyed. For as long as the spirit of construction is alive, destruction is to no avail. We work to see the day when all the wanton killings and destruction will cease and peace and happiness will be the common property of all nations and people.

Throughout the summer our hospital had been fortunate in escaping severe damages. On June the twelth [sic], a large bomb exploded about twenty feet away from our front gate, blowing away part of the walls and throwing many stones through our roof, rendering my room which was then on the fourth floor unlivable. On several other occasions, the bombs dropped very close. The buildings just across the street suffered demolition one by one; but none of our buildings had been hit. One bomb came down in our court yard only five feet away from one of the buildings but did not explode. One incendiary bomb burnt with a dazzling brightness on the tennis court of the house next to us where the missionaries live, only twenty feet from the building. Some of the native people began to remark that no harm had come to us because we believe in Christianity; but that remark only lasted until October the sixteenth.

It was a moonlight night. The autumn moon shone with its usual splendor, not upon quiet gardens where one sits amid chrysanthemums and listens to the crickets, but upon a death-like city with no lights in any windows and no mortal souls stirring in the open. The thousands in Chungking sat crowded in the dug-outs breathlessly waiting for the dull explosions. So were all the patients and staffs of our hospital except two typhoid cases besides Ray and I; one patient was in delirium. Contagious cases were admitted with the understanding that they would not be taken into the dug-out, but into one corner of the basement considered to be the safest. When we saw the searchlights and heard the approaching bombers, there would have been time for us to run into the dug-out, but we were fool-hardy enough to remain in the basement. Very few bombs fell, for only three Japanese planes got into the city that night, but they came very close. Soon the buzzing of the heavy bombers and the crackling of the anti-aircrafts were covered up by a series of the whizzing of the descending bombs and the shaking explosions, following one of which I felt myself torn from Ray and thrown into the middle of the room face downward, and the house had come crashing down on me. Instinctively I had thrown up my left arm so that my head came to rest upon it thus leaving a breathing space. The dust was so thick that it was hard to breathe, especially with the heavy pressure all around me. Ray had stood close against the wall so that he was not buried underneath. With the dust and the night he could not see and his ears were deafened a little, but he soon found out what had happened to me and went out to the dug-out to call for help. I was not in the least frightened and had wished I were a strong man to have the strength to lift up the load on my back so that I could breathe better. The truth was I could not even move a hair. Within half an hour under the guidance of my voice they dug me out without a scratch to speak of, only a large bruise over my left hip bone where I was hit by a beam. I was very, very stiff for several days. The patients were in a room which was not hit and therefore uninjured. Indeed, it was a real good fortune of a misfortune! For there were only six layers of floors and ceilings on top of me; the roof of this room had not caved in nor had the walls fallen. There could have been so many 'if's, only one of which could change my year of silence into many years.

'If' I were in the adjacent rooms which we which were completely demolished.

'If' an incendiary fire had started nearby so that help could not get to me.

'If' Ray were also buried so that help might not reach us soon enough.

It is really best not to imagine the terrible things that did not happen but to be grateful for the blessings that had come to us in this world of misery.

Shortly after I wrote you last year, part of the hospital staff moved out of the city. Throughout the summer and autumn, I was in charge of the Ob. and Gyn. Departments alone taking care of ten to forty deliveries and two to four hundred outpatients a month. Often I had to rush between the delivery room and the outpatient department. Many a baby entered this world during the raids in the darkness of the dug-out. Anyway it was nice and cool inside compared with the outside temperature; for Chungking is very humid and hot during the summer. For at least two months, Ray and I slept on the fourth floor porch.

At the time of the accident, I was about five months pregnant. And at six months, a leakage in the membrane developed (dec. 4th), so that for two months, I was in bed most of the time - constantly fearing that I might lose my baby. Fortunately, the rest of the department had just moved down, so that the hospital work did not have to suffer any interruption. In view of this leakage and my small statue [sic], a cesarean section was decided upon to be performed, at the end of February if possible. But it could not wait and came on Feb. 4th, a slightly premature baby girl of five pounds. That very day we had an air-raid so that its entrance into the world had to be postponed for several hours. With my own milk and milk powder as a supplement, today at four months, she is fourteen and a half pounds, a healthy, normal infant, my miracle child of Chungking. Chungking is pronounced Chungching, ching meaning rejoicing. Ray's father named her Ching Sung, meaning grandchild of Chungking or rejoicing in having a grandchild. He is sixty-six years old; this is his first grandchild, so you can imagine how pleased he is. We cannot decide upon an English name yet, so it is still "Baby" to us.

By the first of April, I had resumed my work at the hospital, but only for three weeks, for my father in Shanghai was kidnapped at that time and had a very dreadful experience. Ray's parents were not well; his father is sickly and suffers from asthma and his mother was suffering from an attack of heart failure; she was ill with rheumatic fever a year and half ago which developed into a heart disease. We felt our families needed us; so at the end of April we asked for leaves of absence to visit our families. We traveled by plane to Hongkong and by boat to Shanghai with the baby to find my father safe and well and Ray's mother improving. Ray's family is planning to move to Shanghai; so Ray has gone to Tientsin to fetch them, while I am getting the house ready for them.

When the time comes for us to go back, we shall have to leave our baby with the family; for with the continuous bombings and the high living cost, it is impossible to raise a baby properly. Milk is a real problem; for the only thing safe is milk powder, but it sells at one hundred dollars per pound, equivalent to four quarts of milk. It is ten times the cost in Shanghai, because of the difficulty of transportation. Japan has blockaded our entire coast and forced French Indochina to close the railroad, the only road left open being the Burma Road. Munitions and many other things will have to come before such things as milk powder, therefore, the extreme shortage and exhorbitant [sic] price. To go into the high cost of living would take more pages; it is suficient to say that hunger and disease are the inevitable accompaniement [sic] of war. In free China the feeding of the troop becomes a problem; while in the occupied area, food is monopolized by the Japanese. The four or five millions in Shanghai have to depend upon rice shipped from abroad. Individual trouble seems so insignificant when we look into the fathomless darkness that the whole world with its civilization has been plunged into; we can only work towards peace and reason and justice and pray that they may come soon. With love,

Vung-Yuin [Ting] and Ray Chang

[Vung-Yuin was a niece of Me-iung Ting. Mary Jean and Abby, the two nieces that Me-iung raised, were her sisters. Some memories of Vung-Yuin from Evelyn Kay Ting: "Vung Yuin was my father's oldest sister. Graduated from Bryn Mawr in 1935 and went to University of Michigan Medical School where she led her class until she got married - then she dropped to 3rd. She patriotically returned to China with her husband (actually, they had no choice; U.S. immigration or citizenship for Chinese was not possible at that time because of the Chinese Exclusion Act)."]

There's a growing consensus that it's time for a woman to appear on U.S. currency, but there's been no agreement on how that should happen.

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            That plan has been halted by two federal courts in response to a lawsuit by the state of Texas and 25 other states claiming that they would be harmed by the plan which is in violation of both the immigration laws enacted by Congress and the President’s constitutional obligation to faithfully execute the laws. The District Court injunction halting the President’s executive action was upheld by the U.S. Circuit Court of Appeals for the 5^th Circuit on May 26.

            The two federal courts found that the President’s executive order for deferred action for parents of Americans (DAPA) and others was more than a mere exercise of prosecutorial discretion not to seek deportation of illegal immigrants. Rather, by the administration’s admission, the DAPA executive order made its beneficiaries “lawfully present” in the United States, and therefore eligible for social security retirement and disability benefits, Medicare Part A, a social security number, the earned income tax credit, driver’s licenses, and unemployment benefits.

            The federal court injunction will remain in place until the claims of the plaintiff states are fully litigated on the merits, a process which could take until the end of President Obama’s administration.

            Don’t worry about that empty building in Arlington now leased for $7.8 million taxpayer dollars every year. The administration claims it can have other federal employees occupy the space. Our tax dollars at work!