This article was last updated on April 16, 2022
In my last post, I briefly discussed a November 15, 2017, decision from the United States District Court for the Eastern District of Pennsylvania, The City of Philadelphia v. Sessions, which was brought in response to efforts by the Department of Justice (DOJ) to deny $1.6 million in funding to the city because of its refusal to fully cooperate with ICE.
The upshots of the decision were the court’s finding that Philadelphia could “properly certify, as required by [8 U.S.C. § 1373] its substantial compliance with [Byrne Justice Assistance Grant (JAG)] conditions,” and the court’s consequent injunction of the Department of Justice’s (DOJ) denial of the city’s JAG grant request. I will discuss that decision in greater detail in a later post; suffice it to say that I expect that it will be overturned, either by the Court of Appeals for the Third Circuit or by the Supreme Court.
Of particular note, however, is the court’s conclusion in footnote 3 that there were 11.4 million illegal aliens in the United States and that “roughly half of that population is made up of visa overstayers.”
Measurements of a population of people deliberately avoiding identification and apprehension should always be viewed with some skepticism. For some time, however, there have been questions about the exact proportion of the illegal population who entered illegally on nonimmigrant visas and subsequently overstayed.
For example, in January 2017, Sen. Marco Rubio (R-Fla.) stated that 70 percent of illegal aliens in Florida “came on an airplane”, presumably as nonimmigrants. This followed the senator’s claim in July 2015 that 40 percent of all illegal aliens were nonimmigrant overstays, a statistic that Politifact rated “Mostly True”, with the caveat that “[t]his widely cited statistic is an estimate based on research that has roots going back to the 1990s” and ” is getting a little long in the tooth.”
A 2017 report from the Center for Migration Studies (CMS) found “that two-thirds of those who arrived in 2014 did not illegally cross a border, but were admitted (after screening) on non-immigrant (temporary) visas, and then overstayed their period of admission or otherwise violated the terms of their visas.” This trend, it claimed, would “likely continue into the foreseeable future.”
If these facts are true, they point to an inability of consular officers at the Department of State to properly vet the true intentions of aliens applying for nonimmigrant visas.
Section 214(b) of the INA states: “Every alien … shall be presumed to be an intending immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status.” This is the most common ground for refusing nonimmigrant visas, and is intended to prevent visa overstays.
Assessing the intentions of the visa applicant abroad can be extremely difficult, particularly in areas where document fraud is prevalent. For example, a 2014 report from the Immigration and Refugee Board of Canada (IRB) cites a source who states that there were “‘a lot” of fraudulent identity, administrative and legal documents in the Democratic Republic of the Congo (DRC).” The Fiscal Year 2016 Entry/Exit Overstay Report from the Department of Homeland Security (DHS) states that the suspected in-country overstay rate for B-1/B-2 (visitors for business or pleasure) for FY 2016 from the DRC was 8.76 percent, meaning that almost nine percent of the aliens in those visa categories from the DRC who were supposed to depart the United States in FY 2016 failed to do so.
The DRC has been in turmoil for decades, and the CIA states that its economy “continues to struggle.” One would assume, therefore, that U.S. consular officers in Kinshasa (and elsewhere) would meticulously scrutinize every nonimmigrant visa application submitted by a national of that country for fraudulent intent. If this is true, the almost 9 percent overstay rate from that country would suggest that even more training in spotting such intent for those officers is an order, and that even more exacting standards should be set for visa issuance at that post and all other posts that handle a significant number of DRC nonimmigrant visa applicants.
Eritrea paints an even starker picture. IRB “correspondence with the Research Directorate, a researcher with Human Rights Watch, who specializes in the Horn of Africa region, … said that fraudulent ID cards are prevalent in” that east African country. That said, the Eritrean B-1/B-2 suspected in-country overstay rate for FY 2016 was 19.79 percent, again meaning almost one in five nonimmigrants in these visa categories from that country is suspected of overstaying his or her authorized period of admission.
Eritrea poses many national security risks. According to the CIA, the country “is subject to several UN Security Council Resolutions (initially in 2009 and renewed annually) imposing an arms embargo and a travel ban and assets freeze on certain individuals, in view of evidence that it has supported armed opposition groups in the region.”
Nor does it appear to be the sort of place one would want to return to. As the CIA explains:
ISAIAS Afworki has been Eritrea’s only president since independence; his rule, particularly since 2001, has been highly autocratic and repressive. His government has created a highly militarized society by pursuing an unpopular program of mandatory conscription into national service, sometimes of indefinite length.
To press this point further, I would note that the agency describes that country’s economy as follows:
Since formal independence from Ethiopia in 1993, Eritrea has faced many economic problems, including lack of financial resources and chronic drought, which have been exacerbated by restrictive economic policies. Eritrea has a command economy under the control of the sole political party, the People’s Front for Democracy and Justice. Like the economies of many African nations, a large share of the population – nearly 80% in Eritrea – is engaged in subsistence agriculture, but the sector only produces a small share of the country’s total output.
Since the conclusion of the Ethiopia-Eritrea war in 2000, the government has expanded military- and party-owned businesses to complete President ISAIAS’s development agenda. The government has strictly controlled the use of foreign currency by limiting access and availability; new regulations in 2013 aimed at relaxing currency controls have had little economic effect. Few large private enterprises exist in Eritrea and most operate in conjunction with government partners, including a number of large international mining ventures, which began production in 2013. In late 2015, the Government of Eritrea introduced a new currency, retaining the name nakfa, and restricted the amount of hard currency individuals could withdraw from banks per month. The changeover has resulted in exchange fluctuations and the scarcity of hard currency available in the market.
While reliable statistics on Eritrea are difficult to obtain, erratic rainfall and the percentage of the labor force tied up in national service continue to interfere with agricultural production and economic development. Eritrea’s harvests generally cannot meet the food needs of the country without supplemental grain purchases. Copper, potash, and gold production are likely to continue to drive economic growth and government revenue over the next few years, but military spending will continue to compete with development and investment plans.
And yet, 2,390 Eritreans who entered the United States on tourist and business visas were expected to depart this country in FY 2016. That only 473 are believed to have failed to have done so is remarkable.
Plainly, given these overstay rates, and given the claims described above that a significant proportion of the illegal-alien population in the United States entered legally on nonimmigrant visas, the State Department needs to adopt tighter standards for visa issuance and better training for consular officers. If the administration is serious about controlling the illegal population in the United States, this is as good a place as any to start.
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