Originally Published in The Washington Post
Philip Bump - April 15, 2021
Republicans have been eager to use the increase in migrants apprehended at the border with Mexico to pressure the Biden administration for several weeks. Noem’s statement goes a bit further, claiming that she will object to any attempts by the federal government to relocate undocumented migrants in her state. Even beyond the immediate irony of the White governor of a state in which 1 in 11 residents are Native American proclaiming who is American enough to reside there, there are obvious flaws in the line Noem is drawing.
For one, those who enter the country illegally are almost never able to gain citizenship, as immigration attorney David Leopold explained to The Washington Post in 2016. In other words, undocumented immigrants won’t be able to call Noem when they become American because they probably won’t be able to.
But the more important issue here is the use of “illegal immigrant” as a broad descriptor for whom the administration is dealing with.
There are two directions in which this descriptor incompletely overlaps with the current immigration situation. The first is that many new immigrants to the United States who are here without authorization are not from Mexico or Central America. Many have instead arrived on legal visas but failed to leave when those visas expired. Most new immigrants overall in recent years are from Asia.
The second is that many of those stopped at the U.S.-Mexico border and taken into custody are not in the country illegally. In fiscal 2017 through 2019, about 15 percent of those stopped at the border by the Border Patrol or the Office of Field Operations (OFO, which manages ports of entry) were people seeking asylum. Nearly 300,000 people sought asylum by making a “credible fear” claim on being stopped at the border — or often upon turning themselves in on arrival to the United States. You can see that in the numbers; in fiscal 2019, nearly two-thirds of those stopped at OFO border checkpoints were people claiming asylum.
It’s a legal process: Arrive in the United States, claim credible fear and wait for the system to evaluate your claim. Often, immigration courts will determine that the asylum claim isn’t legitimate, and the migrant will be slated for deportation. Until that point, though, they can remain in the country. After all, if someone is legitimately at risk of death should they be in their home countries, there is at least a moral obligation not to ignore that risk by default.
Here’s where the systemic problems arise. So many migrants have sought asylum in recent years that there’s a backlog of more than 1 million cases in immigration courts, according to data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The average wait for a case to be heard is more than 900 days and rising, meaning someone taken into custody today might not see a judge until October 2023.
Despite some rhetoric on the right, most of those scheduled for court hearings attend. TRAC data indicate that 81 percent of families appearing in immigration court attend all of the required hearings. Nearly all of those with legal representation appeared.
Often, those who don’t appear for their hearings fail to do so because of a breakdown in communication, TRAC explains.
“Some immigrants who don’t appear simply have not received notification of their hearing,” the group’s analysis says. “Others may receive a written notice, but the notice may have been in English which they couldn’t read.”
In other words, a large number of those taken into custody at the border are not what Noem would call “illegal immigrants.” Instead, they’re seeking permanent residency using the asylum process. Those requests may not be granted, and some claimants may simply be looking to exploit that process to remain in the country. But they are not here illegally.
Of course there are also thousands of migrants who do try to enter the country illegally. Many of them are individual adults, people who can be detained for longer periods of time or more quickly repatriated. The problem with Noem’s rhetoric, and more broadly the sweeping description of immigrants as “illegal,” is that it tends to lead to both immigrants and nonimmigrant Hispanics being identified as somehow suspect.
In South Dakota, there are more than 33,000 Hispanic residents, according to the Census Bureau’s 2019 data. More than three-quarters of them were born in the United States and therefore are citizens. About 7,400 were not born in the United States, but a quarter of them have been naturalized as citizens. Some of the other 5,500 are probably in the country without documentation, perhaps most. Can Noem differentiate between the 83 percent of South Dakota Hispanics who are citizens and the 17 percent who aren’t?
All of this reminded me of a story the author (and likely Ohio Senate candidate) J.D. Vance told Fox News’s Tucker Carlson recently. Carlson recently embraced a fervent strain of anti-immigrant rhetoric that overlaps with arguments popular among self-identified white nationalists; Vance rose to his defense.
This is the story he told Carlson last week.
“We have a lot of, you know, spineless people in office and in business. It’s been, like, middle Americans who are most willing to speak out. I think about this story a lot. This is a woman who — she was helping me do a book signing at an event that I spoke at, and she was taking care of her three grandkids because her own child had died of a heroin overdose. She absolutely loved Donald Trump, this is probably in 2017. This is right after the president became the president. And she was complaining to me about the fact that when she took her grandkids in to get medical care at the local emergency room, there were always illegal immigrants who were there standing in front of her in line. … I think, like, a woman like that, even if she doesn’t have the credentials, she actually is more willing to call the country what it is, which is like, look, this is unfair. I should not have to wait in line to get health care coverage for my grandkids because other people are in front of us.”
What’s not clear from that anecdote is how this woman knew those people in front of her in line were in the country illegally. Perhaps she did somehow; perhaps they identified themselves that way.
But think about how the tenor of the story changes if the woman only assumed that they were in the country illegally. Think about what it means if those were just recent immigrants seeking asylum or if they were naturalized. Think about how the story is reshaped if you consider that those maybe-immigrants may have been there with their own children — children born in the United States and therefore citizens.
American politics is often focused on a heavily archaic sense that migrants to the United States from Mexico and Central America necessarily sneaked across the border to take advantage of American citizens. That’s the assumption that Noem is trying to exploit and that undergirds Vance’s story. It’s the assumption at the root of a lot of the discussion of immigration and an assumption that bears more scrutiny than it gets.
Philip Bump is a correspondent for The Washington Post based in New York. Before joining The Post in 2014, he led politics coverage for the Atlantic Wire.