Month: May 2019

On Thursday, the Bureau of Labor Statistics, a division of the U.S. Department of Labor, released a report on labor force characteristics involving foreign-born workers.  According to the report, foreign-born workers now account for 17.4% of all U.S. employees, which is the highest percentage ever recorded since the U.S. Department of Labor began tracking the statistic two decades ago.  In 2000, the share of the labor force that was foreign born was 13.3 percent.

The report defines “foreign-born” individuals as those who reside in the United States but who were born outside the United States and neither parent was a U.S. citizen.  Foreign-born individuals include legally-admitted immigrants, refugees, temporary residents such as students and temporary workers, and undocumented immigrants.

Among other highlights in the report is that foreign-born men participate in the labor force at a rate over ten percentage points higher (77.9 %) than native-born men (67.3%).  Additionally, the median weekly earnings of foreign-born full-time workers ($758) is significantly less than the median weekly earnings for native-born workers ($910).

The difference in earnings reflects several factors including differences in education levels, occupation, industry of work, and geographic region.  As for education levels, the proportion of the foreign-born labor force age 25 and over that had not completed high school was 21.2 percent in 2018, much higher than the figure for the native-born labor force, at 4.1 percent.

While native-born workers earn more than foreign-born workers at most educational attainment levels, there is a relatively small gap between the earnings of foreign-born and native-born workers who have a bachelor’s degree and higher.  Among those with a bachelor’s degree and higher, the earnings of foreign-born workers ($1,362) were actually slightly higher than the earnings of native-born workers ($1,309).

On April 16^th, Attorney General William Barr issued a decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), overturning a Board of Immigration Appeals (BIA) decision that had been the governing law for the last fifteen years.  Previously, some noncitizens who were transferred to “full” removal proceedings from “expedited” removal proceedings, based on a finding that they had a credible fear of persecution or torture, were eligible to be released from detention on bond.  Only some aliens so transferred, and those who remained in expedited proceedings, faced mandatory detention until their case was fully resolved.  Specifically, the BIA had ruled that “arriving” noncitizens, such as those coming into the U.S. at a port of entry, must be detained, but all other transferred noncitizens were eligible for bond.

The Attorney General’s new decision reversed the BIA’s ruling.  Now, unless paroled under INA §212(d)(5)(A), all noncitizens transferred from expedited to full removal proceedings based on a credible fear finding face mandatory detention until their asylum claim is decided; a process that can last months, or even years.

Notably, Matter of M-S- does not apply to unaccompanied minors nor families with children.  Under a 1997 decision, Flores v. Reno, often called the “Flores Agreement,” unaccompanied minors and families with children cannot be held beyond 20 days if they clear the credible fear screening.

Pending litigation on the constitutionality of holding noncitizens in mandatory detention beyond six months could prevent the change from going into effect, but barring an injunction, Barr’s decision will go into effect in July.  If the change goes into effect, it would tax an already heavily burdened court system and put new pressures on Immigration and Customs Enforcement (ICE) detention centers.  The Washington Post reports that detention centers run by ICE are holding a record 50,000 migrants, more than Congress has authorized, and some 400 immigration judges face a backlog of over  800,000 cases, which means that new cases are regularly scheduled for 2021 and beyond.

This latest development has added to the number of people calling for an independent court system outside of the Justice Department.  As the current immigration courts are part of the Justice Department, the Attorney General can unilaterally overrule cases that have been decided by the BIA.