Yesterday Senator Ted Cruz (R-Texas) introduced new legislation to stop federal funding from going towards the Obama administration’s Deferred Action for Childhood Arrivals (DACA ) program as a solution to the recent surge of unaccompanied children seeking to enter the United States.

DACA is seen by several conservative groups as being the chief explanation for why there has been a recent surge in unaccompanied children attempting to enter the United States. However the surge in unaccompanied children is better explained by an increase in violence in Central America and a desire for family reunification.

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

In short this means the Cruz’s proposed legislation would not affect the operation of the DACA program. It would nonetheless harm several migrants holding humanitarian statuses. The second portion of Senator Cruz’s legislative proposal is worded in such a way that it could deny work authorization to both DACA recipients and holders of Temporary Protected Status (TPS).

Senator Cruz may prefer that less humanitarian migrants reside in the United States but surely he should agree that so long as they are here it is preferable that they work to maintain themselves instead of being forced to rely on government welfare. Why then does he wish to force humanitarian migrants to rely on government welfare? So long as these humanitarian migrants are with us they should be allowed to work to pay for their own expenses and minimize taxpayer burden.

The Texan senator is not alone in granting proposals to solve the recent surge of unaccompanied children. The Obama administration has requested an additional $3.7 billion in funding to increase border enforcement, hire additional legal staff, provide for the care of these children, and other expenses. The chief problem with this proposal is that it focuses almost entirely on the short term and, as a libertarian, I’m extremely doubtful of its cost efficiency. $295 million of the emergency fund would go towards addressing long term issues driving humanitarian migration from Central America but no accountability mechanism exists and actual details of the long term plan are missing. What guarantee is there that these billions won’t end up being misused?

The Obama administration has also mused with proposals to use expedited processing for these unaccompanied children. Currently Mexican nationals receive expedited processing and are sent back almost immediately after being presented to US border patrol authorities, but non-Mexican nationals are processed differently under the Trafficking Victims Protection Reauthorization Act (TVPRA). While expedited processing may work with Mexican nationals, whose home nation borders the United States, it is less appropriate when dealing with Central Americans and other non-Mexican nationals. Significant portions of the unaccompanied children are eligible for relief under existing humanitarian migrant programs and many of them would find themselves denied access to these programs under expedited processing. The current process may take longer but that is a worthwhile price to minimize the amount of humanitarian migrants being denied entry.

The Obama administration is not alone in calling for expedited processing of the unaccompanied children. Senator David Vitter (R-Louisiana) and Congressman Bill Cassidy (R-Louisiana) are introducing a new bill today which will do just that in addition to raising the bar for unaccompanied children to be granted access to a humanitarian migrant status. This is all too reminiscent of how Australia has been handling its own humanitarian migrant crisis; instead of accepting more refugees or creating programs to quicken their integration into civic life the country has pursued a policy of making it increasingly difficult for these migrants to enter lawfully. Will the US also follow in Australia’s footsteps and try to relocate these migrants into ‘a safe third party country’ like Haiti?

Senator John Cornyn (R-Texas) and Congressman Rep. Henry Cuellar (D-Texas) have introduced a similar proposal, the HUMANE Act . Representatives Chaffetz (R-Utah) and Goodlatte (R-Virginia) have both already made a similar proposal, the Asylum Reform and Border Protection Act ; Alex Nowrasteh of the Cato Institute has a review of that particular proposal up for those interested. The text of these proposals differs only cosmetically and all suffer from the same conceit that the answer is to simply deny lawful pathways for migration.

The best response in the short run is to advocate for the Obama administration to re-designate Guatemala, Honduras, and El Salvador for TPS. As I have noted previously, most of Central America has received relief under the Temporary Protected Status (TPS) program previously. A significant portion of Central American migrants in the US are present under the TPS program and if the Obama administration re-designated these countries then the children could enter lawfully and reunite with their families here.

Some might be skeptical about using TPS to resolve the present crisis; might it not encourage further waves of migrants from these countries? El Salvador and Honduras have both been TPS designated countries and are significant sources of accompanied children. Then again Nicaragua received TPS designation at the same time as Honduras and provides a negligible amount of unaccompanied children. Guatemala meanwhile has not been designated TPS eligible. Previous designation of the TPS status may have had some effect on the number of migrants trying to enter from those countries, but it begs the question of why there are so few Nicaraguans among them .

The above proposal is ultimately only a keyhole solution for the immediate future. In the long run TPS and other humanitarian statuses should be reformed to allow lawful family reunification. Contrary to what some conservative commentators believe, a significant portion of non-citizens from Central America are not illegal aliens but instead hold TPS and other humanitarian statuses. A new pathway should also be created to allow minor children to be sponsored by their extended relatives or to make adoption easier. Families will try to reunify regardless of what barriers are placed between them and it is therefore best to promote policies that provide a legal way to do so.

An earlier draft of this post was posted at California College Libertarians.

Post by Michelangelo Landgrave (occasional blogger for the site, joined February 2014). See:

• all posts by Michelangelo Landgrave
• blog post introducing Michelangelo Landgrave

This post is a response to Nathan Smith’s recent post Make More Singapores! where he makes a call for the creation of more city-states like Singapore. I have two small quibbles with Smith. Firstly, I believe that we need start-up cities as well as charter cities. Secondly, I disagree with Smith when he remarks that current international relations make it unlikely that we will see the birth of new city-states.

I have discussed start-up cities previously here, but allow me to refresh readers on the topic nonetheless. City-states are some of the earliest forms of political organizations, but the concept of charter cities is much younger and can be attributed as Stanford Economist Paul Romer’s thought child. Under Romer’s charter city arrangement a host government would cede administration of a region of their land to a 3rd party. The 3rd party would administer the region under its laws this would hopefully allow for 1st world institutions to be imported abroad. One major concern about Romer’s charter city proposal would be that it could quickly become a form of colonization under a new label.

An alternative proposal to Romer’s charter city has been the start-up city. I previously described the start-up city as being different in that it remains under the administration of the host government. By avoiding using a 3rd party as an administrator a start-up city avoids the potential for neo-colonialism. As I have written previously, those nations with a significant emigrant population living in the global north have a comparative advantage in forming start up cities since they can draw on the expertise of their emigrant population. In retrospect this description undersells the start-up city concept, as a start-up city does not content itself with trying to emulate the existing institutions of 3rd parties, but also seeks to create entirely new forms of institutions.

The world needs both charter and start-up cities. The former have a comparative advantage in importing institutions that have proven useful and the latter may have the comparative advantage in experimenting with new institutions to see if improvements can be made. Most city-states today exist somewhere in between ‘charter’ and ‘start up’ city.

I propose viewing city-states as being defined by two key characteristics:

(1) The level of sovereignty they have.
(2) Whether their goal is to emulate pre-existing institutions or to experiment with new institutions altogether.

Most cities fluctuate between these categories over time. Singapore began its life as a sovereign charter city content with following British institutions, but has continually moved towards acting as a start-up city willing to experiment with everything from DRITI-esque immigration policies to managed lanes.

Hong Kong meanwhile is a former non-sovereign charter city under British administration that became a constituent charter city after the transfer of its sovereignty to the People’s Republic of China. PRC China’s ‘one country, two systems’ policy has effectively created a federal system that allows Hong Kong to act as a constituent member of a larger Chinese federation. Of relevance to us in the open borders movement, Hong Kong does not currently seem willing to act as a start-up city when it comes to its immigration policies despite it otherwise sharing many characteristics with Singapore. Both Singapore and Hong Kong are populated mainly by ethnic Chinese who lived under British administration for most of the modern era and today boast some of the most market friendly regimes in the world. Both Singapore and Hong Kong have control over their migration policies, but of the two Singapore has thus far been more welcoming of migrants.

Hong Kong’s reluctance towards open borders seems to stem chiefly from a fear that Beijing would encourage mainland Chinese to move to Hong Kong in an effort to undermine Hong Kong’s political autonomy. Taiwan shares a similar fear that opening its borders with mainland China would also endanger its own autonomy. The best keyhole solution in both cases would be to allow open borders, but not open citizenship.

An example of a non-sovereign start-up city is the greater San Francisco Bay Area. San Francisco is a region in California that enjoys both a high concentration of migrants and powerful corporations. As I touched upon in the beginning of this post, I disagree with Smith that the current international system makes it unlikely for new city-states to form as I believe that San Francisco is already a city-state and is poised to gain further autonomy in the near future.

In terms of immigration policy several cities in the greater San Francisco area have adopted ID programs that provide documentation for all of their residents, regardless of their immigration status. San Francisco was instrumental in the passage of the California TRUST Act, which limits the amount of cooperation between local governments and federal authorities in the enforcement of immigration policy. Most of the major corporations based in San Francisco in turn are leading the current immigration reform movement in the United States. It is clear as such that San Francisco has radically different views on what immigration policy should be and this difference in political opinion translates over to other public policies as well.

It is granted that due to the experimental nature of start up cities they will create bad institutions as well as good institutions. San Francisco has developed better institutions than the rest of the United States with dealing with its migrant population, but has also produced bad institutions in such areas as transit or housing. This is okay and is not an argument against start up cities. Failure is an essential part of the creative destruction process.

In the past few months San Francisco has been attempting to gain greater political autonomy in the form of the ‘Six Californias’ ballot proposition. If passed by Californian voters the proposition would split the current state of California into six new states, with much of San Francisco forming the state of Silicon Valley. The proposal is being carried out by businessman Tim Draper and being sold as being for the benefit of all Californians, but it is clear that it chiefly an attempt for greater autonomy for San Francisco. It is doubtful that the Six Californias initiative will pass this year, but I would not be surprised to see San Francisco to gain greater political autonomy in my lifetime.

Many of the great city-states of history achieved sovereign status by attaining sufficient military might to fend off their neighbors, and on this point I agree with Smith that the current international system discourages secession from the major powers. Then again, has secession ever been easy when one neighbors a major power?
A city-state however needs not full sovereignty; it can exist as a constituent member of a larger federation. The Italian city-states were fully sovereign, but at the same time many city-states existed in federation with the Holy Roman Empire. The United Arab Emirates and the Swiss Confederation are both modern day city-state federations. Several cities in modern PRC China enjoy a high degree of autonomy in economic and legal affairs as ‘sub-provincial divisions’.

A necessary condition for city-statehood is for it to house an economically affluent population that has substantial political differences with the rest of the current nation. San Francisco meets this condition and as such I don’t believe it wrong to classify it a city-state. It may not have the military prowess to attain full sovereign status, but I could see it becoming a constituent city-state within the United States.

Such a city-state would be extremely beneficial to the open borders movement. San Francisco already has favorable policies towards its large migrant population. If it gained the ability to set its own immigration policy it would surely move towards even more open borders. Regardless of their exact nature, city-states are of immense importance to the open borders movement for two reasons;

(1) They bring better institutions to those who are unable to migrate and,
(2) They provide laboratories in which to create better institutions than ones currently known to us.

All in all I agree with Smith that we need more Singapores, but qualify it by adding that we also need more San Franciscos.

The United States has a variety of different humanitarian statuses it offers to hopeful migrants. Below is a general survey of these various statuses and some thoughts on how they could be reformed in the near future by the executive and legislative branches respectively in order to move the US migration system towards a more sensible approach.

Temporary Protected Status

The purpose of temporary protected status (TPS) is to grant a legal status for those who find themselves unable to immediately return to their home countries due to a major natural disaster or ongoing armed conflict there. TPS is extended to all migrants from the designated country residing in the United States during the initial filing period regardless of prior migration status. It grants the ability to work in the United States and is renewable indefinitely so long the migrant’s home country is listed as eligible. Many ‘illegal migrants’ from the Central American countries of Honduras, El Salvador, and Nicaragua actually hold TPS status and thus better referred to as irregular migrants.

There are three chief problems with TPS. The first problem with TPS is that it has no method for its status holders to eventually claim permanent residence if the ‘temporary’ disaster or armed conflict becomes prolonged. The second problem with TPS is that it does not cleanse the migrants in question of any unlawful presence they might have accrued previously. If a migrant is unlawfully present for more than six months but less than a year they are barred from admission into the United States for three years. Unlawful presence longer than a year warrants a ten year bar from admission. As Alex Nowrasteh of the Cato Institute points out, a significant portion of the United States illegal-irregular migrant population could become legalized under existing pathways to citizenship but would have to leave the country to do so and therefore are barred from admission into the country. The three and ten year admission bars are particularly absurd when it comes to TPS as the migrants were granted TPS precisely because it is unsafe for them to return home yet they are asked to do just that if they wish to gain a green card.

One change to the program that the legislature could make is allow TPS holders to apply for a green card if they have held the status for five years regardless of any prior accrued unlawful presence. This change would serve as a safety should the ‘temporary’ natural disaster or armed conflict that afflicted the designated countries end up having longer term consequences than first imagined. The five year wait period for a green card, which is longer than any existing humanitarian status, would serve to discourage abuse of the TPS program.

Whilst the first two problems with TPS must be addressed by the legislature, the third problem can be fixed overnight by the executive branch. As it currently stands the executive branch has wide discretion on which countries to extend TPS to but has traditionally been reluctant to expand it. Listed below are those countries whose nationals are currently designated for TPS eligibility.

Mexico and Columbia, with their ongoing wars against drug cartels and guerillas, should easily qualify but TPS status hasn’t been extended to their nationals. Likewise neither Ukraine nor Venezuela have been included into the list of TPS eligible countries despite the armed conflicts in both countries. It is noteworthy that the US has not designated any American country for TPS eligibility due to armed conflict. Could it be that executive administrations are reluctant to admit the existence of armed conflicts occurring so close by? Regardless, the current and future executive administrations would do well to be more liberal in the designation of TPS eligibility.

Deferred Action

A related status to TPS is deferred action. Deferred action grants its holders legal presence but not status which is legally distinct. Those with deferred action may attain work authorization in the United States. Deferred action is renewable in theory but it must be emphasized that it is not a stable status and can be revoked at any time. Deferred action is granted to low priority deportation cases and usually granted on a case by case basis. The largest extension of deferred action was two years ago when the Obama administration announced ‘Deferred Action for Childhood Arrivals’ (DACA) for those illegal immigrants who were brought into the United States as children.
Many of the problems associated with TPS also apply to deferred action. Deferred action offers no pathway to regular migration status and it does not forgive any previous unlawful presence. The executive branch can do little to fix either of these problems and here too we must hope that the legislature rectifies the situation.

What the executive branch can do is change the manner in which deferred action is handled. Take for example the DACA program; to be eligible for the program one must have been thirty or younger on June 15th 2012 when it was first announced. There is no legislative reason for this age cap and little practical reason for the existence of the age cap. The executive branch should remove this age cap.

Some believe that the Obama administration may expand deferred action to cover a larger portion of the illegal alien population in the United States if the legislature fails to take any significant immigration reform before its summer recess. I for one would advise against such action and instead recommend being more liberal in the designation of TPS eligible countries as deferred action makes one a low priority for deportation but a priority nonetheless.
Refugee

Refugee status may be granted to those outside the United States who can demonstrate on a case-by-case basis that they are in danger in their home countries. The United States refugee program is actually well constructed as it allows refugees the ability to apply for a green card within one year of being admitted and grants them the ability to work immediately upon arrival. Refugees may bring along with them spouses and minor children, and so the program avoids splitting families apart. Refugees have limited access to welfare benefits and therefore have little fiscal impact.

The chief problem with the refugee program lays in the fact that is capped. As shown below, this problem is more a matter of principle than practicality as actual arrivals are usually below the proposed ceiling. This begs the question, why do we need any caps at all if they are rarely met? Let us imagine that an individual is in danger in their home country but the refugee ceiling cap have been met, are we to ask that individual to wait till next year? It is absurd to think that someone in danger can simply wait a year.

Refugees must be admissible to the United States to quality for the status. This means that they may not qualify for the status if they are subject to the three or ten year admission bars.

Asylum

Asylum is the sister of refugee status and granted under similar guidelines. Asylum may be granted to migrants already in the United States on a case by case basis who fear return to their home countries due to discrimination due to political belief, race, religion, etc. One may apply for a green card a year after being granted asylum.

There are two significant differences for those seeking asylum within the United States as opposed to refugees abroad. Asylees have no quotas, although until 2005 there was previously a cap on the number of asylees who could apply for a green card. The second difference is that asylees do not get work authorization until their application status has been approved or at least for 180 days after they submitted their application. The reasoning behind this latter difference is to avoid abuse of the asylum system from those seeking employment in the immediate future, but one can’t help wonder if making legitimate asylees wait so long for work authorization is a high cost for discouraging such abuse. When reviewing immigration law the legislature should consider making it easier for asylum applicants to pursue work while waiting for their applications to be reviewed.

One additional aspect in which the asylum process differs from other humanitarian aspects of the US immigration system is that it is unclear if those subject to the three and ten year admission bars may apply for asylum. Those who have credible applications for asylum do not accrue unlawful presence in the United States even if their application is ultimately denied. However it is unclear if asylum can be granted for if one has accrued unlawful presence in the past. We know from past actions that one can certainly apply for asylum with prior unlawful presence. In 2013 several individuals who had previously accrued unlawful presence, the “Dream 9” & “Dream 30” respectively, applied for asylum. The applications of several of these individuals were accepted, but none have actually received asylum status so for now it is unclear if the admission bars apply to asylum seekers.

U Visa

Capped at 10,000 per annum the U visa may be granted to those migrants who are victims of crimes such as abduction, assault, torture, unlawful criminal restraint, and many more that are willing to help law enforcement. The purpose of visa is to encourage cooperation from the migrant community with law enforcement as many migrants are reluctant to interact with government officials. The U visa allows its holders to apply for a green card after three years and the U visa itself is valid for four years and renewable. Throughout its validity U visa holders have work authorization.

On paper the U visa needs little reform. Its cap should be removed, but here too like the refugee program it is more a matter of principle than practicality. If a potential U visa applicant cannot acquire the U visa due to the yearly cap having been met already then they are placed into a waitlist for the following year and giving temporary relief in the form of deferred action. The U Visa could be improved if its cap was removed and if its holders could apply for a green card after a year instead of three, but there is no pressing need for reform of the visa from a legislative perspective. One area in which the legislature could substantially improve on the U visa is by making those with accrued unlawful presence eligible for it; as with most other forms of humanitarian migrant statuses the U visa cannot be attained by those who face the three and ten year admission bars.

The above should not be confused to mean that the U visa cannot or should not be reformed. Rather it is the administration of the U visa that needs reform. In theory the U visa covers a great deal of crimes, but in practice its applicants are those who suffer from the worst of crimes. Other flaws of the U visa is that many migrants are not informed that they are eligible for it, and they are given little aid in applying for it from law enforcement. The current Obama administration could improve on the U visa greatly by leading an informational campaign aimed at migrants and law enforcement alike about the U visa.

T Visa

The T visa functions essentially the same as the U visa in that it exists to promote cooperation between law enforcement and the migrant community. The difference lays in the fact that the T visa exists exclusively for victims of human trafficking and has a separate cap of 5,000 per year.

T visa holders receive work authorization and are eligible to apply for a green card after three years. The legislature should ideally remove the cap, but once more this is more an issue of principle than practicality as potential T visa applicants are also eligible for the U visa and may acquire deferred action should both visas be capped for the year. What is a more serious issue is that T visa applicants, like many others applicants to humanitarian migrant statuses, are subject to the three and ten year admission bars.

Similarly to the U visa, the current administration must more actively inform both law enforcement and migrant communities about the existence of the T visa. The T visa could use some minor tweaking but is already a great status from a legislative stand point. Its flaw is that several migrants who are eligible for it are not informed about how to attain it or do not receive the aid from law enforcement in filing out the needed paperwork. The U and T visas alike both require extensive support from law enforcement as a perquisite for both is proving that the applicant is willing to, or has, aid the capture of the criminals who wronged them.