Andrew Allard '25
Executive Editor
A panel of University of Virginia professors and policy advisors met on Thursday, November 16, to discuss the ongoing strains on the U.S. immigration system. The panel was hosted by the Karsh Institute for Democracy. The Law School’s own Professor Amanda Frost and Professor Emeritus David A. Martin were among the four panelists.
The panelists were generally critical of Congress’ failure to pass legislation updating immigration law, particularly asylum law, which hasn’t seen major reform for nearly thirty years. “I think it's reasonable to say—is Congress broken?” said Professor Frost, who specializes in immigration law. “And are they breaking the courts through their inability to enact legislation dealing with immigration?”
Frost said that without a needed change in immigration law, the Executive has attempted to resolve immigration problems on its own through new rules or guidance. Frost cited three cases in which these actions have been challenged in federal court.[1]
Frost explained that these legal challenges are involving the courts in partisan fights over immigration policy. “Those who are challenging laws and executive branch policies—if they’re on the red side, then they’re bringing these cases in red state fora, where they think they’re going to get—and often do get—handpicked judges that will rule in their favor. And equally, the immigrants’ rights advocates are choosing to litigate in fora where they think there will be a friendly outcome.”
Angela Maria Kelley added that the present policies for asylum seekers are not working. Kelley, who worked as an immigration lawyer and was formerly the Senior Counselor to the Secretary of Homeland Security under the Biden Administration, explained that asylum cases can take years to process. During those intervening years, while asylum seekers have temporary legal status, they find work, build relationships, and buy houses. But they are often still turned away. “They put down roots, they live their lives. But when they get up under the immigration judge, finally, the person who had a really strong asylum case seven years ago doesn’t have one now,” said Kelley. That means that asylum seekers can never truly settle down. “They’re always looking over their shoulder—Is ICE going to come get me? That’s not sustainable.”
While panelists mostly focused on how to manage the current immigration crisis, Professor David Leblang of UVA’s Frank Batten School of Public Policy suggested that the crisis itself is being exaggerated for political purposes. “There's only about 3% of the [global] population that lives outside of their country of birth,” said Leblang.
Leblang, a Professor of Public Policy at UVA’s Frank Batten School, suggested that some opponents to immigration reform are motivated by animus. Leblang also criticized efforts to deter migration, saying that they are ineffective. Leblang explained that those who come to the United States have often been displaced by conflict or climate change. “There's data on how many deaths have occurred on the southern border of the United States. And if death doesn't deter you, I don't know what will.”
But Professor David A. Martin, noting his work in the Clinton administration, said that deterrence canwork. Martin explained that in the early days of Clinton’s presidency, asylum became a “high visibility issue” due to two major crimes committed by asylees: the 1993 bombing of the World Trade Center and a shooting at the CIA’s Virginia headquarters that killed two agency employees. With Martin’s help, the administration adopted new policies, such as a six-month waiting period before asylum seekers could receive work authorization. “It worked. It did deter claims. The numbers dropped considerably,” said Martin.
As to whether similar reforms are achievable now, Martin was less certain. “I understood that I’d be here as the old timer on the panel to bring some historical perspective and maybe to find some glimpses of times in the past when bipartisanship worked, or executive initiative worked.”
---
tya2us@virginia.edu
[1] The cases Professor Frost cited were Texas v. United States, 50 F.4th 498 (5th Cir. 2022) (invalidating the federal Deferred Action for Childhood Arrivals (DACA)); E. Bay Sanctuary Covenant v. Biden, No. 18-CV-06810-JST, 2023 WL 4729278 (N.D. Cal. July 25, 2023) (invalidating a rule creating a rebuttable presumption of ineligibility for asylum seekers that fail to schedule an appointment with a mobile phone app prior to applying), argued, No. 23-16032 (9th Cir. Nov 7, 2023); Texas v. U.S. Dep't of Homeland Sec., No. 6:23-CV-00007 (W.D. Tex. filed Jan. 24, 2023) (challenging the Biden administration’s use of parole status for migrants from Cuba, Haiti, Nicaragua, and Venezuela).