For someone who remembers American politics in the 2000s, the change on both the rhetoric and the substance of immigration policy is staggering. Both parties seem to have radicalized in opposite directions. The Republican Party used to be a majority pro-immigration party with a substantial minority of immigration hawks; it is now, at least vocally, almost entirely committed to immigration restriction. Meanwhile, the Biden Administration seems to pursue an aggressive course of allowing in very large numbers of immigrants.
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How are we to understand immigration policy today? We cannot think of a better person to answer that question than Mark Krikorian, Executive Director of the Center for Immigration Studies. CIS has consistently produced some of the best work we’ve ever seen on immigration policy, for decades. CIS is unabashedly hawkish, but the quality of its work has earned it respect from all sides. Mark Krikorian has been a very effective and intelligent advocate for CIS’s work for many years.
Our interview with Mark Krikorian is below. It was conducted over videoconference, transcribed, and edited for clarity.
PolicySphere: When preparing for this interview, we visited the website of the Center for Immigration Studies, and were amused to see that one of the categories is “Biden Border Crisis.” So let’s open with a two-part question: why is it a border crisis? And why is it the Biden Border Crisis?
Mark Krikorian: The reason it’s the Biden Border Crisis is because it’s a crisis. And Biden created it. So there it is, in the simplest sense.
So why is it a crisis? It’s a crisis because we have seen unprecedented levels of illegal crossings at our border. We’ve always had illegal immigration and always will have some illegal immigration. The border is almost 2000 miles long and you just can’t stop it all. We’re not North Korea. We can’t police it that way. And so you have got to have a certain amount of tolerance for lawbreaking. It’s the same thing as speed traffic laws, that is simply human nature. But now the level is simply unprecedented. And what makes the crisis even worse is that the Biden Administration’s policies not only caused it, but actually exacerbated it. The Administration is releasing illegal border crossers into the country, so they are essentially rewarding them for crossing illegally.
If you cross illegally and are detained until a decision about your case is made by the government, which is what Federal immigration law requires, it becomes a lot less attractive to cross the border. And that’s because it costs money to do it: most illegal border crossers are not Mexican any longer. We have people coming from places like Central America, Tajikistan, or Cameroon. And it’s also risky. There’s physical risk involved. People don’t hop on a commercial airliner and end up at the border, right? Most often people will fly into Ecuador because its visa regime is very lax, and then take a bus or walk the rest of the way. All kinds of risks involved there. People are not going to do that if the odds of success are low. But the odds of success are now very high. Very high. And that’s because of Biden’s policies.
But Biden also sparked the flow to begin with, by communicating during the campaign. And then, literally on the first day of his presidency, signing executive orders deprioritizing and weakening immigration enforcement.
The underlying problem has to do with the competing ways that immigration law is conceived of as written. The law as written forbids anyone from entering unless they meet certain specific requirements set by Congress. Now, I think those rules set by Congress still result in too much immigration, right? But nonetheless, the rules exist. And the President under the law is not allowed to let in anyone who doesn’t meet the rules, with very tiny exceptions.
However, this Administration’s perspective, and in fact, the perspective of the left in general and of libertarians, is that it’s the other way around. According to them, the President has the authority to let in anybody he wants, unless there are very specific, concrete prohibitions in the law set by Congress. That’s ultimately the problem we’re dealing with.
PolicySphere: Let’s reverse the question. A common criticism you hear of the Trump Administration is that while their heart was in the right place on a lot of issues, they lacked execution and follow-through. But if things have gotten so much worse under Biden, it must mean Trump was doing something right. So, what was that, in your estimation?
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Mark Krikorian: To begin with, the Trump administration at least approached immigration law consistent with the way the statute is constructed. In other words, they did not claim the President had the right to let in anyone he wanted.
But there were also specific policies. For instance, illegal immigrants were more likely to be detained. Everyone still was not detained. There were still people who were released. But even under Obama and under Trump, significant percentages of illegal immigrants were detained. It wasn’t routine to be released into the United States. That’s the most basic element.
Another specific policy is the one known colloquially as Remain in Mexico. The Migrant Protection Protocols, they’re called, which meant that illegal immigrants and illegal border crossers who claimed asylum were returned across the border, to wait in Mexico for their hearing dates. They were still allowed to apply for asylum, which, in my opinion, they shouldn’t be anyway–but that’s a different question. They didn’t challenge the ability of border jumpers to claim asylum, they just said they had to wait on the Mexican side. And since almost everyone making the asylum claim is only doing so in order to be released into the United States to get a job and go move in with their brother-in-law, that was a significant disincentive to doing that. And it had almost immediate effects in reducing the flow.
Another thing, which they weren’t able to fully pursue because they didn’t get re-elected, was something called Safe Third Country Agreements. This was negotiated with the central and northern Central American countries. The point of that policy was to say: if you passed through those countries and didn’t apply for asylum there, you should have applied for asylum there if you really were in danger of persecution. They had reached agreements with all three countries of northern Central America. One of the countries had ratified it through their own legal processes. But it was short circuited by the Biden Administration, which just cancelled them all. But that would have had a significant additional effect. And one of the reasons they were able to get this cooperation from Mexico for the Remain in Mexico program was that they strong-armed Mexico; President Trump threatened tariffs and what-have-you and Mexico went along on all of those things.
These policies, combined with the president’s rhetoric about immigration, which sets a kind of mood, if you will, or creates expectations about what the United States is likely to do, succeeded in significantly holding down illegal immigration.
It didn’t go away completely. The Administration didn’t do everything it needed to do. There was still work, a lot of work, to be done, but they stabilized the border. And Biden dismantled it on his first day in office. Literally, he was sworn in, he had lunch, and then he started dismantling the immigration system that Trump had put into place.
Another thing that Trump did was expand border barriers. You know, we called it a wall. It’s a bollard fence, the wording doesn’t matter. But the Democrats campaigned against that furiously. But the wall has two beneficial aspects. One is that in a practical sense, it helps in certain locales to assist the Border Patrol in catching illegals. It slows the flow, so that it’s not as though no one can get over, but it takes them longer. And by the time they get on the other side of the fence, the Border patrol can intercept them. So that’s a practical positive.
PolicySphere: That’s very interesting. Okay.
Mark Krikorian: It doesn’t stop people. It never can stop people. It’s not even intended to stop them. But it makes it harder so that the Border Patrol will be able to get them. That’s the practical side, right?
But there’s a more symbolic aspect of the wall, which is that it is an assertion by the American state that we’re not going to tolerate this illegal immigration. In other words, it’s symbolically important, even in places where its practical utility is limited.
If you put all those things together, prospective illegal immigrants got the message that this was not the time to come. And so there was still illegal immigration, but a lot less.
And as soon as Biden took over, the numbers of what they call encounters of illegal immigrants, which is a euphemism for apprehensions, started shooting up immediately. I mean, literally, he took office on January 20th, and the February numbers were already higher than the January numbers, and they skyrocketed. The numbers are now in the millions. And this administration has released into the United States something like 3.5 million people who illegally entered the country and that it had in its custody. These aren’t people who got past the Border Patrol. These are people who were in custody and then dropped off at a bus station, and let go into the United States. And nothing like that has ever happened before. In a sense, Biden makes Angela Merkel look like an amateur.
PolicySphere: After the 2015 terrorist attacks in France, which involved migrants who crossed into Europe via Greece and the Balkans, Frontex, the EU border agency, released a report–a really well done report, actually. And it recounts how, when those Syrian terrorists got off the boat in Greece with fake passports, which they were able to have because ISIS had stolen blank passports from the Syrian government, which Western intelligence already knew at the time, they got arrested, and they went in front of a judge, and then they received a piece of paper that said, essentially: you’re illegally on EU soil, so please go home now. And then they were released back into the street. And of course they went on their way and arrived in Paris and murdered hundreds of innocent people.
Mark Krikorian: Wow. Yeah.
PolicySphere: We guess our point is that simply releasing people about whom you know nothing onto the street seems obviously insane, in an extremely basic way that has nothing to do with partisanship or ideology. This was 10 years ago. Has nobody read that report? Why is this happening?
Mark Krikorian: And we’re seeing an obviously much smaller, non-political version of this, with murders by people who were released. People who were supposedly vetted. I will say in the Administration’s defense, when they say the person was vetted, well, they checked them against US databases. People who have never been here before and haven’t known anybody. And it’s not like the communist government in Nicaragua is going to give us access to their criminal database, right? Assuming the person even has a record down there.
PolicySphere: And assuming the database has accurate information.
Mark Krikorian: Exactly. It’s garbage in, garbage out. And in the case of Haiti, for instance, there’s not even a database.
PolicySphere: Right.
Mark Krikorian: And it’s not just Haiti. You know, the idea that we’re going to be able to vet somebody from Somalia, for instance, is ludicrous. Are we going to call up the Mogadishu DMV and ask them for their records? It’s just absurd on its face. We’ve been very lucky not to have a Bataclan-type disaster. How long can our luck last?
PolicySphere: Next question. Let’s say there’s a Republican Administration next time around, and it appoints you immigration czar. What do you do?
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Mark Krikorian: First thing we do is dramatically increase detention capacity, using the Department of Defense if we have to. We stop letting people go. It will cost a lot of money for a couple of months, a lot of money, but after that, once it’s clear that you’re not letting people go, you’re going to see a significant reduction in the number of new people coming in. This is apart from legislation, because there’s a lot of legislative changes that need to happen. But in regulatory terms, there’s a lot of things the executive can do.
For example, we can return to a tighter definition of persecution. Because we are now granting asylum to people based on this “particular social group” category.
PolicySphere: Can you please unpack that?
Mark Krikorian: There’s five grounds for asylum in the UN Refugee Convention, which we’ve incorporated into our law with the 1980 Refugee Act. The grounds are: persecution based on race, religion, nationality, and political opinion. Those are four. And everybody kind of gets those. And there’s a limit to what those terms can mean. The fifth one, however, is “membership in a particular social group.”
PolicySphere: Ah.
Mark Krikorian: That can mean anything a judge wants it to mean, right? It’s not clear why it was inserted. The Swedish delegation in 1951 suggested it, and it seems that they were thinking of kulaks or members of the aristocracy fleeing Soviet rule.
PolicySphere: Oh.
Mark Krikorian: But the Refugee Convention itself doesn’t even spell any of that out. And we put it in our law, and it means whatever the heck you want it to mean.
So, for example, under the Trump Administration, the attorney general said that domestic violence does not make you a member of a particular social group. Generalized crime, or fear of gangs, does not make you a member of a particular social group. This Administration has reversed all of that and expanded the grounds for which you can be granted asylum. That needs to be narrowed significantly.
But even upstream of the asylum decision: there is a screening process before you even get to apply for asylum. This is called a credible fear interview, and the goal is to see whether you express fear of being returned home, or whether Mickey Mouse is talking to you through your dental work. We need to raise the bar on who qualifies for that initial screening process. Because if you don’t qualify, then you just get sent home.
There’s a million things to do, but the last thing I would mention here is that we need to aggressively try to develop relationships with other countries. We need to replicate the Israeli and Danish and British idea of sending people to Rwanda to apply for asylum there. The Australians actually pioneered that; they had an agreement with Cambodia that any of these people from Iraq or Iran who took boats to come there could apply for asylum in Cambodia. And none of them wanted to do that, of course. We should pursue that model that has been quite successful. It’s had challenges in the courts, but you have to at least start the process.
My shorthand term for it is: Remain in Mongolia.
You know, Mongolia is a friendly country, it’s a democracy… It’s a big place, they’ve got lots of room. The idea is that you would be precluded from even applying for asylum in the West. But we would be happy to send you to Mongolia, free of charge, and they will consider your asylum application there. And if you’re genuinely fleeing for your life, you’ll take Mongolia. Look, Jews fleeing the Nazis were not picky about where they were going, right? Armenians fleeing the Ottoman right genocide weren’t picky about where they were going. I know Armenians whose grandparents moved to Ethiopia, or Sudan, because it was the place where they could go. You’re not picky if you genuinely are fleeing for your life. If I were fleeing for my life, I’d take Ulan-Bator. In fact, there used to be an Armenian church there many centuries ago!
We should start work on that kind of policy. The idea of doing that is something that the United States has never really pursued. The only thing, even somewhat along those lines, was during the crisis of Cuban and Haitian rafters in the ‘90s, we sent them to Guantanamo, and processed them there. The Haitians, I think we sent all of them back. And I think we ended up taking the Cubans, which we shouldn’t have. But anyway, that’s the closest we’ve gotten to that.
But there’s all kinds of other possibilities. For instance, if we could we should, I think, establish a relationship with, say Paraguay if they would go for it, and we could send the Latin American illegal immigrants to apply for asylum in Paraguay. And maybe Rwanda or Botswana or Namibia for the African immigrants, and the Asians could go to Mongolia. My only point is the United States doesn’t even have that as part of its mental imagination. And I would start doing that on day one. It wouldn’t be able to be implemented on day one, but I would start exploring it and pursuing it on day one.
PolicySphere: The next question is more of a political or process question. I think a lot of people just assume, and we sort of did in our conversation, that there’s just not going to be significant new legislation on immigration, that it’s all executive action and the courts. Do you agree with that? Do you disagree with that?
Mark Krikorian: If you are able to change policy through legislation, it becomes stickier. It’s harder to change. As we saw when Trump made changes, almost all of them were administrative, and then they were all undone. And there are hurdles to changing administrative policies. We have something called the Administrative Procedure Act; an Administration has to jump through certain hoops and has to send out a draft version of a policy change for public comment. And ultimately, you end up with a kind of policy ping-pong, where the alternating administrations change everything, and that’s no way to run a railroad.
There are two obstacles to legislative changes. One is Trump himself, because he’s such a polarizing figure that if he said “You should bathe daily” a lot of people would stop taking a shower just because he said it. And so, that’s a challenge, especially in the Senate.
But another part of the problem is that the Democratic Party, the Democratic mainstream, has radicalized on immigration. Even before Trump came into the picture. I wrote a piece a number of years ago, I think it’s like ten or more than ten years ago now. I wanted to call it “Open Borders Uber Alles.” My editor said, no, no, we can’t call it that. But the point of it was–and again, this is when Trump wasn’t even conceived of as being a political figure at all–that every important interest group on the left will sacrifice its own concerns and its own constituents if they conflict with open immigration.
The example I think I started with was the ACLU, the American Civil Liberties Union. There was a gadfly immigration activist on the pro-control side who put up a billboard in Manhattan, a very innocuous billboard with pictures of two little children saying, “Immigration will double America’s population in our lifetime; is that a good idea?” And then a website address. This was a critique of mass immigration as such, but a very innocuous one. There was nothing racialist or anything about it. The New York City government, the building inspectors or whoever it was, came to the owner of the billboard and said, we are coming down on you like the wrath of God, unless you take that down. It was explicit political censorship. The guy went to the New York branch of the ACLU, and he said, “Fellas, this is obvious naked political censorship, will you take the case up for me?” And the guy he talked to essentially agreed with him that it was political censorship, but they had a lot of immigrant rights people in their organization, and so they couldn’t take this on. This is the organization that years ago famously defended neo-Nazis marching through Skokie, Illinois, a Chicago suburb which was heavily Jewish, waving their obscenities in the faces of Holocaust survivors. They defended them on the principle of freedom of speech because they weren’t actually doing any violence.
PolicySphere: Right.
Mark Krikorian: Now, as appalling as that was, in some sense, I could respect the principle. But no more. The American Civil Liberties Union was sacrificing the concept of civil liberties because it conflicted with open borders. And this is just one example. The black organizations, the labor unions, all of them–open borders is now a litmus test issue for the left.
And I mean, they’ll say, “No, no, we’re not for open borders. We’re for having a border patrol.” Yes, they’re happy to have somebody manning the border–as long as everybody who shows up is allowed in.
PolicySphere: Right.
Mark Krikorian: So how do you fight that? I don’t know, they have to lose electorally repeatedly in order for that kind of thing to change.
PolicySphere: We sometimes have this conversation with honest leftists. We will say: “You say you’re not for open borders, we believe you. Therefore, that means that in any scenario, we’re going to take some very nice people, who have done nothing wrong, who just want a better life, and tell them, politely but firmly: ‘I’m sorry, but you have to go back now.’ And if you agree with us that this needs to happen, then you and us are in the same camp and we’re just haggling over price.”
Mark Krikorian: Right? Exactly. There has been a broad change on the left, away from being an economic left to being a cultural left. You see it especially in labor unions. Our labor unions were always different from European labor unions, because they were always fiercely patriotic, even frankly jingoistic in some instances. I mean, it was the labor movement that stopped big business from selling things to the Soviet Union. Lenin was right about the capitalists selling the rope that they’ll be hanged with! What’s happened is that labor unions now have become culturally leftist and anti-American in a way that was unheard-of before. And I think part of the reason is the decline in American union membership has convinced a lot of unions, especially at the high-up level, the national level, as opposed to individual locals, that if Americans have given up on unions, then unions are just going to give up on Americans and import somebody else to fill the ranks.
PolicySphere: This gets us into a broader conversation about populism, and why institutions sell out the people who they represent, even when it’s not even in their interest.
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Mark Krikorian: Immigration is the place where that broader phenomenon becomes most obvious, because it affects so many different things. Yes, it affects national identity and sovereignty, but it also affects the economy and security. It affects the viability of social safety nets. All of those things put together make immigration the place where this broader post-national, post-sovereignty perspective becomes most salient for a large number of people.
PolicySphere: This leads us into another institutional question. What is most striking about the American immigration system, and every American of whatever political persuasion will admit this freely, at least off-camera, because everybody knows it’s true, is that there’s one set of laws on the books which you can look up on the internet and in the US code–and then there’s a different system, which is completely unwritten. But everybody knows about it. Everybody knows that it exists, and that’s the system that gets enforced in reality. And so, this raises the question, do we need to completely revamp the federal government or the administrative state to get any change on immigration? Because we can pass all the laws we want and all the executive orders we want, that won’t change anything if people just decline to enforce it. What’s your view on that?
Mark Krikorian: First of all, in any body of law, there’s always going to be some space between what’s on the paper and what ends up happening. The thing is that on immigration, it’s a bigger space than usual. And what really has poisoned the debate in this country is specifically the results of the 1986 immigration amnesty. In 1986, President Reagan signed a bill that legalized almost 3 million illegal immigrants. But the bargain was that going forward, employing illegal immigrants would be legally prohibited because until 1986, it was explicitly permitted in the law to employ illegal immigrants. The immigrant was still illegal, but employing an illegal immigrant did not constitute harboring, did not constitute a crime. So that changed. The problem is the illegal immigrants got their amnesty up front. The enforcement simply never happened. It was occasionally a little bit here and there, but it was never consistently sustained.
And so there’s a couple of responses to your question.
The pessimistic one is–we have a huge share of our population that simply no longer believes in American sovereignty. It is post-American. So, that’s a challenge that immigration hawks have to somehow grapple with. It’s not just a handful of kooks in universities like it was before. It’s now a significant, I don’t know that I could give you a number, but it’s a significant share of the population and an even bigger share of the leadership class. This is a phenomenon in all modern societies.
The somewhat optimistic response is that there are potentially systems we can set up that, while not completely foolproof, will at least maybe somewhat shrink the difference between the written law and the application of the law. For instance, there’s something called E-Verify. When you hire somebody, you verify whether they’re authorized to work. That has two flaws. One is that it’s still voluntary. But even if it were mandated it’s the kind of thing where a government that didn’t really care could, you know, overlook violations. But if you integrate it into the tax and social security system, in other words, if the government itself verifies whether this new hire is legitimate. So the IRS, the Social Security Administration and immigration, verify it on their own, then you actually leave very little space in the formal economy to hire illegal aliens. Now, they’ll still be in the informal economy. That happens. But my point is, that would be a way to squeeze illegal immigration out and make it more difficult.
Another thing, and this is just a second thing that can help reduce that gap, is an entry/exit tracking system for foreign visitors. Because a big share of illegal immigrants come in legally on visas and then just never leave. We are better at checking people in when they arrive. Because since 9/11, we actually implemented real reforms that actually do a better job of checking who you are when you come here, but we don’t do a very good job of checking people out. So if you don’t even know whether a visitor has left…
PolicySphere: Yeah.
Mark Krikorian: …how do you know who the illegal immigrants are? So entry/exit tracking is something again. My point here is that we can’t just wait for social revolution, right? There are things we can do, even given the social and cultural challenges that modern nations face.
PolicySphere: Final big question. We have spent most of our time talking about asylum and illegal immigration. But another big bucket is so-called high-skilled immigration, or HSI. in particular, we think a lot of people, especially moderates on both sides, are of the view that just throwing open the border and letting anybody in is obviously insane, and may be sympathetic to the idea that admitting large numbers of low skilled immigrants might have negative effects on the labor market and social cohesion and so forth, but they still believe that America should attract, the biggest number possible of, let’s say, science or engineering graduates from all over the world. Few people are willing to make the case even against HSI, but you are, which is interesting. So what would you say to this person?
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Mark Krikorian: This is one of those areas where, as you put it before, we’re “haggling over price.”
PolicySphere: Yes, to you the ideal number of high-skilled immigrants is not zero, but you believe it should be much, much lower.
Mark Krikorian: Yes. Even the most enthusiastic immigration hawk is still in favor of letting Einstein move to the United States, right? So the question is, where do you set the bar? What do we mean by “high-skilled”? Well, the lower you set that bar, the more you distort your own nation’s system of training your own young people, and the more you distort your own industries. If we were taking 10,000 people a year, who are PhDs in hard sciences, it’s hard to argue that that would be a bad thing. But we are admitting people on a much larger scale. And we’re admitting people who, frankly, are kind of ordinary-skilled people rather than extraordinarily-skilled. What you’re doing there is atrophying your own recruitment and training systems for your own people. And you create a kind of dependency and vulnerability because you now aren’t training your own chemical engineers and your own electrical engineers and what have you. Which in turn means that you’re misallocating your own talent. You have young people who have abilities that can result in socially useful work becoming lawyers instead.
And it creates a vulnerability. We saw this with Covid. If you in-source the workforce for strategic industries–and frankly, a lot of industries are strategic–then you’re screwed when there’s a problem. And what loyalty do those people have to your own country, if they’re working in industries that have specifically military and strategic implications? None. So, it seems to me that the bar needs to be set pretty high. I’m happy to take in the top people on the planet. I’ll drive over and deliver the visa personally. However, all practical proposals along those lines have in every instance tried to cast the net far too wide. For example, they include people with master’s degrees. Or they define STEM to include all kinds of things which are not STEM in any meaningful sense. This would result in talented American young people pursuing different career paths. It’s already resulting in foreignizing certain occupations.
PolicySphere: Like what? Can you give a concrete example?
Mark Krikorian: I mean, the IT industry. There are lots of young people who are just deciding not to go into it because it has become colonized. It has become Indianized in some sense. And of course, there’s nothing wrong with Indians, but that’s not the same as a handful of people like Niels Bohr coming here and helping on the Manhattan Project. If there’s a Niels Bohr from India, one guy? Okay, bring him, and you can bring his brother, and his kids, too. But that’s not what we’re talking about. We’re talking about hundreds of thousands of, to be honest, B+ students from Hyderabad Community College. And that’s not in our interest in the long run. That’s strategically foolish.
PolicySphere: Time for our traditional gimmicky last two questions.
Mark Krikorian: My favorite food or something?
PolicySphere: Almost. What’s the most important issue that nobody’s talking about?
Mark Krikorian: Hmm, let me think. Everybody’s talking about pretty much everything at this point. I’d say in the immigration space there isn’t nearly enough critique of our foreign student program. The very idea of foreign students is kind of taken as apple pie and motherhood, and yet it’s a disaster. It’s creating incentives for universities to become even more post-American than they would otherwise. And it’s the feedstock, if you will, for this changing of many of our industries, our tech industries in particular. So that’s the one thing that I think there hasn’t been nearly enough criticism of. Why are we even taking this many foreign students? Because there’s no statutory limit on foreign students, and no limit on what percentage of foreign students a university can have. So a university could have 100% foreign students, and have them be subsidized by the taxpayer because they’re all tax-exempt institutions. So, I would say off the top of my head, that’s a place in the immigration space where there needs to be a lot more attention than it’s getting now.
PolicySphere: And finally: who’s the smartest person we should interview next?
Mark Krikorian: Do you know Jeremy Carl? He has an excellent new book coming out, you should interview him.
Editor’s note: this interview was conducted before our interview with Jeremy Carl, which you should read here.
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