Top Immigration Attorney Discusses Border and Texas SB4, Calls for More Asylum Officers and Judges

Charles Foster, Chairman of leading U.S. immigration law firm Foster U.S. & Global Immigration Services LLP and former immigration advisor for President George W. Bush, discussed immigration policy at the southern border during a recent interview on CSPAN’s Washington Journal. The detailed interview examined several topics related to the border including factors that push and pull migrants to the U.S., the recently passed border bill Texas Senate Bill 4 (TX SB4), and the need for bipartisan asylum reform to disincentivize migrants from crossing the southern border.

The timely conversation occurred as lawmakers in DC and the Biden administration negotiate appropriations for border resources and asylum reform as part of a supplemental budget bill to fund aid for Ukraine. The Biden Administration has requested an additional $14 billion of funding for border patrol agents, asylum officers, and immigration judges at the border to process migrants in a more efficient manner. House Republicans are pushing for restrictions on applying for asylum, which Democrats appear unwilling to accept. Foster explained that the bipartisan middle ground that may have the best chance of legislative success could be to speed up asylum processing.

Foster pointed out a key problem is that immigration courts that process migrants for entry and exit are so understaffed that immigration case backlogs have resulted in five to six year delays from when migrants claim asylum to when their cases are adjudicated. During this lengthy backlogged interim period, asylum seekers, most of whom end up not getting approved for asylum, are able to obtain work authorizations. This interim work authorization period is an incentive for migrants to show up at the border, explained Foster.

The solution? Greatly increase the number of asylum officers at the border so that asylum seekers have their cases adjudicated in a month instead of five to six years. That way those who don’t qualify are sent home immediately instead of being released into the U.S.

“The Biden Administration is enforcing the law. They are detaining large numbers of individuals and those are the very figures that are being cited. That is enforcement of the law. What [Republicans] are really objecting to is the asylum law. Everyone sees that people are being released into the country. Those people, once they touch U.S. soil and make a credible fear claim, which is a fairly low bar saying that they fear persecution if they return to their home country, they’re entitled to a hearing and they’re given a notice to appear at court before an immigration judge. They cannot all be held, we do not have the fiscal capability nor would we want to… The problem that we’re dealing with is not that the law isn’t being enforced, it’s that it is being enforced and that those individuals are entitled to an asylum claim and right now it takes five to six years to get a court date,” Foster pointed out.

“We need to do something about it, we do need to reform our asylum laws, we need to have far more asylum officers, immigration trial attorneys, and immigration judges. I have a proposal that would actually change the current system, but at the very least under our current system we have to able to adjudicate those cases faster because the mere fact that someone is being admitted and can wait in the country five or six years and in the interim get employment authorization is also incentivizing more people to come, unfortunately,” said Foster on asylum reform.

“I’ve advocated for some time now to reform our asylum laws so we would give exclusive jurisdiction to asylum officers to adjudicate these cases rather than having most of these cases go to an adversarial proceeding before an immigration judge, which is inherently unfair in my opinion because the vast majority are unrepresented. An asylum officer would be tasked with bringing out all relevant factors. But the key to my proposal is that you would have a huge increase, a 1000% increase in the numbers of asylum officers, and all of these hearings would take place relatively soon. It would be a fairer hearing, more people would be granted asylum, but no one would be released for five to six years into our country because under our current system the vast majority of those cases are being denied…because the vast majority of people do not technically qualify for asylum. For asylum you have to show that you’re being singled out for persecution, not because you’re fleeing poverty or violence of a generic nature,” he added.

“There are a lot of people working that would like to pay into the system but they do not have a valid social security number and they’re working off the books as so-called contract labor. So if we had immigration reform it would really help the economy and help our social security system,” added Foster.  

In regards to the current border crisis, Foster explained that the southern border is much more secure today than in the past, but that external factors outside the U.S. and internal factors including workforce shortages have pushed and pulled migrants towards the U.S. in unprecedented numbers that are overwhelming immigration courts and border officials.

“That border, when I grew up as a kid and could wade across the river and go hunting with a shotgun, was truly wide open. To say that the border is wide open today as does our governor and others is really a misstatement. But clearly the border is chaotic and there are a lot of reasons for that,” said Foster.

“Part of this is a worldwide phenomenon. People are moving in large numbers out of the Middle East and North Africa getting into various European countries. We clearly have large movements of people in the Western Hemisphere as well. Sometimes we just focus on our border as a security point of view but it’s also a humanitarian crisis. For example, because of conditions in Venezuela, 5.5 million Venezuelans have left the country in search of a better life. The estimate is about a half million Venezuelans have been able to enter the United States, so that’s just a very small percentage of what’s going on. So part of this is a worldwide phenomenon. These are push factors, conditions in those countries, economic conditions, poverty, violence, crime, that push people out of a country,” said Foster about factors pushing migrants to the U.S.

“There are also pull factors, the big pull factor in the United States is the U.S. economy…in 2008 during the great recession when we had high unemployment in the U.S., the number of people seeking to enter the U.S. fell off. Same thing at the end of Donald Trump’s Administration, due to COVID and a high unemployment rate the numbers fell off,” said Foster about migrants coming to the U.S. to fill the large number of open jobs that outnumber unemployed Americans by millions.

Foster also blamed both Republican and Democratic politicians for actions and lack of action that have contributed to the current border chaos.

“Unprecedented numbers are coming because of the push factors, but also indirectly we are incentivizing them. I criticize both parties. On the Republican side, I think it’s very disingenuous for Governor Abbott, DeSantis, and Speaker Johnson to say the border is wide open and we’re providing free air-conditioned transportation to great destinations in the north. Believe it or not, that is a huge incentive for people to come. The various cartels along that path use those video clips to say ‘look here’s Donald Trump telling you the border is wide open and here’s Governor Abbott or DeSantis promising you great transportation if you can only get to the border,” said Foster about border rhetoric from Republicans and their complimentary bussing of migrants throughout the U.S.

“On the Democratic side, I think the Administration and President Biden really have not grasped this issue and handled it in a way that I think should have happened. But to his defense, the real answers on what to do would require legislation,” said Foster on the need for Biden to work with Congress on solutions.  

Foster also discussed Texas Senate Bill 4, recently passed state legislation that makes crossing the border illegally a state crime and gives Texas law enforcement the authority to deport unauthorized immigrants. Foster chalked it up to a political stunt and speculated that in addition to likely being found unconstitutional based on judicial precedent that gives the federal government preemption over state governments on immigration, the legislation is also unlikely to be implemented and enforced due to logistical challenges.

“It’s really a political statement, I think from a political point of view, Governor Abbott and those who support it are on the winning side. I think the average person listening to [details of the bill] would say ‘what’s wrong with that?’” said Foster.

“It’s very likely never to go into effect. Immigration is a federal issue. We cannot have 50 states having their own immigration laws. Under the supremacy clause of the constitution, when we have federal laws on this topic, states are preempted. The Supreme Court when dealing with a similar issue in Arizona vs. the United States not that long ago found that federal law did preempt state law. People often point out that we have a different makeup of the Supreme Court today but I’m somewhat optimistic that the Supreme Court will find that most of SB4 is preempted just like they found most of Arizona’s SB 1070 preempted,” said Foster on the constitutionality of SB4.

“I’m a big critic on the substance of the law as well. In short, it’s not even remotely workable. There are so many things wrong with it it’s hard to start. First of all it gives to local law enforcement the authority to arrest someone if they’re here illegally. Texas probably has two million residents that are undocumented that have been here for decades, they have kids in school, some of them are grandparents. There’s no time limitation, the law doesn’t say that they can only arrest people that are in the process of entering, but anyone who is in undocumented status. Second, how can any local law enforcement agent begin to determine these issues, and on what basis are they going to make these inquiries. No matter how good faith a law enforcement officer is, it’s almost certain that these inquiries are going to be made into people who appear “foreign,” so if you’re of Hispanic or Asian origin you’re almost certainly more likely to be asked whether you’re legally in the United States or not,” he added.

“This is something the State of Texas really cannot handle. Our courts are already overcrowded, the dockets are terribly backlogged. Do we really want hundreds of thousands of misdemeanor or possible felony cases. And besides, every one of those individuals would be entitled to legal representation, and because most will not have the ability to pay for their own lawyer, that means the State of Texas would have to be funding a massive legal aid program to represent these individuals. Even if the Supreme Court did not find the law to be unconstitutional, I don’t think it would really be put into effect. I don’t think even the proponents of the law intended that. Do they really want to remove everyone in undocumented status from Texas? It would destroy the economy, we wouldn’t have a restaurant or hotel open or house built in Texas if that were the case,” he added.

During the interview, Foster also fielded questions from several Republican callers.

In response to a question from a caller about if President Biden and Democrats encourage migrants to cross the border to become eventual Democratic voters, Foster said that Biden wants to fix the border crisis because it damages him politically, and also pointed out that Hispanics have been voting for Republicans in increasing numbers.

“Anyone that is in the country illegally can’t vote, and their children at least 18 years from now could vote. Hispanics actually vote in very small percentages, and actually the Republican party has been very encouraged that in South Texas more Hispanics are voting for Donald Trump than any Republican in the past, and there is a Republican candidate who was formerly elected to Congress whose parents came here illegally and she is a Trump supporter, so I don’t think the caller should assume that 18 years from now they will vote one way or the other,” said Foster.

In a response to a caller who asked about why unauthorized immigrants who have been in the country for decades don’t apply for citizenship, Foster explained that there are almost no legal pathways for many migrants to enter the US, and once they do so illegally, their odds of ever getting legal status are slim to none unless Congress passes immigration reform.

“We have an extremely restrictive legal system, yet Congress fails to even consider immigration reform… All of the people he’s talking about that have been here for decades, why don’t they qualify, because for 99% there are no legal means. If they go back and get in line they have no way to come back. Even if they had legal means, if they go back to apply for a visa they have to wait in their home country for 10 years, but the vast majority have no way. The brightest graduates from our universities with a PHD from Harvard or Yale or Rice University here in Houston, because of the quota limitations under the H1 programs and otherwise, they may at best have a 25% chance to stay in the United States. For the vast majority, anyone that is here as unskilled labor that entered illegally, they have almost zero chances of ever qualifying legally without Congress passing some form of comprehensive immigration reform,” said Foster.

On a question about reimplementing a remain in Mexico policy that would require migrants to wait in Mexico while having their cases processed, Foster pointed out that Mexico is already dealing with large numbers of migrants and that the most humane solution would be to speed up asylum processing.

“People do not give enough credit to Mexico. All of these people coming up from South and Central America, they’re putting a huge pressure on Mexico and Mexico is a much poorer country and they’re absorbing more than the U.S. does. Sometimes we act like we’re not very mature, for example, Mexico accepted two or three times more Venezuelans than we did but we’re this big powerful county and we act like we’re the weakest sister of the group and we complain more and do not see this problem in a sense that it’s a huge humanitarian problem. We’re talking about people, many of whom are truly fleeing for their lives, and we have to balance that but clearly we have to secure our border and we have to do a better job of processing these cases on a timely basis, because our current system does incentivize people to come,” said Foster.   

In response to a caller about implementing mandatory E-Verify to require that employers verify the immigration status of their workers, Foster said that such a policy would help to deter illegal immigration but that it would have to be coupled with a conditional method for long-time unauthorized immigrants to earn legal status in order to prevent significant economic repercussions.

“E-Verify is essentially a system to determine whether or not a social security number matches with the individual, or whether it’s a fake number that belongs to another person, and it’s very effective. There’s nothing wrong with that, but there are implications. For example, if you had all employers using E-Verify on a retroactive basis, the given figure of long-term undocumented immigrants in our system is 11 million and it’s increased over the last few years by at least several million. Let’s just say that 11 million used E-Verify and that’s all you did. They could all be kicked out of their jobs and at a time when we have record low unemployment and millions of job openings that cannot be filled. That would devastate the economy. So to do what you proposed, it would have to be part of some bigger program, some general legalization program under certain conditions for those individuals,” he said.