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Friday, March 22, 2024

Ethnic conflict

From Wikipedia, the free encyclopedia
"Чеченская молитва" (Chechen's prayer) by Mikhail Evstafiev depicts a Chechen man praying during the battle of Grozny in 1995.
A refugee camp for displaced Rwandans in Zaire following the Rwandan genocide of 1994

An ethnic conflict is a conflict between two or more ethnic groups. While the source of the conflict may be political, social, economic or religious, the individuals in conflict must expressly fight for their ethnic group's position within society. This criterion differentiates ethnic conflict from other forms of struggle.

Academic explanations of ethnic conflict generally fall into one of three schools of thought: primordialist, instrumentalist or constructivist. Recently, some have argued for either top-down or bottom-up explanations for ethnic conflict. Intellectual debate has also focused on whether ethnic conflict has become more prevalent since the end of the Cold War, and on devising ways of managing conflicts, through instruments such as consociationalism and federalisation.

Theories of causes

It is argued that rebel movements are more likely to organize around ethnicity because ethnic groups are more apt to be aggrieved, better able to mobilize, and more likely to face difficult bargaining challenges compared to other groups. The causes of ethnic conflict are debated by political scientists and sociologists. Official academic explanations generally fall into one of three schools of thought: primordialist, instrumentalist, and constructivist. More recent scholarship draws on all three schools.

Primordialist accounts

Proponents of primordialist accounts argue that "[e]thnic groups and nationalities exist because there are traditions of belief and action towards primordial objects such as biological features and especially territorial location". Primordialist accounts rely on strong ties of kinship among members of ethnic groups. Donald L. Horowitz argues that this kinship "makes it possible for ethnic groups to think in terms of family resemblances".

Clifford Geertz, a founding scholar of primordialism, asserts that each person has a natural connection to perceived kinsmen. In time and through repeated conflict, essential ties to one's ethnicity will coalesce and will interfere with ties to civil society. Ethnic groups will consequently always threaten the survival of civil governments but not the existence of nations formed by one ethnic group. Thus, when considered through a primordial lens, ethnic conflict in multi-ethnic society is inevitable.

A number of political scientists argue that the root causes of ethnic conflict do not involve ethnicity per se but rather institutional, political, and economic factors. These scholars argue that the concept of ethnic war is misleading because it leads to an essentialist conclusion that certain groups are doomed to fight each other when in fact the wars between them that occur are often the result of political decisions.

Moreover, primordial accounts do not account for the spatial and temporal variations in ethnic violence. If these "ancient hatreds" are always simmering under the surface and are at the forefront of people's consciousness, then ethnic groups should constantly be ensnared in violence. However, ethnic violence occurs in sporadic outbursts. For example, Varshney points out that although Yugoslavia broke up due to ethnic violence in the 1990s, it had enjoyed a long peace of decades before the USSR collapsed. Therefore, some scholars claim that it is unlikely that primordial ethnic differences alone caused the outbreak of violence in the 1990s.

Primordialists have reformulated the "ancient hatreds" hypothesis and have focused more on the role of human nature. Petersen argues that the existence of hatred and animosity does not have to be rooted in history for it to play a role in shaping human behavior and action: "If 'ancient hatred' means a hatred consuming the daily thoughts of great masses of people, then the 'ancient hatreds' argument deserves to be readily dismissed. However, if hatred is conceived as a historically formed 'schema' that guides action in some situations, then the conception should be taken more seriously."

Instrumentalist accounts

Anthony Smith notes that the instrumentalist account "came to prominence in the 1960s and 1970s in the United States, in the debate about (white) ethnic persistence in what was supposed to have been an effective melting pot". This new theory sought explained persistence as the result of the actions of community leaders, "who used their cultural groups as sites of mass mobilization and as constituencies in their competition for power and resources, because they found them more effective than social classes". In this account of ethnic identification, ethnicity and race are viewed as instrumental means to achieve particular ends.

Whether ethnicity is a fixed perception or not is not crucial in the instrumentalist accounts. Moreover, the scholars of this school generally do not oppose the view that ethnic difference plays a part in many conflicts. They simply claim that ethnic difference is not sufficient to explain conflicts.

Mass mobilization of ethnic groups can only be successful if there are latent ethnic differences to be exploited, otherwise politicians would not even attempt to make political appeals based on ethnicity and would focus instead on economic or ideological appeals. For these reasons, it is difficult to completely discount the role of inherent ethnic differences. Additionally, ethnic entrepreneurs, or elites, could be tempted to mobilize ethnic groups in order to gain their political support in democratizing states. Instrumentalists theorists especially emphasize this interpretation in ethnic states in which one ethnic group is promoted at the expense of other ethnicities.

Furthermore, ethnic mass mobilization is likely to be plagued by collective action problems, especially if ethnic protests are likely to lead to violence. Instrumentalist scholars have tried to respond to these shortcomings. For example, Russell Hardin argues that ethnic mobilization faces problems of coordination and not collective action. He points out that a charismatic leader acts as a focal point around which members of an ethnic group coalesce. The existence of such an actor helps to clarify beliefs about the behavior of others within an ethnic group.

Constructivist accounts

A third, constructivist, set of accounts stress the importance of the socially constructed nature of ethnic groups, drawing on Benedict Anderson's concept of the imagined community. Proponents of this account point to Rwanda as an example because the Tutsi/Hutu distinction was codified by the Belgian colonial power in the 1930s on the basis of cattle ownership, physical measurements and church records. Identity cards were issued on this basis, and these documents played a key role in the genocide of 1994.

Some argue that constructivist narratives of historical master cleavages are unable to account for local and regional variations in ethnic violence. For example, Varshney highlights that in the 1960s "racial violence in the USA was heavily concentrated in northern cities; southern cities though intensely politically engaged, did not have riots". A constructivist master narrative is often a country level variable whereas studies of incidences of ethnic violence are often done at the regional and local level.

Scholars of ethnic conflict and civil wars have introduced theories that draw insights from all three traditional schools of thought. In The Geography of Ethnic Violence, Monica Duffy Toft shows how ethnic group settlement patterns, socially constructed identities, charismatic leaders, issue indivisibility, and state concern with precedent setting can lead rational actors to escalate a dispute to violence, even when doing so is likely to leave contending groups much worse off. Such research addresses empirical puzzles that are difficult to explain using primordialist, instrumentalist, or constructivist approaches alone. As Varshney notes, "pure essentialists and pure instrumentalists do not exist anymore".

Study in the post-Cold War world

Map highlighting the current zones of conflict in Myanmar

The end of the Cold War thus sparked interest in two important questions about ethnic conflict: whether ethnic conflict was on the rise and whether given that some ethnic conflicts had escalated into serious violence, what, if anything, could scholars of large-scale violence (security studies, strategic studies, interstate politics) offer by way of explanation.

One of the most debated issues relating to ethnic conflict is whether it has become more or less prevalent in the post–Cold War period. Even though a decline in the rate of new ethnic conflicts was evident in the late 1990s, ethnic conflict remains the most common form of armed intrastate conflict today. At the end of the Cold War, academics including Samuel P. Huntington and Robert D. Kaplan predicted a proliferation of conflicts fueled by civilisational clashes, Tribalism, resource scarcity and overpopulation.

The violent ethnic conflicts in Nigeria, Mali, Sudan and other countries in the Sahel region have been exacerbated by droughts, food shortages, land degradation, and population growth.

However, some theorists contend that this does not represent a rise in the incidence of ethnic conflict, because many of the proxy wars fought during the Cold War as ethnic conflicts were actually hot spots of the Cold War. Research shows that the fall of Communism and the increase in the number of capitalist states were accompanied by a decline in total warfare, interstate wars, ethnic wars, revolutionary wars, and the number of refugees and displaced persons. Indeed, some scholars have questioned whether the concept of ethnic conflict is useful at all. Others have attempted to test the "clash of civilisations" thesis, finding it to be difficult to operationalise and that civilisational conflicts have not risen in intensity in relation to other ethnic conflicts since the end of the Cold War.

A key question facing scholars who attempt to adapt their theories of interstate violence to explain or predict large-scale ethnic violence is whether ethnic groups could be considered "rational" actors. Prior to the end of the Cold War, the consensus among students of large-scale violence was that ethnic groups should be considered irrational actors, or semi-rational at best. If true, general explanations of ethnic violence would be impossible. In the years since, however, scholarly consensus has shifted to consider that ethnic groups may in fact be counted as rational actors, and the puzzle of their apparently irrational actions (for example, fighting over territory of little or no intrinsic worth) must therefore be explained in some other way. As a result, the possibility of a general explanation of ethnic violence has grown, and collaboration between comparativist and international-relations sub-fields has resulted in increasingly useful theories of ethnic conflict.

Public goods provision

A major source of ethnic conflict in multi-ethnic democracies is over the access to state patronage. Conflicts over state resources between ethnic groups can increase the likelihood of ethnic violence. In ethnically divided societies, demand for public goods decreases as each ethnic group derives more utility from benefits targeted at their ethnic group in particular. These benefits would be less valued if all other ethnic groups had access to them. Targeted benefits are more appealing because ethnic groups can solidify or heighten their social and economic status relative to other ethnic groups whereas broad programmatic policies will not improve their relative worth. Politicians and political parties in turn, have an incentive to favor co-ethnics in their distribution of material benefits. Over the long run, ethnic conflict over access to state benefits is likely to lead to the ethnification of political parties and the party system as a whole where the political salience of ethnic identity increase leading to a self-fulfilling equilibrium: If politicians only distribute benefits on an ethnic basis, voters will see themselves primarily belonging to an ethnic group and view politicians the same way. They will only vote for the politician belonging to the same ethnic group. In turn, politicians will refrain from providing public goods because it will not serve them well electorally to provide services to people not belonging to their ethnic group. In democratizing societies, this could lead to ethnic outbidding and lead to extreme politicians pushing out moderate co-ethnics. Patronage politics and ethnic politics eventually reinforce each other, leading to what Chandra terms a "patronage democracy".

The existence of patronage networks between local politicians and ethnic groups make it easier for politicians to mobilize ethnic groups and instigate ethnic violence for electoral gain since the neighborhood or city is already polarized along ethnic lines. The dependence of ethnic groups on their co-ethnic local politician for access to state resources is likely to make them more responsive to calls of violence against other ethnic groups. Therefore, the existence of these local patronage channels generates incentives for ethnic groups to engage in politically motivated violence.

While the link between ethnic heterogeneity and under provision of public goods is generally accepted, there is little consensus around the causal mechanism underlying this relationship. To identify possible causal stories, Humphreys and Habyarimana ran a series of behavioral games in Kampala, Uganda, that involved several local participants completing joint tasks and allocating money amongst them. Contrary to the conventional wisdom, they find that participants did not favor the welfare of their co-ethnics disproportionately. It was only when anonymity was removed and everyone's ethnicity was known did co-ethnics decide to favor each other. Humphreys and Habyarimana argue that cooperation among co-ethnics is primarily driven by reciprocity norms that tend to be stronger among co-ethnics. The possibility of social sanctions compelled those who would not otherwise cooperate with their co-ethnics to do so. The authors find no evidence to suggest that co-ethnics display a greater degree of altruism towards each other or have the same preferences. Ethnic cooperation takes place because co-ethnics have common social networks and therefore can monitor each other and can threaten to socially sanction any transgressors.

Ethnic conflict amplification

Online social media

In the early twenty-first century, the online social networking service Facebook has played a role in amplifying ethnic violence in the Rohingya genocide that started in October 2016 and in ethnic violence in Ethiopia during 2019–2020.

The United Nations Human Rights Council described Facebook as having been "a useful instrument for those seeking to spread hate" and complained that Facebook was unable to provide data on the extent of its role in the genocide.

During 2019–2020, posts on Facebook dominated the Internet in Ethiopia and played a major role in encouraging ethnic violence. An October 2019 Facebook post led to the deaths of 70 people in Ethiopia. In mid-2020, ethnic tensions in Ethiopia were amplified by online hate speech on Facebook that followed the 29 June assassination of Hachalu Hundessa. The Hachalu Hundessa riots, in which mobs "lynched, beheaded, and dismembered their victims", took place with "almost-instant and widespread sharing of hate speech and incitement to violence on Facebook, which whipped up people's anger", according to David Gilbert writing in Vice. People "call[ed] for genocide and attacks against specific religious or ethnic groups" and "openly post[ed] photographs of burned-out cars, buildings, schools and houses", according to Network Against Hate Speech, an Ethiopian citizens' group. Berhan Taye of Access Now stated that in Ethiopia, offline violence quickly leads to online "calls for ethnic attacks, discrimination, and destruction of property [that] goes viral". He stated, "Facebook's inaction helps propagate hate and polarization in a country and has a devastating impact on the narrative and extent of the violence."

Ethnic conflict resolution

Institutional ethnic conflict resolution

A number of scholars have attempted to synthesize the methods available for the resolution, management or transformation of their ethnic conflict. John Coakley, for example, has developed a typology of the methods of conflict resolution that have been employed by states, which he lists as: indigenization, accommodation, assimilation, acculturation, population transfer, boundary alteration, genocide and ethnic suicide. John McGarry and Brendan O'Leary have developed a taxonomy of eight macro-political ethnic conflict regulation methods, which they note are often employed by states in combination with each other. They include a number of methods that they note are clearly morally unacceptable.

With increasing interest in the field of ethnic conflict, many policy analysts and political scientists theorized potential resolutions and tracked the results of institutional policy implementation. As such, theories often focus on which Institutions are the most appropriate for addressing ethnic conflict.

Consociationalism

Consociationalism is a power sharing agreement which coopts the leaders of ethnic groups into the central state's government. Each nation or ethnic group is represented in the government through a supposed spokesman for the group. In the power sharing agreement, each group has veto powers to varying degrees, dependent on the particular state. Moreover, the norm of proportional representation is dominant: each group is represented in the government in a percentage that reflects the ethnicity's demographic presence in the state. Another requirement for Arend Lijphart is that the government must be composed of a "grand coalition" of the ethnic group leaders which supposes a top-down approach to conflict resolution.

In theory, this leads to self governance and protection for the ethnic group. Many scholars maintain that since ethnic tension erupts into ethnic violence when the ethnic group is threatened by a state, then veto powers should allow the ethnic group to avoid legislative threats. Switzerland is often characterized as a successful consociationalist state.

A recent example of a consociational government is the post-conflict Bosnian government that was agreed upon in the Dayton Accords in 1995. A tripartite presidency was chosen and must have a Croat, a Serb, and a Bosniak. The presidents take turns acting as the forefront executive in terms of 8 months for 4 years. Many have credited this compromise of a consociational government in Bosnia for the end of the violence and the following long-lasting peace.

In contrast to Lijphart, several political scientists and policy analysts have condemned consociationalism. One of the many critiques is that consociationalism locks in ethnic tensions and identities. This assumes a primordial stance that ethnic identities are permanent and not subject to change. Furthermore, this does not allow for any "others" that might want to partake in the political process. As of 2012 a Jewish Bosnian is suing the Bosnian government from precluding him from running for presidential office since only a Croat, Serb, or Bosniak can run under the consociational government. Determining ethnic identities in advance and implementing a power sharing system on the basis of these fixed identities is inherently discriminatory against minority groups that might be not be recognized. Moreover, it discriminates against those who do not choose to define their identity on an ethnic or communal basis. In power sharing-systems that are based on pre-determined identities, there is a tendency to rigidly fix shares of representation on a permanent basis which will not reflect changing demographics over time. The categorization of individuals in particular ethnic groups might be controversial anyway and might in fact fuel ethnic tensions.

The inherent weaknesses in using pre-determined ethnic identities to form power sharing systems has led Ljiphart to argue that adopting a constructivist approach to consociationalism can increase its likelihood of success. The self-determination of ethnic identities is more likely to be "non-discriminatory, neutral, flexible and self-adjusting". For example, in South Africa, the toxic legacy of apartheid meant that successful consociation could only be built on the basis of the self-determination of groups. Ljiphart claims that because ethnic identities are often "unclear, fluid and flexible," self-determination is likely to be more successful than pre-determination of ethnic groups. A constructivist approach to consociational theory can therefore strengthen its value as a method to resolve ethnic conflict.

Another critique points to the privileging of ethnic identity over personal political choice. Howard has deemed consociationalism as a form of ethnocracy and not a path to true pluralistic democracy. Consociationalism assumes that a politician will best represent the will of his co-ethnics above other political parties. This might lead to the polarization of ethnic groups and the loss of non-ethnic ideological parties.

Horowitz has argued that a single transferable vote system could prevent the ethnification of political parties because voters cast their ballots in order of preference. This means that a voter could cast some of his votes to parties other than his co-ethnic party. This in turn would compel political parties to broaden their manifestos to appeal to voters across the ethnic divide to hoover up second and third preference votes.

Federalism

The theory of implementing federalism in order to curtail ethnic conflict assumes that self-governance reduces "demands for sovereignty". Hechter argues that some goods such as language of education and bureaucracy must be provided as local goods, instead of statewide, in order to satisfy more people and ethnic groups. Some political scientists such as Stroschein contend that ethnofederalism, or federalism determined along ethnic lines, is "asymmetric" as opposed to the equal devolution of power found in non-ethnic federal states, such as the United States. In this sense, special privileges are granted to specific minority groups as concessions and incentives to end violence or mute conflict.

The Soviet Union divided its structure into ethnic federal states termed Union Republics. Each Union Republic was named after a titular ethnic group who inhabited the area as a way to Sovietize nationalist sentiments during the 1920s. Brubaker asserts that these titular republics were formed in order to absorb any potential elite led nationalist movements against the Soviet center by incentivizing elite loyalty through advancement in the Soviet political structure.

Thus, federalism provides some self-governance for local matters in order to satisfy some of the grievances which might cause ethnic conflict among the masses. Moreover, federalism brings in the elites and ethnic entrepreneurs into the central power structure; this prevents a resurgence of top-down ethnic conflict.

Nevertheless, after the fall of the USSR many critiques of federalism as an institution to resolve ethnic conflict emerged. The devolution of power away from the central state can weaken ties to the central state. Moreover, the parallel institutions created to serve a particular nation or ethnic group might provide significant resources for secession from the central state. As most states are unwilling to give up an integral portion of their territory, secessionist movements may trigger violence.

Furthermore, some competing elite political players may not be in power; they would remain unincorporated into the central system. These competing elites can gain access through federal structures and their resources to solidify their political power in the structure. According to V.P. Gagnon this was the case in the former Yugoslavia and its disintegration into its ethnic federal states. Ethnic entrepreneurs were able to take control of the institutionally allocated resources to wage war on other ethnic groups.

Non-territorial autonomy

A recent theory of ethnic tension resolution is non-territorial autonomy or NTA. NTA has emerged in recent years as an alternative solution to ethnic tensions and grievances in places that are likely to breed conflict. For this reason, NTA has been promoted as a more practical and state building solution than consociationalism. NTA, alternatively known as non-cultural autonomy (NCA), is based on the difference of jus solis and jus sanguinis, the principles of territory versus that of personhood. It gives rights to ethnic groups to self-rule and govern matters potentially concerning but limited to: education, language, culture, internal affairs, religion, and the internally established institutions needed to promote and reproduce these facets. In contrast to federalism, the ethnic groups are not assigned a titular sub-state, but rather the ethnic groups are dispersed throughout the state unit. Their group rights and autonomy are not constrained to a particular territory within the state. This is done in order not to weaken the center state such as in the case of ethnofederalism.

The origin of NTA can be traced back to the Marxists works of Otto Bauer and Karl Renner. NTA was employed during the interwar period, and the League of Nations sought to add protection clauses for national minorities in new states. In the 1920s, Estonia granted some cultural autonomy to the German and Jewish populations in order to ease conflicts between the groups and the newly independent state.

In Europe, most notably in Belgium, NTA laws have been enacted and created parallel institutions and political parties in the same country. In Belgium, NTA has been integrated within the federal consociational system. Some scholars of ethnic conflict resolution claim that the practice of NTA will be employed dependent on the concentration and size of the ethnic group asking for group rights.

Other scholars, such as Clarke, argue that the successful implementation of NTA rests on the acknowledgement in a state of "universal" principles: true rule of law, established human rights, stated guarantees to minorities and their members to use their own quotidien language, religion, and food practices, and a framework of anti-discrimination legislation in order to enforce these rights. Moreover, no individual can be forced to adhere, identify, or emphasize a particular identity (such as race, gender, sexuality, etc.) without their consent in order for NTA to function for its purpose.

Nonetheless, Clarke critiques the weaknesses of NTA in areas such as education, a balance between society wide norms and intracommunity values; policing, for criminal matters and public safety; and political representation, which limits the political choices of an individual if based solely on ethnicity. Furthermore, the challenge in evaluating the efficacy of NTA lies in the relatively few legal implementations of NTA.

Cultural rights

Emphasizing the limits of approaches that focus mainly on institutional answers to ethnic conflicts—which are essentially driven by ethnocultural dynamics of which political and/or economic factors are but elements—Gregory Paul Meyjes urges the use of intercultural communication and cultural-rights based negotiations as tools with which to effectively and sustainably address inter-ethnic strife. Meyjes argues that to fully grasp, preempt, and/or resolve such conflicts—whether with or without the aid of territorial or non-territorial institutional mechanism(s) -- a cultural rights approach grounded in intercultural knowledge and skill is essential.

Ethnic conflict resolution outside formal institutions

Informal inter-ethnic engagement

Institutionalist arguments for resolving ethnic conflict often focus on national-level institutions and do not account for regional and local variation in ethnic violence within a country. Despite similar levels of ethnic diversity in a country, some towns and cities have often found to be especially prone to ethnic violence. For example, Ashutosh Varshney, in his study of ethnic violence in India, argues that strong inter-ethnic engagement in villages often disincentivizes politicians from stoking ethnic violence for electoral gain. Informal interactions include joint participation in festivals, families from different communities eating together or allowing their children to play with one another. Every day engagement between ethnic groups at the village level can help to sustain the peace in the face of national level shocks like an ethnic riot in another part of the country. In times of ethnic tension, these communities can quell rumors, police neighborhoods and come together to resist any attempts by politicians to polarize the community. The stronger the inter-ethnic networks are, the harder it is for politicians to polarize the community even if it may be in their political interest to do so.

Formal inter-ethnic associations

In cities where the population tends to be much higher, informal interactions between ethnic groups might not be sufficient to prevent violence. This is because many more links are needed to connect everyone, and therefore it is much more difficult to form and strengthen inter-ethnic ties. In cities, formal inter-ethnic associations like trade unions, business associations and professional organizations are more effective in encouraging inter-ethnic interactions that could prevent ethnic violence in the future. These organizations force ethnic groups to come together based on shared economic interests that overcomes any pre-existing ethnic differences. For example, inter-ethnic business organizations serve to connect the business interests of different ethnic groups which would increase their desire to maintain ethnic harmony. Any ethnic tension or outbreak of violence will go against their economic interests and therefore, over time, the salience of ethnic identity diminishes.

Interactions between ethnic groups in formal settings can also help countries torn apart by ethnic violence to recover and break down ethnic divisions. Paula Pickering, a political scientist, who studies peace-building efforts in Bosnia, finds that formal workplaces are often the site where inter-ethnic ties are formed. She claims that mixed workplaces lead to repeated inter-ethnic interaction where norms of professionalism compel everyone to cooperate and to treat each other with respect, making it easier for individuals belonging to the minority group to reach out and form relationships with everyone else. Nevertheless, Giuliano's research in Russia has shown that economic grievances, even in a mixed workplace, can be politicized on ethnic lines.

Operation Streamline

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Operation_Streamline
Federal courthouse in Tucson, AZ where Operation Streamline proceedings take place.

Operation Streamline is a joint initiative of the Department of Homeland Security and Department of Justice in the United States, started in 2005, that adopts a "zero-tolerance" approach to unauthorized border-crossing by criminally prosecuting those perpetrating it. Up to 70 people are tried at the same time, sometimes wearing shackles in the courtroom. Entering without inspection is a misdemeanor, and re-entering after deportation is a felony.

After launching Streamline at one sector of the Texas/Mexico border sector in 2005, the number of criminal prosecutions for illegal border crossing and/or re-entry quadrupled from around 4,000 annually in the early 2000s to 16,000 in 2005. The program expanded to several other sectors during the first term of the Obama administration and total prosecutions for first time offenders tripled to 44,000 in 2010 and by 2013, that number doubled to a peak of 97,000.

Goals

Operation Streamline was created with the goal of combating drug trafficking, weapons trafficking, human smuggling, and repeat illegal immigration into the United States. Its ultimate goal is to achieve a 100% criminalization of unauthorized border-crossing.

Program description

Regions of operation

All states on the U.S.-Mexico border except California have implemented the program. In 2010, the program was operational in the following border sectors: Del Rio, Texas, Yuma, Arizona, Laredo, Texas, Tucson, Arizona, El Paso, Texas, Las Cruces, New Mexico, McAllen, Texas, and Brownsville, Texas. By December 2014, only the Tucson, Del Rio, and Laredo sectors continued to participate in Streamline. However, the border sectors that discontinued the Operation Streamline program still continue to prosecute misdemeanor 8 USC § 1325 – improper entry by alien cases.

Criminal prosecution of illegal entry and re-entry

Under Operation Streamline, those caught in the act of crossing the United States border without authorization may be rounded up and subject to criminal prosecution. This is in contrast to the historical policy of catch and release and even to the policy of deporting people through expedited removal or after formal removal proceedings. Under Operation Streamline, immigration violations are processed under the criminal justice system.

The penalties that Operation Streamline carries for immigrants are as follows:

  • First-time offenders are prosecuted for misdemeanor illegal entry (8 U.S.C. Section 1325) that carries a six-month maximum sentence.
  • Any migrant who has been deported in the past and attempts to re-enter without authorization can be charged with felony re-entry that carries a two-year sentence but can involve up to a 20-year maximum if the migrant has a criminal record.

About 99% of people prosecuted under Operation Streamline plead guilty. According to The Washington Post, this is because those who plead guilty are likely to get substantially shorter prison terms than the theoretical maximum, whereas those who do not plead guilty are likely to get close to the maximum sentence.

The annual cost of Operation Streamline in Arizona alone was estimated as $120 million for court proceedings and $50 million for detention and incarceration.

Bundling and rapid processing of cases

Another distinguishing feature of Operation Streamline is that cases are not heard individually, but rather in large groups, with many people caught crossing the border together generally being processed in one case. According to a New York Times report, a single court case in Tucson, Arizona can have up to 70 defendants, the upper limit being set by the physical capacity of the court. The time taken to decide the cases varies between 30 minutes (or 25 seconds per defendant) and 2 hours 35 minutes (or a little over 2 minutes per defendant).

Relationship with expedited removal

Expedited removal is a removal procedure where a person who has recently entered the United States without authorization and does not qualify for some particular exemptions may be removed without going through formal removal proceedings. A person who is sentenced through Operation Streamline may be subject to expedited removal after completing his or her prison term.

Expedited removal may apply not just to people caught by United States Border Patrol in the act of border-crossing but also people who have recently crossed a border and are living in the United States. Also, although expedited removal may be applied after criminal prosecution through Operation Streamline, it is itself an administrative procedure and does not involve the criminal justice system.

In terms of historical timeline, the rollout of Operation Streamline started at around the time that the rollout of expedited removal was being completed. Expedited removal was expanded to all border sectors by September 2005 and the entire border zone by March 2006, whereas Operation Streamline launched in December 2005.

Relationship with reinstatement of removal

Reinstatement of removal is a removal procedure where a person who had a previous order of removal and subsequently departed the United States, and then re-entered without authorization, may be removed by "reinstating" the previous order. Like expedited removal, it is an administrative procedure that does not involve the criminal justice system. Like expedited removal, it may be applied to a person making a repeat unauthorized entry after the person has gone through the Operation Streamline court process.

Relationship with credible fear

In principle, a person being subject to criminal prosecution via Operation Streamline should have the opportunity to request asylum and get scheduled for a credible fear interview. However, due to the rapid processing of these cases, many people do not get this opportunity, and may have to serve their prison term despite being eligible for asylum. After the prison term is completed and they are being processed for expedited removal, they are asked if they would like to request asylum and, if so, are scheduled for the credible fear interview.

History

Initial launch in Del Rio (December 2005)

An initial version of Operation Streamline was proposed by the United States Border Patrol for Del Rio, Texas in response to a significant increase in the number of apprehended non-Mexican migrants, from 10,000 in 2004 to 15,000 in 2005. The U.S. Attorney's Office for the Western District of Texas requested a change to the proposal: in order to avoid running afoul of equal protection, the courts would need to criminally prosecute all migrants, not just those from Mexico. Note that many other related programs, such as the expedited removal procedure, do treat people differently based on nationality: those from Mexico or Canada without a criminal record are not subject to expedited removal, whereas people from other countries may be subject to expedited removal despite the absence of a criminal record. However, the provisions of these programs do not run afoul of equal protection because they are not administered through the criminal justice system.

After approval from then Department of Homeland Security Secretary Michael Chertoff, Operation Streamline became active starting December 2005: all unauthorized border-crossers in the Eagle Pass area of the Del Rio sector would be prosecuted criminally for unlawful entry and re-entry.

Rollout to other border sectors

Operation Streamline was gradually rolled out in other parts of the United States border:

By 2010, every US-Mexico border sector not in California had implemented Operation Streamline.

Legal challenge

In December, 2009, it was decided in United States v. Roblero-Solis that en masse judicial proceedings like those in Operation Streamline violated Rule 11 in the Federal Rules of Criminal Procedure. Rule 11 states that the court must determine that a guilty plea is voluntarily made by addressing the defendant personally in court. The Roblero-Solis case determined that “personally” means that the judge must address the defendant in a person-to-person manner.

Protests

Starting February 2013, Operation Streamline has been protested by activists in Arizona and Texas, the two main states where it is operational.

Senate Resolution by Jeff Flake and John McCain

United States Senators Jeff Flake and John McCain introduced a Senate Resolution in March 2015 in the 114th United States Congress calling on the Obama administration to immediately remove any directives or policies that would bar the prosecutions of first-time border crossers under this program. The resolution was co-sponsored by Senators Chuck Grassley and Ron Johnson.

Reception

Primary aspects of criticism

Operation Streamline has received significant criticism from groups concerned about immigrant rights, civil rights, due process, and human rights. Some of the chief angles of criticism have been:

  • Operation Streamline inappropriately treats violation of immigration laws as a criminal matter rather than an administrative matter, making it inconsistent with the rest of the immigration system.
  • Referring asylum seekers for criminal prosecution via Operation Streamline violates U.S. obligations under Article 31(1) of the Refugee Convention.
  • The rapid processing of cases in Operation Streamline goes against the spirit of due process. In many cases, individuals who are United States citizens or permanent residents, have legitimate claims to asylum, or have other valid reasons to be legally present in the United States do not get an opportunity to present their case.
  • This lack of due process has a high impact on those who have a legitimate claim to asylum but undergo expedited removal, as the subsequent bar from re-entering the U.S. for five years also bars them from requesting asylum if they re-enter.
  • Operation Streamline uses a lot of taxpayer resources, many of which go into funding private prison firms, without making a clear contribution to solving the problem (of reducing unauthorized border-crossing) that it was intended to solve. Operation Streamline uses significant resources of the Border Patrol, the federal prison system, and the courts, thereby leaving fewer resources to combat drug trafficking and border violence.

Defenses of the program

The United States Border Patrol and other branches of the US government have defended the program as a key component of a deterrent strategy that they believe has reduced overall rates of unauthorized border-crossing. Mark Krikorian of the Center for Immigration Studies, a think tank that advocates reduced levels of immigration to the United States (both legal and illegal), also defended the program's necessity and importance in comments to Christian Science Monitor. Legislators Jeff Flake and John McCain, who have proposed the continuation and expansion of the program, have defended its importance in maintaining the national security of the United States.

The Judge Brack exception

Judge Robert Brack, who has presided over a large number of Operation Streamline court cases in Las Cruces, New Mexico, has expressed dissatisfaction over the system of laws he is required to enforce with Operation Streamline. He proposed to the Wall Street Journal a "Judge Brack exception" where anybody separated from their family after being sentenced by him should be allowed back in and legalized.

Immigration reform in the United States

Reforming the immigration policy of the United States is a subject of political discourse and contention. Immigration has played an essential part in American history, as except for the Native Americans, everyone in the United States is descended from people who migrated to the United States. Some claim that the United States maintains the world's most liberal immigration policy.  Illegal immigration is extremely controversial in the United States, receiving much attention in recent decades yet yielding little legislative consensus or action. Since the failure of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, no significant immigration reform legislation has been enacted. As of 2022, the DACA program is prohibited from adding new beneficiaries but has not been ended or struck down due to the Supreme Court's 2020 decision in Department of Homeland Security v. Regents of the University of California.

Background

In the United States of America, immigration reform is a term widely used to describe proposals to maintain or increase legal immigration while decreasing illegal immigration, such as the guest worker proposal supported by President George W. Bush, and the Border Security, Economic Opportunity, and Immigration Modernization or "Gang of Eight" bill which passed the U.S. Senate in June 2013.

Proponents of greater immigration enforcement argue that illegal immigrants tarnish the public image of immigrants, cost taxpayers an estimated $338.3 billion (however, opponents claim that this figure is erroneous and misleading assertions and state that published studies vary widely but put the cost to government at a small fraction of that total), and jeopardize the safety of law enforcement officials and citizens, especially along the Mexican border.

Since early 2013, the term immigration reform has been applied to efforts to "overhaul" the broken immigration system in the United States. In his November 20, 2014 speech on immigration, U.S. President Obama summarized the need for revision to immigration laws and procedures as follows:

Today, our immigration system is broken, and everybody knows it. Families who enter our country the right way and play by the rules watch others flout the rules. Business owners who offer their workers good wages benefits see the competition exploit undocumented immigrants by paying them far less. All of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America. And undocumented immigrants who desperately want to embrace those responsibilities see little option but to remain in the shadows, or risk their families being torn apart.

Critics of Obama's immigration positions and actions have nevertheless also called for policy changes. "Standards for immigration reform" announced in January 2014 by Congressional Republicans are mostly compatible with the Obama administration's legislative proposals, except that the Republicans favor step-wise implementation (rather than a package approach) with border security and interior enforcement preceding "paths" to legal status. Journalist and immigration critic Roy Beck supports portions of this agenda involving "immigration reduction": specifically endorsing bills to limit family-sponsored immigration to spouses and children, to end "birthright citizenship", and to tighten "interior enforcement" and employer verification requirements.

In November 2015, U.S. House of Representatives speaker Paul D. Ryan indicated that the House majority would not try to work further with the Obama administration on immigration reform.

As of 2022, the DACA program is prohibited from adding new beneficiaries but has not been ended or struck down due to the Supreme Court's 2020 decision in Department of Homeland Security v. Regents of the University of California.

Immigration reform in the United States (1986 to 2009)

The most recent major immigration reform enacted in the United States, the Immigration Reform and Control Act of 1986, made it illegal to hire or recruit illegal immigrants, while also legalizing some 2.7 million undocumented residents who entered the United States before 1982. The law did not provide a legal way for the great number of low-skilled workers wishing to enter the United States. Following this 1986 law, almost 12 million undocumented workers came illegally across the U.S. border. It was estimated that this illegal workforce made up about five percent of the U.S. workforce. It was also estimated that about 70 percent of those illegal workers were from Mexico.

Former Mexican president Vicente Fox wrote that, in 2001, President George W. Bush and the leadership of both parties of Congress were ready to pass significant immigration reform legislation benefiting Mexican emigration to the U.S. The immigration reform that Bush and Fox hoped for was put on hold after the terrorist attacks of September 11, 2001.

In 2005, the U.S. House of Representatives passed the Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005, and in 2006 the U.S. Senate passed the Comprehensive Immigration Reform Act of 2006. Neither bill became law because their differences could not be reconciled in conference committee. The legislative negotiations and national activism behind immigration reform from 2001 to 2007 is the subject of the 12-part documentary film series How Democracy Works Now.

In 2009, immigration reform became a hot topic again since the Barack Obama administration signaled interest in beginning a discussion on comprehensive immigration reform before that year's end. The proposed comprehensive immigration reform plan had bipartisan support as one of its goals, and included six sections designed to have "something for everyone". These six sections were:

  1. to fix border enforcement,
  2. "interior enforcement", such as preventing visa overstays,
  3. preventing people from working without a work permit,
  4. creating a committee to adapt the number of visas available to changing economic times,
  5. a program to provide a path to legal status for illegal immigrants, and
  6. programs to help immigrants adjust to life in the United States.

Individual states can only regulate or produce immigration policies to the extent it doesn't conflict with federal law, due to the naturalization clause being one of the enumerated powers of Congress.

Effect of media coverage on public opinion

A 2010 study examining the years 1992 to 2009 found that when immigration issues receive national media attention (as estimated by the number of mentions of immigration by CBS, ABC and USA Today), established residents living in places that have seen influx of new immigrants suddenly become much more politicized against immigration. The study reported that during a period of high national attention to immigration, anti-immigration attitudes among established residents in fast-changing counties increase by 9.9%. The study's author said that ethnic and racial surroundings appear to affect Americans' political attitudes far less than previously thought: "Those who live near larger proportions of immigrants do not consistently exhibit more negative attitudes." Rather, the author concludes, "day-to-day encounters can be shaped by salient national issues." The study's conclusions are still only tentative.

Effects on the US economy

Other studies suggest that immigration reform which includes legalization of unauthorized immigrants might add considerably to U.S. Gross Domestic Product (GDP) over 10 years, and increase wages for workers generally.

Raúl Hinojosa-Ojeda, founding director of the North American Integration and Development Center at the University of California, Los Angeles, has estimated that in just the first three years following legalization for undocumented immigrants, the "higher earning power of newly legalized workers translates into an increase in net personal income of $30 to $36 billion, which could generate $4.5 to $5.4 billion in additional net tax revenue. Moreover, it is estimated that an increase in personal income of this scale would stimulate consumer spending sufficient to support 750,000 to 900,000 jobs."

A 2013 study by the Workers Defense Project and the University of Texas sampling construction sites in five Texas cities, found half of construction workers there were undocumented.

High cost of immigration enforcement

Immigration enforcement has increased rapidly since the 1990s. The U.S. Border Patrols's annual budget has increased by 714 percent. The cost went from $362.2 million in the fiscal year of 1992 to $2.7 billion in the fiscal year of 2009. Also the U.S. Immigration and Customs enforcement has grown 73 percent, from $3.3 billion since its inception to $5.9 billion in 2014. 

Revision of H-1B visa

President Donald Trump signed the "Buy American, Hire American" executive order in April 2017 that would direct U.S. agencies to propose rules to prevent immigration fraud and abuse in the program. They would also be asked to offer changes so that H-1B visas are awarded to the "most-skilled" or highest-paid applicants.

Broken families

The U.S. immigration system determines who enters the country, and how many, either by order or under certain circumstances. It also decides who can apply for permanent visas for family and relatives. Advocates of increased admission of family members characterize the system as "broken," for preventing family reunification. They argue that family reunification will reduce waiting lines and conflicts over the number of visas of children and spouses. Approximately 5,100 children with a detained or deported parent were in the public child welfare system in 2011. Advocates for reducing immigration have, however, argued that making family reunification migration easier would tend to erode important distinctions between citizens and non-citizens, and lead to higher overall immigration levels.

Arizona SB 1070

In 2009, services provided to illegal immigrants, including incarceration, cost the state of Arizona an estimated $12.7 billion.

Citing Congress' failure to enforce U.S. immigration laws, the state of Arizona confronted reform and on April 23, 2010, Republican Governor Jan Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act (Arizona SB 1070)-- the broadest and strictest immigration reform imposed in the United States.

The SB1070 Arizona immigration law directs law enforcement officials to ask for immigration papers on a "reasonable suspicion" that a person might be an illegal immigrant and make arrests for not carrying ID papers in keeping with federal requirements. Previously, police could not stop and check identification papers on a mere suspicion that someone might be an illegal immigrant. Police could only ask about an individual's immigration status if they are suspected of involvement in another crime.

On July 6, 2010, the US Department of Justice filed suit against Arizona. In 2012, the Supreme Court ruled in Arizona v. United States that sections 3, 5(C), and 6 of S. B. 1070 were preempted by federal law but left other parts of the law intact, including a provision that allowed law enforcement to investigate a person's immigration status.

Immigration Court reform

In the absence of comprehensive immigration reform at the federal level, many advocacy groups have focused on improving the fairness and efficiency of the immigration court system. They propose incremental steps the executive branch can take to stop an "assembly line approach" to deportation proceedings. These groups have identified several issues that threaten the due process rights of immigrants, including reliance on low quality videoconferencing to conduct hearings, inadequate language interpretation services for non-English speakers, and limited access to court records. They also focus on problems arising out of the recent increase in immigration law enforcement without a commensurate boost in resources for adjudication. Immigration Judges and DHS Trial Attorneys are overworked, and the pro bono community has been unable to meet the demand for representation: 49% of individuals facing removal proceedings in 2011 were unrepresented. Other calls for reform include increased transparency at the Board of Immigration Appeals (BIA) and more diversity of experience among Immigration Judges, the majority of whom previously held positions adversarial to immigrants.

The Deferred Action for Childhood Arrivals program President Obama announced on June 15, 2012, is an example of the incremental reform sought by such groups. Under the program, illegal immigrants who were brought to the U.S. before age fifteen can apply for a work permit and a two-year deferment from deportation proceedings. The policy expands the Department of Homeland Security's prosecutorial discretion policy, focusing finite resources on criminals and other threats to public safety.

Several pieces of amnesty legislation aimed at preserving DACA were introduced in Congress in 2018. A package proposed by Rep. Bob Goodlatte (R-VA) that would have granted DACA beneficiaries a path to citizenship in return for a border wall and major cutbacks in family-based chain migration failed in the House with 193 votes, with 41 Republicans and all 190 Democrats voting no. A week later, an even greater amnesty package sponsored by Paul Ryan and the party leadership died in the House with only 121 votes. That law would have granted amnesty to almost two million illegal immigrants while maintaining the most important chain migration categories. DACA's future is currently unknown.

U.S. Immigration and Customs Enforcement removal proceedings

Since President Obama took office in 2008, more than two million unauthorized immigrants have been deported. Most of these people were not a danger to society. In the fiscal year 2013 ICE removed 151,834 individuals who didn't have a criminal conviction. In 2013, ICE released thirty-six thousand individuals with criminal records, including 193 found convicted of murder and 426 convicted of sexual assault. Additionally, ICE encountered about sixty-eight thousand aliens with criminal records who they did not prosecute. If immigration reform becomes law, many of those who entered the country illegally would likely be able to remain in the United States. The U.S. Immigration and Customs Enforcement, also known as ICE, has enforcement priorities that involve: apprehension of terrorists, violent criminals, gang members, which are categorized under three priorities. The first and highest priority is to remove aliens who pose a danger to national security or a risk to public safety. Second priority is recent illegal entrants; those who have recently violated immigration control at the border such as overstay visas. The third priority is aliens who are fugitives or otherwise obstruct immigration control, for instance, reentries after prior order of deportation. ICE resources are limited; an estimated 400,000 aliens can be removed per year, but that is less than 4 percent of the illegal population in the United States.

In 2014, the number of individuals apprehended at the border was up 16 percent from the previous fiscal year, and the number of deportations from within the United States dropped 24 percent from the previous fiscal year. That year, Operation Streamline was ended. The number of individuals deported by the Obama Administration up through 2014, was lower than that of any previous administration.

Failure of S.744 in 2013

On January 28, 2013, a bipartisan group of eight Senators, known as the "Gang of Eight" announced principles for comprehensive immigration reform (CIR). The Senators involved include: Charles Schumer of New York, Dick Durbin of Illinois, Bob Menendez of New Jersey, and Michael Bennet of Colorado, and Republicans John McCain of Arizona, Lindsey Graham of South Carolina, Marco Rubio of Florida, and Jeff Flake of Arizona.

The policies envisioned by the Senators include the following provisions:

  • A citizenship path for illegal immigrants already in the United States contingent on certain border security and visa tracking improvements. The plan provides for permanent residence for illegal immigrants only after legal immigrants waiting for a current priority date receive their permanent residence status and a different citizenship path for agricultural workers through an agricultural worker program.
  • Business immigration system reforms, focusing on reducing current visa backlogs and fast tracking permanent residence for U.S. university immigrant graduates with advanced degrees in science, technology, engineering or math also known as the STEM fields.
  • An expanded and improved employment verification system for all employers to confirm employee work authorization.
  • Improved work visa options for low-skill workers including an agricultural worker program.

In April 2013, according to Congressional Quarterly, the existence of a bipartisan group of lawmakers working to reform immigration was revealed during a question and answer session at a Ripon Society event with House Speaker John Boehner (R-OH).

On April 16, 2013, the "Gang of Eight" in the United States Senate introduced S.744, the long-awaited Senate version of the immigration reform bill proposed in congress. The bill was a product of bipartisan cooperation among Senate lawmakers, business groups, labor unions, agricultural interests, and immigration advocates, who negotiated many compromises resulting in an architecture for reform – including a path to citizenship for eleven million illegal immigrants, a temporary worker program, increased visa numbers for skilled foreign workers, and a nationwide employment eligibility verification system.

On June 27, 2013, the United States Senate approved S.744, known as the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 in a historic 68-to-32 vote. The immigration reform bill was sent to the United States House of Representatives, but was never brought to the House floor for debate or an up-or-down vote and thus died at the end of the 113th Congress.

President Obama's actions after Legislative Failure (2014 to 2017)

Influx of children migrants from Central America

The border crisis in 2014 where thousands of children alone or with their mothers crossed the border and turned themselves in to the Border Patrol has been seen, in part, as a result of ambiguous US immigration policies. Numbers arriving in the first part of 2014 were at a pace more than double that of a year earlier. Cecilia Muñoz, director of the White House Domestic Policy Council, acknowledged in June 2014 "rumors and reports, or suggestions, that the increase may be in response to the perception that children would be allowed to stay or that immigration reform would in some way benefit these children," but added that "it seems to be quite clear that what is driving this is what's happening in their home countries." Mexico and Central American countries have since taken measures to try to reduce the flow, the U.S. border patrol has sought to speed apprehensions, and the Obama administration has requested additional funding for screening and deportation, and tougher penalties on smugglers. Arrivals of children at the U.S. borders slowed from in August 2014, compared to May and June.

Deferred Action Executive Orders: DACA and DAPA

On November 20, 2014, in a televised address from the White House, President Barack Obama announced a program of "deferred action" which would allow roughly 45% of illegal immigrants to legally stay and work in the United States. The largest prior deferral action, in 1990, during the administration of President George H.W. Bush, affected 40% of undocumented immigrants then. Up to 3.7 million undocumented parents of individuals who are U.S. citizens, or who have been legal permanent residents in the country for at least five years, are eligible for the new deferrals, as are about 300,000 immigrants who arrived as children before January 2010. Members of this second group would be eligible by expansion of the existing Deferred Action for Childhood Arrivals (DACA) program, which previously covered 1.2 million people, the expansion bringing the new coverage total to 1.5 million. The new deferrals would be granted for three years at a time. Supplemental executive actions also announced include an end to the Secure Communities program, increased resources for border enforcement, and new procedures for "high-skilled immigrants". These other "parts of the president's plan" could provide "protection from deportation" for roughly "an additional one million people". President Obama's actions were clearly presented as a response to Congress having been unable in recent years to agree on a general legislative overhaul of U.S. immigration policy. Obama indicated:

[By] acting where Congress has failed ... [I hope] to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.

On December 16, 2014, Arthur J. Schwab, a United States federal judge in the United States District Court for the Western District of Pennsylvania, ruled that President Obama's executive action on immigration was unconstitutional in a case involving a Honduran man facing criminal charges for returning to the United States after being deported. As the New York Times put it, this finding "had no immediate effect". On December 4, 2014, a more direct challenge was, however, filed in federal court by the attorney general of Texas, on behalf of 17 states.

By January 26, 2015, the number of states participating in the lawsuit had grown to 26. On February 12, testifying before the House of Representatives, officials from Ohio and Kansas stated that, due to the actions of the Obama Administration, it was difficult to determine whether illegal immigrants had registered to vote. The Senators claimed that, despite the rigorous repercussions for falsifying registration information, a considerable number of still illegal immigrants might take advantage of the ongoing and adapting bureaucratic efforts on the part of those filtering the applications. The illegal immigrants seeking to gain the right to vote in America were alleged to be facilitated not only by the new and large influx of legitimate applications, but also by the ready availability of the necessary registration forms, which could be obtained by anyone with access to a local DMV, a shopping mall, or one of a growing number of "curbside registration drives".

On February 16, 2015, Judge Andrew S. Hanen, of Federal District Court in Brownsville, Texas, issued a temporary injunction against the Deferred Action for Parental Accountability (DAPA) program. On February 17, 2015, just one day before undocumented immigrants were set to begin applying for work permits and legal protections, Homeland Security Secretary Jeh Johnson announced a delay in implementing the DAPA program, but also said that the district court ruling would be appealed. USA Today noted the expectation of Cornell University law professor Stephen Yale-Loehr that the appeal will likely eventually succeed since federal courts generally give "the president broad authority to shape the enforcement and implementation of immigration laws".

The appeal was heard on an expedited basis by three judges of the United States Court of Appeals for the Fifth Circuit on July 10, 2015. On November 9, the divided circuit court affirmed the preliminary injunction of February 2015, and ordered the case back to the district court in Texas for trial. Judge Jerry Edwin Smith, joined by Judge Jennifer Walker Elrod agreed with the district court that Texas has standing because of the cost of issuing drivers licenses to aliens, and that President Obama's order violated the rulemaking requirement of the Administrative Procedure Act. The majority made a new finding that the Immigration and Nationality Act "flatly does not permit" deferred action. Judge Carolyn Dineen King dissented, arguing that prosecutorial discretion makes the case non-justiciable, and that there had been "no justification" for the circuit court's delay in ruling.

In United States v. Texas, the Supreme Court deadlocked 4–4 on June 23, leaving in place the appeals court ruling blocking Obama's executive actions. On June 15, 2017, Trump's Homeland Security Secretary John F. Kelly announced that the order establishing the DAPA program was rescinded.

President Trump's Immigration Policy (2017 to 2021)

On April 16, 2015, Donald Trump suggested that a wall be built on the Mexico–United States border to prevent people from entering the country illegally. According to a report released by the Trump administration in 2017, the construction of the proposed border wall would take around three and a half years and cost between $21.6 billion and $25 billion. On February 15, 2019, President Trump declared a national emergency in order to move military funding towards building the wall. This was met with significant criticism and backlash from the media and members of both major political parties. Throughout 2019 and 2020, President Trump maintained his stance on immigration, promising that his plan would prioritize the "jobs, wages, and safety of American workers" and "promote American values."

Biden administration immigration policy (2021 to present)

President Joe Biden proposed the U.S. Citizenship Act of 2021 on his first day in office. The American Dream and Promise Act and Farm Workforce Modernization Act passed the House of Representatives in 2021, as they had in 2019, with support from Biden. Attempts to pass any of these bills in the Senate was blocked by Republican opposition, and parliamentary rulings that immigration policy changes could not be passed under reconciliation rules to bypass the Senate filibuster.

As of 2023, Joe Biden has not attempted to revive or recreate DAPA by executive order.

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