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Analysis | Kristi Noem’s illegal immigration posturing spotlights a common


On Wednesday, that instinct led to this bit of posturing.

Republicans have been eager to use the increase in migrants apprehended at the border with Mexico to pressure the Biden administration for several weeks. Noem’s statement goes a bit further, claiming that she will object to any attempts by the federal government to relocate undocumented migrants in her state. Even beyond the immediate irony of the White governor of a state in which 1-in-11 residents are Native American proclaiming who is American enough to reside there, there are obvious flaws in the line Noem is drawing.

For one, those who enter the country illegally are almost never able to gain citizenship, as immigration attorney David Leopold explained to The Washington Post in 2016. In other words, undocumented immigrants won’t be able to call Noem when they become American, because they likely won’t be able to.

But the more important issue here is the use of “illegal immigrant” as a broad descriptor for who the administration is dealing with.

There are two directions in which this descriptor incompletely overlaps with the current immigration situation. The first is that many new immigrants to the United States who are here without authorization are not from Mexico or Central America. Many have instead arrived on legal visas but failed to leave when those visas expired. Most new immigrants overall in recent years are from Asia.

The second is that many of those stopped at the U.S.-Mexico border and taken into custody are not in the country illegally. In fiscal years 2017 through 2019, about 15 percent of those stopped at the border by the Border Patrol or the Office of Field Operations (which manages ports of entry) were people seeking asylum. Nearly 300,000 people sought asylum by making a “credible fear” claim on being stopped at the border — or, often, upon turning themselves in on arrival to the United States. You can see that in the numbers; in fiscal year 2019, nearly two-thirds of those stopped at OFO border checkpoints were people claiming asylum.

It’s a legal process: arrive in the United States, claim credible fear and wait for the system to evaluate your claim. Often, immigration courts will determine that the asylum claim isn’t legitimate and the migrant will be slated for deportation. Until that point, though, they can remain in the country. After all, if someone is legitimately at risk of death should they be in their home countries, there is at least a moral obligation not to ignore that risk by default.

Here’s where the systemic problems arise. So many migrants have sought asylum in recent years that there’s a backlog of more than 1 million cases in immigration courts, according to data from the Transactional Records Access Clearinghouse at Syracuse University. The average wait for a case to be heard is more than 900 days and rising, meaning that someone taken into custody today might not see a judge until October 2023.

As the Biden administration struggles with a growing border crisis, long-waiting families hope their requests for asylum in the U.S. will finally be heard. (Jon Gerberg/The Washington Post)

Despite some rhetoric on the right, most of those scheduled for court hearings attend. TRAC data indicate that 81 percent of families appearing in immigration court attend all of the required hearings. Nearly all of those with legal representation appeared.

Often, those who don’t appear for their hearings fail to do so because of a breakdown in communication, TRAC explains.

“Some immigrants who don’t appear simply have not received notification of their hearing,” the group’s analysis explains. “Others may receive a written notice, but the notice may have been in English which they couldn’t read.”

In other words, a large number of those taken into custody at the border are not what Noem would call “illegal…



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