Immigration Enforcement and Immigration Reform: An Interview with Dr. Kevin Fandl

                Draft cover

               Draft cover

I am currently writing a textbook on homeland security (due out from Elsevier next spring 2015).  Unique to this text are interviews with renowned experts in the fields of homeland security and national security.  Dr. Kevin Fandl is one such expert.  A lawyer and scholar on international trade and immigration issues, Dr. Fandl is currently an Assistant  Professor of Legal Studies at the Fox School of Business at Temple University and the author of over several books on legal writing and related topics.  An excerpt of his interview appears below. Read the rest when it publishes spring 2015.

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Dr. Kevin Fandl is an Assistant Professor of Legal Studies and Global Business Strategy at the Fox School of Business at Temple University. He has a decade of federal service experience, most recently as a federal attorney and Counsel to the Assistant Secretary for U.S. Immigration and Customs Enforcement. Previously, he worked as an attorney for the U.S. Trade and Development Agency and for U.S. Customs and Border Protection. He has been an adjunct law professor at the American University Washington College of Law since 2004, teaching courses on international trade and development law, intellectual property and international trade law, and advanced legal writing. Dr. Fandl has written and published numerous articles on subjects such as economic development, international trade law, and the informal economy. His most recent work includes, The Role of Informal Legal Institutions in Economic Development (Fordham International Law Journal). He was also awarded a Fulbright grant in 2006 to travel to Bogota, Colombia, to conduct investigation of the Colombian informal economy while teaching classes in the Masters of Law program at la Universidad de los Andes. Dr. Fandl completed his Doctorate in Public Policy at George Mason University and received his Masters degree in International Relations at American University with a certificate in International Human Rights Law from Oxford University.

What advice would you give students who would like to work on immigration-related issues?
KF: Study languages and take the time to understand immigration law, both statutes and case law. Immigration is shaped both by domestic policy and foreign policy. To get a complete picture of the subject, therefore, it helps to work overseas. A good place to start is internship programs overseas and study abroad programs. On the other hand, if you are interested in learning more about customs, then having a solid understanding of how trade law and the import/export process works is crucial. A law degree is useful, but not necessary - a background in economics or mathematics may be more helpful. You can gain experience in this field by working as a broker or focusing on economic policy and obtaining training on economics and trade.

Could you discuss how you came to be affiliated with Customs and Border Protection and your work with the organization?

KF: In law school I applied to be a Presidential Management Fellow (PMF) because I wanted to work for the government rather than go work for a large law firm. CBP had just begun accepting PMF's and they offered me a position in their international trade office. While there, I learned the intricacies of trade issues and other subjects. I enjoyed the practical nature of my work since we worked with real trade goods, real cases etc. While at CBP I also spent some time at the Office of General Counsel's Intellectual Property Office where I handled decisions on trademark and copyright infringement cases brought by major companies. I had the opportunity to even go out to the port itself, examine the goods at the port and watch the inspections take place.

How did you then make your way from CBP to ICE?

KF: I left CBP at the conclusion of my fellowship and went to work for the U.S. Trade and Development Agency (USTDA). At that time I was more focused on economic development and had begun a Ph.D. program focused on economic development issues and trade. I had a wonderful mentor at the Trade and Development Agency and that is the key to career success especially when working at a small government agency. After a period with USTDA, I was offered a Fulbright to Colombia where I taught trade law for one year. Doing so also helped me develop the Spanish-language skills, which I believe are essential in a career like mine.

My time in Colombia also exposed me to teaching and I realized that teaching was my passion. Since I didn't yet have my Ph.D. I decided I needed to keep working before I could begin teaching and applied to an attorney position at the ICE General Counsel Office. My supervisor served as an outstanding mentor who helped me expand my skills into areas not traditionally employed by attorneys, such as management and operations.

When my mentor moved into the leadership of the agency, he called upon me time and time again and placed me in a variety of positions. He gave me an appointment to run the Executive Secretariat, which was the correspondence division of the agency. While there, I often wondered if I was developing any expertise - but soon realized that I was developing a much more important skill - versatility. That is what is needed for a fruitful career in the government. You need to be flexible and adaptable. Talking to the other practitioners at the General Counsel’s Office, all of them saw me as someone who moved very rapidly up into management. It wasn’t based on my legal skills alone, but also on my ability to take on new tasks, new challenges, and use my legal skills to address them. To succeed in government, you have to be open to opportunities and taking the initiative. Having a mentor who believed this as well, and seeing him move his way up through the ranks using the ideas of versatility and adaptability made me believe it was the right approach.

You’ve mentioned languages being important, specifically you focused on Spanish as a second language. Why do you believe it is important?

KF: I believe language skills are crucial. I learned Spanish in college but perfected it through immersion while I was in Colombia. Spanish is particularly helpful for immigration issues because many legal and undocumented immigrants in the U.S. are Spanish speakers - but students can focus on learning other languages, including Mandarin Chinese, Arabic, Urdu etc. When you learn a language you learn another culture along with it. I think monolingual individuals tend to have a singular view of the world and, as such, have less upward mobility in a global economy.

You’ve worked both at Immigration and Customs Enforcement and Customs and Border Protection, so could you explain how customs and trade are connected to immigration?
KF: ICE focuses on people, including immigrants and people trading in goods; CBP focuses on the goods themselves. From a theoretical perspective, this distinction has less meaning - goods or people moving across the border are related. The movement of both people and goods affects the economy, and both are effectively regulated by similar laws and guidelines. Though we have two separate agencies, one focusing on people and the other on goods, it makes sense to eventually enforce the lawful movement of both goods and people under one unified government agency. ICE has been working in this direction by unifying training amongst customs and immigration officers.\

Immigration reform is an issue both political parties want to work on. What do you think Congress can do to reform our current system of immigration laws and immigration enforcement policies?
KF: The answer to this question relates to the connection between people and goods I spoke about earlier. If labor immigrants were treated (legally) as goods, and viewed in a commercial light, then you would see a desire to integrate them into the tax and tariff system, as goods already are. Our immigration enforcement system would examine individuals in their economic context rather than their impact on American society or American culture. Much like a job applicant should be evaluated based upon their skills and their potential contributions to the workplace, an immigrant should be evaluated based upon their skills and their potential contribution to the economy.

For example, imagine that an undocumented immigrant seeks to enter the U.S. but has considerable education and specialized skills, then a system like the one I envision would make it very easy for them to enter the United States. In fact, this kind of system would likely encourage more of these folks to emigrate by providing incentives to highly skilled, high-wage workers, since they would provide an economic benefit to the U.S. Let's look at another example. Let's imagine that there are plenty of folks willing to enter the United States illegally to pick vegetables or harvest nuts. If we already have enough of these individuals in the country, then we would impose a tariff or tax to limit their supply in the country. In this way you regulate the entry of immigrants based on the free market supply and demand, rather than through artificial regulation of immigrants based on spurious factors, which is what we are currently doing.\

Effective reform of our labor immigration policy requires us to look at the economic side of labor immigration and to regulate entry based upon the contributions the immigrants might make to our economy, their impact on the domestic job market, and of course, national security concerns. Tariffs would be set much like charges are levied for visas today. The funds generated from tariffs imposed upon immigrants wishing to come to the U.S. can then be used to offset any potential negative externalities, such as increased enrollment in schools or increased use of the public health system. More importantly, such a system should also provide these immigrants a pathway to citizenship, or at least residency while also educating the American public about the positive impact of immigrants.

All that being said, I think such a system is not likely to come to fruition in the current toxic political environment. Discrimination against immigrants is rampant, and the economic argument often gets lost among heated accusations about criminality, culture, and rhetoric. Historically, most immigration reform efforts are sidelined by laws that discriminate against certain immigrant populations. Ironically, these laws are passed in the immediate aftermath of efforts to meaningfully reform or encourage immigration. For instance, the Chinese Exclusion Act of 1882 was introduced only after pressure from states facing large immigrant populations despite a national effort to lower barriers to immigration. California politicians, and subsequently national politicians, quickly realized the political capital they could generate with discriminatory rheotric against individuals who, after all, could not vote. The Chinese Exclusion Act prohibited all immigration of Chinese laborers into the United States and was really one of the first time discriminatory efforts in immigration were introduced. Since then the idea that people should be blocked from entering based on their national origin has been engrained into American society. The target of that discrimination has evolved, shifting from Asian immigrants in the 19th century to Southern Europeans in the early 20th century to Latinos in the late 20th and early 21st centuries.

Could there be other reasons besides discrimination? What about high unemployment believed to be caused due to an influx of undocumented immigrants as a reason to limit immigration?

KF: High unemployment is often blamed on immigrants. There is a lot of misinformation out there about the impact of immigrants on the domestic economy. Most studies, whether from conservative think-tanks such as the American Enterprise Institute or more liberal ones such as Brookings and the Center for American Progress, conducted extensive studies showing that immigrants have a net positive impact on the American economy. This applies to both highly-skilled and less-skilled immigrants. These immigrants enter the country as consumers, tax-payers and contributors to so many aspects of American society. The misconception that immigrants harm the domestic economy is leading to significant discrimination and Congress is using this to justify keeping immigrants from entering the United States. But the economics are clear —immigrants are good for domestic jobs, wages, and economic growth.

One other reason for limiting immigration, legal or illegal, could be 9/11. Thoughts?
KF: This is the latest justification, recasting immigration into a national security issue. Immigrants are now increasingly seen as potential threats. I think that this is just another excuse for lack of Congressional action on effective immigration reform. Currently, Congress' idea of immigration reform is just a two-pronged approach: increased border security and a pathway to legalization or amnesty of some kind for the undocumented immigrants already present in the U.S. Neither of these ideas make much sense. For instance, complete border security is not possible from a practical perspective since it would significantly slow trade and lead exporters elsewhere. And legalization, while an important aspect of reform, only addresses the immigrants already here, not those that continue to come year after year. National security is a concern that is best addressed by investigating specific threats, not by further isolating ourselves from the global economy.