Biden officials continue rollout of policy agenda, mixing internal reforms, external pressure—06-11-21

Immigration news, in context

This is the eighty-second edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

  • In The Big Picture, we examine a number of policy shifts and suggestions that took place over the last week.

  • In Under the Radar, we look at a report on migrant children’s shelters' propensity for calling law enforcement on its charges.

The Big Picture

The news: It was a big policy week as Homeland Security agencies and officials implemented a number of regulatory and operational shifts and hinted at more in the pipeline—some to immigration advocates’ delight, others to their irritation. At the same time, Vice President Kamala Harris went on high-profile visits to Guatemala and Mexico, where she struck a harsh tone on migration.

What’s happening?

After a number of stops and starts, it seems like the Biden administration is refocusing on making the type of relatively obscure agency policy and regulatory changes to immigration processing and adjudication that its predecessors were able to wield to such enormous effect. Last Friday afternoon, BuzzFeed News’ Hamed Aleaziz reported that a new ICE guidance issued in late May gave ICE prosecutors the ability to consider dismissing deportation cases against longtime permanent residents, the pregnant and elderly, thoe with significant health concerns, and people who’d been in the U.S. since a young age.

It’s worth noting that this is separate and apart from the enforcement guidelines that Biden shifted in his first day in office, the final versions of which are still being developed. Those impacted ICE’s better-known component, Enforcement and Removal Operations (ERO), which are the agents in charge of arresting and detaining people suspected of breaking immigration laws, and are what most people think of when they think “ICE.” Those guidelines were intended to affect which people ICE could detain. This new guidance impacts how ICE prosecutes those people, through a lesser-known component called the Office of the Principal Legal Advisor, which is essentially the equivalent of a district attorney’s office wholly contained within ICE itself (yes, this is a system where the officers and prosecutors are in the same agency).

This seems like a relatively minor tweak, but it could have huge impact as individual ICE prosecutors gain the ability to simply not pursue certain cases, de facto allowing their would-be targets to avoid deportation. This move wouldn’t give them any additional status, but would allow them to continue living in the country without the imminent concern of being put into removal proceedings, and outside of detention, as the government wouldn’t detain people who have no active immigration case. Paired with the enforcement guidelines and Circuit Court decisions reinstating some immigration judges’ ability to administratively close cases, this will permit a greater number of undocumented people to at least avoid the constant specter of deportation, if nothing else.

Also in the last week, U.S. Citizenship and Immigration Services, the agency that handles immigration applications and approves status in the U.S., issued new rules, the most notable of which is the rescission of the previous Request for Evidence policy. Basically, RFEs (or Notices of Intent to Deny, a somewhat similar document) are notices that USCIS can send immigration applicants and their lawyers if they believe that an application is missing necessary information or is otherwise incomplete or incorrect. Under the Trump administration, USCIS had been permitted (functionally instructed) to skip this step and issue a denial of benefits immediately, even if an application had only minor deficiencies, or none at all in the not-so-unusual case that a USCIS officer misinterpreted something.

This had led to applications being suddenly and unexpectedly denied with little explanation. In some cases, the fix was as simple as trying to address whatever might have been missing and resubmitting the applications, but for many people depending on an approval—for example, those who were running out an existing status and needed to get a new one to avoid becoming undocumented—that could cost them their only shot. The new policy will mandate that, when such confusion arises, USCIS personnel will give applicants a chance to weigh in and make any fixes before applications are denied.

In an event with the American Immigration Lawyers Association this week, Homeland Security Secretary Ali Mayorkas also hinted at some potential additional shifts, including the possibility that, for relatively minor issues, USCIS personnel would be able to simply call or email attorneys to iron things out instead of sending formal snail mail. Again, a relatively minor change that nonetheless has the opportunity to reduce processing times and really help applicants. He also responded positively to the idea that DHS and the Department of Justice—under which the immigration courts operate—could coordinate better to ensure that individuals with active USCIS relief applications aren’t being simultaneously subjected to removal proceedings, though he didn’t commit to that.

Still, not all of Mayorkas’ points were well-received. He stood steadfastly behind the administration’s decision to implement dedicated dockets for asylum-seeking families, and didn’t provide additional detail on how they would avoid due process violations. The Secretary also continued to defend the administration’s implementation of Title 42, maintaining the tenuous connection between that policy and public health, and made additional allusions to “efficient” and technical solutions to border processing, which is typically a euphemism for surveillance.

Indeed, The Los Angeles Times’ Molly O’Toole reported last Friday that the administration had quietly approved the use of an experimental Customs and Border Protection app for asylum seekers, obtaining emergency approval that leapfrogged the usual public notice and comment. The CBP One app, as it’s called, collects biometric data including for facial recognition, providing a monitoring avenue for would-be asylum seekers that starts before they ever reach the border. Separately, it was reported that U.S. border officials had arrived in Cancún to assist Mexican officials in identifying arriving travelers who might be intending to make their way to the U.S. border.

Vice President Kamala Harris also took a trip to Guatemala and Mexico; in the former, she made the immediately-controversial remark that migrants thinking of traveling to the U.S. should “not come,” a view in conflict with U.S. asylum law. However, it is reflective of the administration’s broader long-term policy of emphasizing “root causes,” a mix of investment and logistical support for Mexico and Central America and anti-migration militarization.

How we got here

Broadly speaking, the entire immigration and deportation system grants individual state actors—from ICE removal officers to prosecutors to immigration judges—a degree of discretion over people’s cases. This discretion is simultaneously incredibly significant and easily constrained. ICE removal officers can choose not to arrest someone, immigration judges can choose to administratively close cases, and ICE prosecutors can choose to drop deportation cases. But these discretionary decisions are limited by the executive branch’s desires. 

Under Trump, Enforcement and Removal officers were instructed to arrest “all removable aliens” encountered in the field, a shift from the more limited enforcement priorities implemented during the final years of the Obama administration. A February 2017 DHS memo outlining the Trump administration’s enforcement priorities stated that DHS would “no longer exempt classes or categories of removable aliens from potential enforcement.” That same memo also limited the use of prosecutorial discretion, which it said “shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.” Together, the expansion of who would be prioritized for arrest and limiting of whose cases ICE prosecutors could choose to drop significantly expanded ICE's potential targets. Despite this reality, the memo claimed these expanded enforcement priorities were “not intended to remove the individual, case-by-case decisions of immigration officers.” 

The American Immigration Council’s March 2018 analysis of the Trump administration’s new enforcement priorities found that they had the intended effect: more arrests and more deportations. The previous administration also worked to limit discretion at the adjudicative level. In 2018, then-Attorney General Jeff Sessions issued a decision ending immigration judges’ ability to administratively close cases. Administrative closure doesn’t mean that a noncitizen is granted relief from deportation, or that the charges against them are dropped. Instead, it means that an immigration judge has chosen to temporarily close their case, effectively letting them stay in the United States indefinitely—albeit without legal authorization. 

The end of administrative closure, coupled with ICE’s expanded arrest priorities and the limitation of prosecutorial discretion, undoubtedly contributed to the growth of the immigration backlog. There were just over 500,000 pending removal cases when Trump took office in 2016; today, there are more than 1.1 million. Of course, the growth in cases isn’t just due to expanded deportation priorities: it’s undeniable that an increase in asylum seekers at the border—whose cases are adjudicated by the same immigration courts that handle deportation cases of people arrested in the interior—has contributed to some degree. But this so-called “surge” in migrants at the border doesn’t explain why the backlog more than doubled over the course of a single presidential administration. The administration’s desire to close off the U.S. to noncitizens was acutely felt at the border, where asylum officers with U.S. Citizenship and Immigration Services grew increasingly uncomfortable with policies they were being asked to carry out. In 2019, several USCIS asylum officers told Dara Lind, formerly of Vox,  that they felt like they had been stripped of their discretionary capabilities and were being instructed to send asylum seekers back to grave danger. 

The Trump administration’s attempt to arrest and deport as many noncitizens as possible was a rebuke of the more limited enforcement priorities that characterized the last few years of the Obama administration. In 2014, Obama announced a new prioritization scheme. ICE would focus on deporting “felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids,” he said in a speech. “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.”

A 2014 DHS memo issued to outline this enforcement strategy clarified who ICE would prioritize for deportation: 

  1. people who posed a threat to national security, border security, and public safety; 

  2. anyone convicted of three or more misdemeanors (aside from minor traffic violations and a few other exceptions); one “significant misdemeanor,” such as domestic violence, sexual abuse, burglary, unlawful possession of a firearm, drug distribution or drug trafficking, or driving under the influence; anyone who entered the U.S. after January 1, 2014; and those who have “significantly abused the visa or visa waiver programs”

  3. anyone who had already been issued a deportation order on or after January 1, 2014, aside from those who qualify for asylum or another form of relief

The memo also went into prosecutorial discretion, and said such discretion should apply to a “broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.” DHS personnel, the memo said, “are expected to exercise discretion and pursue these priorities at all stages of the enforcement process—from the earliest investigative stage to enforcing final orders of removal—subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.” (The 2014 memo replaced an earlier guidance issued by former ICE director John Morton in 2010, which detailed much broader enforcement priorities.)

Obama’s “felons, not families” approach did limit who ICE arrested and ultimately deported, but many immigrants’ rights advocates criticized the administration for buying into and perpetuating the apparent dichotomy between “good” immigrants whose only crime was entering the U.S. without authorization and “bad” immigrants who had been charged with other crimes. Critics noted that having been charged with or convicted of certain crimes at any point could trigger an immigration arrest. The 2014 strategy had mixed results. A 2016 analysis by the Marshall Project found that around 60 percent of the more than 300,000 deportations since the 2014 memo went into effect involved noncitizens whose only conviction was immigration-related or who had no criminal conviction whatsoever, and that less than 20 percent of those deported had “potentially violent convictions.”

What’s next?

The CBP One app and the military and security coordination are all going to end up melding into one big transnational dragnet that will attempt to identify, contain, and prevent migration before it ever reaches the U.S. border.  That’s already happening to a degree: Jared Olson reported in The Nation that the Border Patrol’s special BORTAC unit has been flying to Honduras to train Honduran military and border police in preventing migration. It’s coming increasingly into focus that the Biden administration’s ultimate objective is to enact a number of reforms internally, making the immigration system less punitive and more humane for those already in the United States (though it’s unlikely they’d go so far as to, for example, discontinue the use of immigration detention altogether), and paving an easier path for family or employment-based immigrants, while fortifying the country against additional humanitarian migrants.

As we’ve noted before, there’s a bit of an out of sight, out of mind quality to humanitarian migration, and while much of Biden’s base would eventually reject a too-restrictive approach towards asylum seekers, they’d be much more likely to accept a system that prevents them from ever arriving in the first place. As far as reforming the functioning of the system now, the administration continues to proceed with relative caution. One elephant in the room are efforts by not just DHS, but the DOJ. Attorney General Merrick Garland, who is essentially the overseer of the entire immigration court system and has the power to not only appoint judges but set policy, has been notably quiet on the issue.

A few days ago, the Supreme Court ruled in the government’s favor in a case that challenged limitations on some Temporary Protected Status holders’ ability to get permanent residence, which the Biden DOJ had kept fighting. This position wasn’t exactly out of line with administrations even preceding Trump, but it doesn’t necessarily bode well for the DOJ taking up a pro-immigrant mantle. A number of Trump-era Attorney General and Board of Immigration Appeals decisions remain on the books, making it more difficult for people to obtain asylum or otherwise obtain relief in removal proceedings.

With regards to DHS, Mayorkas also told AILA that he definitely believes there are a number of immigrants who represent threats to public safety, and while he committed to re-evaluating the department’s use of detention, he made it clear that detention as such is not going away anytime soon, and it’s left to be seen what exactly can even be done to better a system that is so often shockingly inhumane.

Under the Radar

Shelters for migrant children are turning kids in their custody over to the police

Staff at several shelters for unaccompanied migrant children have called local law enforcement in to arrest kids in their custody, according to a new investigation by Aura Bogado and Laura Morel at Reveal from The Center for Investigative Reporting. According to the report, these shelters—typically operated by nonprofits that contract with the Office of Refugee Resettlement—have turned over 84 children aged 11 to 17 over to local law enforcement over the last six years. Three-fourths of those cases involve two of the biggest shelter operators: Southwest Key Programs and BCFS.

The Reveal report is full of disturbing details. In one instance, a sheriff’s deputy with the Bexar County Sheriff’s Office tased a 16-year-old migrant boy and mocked him, calling him “el stupido." Current and former staff members at ORR-overseen shelters noted that staff would sometimes call the police for minor situations that could be expected from often-traumatized children in a detention-like setting, such as petty fights. These shelters have seen a larger volume of unaccompanied minors in recent months, raising questions about their procedures with regards to getting law enforcement involved. Criminal system contact can not only be immediately detrimental to a child, but impact their immigration cases.

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