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Dear readers,

We won’t be publishing BORDER/LINES today, because one of our editors is sick. We’ll be back next Friday. Thank you for understanding!

- Felipe and Gaby

Administration moves to restart MPP and ends expanded expedited removal—10-15-21

Immigration news, in context

This is the ninety-ninth 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.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

  • In The Big Picture, we examine the current efforts to reinstate the Migrant Protection Protocols after a judicial order.

  • In Under the Radar, we discuss the use of a restraint device now as the WRAP against African asylum seekers who were being deported.

  • In Next Destination, we look at the administration’s decision to suspend the use of workplace raids.

The Big Picture

The news: Following a federal court order, the Biden administration is setting the groundwork to restart the Migrant Protection Protocols, also known as Remain in Mexico. Meanwhile, DHS has moved to suspend the use of expanded expedited removal against migrants at the border.

What’s happening?

The Biden administration announced that it is taking steps to restart MPP after a federal judge ordered its reinstatement pending the ultimate outcome of a lawsuit brought by the states of Texas and Missouri. After a failure to get either the Fifth Circuit Court of Appeals or the Supreme Court to overturn the order, the administration is now legally obligated to move ahead with starting up the program again. Officials have told reporters that tent courts will be built along Brownsville and Laredo, mirroring how the program had operated before its termination earlier this year.

Under MPP,  migrants who arrive at the border intending to apply for asylum are put into removal proceedings, as is typical. However, instead of being detained in ICE facilities or released into the interior of the country, migrants are docketed for future court hearings in either immigration courts near the border or tents set up along it. After receiving their hearing date, migrants are sent back to Mexico, where they’re supposed to wait weeks or months for their subsequent court hearings. While the program was active, those in MPP couldn’t really stray very far from the border, as they were forced to cross each time they had a court hearing, and often had a difficult time securing representation. Many were the targets of violence from cartels or other criminal elements while living in squalid border camps (more detail on all this below).

For this iteration of MPP, officials are pledging to make due process-enhancing changes to the program, including efforts to ensure that asylum seekers secure access to representation, that cases are generally adjudicated within about six months, and that there are broader criteria that would trigger exemption from the program. These are, of course, just promises, and may very well be empty ones. There is a certain limit to how much the U.S. government can actually guarantee. A pledge to provide access to lawyers isn’t going to suddenly create an ecosystem of U.S. immigration attorneys in northern Mexico or protect migrants from the extortionists.

At about the same time as administration officials were discussing these plans, the administration  also announced that it would be suspending a policy of expanded expedited removal that had been enacted by the Trump administration last October. BuzzFeed News’s Hamed Aleaziz obtained data showing that expanded expedited removal had been used very sporadically, a total of 21 times since it was enacted. (For a more detailed breakdown, we recommend you read that prior edition linked above, but in a nutshell, ER allows immigration agents to very quickly deport people with no status, who are recent arrivals to the country, and without the need for a court hearing, provided that they don’t actively express fear of persecution or request asylum.) Prior to last year’s change, the rules were that people who were apprehended within 100 miles of a U.S. border and couldn’t prove they had been in the country longer than 14 days could be subject to ER.

It’s important to note here that this doesn’t mean expedited removal as a practice is over. The expanded ER rules had stretched the program to its maximum statutory capacity, permitting the rapid deportation of people apprehended anywhere in the country who couldn’t prove that they either had status or had been in the country longer than two years. With this suspension of those rules, the program presumably reverts back to its previous standards. That also means that it doesn’t necessarily affect the administration’s recent move to use ER against families of asylum seekers at the border, as recently arrived migrant families  amply fall under the prior criteria. As we noted before, the supposed exemption around asylum is thin, as the people who are attesting that migrants did not express a fear of persecution are the arresting agents themselves.

Between the reinstatement of MPP, the fact that expedited removal for families will remain in place, and the Biden administration continues fighting in court to preserve Title 42, the ability for migrants to successfully present an asylum claim remains severely constrained.

How we got here

The Migrant Protection Protocols began in January 2019 as a pilot program at the San Ysidro port of entry in California. The Trump administration expanded MPP across the entirety of the U.S.-Mexico border over the next year, enrolling more than 71,000 migrants in the program. Roughly two-thirds of the migrants on the MPP docket were Honduran, Guatemalan, or Salvadoran, according to federal data analyzed by TRAC.

From the Trump administration’s standpoint, MPP was a rousing success. Migrants forced to wait in Mexico were all but guaranteed to lose their asylum cases. Stranded in Mexico, they had little access to lawyers who could help them gather and present the evidence needed for a successful asylum claim. Just over 6,300 migrants on the MPP docket managed to find legal representation, according to TRAC’s data. And even then, there was little guarantee they’d actually win their cases. More than 28,000 MPP hearings led to in absentia decisions, meaning the migrants weren’t present. 

Sometimes migrants missed their hearings because they didn’t receive proper notice, or because they had tired of living in Mexico and decided to give up on their asylum claims. Other times, the reason was more sinister. Migrants forced to wait in Mexico became easy targets for organized crime, and were often subjected to extortion, threats, and even kidnappings. It wasn’t unheard of for migrants to get kidnapped after being sent back to Mexico.

Even migrants who weren’t in immediate physical danger were forced to live in squalid conditions. Shelters across the border—typically operated by churches or nonprofits with tight budgets—filled up and stayed full. Even before the implementation of MPP, migrants were spending much longer in Mexico than ever. In 2018, the Trump administration had started limiting the number of migrants who could ask for asylum at ports of entry each day, creating massive backlogs along the border. Migrants started keeping informal lists tracking whose turn it was to ask for asylum. People would often arrive in Tijuana or Nuevo Laredo expecting to cross into the U.S. to ask for humanitarian protection, only to learn that they’d have to wait weeks or months before being able to do so. The combination of metering and MPP meant that migrants who may otherwise have stayed in a shelter for a night or two were suddenly there indefinitely.

Migrants who couldn’t secure a bed in a shelter had to find other accommodations. Those with a bit of money to spare often rented hotel rooms or apartments, which they split with other migrants. Those who had no money lived in encampments near ports of entry. The tent cities were squalid and dangerous, but they also provided safety in numbers.

In March 2020, the Trump administration used the pandemic as a pretext to indefinitely suspend all MPP hearings. Migrants on the MPP docket weren’t let into the U.S., nor were they officially denied asylum. Instead, they were told to report to ports of entry on their hearing dates so they could be issued tear sheets with new hearing dates. In May 2020, the policy changed again: migrants with hearing dates between May 10 and June 5 were told to “present themselves at their designated [port of entry] one month later than that date to receive their new notices of hearing … and tear sheets for a future court date,” according to a DHS letter sent to Human Rights First researcher and policy analyst Kennji Kizuka. Those whose hearings are scheduled between June 8 and 19 were told to present themselves at their designated port of entry on their scheduled hearing date to receive a new notice.

On his first day in office, Biden announced that his administration would stop enrolling new people into MPP. The Biden administration rolled out its plan to bring people who had been on the MPP docket into the U.S. in February. (The administration didn’t formally rescind MPP until June.) 

That would have been the end of MPP, but in April, Texas and Missouri sued the Biden administration for suspending the policy. The states argued that MPP would force them to direct state resources to fighting human trafficking. They also argued that ending MPP “threatens damage to the bilateral relationship between the United States and Mexico,” an objectively nonsensical argument. Crucially, the lawsuit claimed that the Biden administration’s efforts to end MPP violated the Administrative Procedure Act (APA), a law prohibiting capricious rule-making. (The Trump administration was regularly sued for violating the APA, especially with regards to its immigration policies.) 

A Trump-appointed federal judge in Texas ordered the Biden administration to reinstate the program. The Biden administration filed an appeal with the Fifth Circuit and was denied. The only reason MPP wasn’t reinstated sooner is because, as the Justice Department’s lawyers argued in late September, the administration can’t reinstate MPP without the compliance of the Mexican government. 

What’s next?

There remains the possibility that the underlying MPP lawsuit will be resolved in the administration’s favor and it can cease the program’s reinstatement. Remember, this order is not a final ruling, it is merely a directive that the government maintain the policy as the litigation plays out. The administration is also in the process of drafting another memo to rescind MPP again, which it hopes will address any purported legal deficiencies in its initial attempt.

As we’ve pointed out in the past, a big open question is what exactly Mexico is going to do here. Ultimately, any version of the program can only function with Mexico’s consent and cooperation, as it inherently involves pushing people back to its sovereign territory. The impact of Title 42, for example, has been somewhat dampened by the Mexican government’s refusal to take certain would-be expulsions back in. While the government of President Andrés Manuel López Obrador has broadly been amenable to the U.S. government’s migration-deterrence efforts, the Biden administration, which actually does want to end MPP, could easily insinuate to our southern neighbors that maybe they shouldn’t let it happen.

The fact of the restoration of the program also doesn’t necessarily indicate how widely it will be used. After all, the administration has several tools in its arsenal now to turn migrants away, and something like Title 42, while it lasts, is far more powerful than MPP. Even if there is no additional legal action that would take Biden off the hook for relaunching it, it’s not clear how widespread MPP’s usage would be, though its more extensive application might look more tantalizing in the event that, for example, Title 42 is struck down in court.

Under the Radar

African asylum seekers deported using torture-like restraints

A group of asylum seekers who were deported to Cameroon and Uganda have filed a civil rights complaint against ICE, alleging that they were put into a device known as the WRAP during their removal flights. The device, which is made of a number of shackles and wraps, holds a person’s legs together and at a relatively sharp angle to their torso, making them immobile and causing difficulty breathing. According to these detainees, they had not resisted attempts to load them onto the aircraft or otherwise done anything to merit such a dramatic restraint.

The asylum seekers claimed that they were left in the WRAP for hours, including before their flights were close to taking off. A coalition of immigrant advocacy groups and legal organizations that collectively submitted the complaint noted that the only known reports of the WRAP being used are against African asylum seekers, which raises questions about why exactly ICE felt that they were such a particular threat that they needed to be put into the device.

Next Destination

Biden administration ends mass workplace immigration raids

In August 2019, the Trump administration dispatched ICE officers to several chicken plants in central Mississippi to arrest undocumented workers. The Mississippi raids resulted in the arrests of 680 workers—it was believed to be the largest immigration enforcement action in a single state. 

The Biden administration announced this week that it would not conduct mass workplace raids like the one in Mississippi. In a statement, DHS secretary Ali Mayorkas said the department would focus its efforts on “unscrupulous employers who exploit unauthorized workers, conduct illegal activities or impose unsafe working conditions.”

Mass workplace raids weren’t a Trump invention. They were a hallmark of the George W. Bush administration, which similarly opted for “shock and awe” tactics. In 2008, for example, federal immigration agents arrested nearly 400 workers at a meatpacking plant in Iowa. The Obama administration moved away from workplace raids—not solely for humanitarian reasons but also because they were costly and not always effective. Instead of mass work-site raids, the Obama administration conducted “paper raids” in which it audited employers’ I-9 forms to look for potential immigration violations. The Biden administration appears to be moving in a similar direction, albeit in a more polarized climate with regards to immigration. 

GOP officials ramp up campaign centered on border fear-mongering—10-08-21

Immigration news, in context

This is the ninety-eighth 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.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

  • In The Big Picture, we examine the public spectacles mounted by GOP officials fanning the border crisis flames.

  • In Under the Radar, we look at a federal ruling holding that entry bans don’t mean applicants shouldn’t have their visas processed.

  • In Next Destination, we discuss the uncertain status of Afghan refugees now leaving the military bases where they first landed.

The Big Picture

The news: GOP officials have been hitting the Biden administration with absurd claims of “open borders” policies for as long as he has been president. This naked political strategy that ignores the fact that Biden’s border approach has essentially been to keep the bulk of the Trump-era framework and tell people not to come. Smelling blood over the perception of chaos stemming from the arrival (and often, immediate expulsion) of thousands of Haitian asylum seekers at the border and the internecine fight over multi-trillion dollar spending measures among Congressional Democrats, GOP leaders in the last week have intensified the false rhetoric and invasion make-believe.

What’s happening?

In an absurd spectacle, ten Republican governors descended on Mission, Texas on Wednesday to call for the Biden administration to functionally do what it was already doing: close the border to migrants. They accused it of driving profits to drug cartels and putting the U.S. public at risk. (Ironically, if anything has enriched drug cartels, it’s the closure of the border.) While COVID and its attendant economic consequences continue to ravage the country, Texas Gov. Greg Abbott, Nebraska Gov. Pete Ricketts, Georgia Gov. Brian Kemp, Iowa Gov. Kim Reynold, Idaho Gov. Brad Little, Oklahoma Gov. Kevin Stitt, Montana Gov. Greg Gianforte, Ohio Gov. Mike DeWine, and Wyoming Gov. Mark Gordon gathered at a podium in the middle of a field, flanked by humvees, helicopters, and armed National Guard units in full fatigues. 

The governors unveiled a ten-point plan they were going to urge the Biden administration to fulfill. The plan included everything from comically unrealistic proposals like completing Trump’s border wall to things the administration is already doing, like attempting to clear the massive immigration court backlog and continuing the probably illegal Title 42 policy. The most farcical of the points was an entreaty to send a “clear message” to migrants that they shouldn’t attempt a trek and entry into the United States. The governors seem to have ignored that senior members of the administration, from the president to the vice president to the Homeland Security secretary, have already very explicitly told potential asylum seekers to stay away.

The governors’ military cosplay served in part to highlight one of the fundamental contradictions in their arguments: they  consistently play up the supposed dangers lurking around every bend in Mexico, while simultaneously calling for vulnerable migrants to be sent back or kept out altogether. Texas Rep. Chip Roy perfectly encapsulated this oxymoron when, in an interview with the Daily Caller, he stated both that the Biden administration both wants “migrants to be abused by cartels” and “Americans to have fentanyl pouring into their communities,” without seeming to realize or care that this conception of events requires migrants to concurrently be victims and perpetrators.

Arizona Gov. Doug Ducey somewhat bizarrely tied rising homicide rates in Tucson not even to migrants themselves, but to law enforcement personnel being otherwise occupied with show patrols around the border, as if that were in any way a requirement of their jobs. Iowa Sen. Joni Ernst directly echoed Donald Trump’s presidential campaign launch on Wednesday when she said “of course we’re going to have rapists” among the migrants being let into the country to engage in the legally guaranteed process of submitting an asylum claim. That particular press conference was one of two this week in which Congressional Republicans chided Biden for creating supposed twin national security and humanitarian issues despite having ultimately changed precious little about the Trump era’s approach.

This is ultimately just another form of what observers sometimes sardonically call “Schrödinger’s immigrant.” In its original form, the term pokes fun at the notion that immigrants can at once be taking all of the jobs and lazily sitting around cashing welfare checks. In this case, it’s the view that the Biden administration is at once enticing defenseless migrants to make the trek to the border and put themselves at the mercy of the smugglers and the elements with an open borders message—which, we cannot emphasize enough, is a ridiculous assertion—and also that these people are hardened criminals waiting in the wings to traffic drugs and attack white women.

Ultimately, political theater has only as much power as the impact it has on voters and subsequent political action, and that’s exactly the intent here. These officials know that, above all, the Biden White House hates the perception of acting in a partisan fashion and has already tailored its border approach towards a futile effort to appease right-wing critics. It is hard to imagine how these press circuses and rhetoric would differ at all no matter what the administration chose to do, and it’s made all the more grotesque by the fact that the policies as they stand are among the most restrictive in U.S. history.

Expulsions of Haitian asylum seekers have only increased. There are now a series of interlocking programs that block access to the formal asylum system, just as there were under Trump. These bad-faith campaigns to draw a distorted picture of the border are expected to bear fruit in part because these GOP campaigners are counting on the fact that the public in general will feel very strongly about but have very little real knowledge on the goings-on at the border. This is almost always an accurate assumption, across the political spectrum, from the right wing to the left wing, and is abetted by an out-of-its-depth national media that seems incapable of getting basic facts right in general interest reporting (the immigration beat reporters, by contrast, are some of the country’s hardest-working and most meticulously knowledgeable about their area of coverage).

Case in point, USA Today White House reporter Rebecca Morin published a report on Tuesday based on a conversation that Homeland Security Secretary Ali Mayorkas had with the newspaper’s editorial board and newsroom journalists. In it, she included the declaration that “thousands of migrants appeared before an immigration judge to see if they would be allowed to stay in the U.S.” in reference to the Haitian would-be asylum seekers who had camped out near the border. This is a claim that it is entirely, unquestionably, and demonstrably false, as was immediately pointed out by multiple immigration advocates, lawyers, and other reporters on Twitter. Yet, three days later and as of the time of this edition’s publishing, the line remains in the story.

How we got here

Back in July, the governors of Arizona, South Dakota, Iowa, and Arkansas deployed their respective National Guard troops to the Texas-Mexico border. The governors of Florida, Ohio, and Nebraska sent their state highway patrol troopers. Texas had begun arresting migrants for trespassing on private property as part of Governor Greg Abbott’s “Operation Lone Star” a few months earlier, and a coalition of Republican governors wanted to help. The governors, all opponents of the Biden administration, wanted to crack down on the supposed “crisis” at the border.

Abbott and his fellow Republicans claimed the Biden administration had “opened” the border to migrants, causing an unprecedented influx: migrant apprehensions at the border are at a 21-year high. But that doesn’t mean that more migrants are crossing the border now than at any time in recent history. Because of Title 42, the border expulsions policy implemented by Trump at the beginning of the pandemic, the border has turned into a sort of revolving door for migrants. The high number of encounters isn’t due to a sudden, never-before-seen influx of migrants; it’s because the same migrants are being apprehended over and over again.

People expelled to Mexico under Title 42 aren’t formally deported, which means they don’t face the penalties that come with deportation, such as a possible bar on reentering the country for several years. Expulsions create a perverse incentive for migrants: if you get turned away, you can try again, maybe through a more remote—and thereby more dangerous—route, or maybe with the help of a smuggler. Under Title 42, migrants can’t ask for asylum at ports of entry. If they cross between ports, the aim is no longer to be found by Border Patrol as soon as possible, as it was before the implementation of Title 42. 

The border is by no means “open,” but a casual observer would be forgiven for thinking otherwise. (Politicians, obviously, are not “casual observers.” Abbott and his ilk are fanning the flames of disinformation, creating a false narrative of an open border when no such thing exists.) The situation varies depending on where you are: at some ports of entry, Customs and Border Protection was allowing a trickle of pre-approved migrants to enter every day. (These limited entries were the result of a partnership between the Biden administration, the ACLU, and local service providers who identified the most vulnerable migrants in Mexico. The service providers would pass the migrants’ names along to the ACLU, which would then pass them along to the administration. The partnership ended on July 31 after the administration decided to extend Title 42 instead of ending the policy, as it had previously claimed it would do.) Unaccompanied minors aren’t expelled to Mexico, but families with children often are—though in some ports of entry, some families with children are allowed to enter the country to ask for asylum as well.

Whether or not a migrant is allowed to enter depends on where they’re apprehended, their age, and often their nationality. Migrants from countries that Mexico is more “willing” to take, such as Guatemala and El Salvador, are more likely to be expelled. In August, 34 percent of migrants encountered in the Rio Grande Valley were expelled, according to CBP data. The majority were from Guatemala, Honduras, Mexico, and El Salvador, in that order; just 508 of those expelled in the Rio Grande Valley that month were from other countries. In nearby Del Rio—the Border Patrol sector where officers mounted on horseback ran down Haitian migrants—58 percent of migrants apprehended in August were expelled under Title 42. 

The fact of the matter is that some migrants are being expelled while others are allowed to enter the country to make asylum claims. There seems to be little logic to the situation. The Biden administration has inflamed an already volatile situation by applying inconsistent policies across the border, and by largely leaving the decision over whether to expel migrants to individual Border Patrol officers. Because of the selective enforcement of Title 42, people who want to see an “open” border despite the obvious continuation of the policy will see that, even if tens of thousands of migrants are expelled each month. 

Abbott and his coalition are cynically exploiting this confusion to make it seem as if Biden has opened the border. (The Biden administration, meanwhile, has taken it upon itself to “crack down” on migrants to dispel the notion that the border is open, which it isn’t.) Abbott’s argument is that if Biden won’t enforce immigration law, then state and local governments must. But here’s the thing: even if Title 42 were to end today, migrants wouldn’t just get to come to the U.S. Asylum seekers would be allowed to apply for asylum, but there’s little guarantee that most would get it. Even at its most welcoming, the immigration system is designed to weed people out, not to welcome them. 

On top of all that, state and local governments don’t have the power to enforce federal immigration law. (There are some partnerships between federal immigration agencies and local law enforcement, but that’s a separate matter entirely.) Under Operation Lone Star, Texas isn’t arresting migrants for violating immigration laws; it’s arresting them for trespassing. This is possible in Texas because much of the land that immediately borders Mexico is private ranch land. In states like Arizona, where most of the land that borders Mexico is public—e.g., national parks, such as Organ Pipe Cactus National Monument—local law enforcement can’t arrest migrants for trespassing. 

Abbott has only doubled down on Lone Star. In September, Abbott announced the Operation Lone Star Grant Program, a $100 million effort to “enhance interagency border security operations supporting OLS, including the facilitation of directed actions to deter and interdict criminal activity and detain non-citizens arrested for state crimes related to the border crisis.”

What’s next?

There’s no real reason for the GOP to suspend this effort, as it’s already been established that it doesn’t actually have to have any nexus to the truth. Particularly given the existing narrative that next year’s midterm elections are theirs for the taking, the border wedge issue presents a lot of advantages as a messaging strategy. First of all, as we’ve noted, it is among the public policy issues in which there is the largest delta between how strongly people feel about it and what they actually know. This is in part due to its unique position in the firmament of political decision-making as an issue that is massively consequential to the nation’s future but with which native-born U.S. citizens could never directly interact.

There is no other such issue that lends itself to such a massive degree of public ignorance. No matter what, everyone at some point is forced to engage with the education system, or the tax system, or the healthcare system. On immigration, however, unless a U.S.-born person has friends or family that need to navigate its arcane structures, there’s no reason they’d ever have to fill out a form or engage with an immigration agent or bureaucrat. That makes it all an abstraction, a theoretical framework that is constructed differently in each person’s mind and can be molded by a skilled political hand. It’s a ripe issue for tailoring specifically to the necessary political specifications because candidates can say essentially whatever they want about it without facing much pushback from journalists who don’t specialize in immigration.

As the midterms heat up, expect to see more excursions of GOP legislators and governors heading out to ride around in humvees and on gunboats, maybe wearing a flak jacket or two and accompanied by eager Fox News types keen to feed greedily at the trough of simplistic tropes as served up by CBP itself. The agency has every incentive to help out, as it views recurring border chaos stories as an opportunity to increase its funding and standing.

In all likelihood, the GOP messaging will work. The skittish consultants retained by the DNC and erstwhile moderates who populate the Biden campaign and administration will advise the president to turn the screw even further, and hypothetically negate the electoral advantage of the border disorder dialogue by engaging in more overt sadism to discourage further arrivals. These attempts at finding a middle ground won’t work on two fronts They won’t actually discourage any migrants from making the trek, and second, they certainly won’t neutralize the impact of the political argument, which would move forward in almost the exact same way whether Biden personally spit-shined each migrant’s shoes and then handed them a green card or he set up landmines across the border.

Under the Radar

Federal judge again rules that exclusions don’t mean visa prohibitions

U.S. District Judge James Boasberg has ruled that exclusion policies under Immigration and Nationality Act 212(f)—which we have discussed a lot and initially explained in one of our first editions—do not extend to visa processing of petitioners outside the United States. To briefly recap, 212(f) is the authority that the infamous “Muslim Ban” was issued under, a version of which was eventually upheld by the Supreme Court. It permits the president to cast entire categories of noncitizens as inadmissible, based almost solely on their discretion, and was used liberally by Trump.

This lawsuit was brought by a group of applicants for both immigrant and nonimmigrant visas who had been excluded under presidential proclamations restricting entry to those deemed a COVID introduction risk, or who were said to be detrimental to the post-COVID labor market. The ruling doesn’t mean that they will necessarily be permitted to enter, but it establishes that this prohibition on entry does not direct the State Department to simply not process their visas at all. While some of the earlier proclamations have since been rescinded, Biden has issued a few of his own in response to emerging variants in the pandemic.

Next Destination

Afghan refugees in the U.S. may not have path to citizenship

Tens of thousands of Afghan refugees who were paroled into the country will soon leave the U.S. military bases where they’ve been living, CBS News’s Camilo Montoya-Galvez reports. But because they were paroled into the country—instead of being issued visas or admitted as refugees—the Afghan evacuees may not have a direct path to obtaining legal permanent residency and, eventually, U.S. citizenship. 

At least 40 percent of the more than 55,000 Afghans who were evacuated to the U.S. are eligible for special immigrant visas due to their work with American forces during the war. But those who don’t qualify for special immigrant visas may have to instead apply for asylum, a different process than obtaining refugee status. Congress created an expedited asylum process for Afghan evacuees, under which U.S. Citizenship and Immigration Services is required to interview them no later than 45 days after their initial asylum application. Decisions for Afghan asylum seekers must be issued within 150 days of their application being filed. But there are so many Afghan migrants that USCIS may not be able to process all the applications within that timeframe.

Administration releases long-awaited ICE enforcement guidelines—10-01-21

Immigration news, in context

This is the ninety-seventh 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.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

  • In The Big Picture, we analyze the Biden administration’s new immigration enforcement priorities.

  • In Under the Radar, we discuss the recent expulsion flights to Haiti.

The Big Picture

The news:  The Biden administration announced on its first day that it would be revisiting the criteria utilized by ICE when making enforcement decisions. This week,  Homeland Security Secretary Ali Mayorkas released the long-awaited priorities in a memo to departmental staff. While the priorities as such will be broadly familiar to anyone who read the interim priorities and the priorities towards the end of the Obama administration, this memo goes all in on one particular facet of the enforcement calculus: agent discretion.

What’s happening?

We’ve discussed the idea of discretion at length before, highlighting its crucial role in the enactment of the country’s immigration laws. Discretion isn’t exactly a novelty in federal policy making: every single federal department has regulations that build on the comparatively general and sparse U.S. Code, and then departmental policies and guidelines that build on the regulations. Congress can’t legislate everything to anywhere near the degree of specificity that it takes to actually run federal systems, and there is a longstanding legal principle of trusting agency officials to use their expertise and knowledge to figure out exactly how to apply the laws as written (perhaps most notably laid out in the so-called Chevron doctrine).

In the immigration enforcement context, there are two main buckets of discretionary decision-making. These priorities deal mainly—though not exclusively—with the first bucket, which is the actual targeting, arrest, and initiation of removal proceedings against people for immigration violations. These actions are the responsibility of ICE field offices and agents in the Enforcement and Removal Operations section of the agency. This is what most people think of when considering ICE actions: agents out in the field, conducting raids and targeted arrests (Customs and Border Protection also does this, though these new guidelines are issued to and geared towards ICE).

The other bucket is around prosecution, as ICE prosecutors (under the Office of the Principal Legal Advisor) decide whether to pursue removal against particular people, the extent to which to argue against applications for relief, whether to pursue appeals to successful cases, etc. The Biden administration has separately instructed prosecutorial staff to exercise discretion to stop bringing cases against, for example, longtime residents with no criminal convictions, though subsequent reporting has shown that managerial and line staff in the agency often ignored such directives.

That is precisely the reason that immigration attorneys and advocates have been wary of the new guidelines. While the guidelines re-establish longtime and relatively standard priorities for targeting and detention—these being threat to national security, threat to public safety, and threat to border security (more on this below)—they heavily emphasize agents’ ability to make individual determinations around enforcement decisions. One section begins by noting explicitly that the “civil immigration enforcement guidance does not compel an action to be taken or not taken.”

Instead, it’s meant to direct agents to weigh a variety of factors in each case, and avoid making decisions based solely on one; for example, an individual who had committed a crime would not automatically be a target for arrest, by the same token that one who had no criminal record would automatically not be. Boiled down to its most basic form, this looks like a simple formula:

  • Prioritization tier + (aggravating factors - mitigating factors) = enforcement determination

Where the tier can be 1, 2, or 3 (with national security threats determined to be the highest); aggravating factors could include having been the subject of a criminal investigation; and mitigating factors could include having been a longtime resident. The guidance also explicitly includes some potential factors and restrictions that agents could take into account, including the directive that “A noncitizen’s exercise of their First Amendment rights should never be a factor in deciding to take enforcement action,” a nod to criticisms that the agency has previously targeted activists and organizers. It also specifically alludes to the phenomenon of employers and landlords attempting to utilize immigration status as a weapon to underpay, prevent organization, and curtail tenants’ rights, stating that agents “must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices.”

While these latter points certainly are a welcome addition to the enforcement lexicon, the trouble is that it is still ultimately up to ICE agents to make the determination, and it is their responsibility to allot weight and significance to different factors. This is, obviously, a bit of a dicey proposition if the ultimate goal is to have a system that emphasizes fairness. The point about First Amendment protection wasn’t added out of the blue, it is in direct response to evidence that ICE field offices have cavalierly violated the Constitution by bringing enforcement action against people who were protesting its policies. It is these same people who are now entrusted with ensuring that their enforcement actions are optimized for equal treatment and due discretion.

The guidance itself certainly doesn’t lay out any additional oversight mechanisms or consequences for personnel who aren’t complying in good faith. It limits itself to establishing training, collecting data, and instituting a review process that will “seek to achieve quality and consistency in decision-making across the entire agency and the Department.” That’s all well and good, but anyone who has covered ICE knows that the implementation of policy can vary wildly even between different field offices, and most agents are fully aware that they don’t have to change a single thing about their conduct when there are no consequences for failing to do so.

How we got here

There’s this idea in the popular imagination that immigration proceedings are basically the same as criminal proceedings: someone commits a crime (in this case, entering the U.S. unlawfully) or overstays a visa, they get caught by the authorities, and then face a consequence (e.g., deportation) if they’re “guilty.” But immigration enforcement is highly discretionary, and the types of “offenses” that make a noncitizen deportable—or a priority for deportation—have ebbed and flowed over time.

Much of our current immigration enforcement system originated with the 1996 Illegal Immigration and Immigrant Responsibility Act (IIRIRA). That law, signed by Bill Clinton, significantly expanded enforcement priorities by lengthening the list of crimes that make noncitizens subject to deportation. Together IIRIRA and another 1996 law, the Antiterrorism and Effective Death Penalty Act, expanded the list of “aggravated felonies”: certain crimes that are grounds for deportation. Not all aggravated felonies are actually felonies. Murder, rape, and sexual abuse of minors are all aggravated felonies, but so are “failure to appear for service for a sentence, if the underlying offense is punishable by imprisonment of at least five years” and “any crime of theft (including the receipt of stolen property) or burglary for which the term of imprisonment is at least one year.” And even noncitizens who are charged with but not convicted of certain crimes can be flagged for deportation due to their criminal records.

The 1996 bill established 287(g), a partnership between federal immigration authorities and local law enforcement agencies that essentially turned local cops and sheriffs deputies into the INS’s boots on the ground. There were several 287(g) models: a jail enforcement model, in which everyone booked into a local jail would be asked about their immigration status; a task force model, in which officers would ask people they encounter during non-immigration related operations about their status; and the hybrid model, a mix of both. (The Obama administration discontinued the task force model after complaints over civil rights abuses and racial profiling.)

IIRIRA also created a new type of enforcement: expedited removal. For the first time, anyone apprehended within 100 air miles of the border could be quickly deported without due process. (For a more in-depth explanation of expedited removal, we suggest reading our July 30 edition of the newsletter, which delves into its history and the Biden administration’s recent decision to apply it to migrant families.) 

As Dara Lind wrote for Vox, IIRIRA made more people deportable while simultaneously making it harder for undocumented immigrants to become “legal.” People who would have otherwise not been priorities for deportation or may not have been deportable at all, many of whom were visa holders or legal permanent residents, suddenly had targets on their backs overnight.

Every subsequent administration has had its own enforcement priorities. After 9/11, the Bush administration tied immigration enforcement to national security. Congress dissolved the Immigration and Naturalization Service in 2003, transferring its duties to agencies within the newly established Department of Homeland Security. The Bush administration expanded 287(g) and made headlines for conducting mass workplace raids that resulted in arrests of thousands of undocumented immigrants. Bush also created Secure Communities, a program that runs the biometric data of anyone booked into a local jail through federal immigration and criminal databases.

The number of deportations doubled between 2001 and 2011, partly due to the Bush and Obama administrations’ increased funding for border security, as well as an increased emphasis on deporting those with criminal charges and convictions. 

In 2010, ICE deputy assistant secretary issued a memo detailing the Obama administration’s enforcement priorities. The memo said ICE should focus its “limited enforcement resources” on:

  • people who pose a national security or public safety threat (including people “engaged in or suspected of terrorism or espionage,” people convicted of certain crimes or subject to outstanding criminal warrants, and people convicted of aggravated felonies)

  • people who had recently entered the U.S. without authorization

  • and people who “are fugitives or otherwise obstruct immigration controls,” including those who had already been ordered deported and those who “obtain admission or status by visa, identification, or immigration benefit fraud.” 

The Obama administration rolled out a new prioritization scheme in 2014. In a now-infamous speech, Obama said 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.” Immigration advocates criticized the administration for creating a binary between “good” immigrants with no criminal records and “bad” immigrants. Critics noted that having been charged with or convicted of certain crimes at any point could trigger an immigration arrest. A 2014 DHS memo issued to outline this enforcement strategy clarified who ICE would prioritize for deportation:

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

  • 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” 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 2014 memo also said prosecutorial 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 Obama administration ended Secure Communities in 2014, replacing it with the Priority Enforcement Program (PEP). Under PEP, ICE modified its detainer forms, documents asking local jails or prisons to hold non-citizens for an additional 48 hours after they’re supposed to be released, so ICE can pick them up and transfer them into federal immigration custody. There were several modifications made to the detainer process, all with the intention of making detainers less broad in the wake of legal challenges in which immigrants claimed that detainers violated their civil rights. A 2016 report by TRAC found that ICE’s use of detainers stabilized after PEP’s implementation. Although PEP was intended to reflect Obama’s “felons, not families” promise and uphold the new enforcement priorities, immigration advocates and civil rights groups still contended that its scope was too broad.

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.”

Unsurprisingly, the Trump administration drastically expanded enforcement priorities. Under Trump, ICE’s Enforcement and Removal officers were instructed to arrest “all removable aliens” encountered in the field. 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.” 

A 2018 analysis by the American Immigration Council found that the Trump administration’s new enforcement priorities led to more arrests and more deportations. The Trump administration also limited discretion at the adjudicative level. In 2018, then-Attorney General Jeff Sessions issued a decision ending immigration judges’ ability to administratively close cases. The end of administrative closure meant immigration judges could no longer temporarily close cases, and it significantly contributed to the immigration courts’ growing backlog. 

What’s next?

One of the big questions whenever a new federal immigration policy is released is: who is going to sue, and over what? In this case, the likeliest litigant is probably Texas Attorney General Ken Paxton, who’s made it a habit and electoral strategy to bring suit over almost any Biden administration effort to institute a slightly more humane system (often with the assistance of Stephen Miller’s new legal group). Paxton already succeeded in having a federal judge enjoin parts of the administration’s early interim enforcement guidelines that had to do with mandatory detention.

Lawsuits against these policies might be a little difficult in the sense that the Biden administration is not really creating any new program or establishing any fundamentally new principle, Sure, the policies go all-in on agent discretion, but that’s not really anything novel. Discretion is a baked-in part of the enforcement model, and unlike that earlier interim guidance, there’s no attempt here to establish absolute categories concerning enforcement, detention, or deportation targets. To establish standing, the plaintiffs would have to show some sort of harm they were being done, and that seems very difficult to argue here, as does any claim that these lukewarm policies violate statutory functions.

More generally, what exactly this guidance will mean in practice in the longer-term is very much up in the air. As we’ve said, whether it will change anything about how enforcement is conducted depends largely on the extent to which agents view it as a reason to meaningfully modify their own calculus around who to go after. Field office directors are probably the officials who will have the biggest say in whether there is any amount of practical shift as a result of the policies.

One more concrete result is that the guidance can be used as evidence if and when ICE faces accusation that it is again targeting advocates or going after employees or tenants who are attempting to assert their rights. Having those things explicitly discouraged in the guidelines will make it much easier for those groups to challenge enforcement conducted against them on those grounds.

Under the Radar

Biden expels more than 6,100 Haitians in less than two weeks

The Biden administration has expelled 6,131 Haitian migrants over the last 12 days, CBS News’s Camilo Montoya-Galvez reports. There have been 57 expulsion flights to Haiti in less than two weeks, seven of which landed on September 30.

Last week, the administration promised that Border Patrol agents would no longer use horses to prevent migrants from crossing into the U.S. after mass outcry over images of mounted Border Patrol agents running down Haitian asylum seekers in Del Rio, Texas. The administration, however, has made no indications that it would end the policy preventing Haitians and other migrants from accessing asylum at the border in the first place: Title 42. We’ve covered Title 42 in depth numerous times (most recently as part of our September 24 edition on the Haitian migrants in Del Rio), but as a reminder, it’s an ostensible public health policy that allows immigration authorities to deny entry to anyone whose presence might contribute to the “introduction, transmission, or spread” of a communicable disease in the U.S. 

The Trump administration implemented Title 42 in March 2020 despite public health officials’ warnings that it was useless from a public health perspective. The Biden administration reportedly planned on introducing a phased end to Title 42 on July 31 of this year, but instead extended the policy, doubling down on expulsions. Under Title 42, some migrants are expelled to Mexico—but the Biden administration is increasingly expelling Haitian migrants back to Haiti. 

Though there’s been a lot of conflation of “expulsions” and “deportations,” the two are legally distinct. Deportations leave a record: someone who has been deported from the U.S. is barred from returning for at least three years. Expulsions, meanwhile, leave no record; a migrant who is expelled to Mexico may try to cross again and again, which is why the administration has resumed flights directly to Haiti. Moreover, unlike deportations, expulsions happen without any semblance of due process. Migrants who are expelled to Haiti or elsewhere have no chance to argue their asylum case before an immigration judge.

Special edition: what you need to know about the Haitian migrants—09-24-21

Immigration news, in context

This is the ninety-sixth 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.

If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

Given the public interest and layers of policy and historical significance here, this week we’re dedicating our entire edition to Haitian asylum seekers, both breaking down the ongoing situation and its historical underpinnings.

The news: Furor over images of would-be Haitian asylum seekers being run down by horse-mounted Border Patrol agents has caused Biden administration officials to express mock shock and shed crocodile tears while promising that horses will no longer be used to unlawfully prevent migrants from accessing the asylum system. While it’s nice that the unlawful obstructions will presumably be equine-free going forward, none of the underlying policies have been shifted and Haitians (and others) will continue to be expelled, quickly deported, or driven to death in more dangerous areas of the border.

What’s happening?

The encampment under the international crossing bridge near the Texas town of Del Rio, just across the Rio Grande from the Mexican town of Ciudad Acuña, drew national attention not just because of the brutality of the Border Patrol response, but its sheer size and squalor. Some estimates pointed to as many as 14,000 Haitians having been present at the camp’s peak earlier this month. The sudden surge in arrivals appears to have occurred at least in part due to an explosion of encouragement on online platforms like WhatsApp, where migrants were playing something like a game of telephone with Biden administration immigraiton policies.

In May of this year, Homeland Security Secretary Ali Mayorkas announced an extension of Temporary Protected Status for Haitians already in the United States. It seems this message got distorted into the belief that Haitians could arrive in the United States and subsequently obtain protections. Paired with the July assassination of Haitian President Jovenel Moïse and the earthquake followed by a tropical storm in August, many Haitians decided now was the time to attempt a humanitarian migration to the U.S.

It’s important to note here that it appears the vast majority of the migrants are not recent departures from Haiti. Most are Haitians who had left years earlier and settled in countries such as Chile and Brazil, or stuck around in Mexico after earlier attempts to reach the United States. The migrants who are attempting to reach the U.S. directly from Haiti are often doing so via sea voyage (and the administration has not slept on deploying heavy-handed enforcement there too, with Mayorkas sending out Coast Guard ships to interdict and send back Haitian migrants before they ever get a chance to reach the U.S.) Those at the Del Rio camp often came up through South and Central America, including by navigating the notoriously treacherous Darién Gap.

There are a number of interlocking concepts here that are causing a good deal of confusion when taken together, so let’s break them down one-by-one:

Yes, there is such a thing as illegal entry. No, that doesn’t preclude asylum claims

White House Press Secretary Jen Psaki and Mayorkas have both at this point intimated that this is an unfortunate but ultimately necessary exercise of executive authority; this week, for example, Mayorkas said “If you come to the United States illegally, you will be returned.  Your journey will not succeed, and you will be endangering your life and your family's lives.  This Administration is committed to developing safe, orderly, and humane pathways for migration, but this is not the way to do it.” The trouble is that this implies that illegal entry is somehow an impediment to the absolute right to present an asylum claim as guaranteed by international and domestic law, which it very much is not.

Illegal entry and unlawful presence of course do exist; the former even has potential criminal penalties as laid out in two federal statutes (one of which, though, was recently ruled unconstitutional by a federal judge). However, asylum law is very clear that the right to make a claim does not evaporate simply because someone entered the country unlawfully or is present without status. Per 8 USC § 1158(a)(1): “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title” (emphasis added).

There are some exceptions delineated within the section itself, including a time limitation and the existence of a safe third country agreement. None of those exceptions relate to method of entry, and they certainly don’t establish an exception for public health or the government’s intent to expel a migrant without a credible fear evaluation. In fact, references to immigration expulsions simply don’t exist in the U.S. Code at all, either in the immigration title or the public health title (Title 42) that is being commandeered to justify the expulsion policy. Which brings us to our next point.

Expulsions are probably still unlawful

As we’ve noted before, federal judges have already questioned the government’s insistence that Title 42 grants the right to remove anyone pursuant to a public health rationale. The statute in question grants the federal government certain powers to prevent the introduction of communicable diseases, including by stopping the entry of individuals from contiguous territories, but it never uses the word “expulsion,” or “removal” or anything of that nature, opening up the very direct argument that once someone is already on U.S. soil, it simply has no relevance. The ACLU has recently resumed a lawsuit against the administration arguing as much, though as of now, the policy remains in place and is being used to expel large numbers of the Haitian migrants, at a tune of up to seven flights to Haiti a week in the near future.

Of course, if the policy is ultimately ruled unlawful, that won’t do anything for the thousands of Haitians already expelled. It’s also worth noting that, as mentioned above, many of them have actually not been in Haiti for years, so the U.S. is not only failing to provide access to protections but actively sending them to a worse and less stable situation than they were in before. The threat of expulsions and deportations acting as a destabilizing force is a big part of why US Special Envoy for Haiti Daniel Foote resigned in protest this week.

As we wrote recently, between the administration being ordered to restart the Migrant Protection Protocols, also known as Remain in Mexico, choosing to expand expedited removal for families, and keeping Title 42 in place, there are now various systems in place that collectively very quickly send migrants either back to Mexico or to countries of origin, albeit in different ways. Some of those Haitians being sent to Haiti probably are being formally deported, which is legally distinct from an expulsion and has farther-reaching legal consequences. An Associated Press report from yesterday, citing unnamed “U.S. officials,” claimed that “thousands” of Haitians are being released into the United States with active asylum processes, though at this point it’s hard to assert with any specificity the extent to which this is happening. Those being released are apparently being given notices to appear at ICE field offices within the next sixty ideas, though for a full asylum process they’ll have to appear in immigration court and make their case.

Most of these migrants probably wouldn’t qualify for asylum

This is a thorny one, but a pure legal analysis of these migrants’ characteristics leads us to the conclusion that most would not qualify for formal asylum under the rules as currently written. There’s a common misconception that an asylum claim merely requires that a person would be in danger if returned to their country of origin; this is not the case, and in fact there have often been situations where an immigration judge will openly acknowledge that a migrant will likely be in serious peril before denying an asylum claim anyway. The reason for this is is that asylum has rather narrow criteria, mainly the requirement that someone not only be in danger but be actively persecuted either by a state actor or an actor that the state is unable to control, and the persecution has to be as a result of race, religion, nationality, membership of a particular social group, or political opinion. Social group is the least defined and the broadest, and has been used as a vehicle to, for example, protect LGBTQ+ people.

All this means that it’s nowhere near enough, legally speaking, for Haiti to be dangerous and unstable. Many of the migrants currently at the border have been outside of Haiti for years and would probably have a difficult time substantiating why they specifically and personally have a fear for return, unless they happen to fall under a group already widely recognized to be under direct threat. Rather, they would probably be considered economic migrants, and there’s no category for admission to the United States that recognizes purely economic migration (which is distinct from employment-based migration, which requires employment in certain fields and occupations as a prerequisite). That of course doesn’t mean it’s appropriate or even legal for the administration to block access to the system, but many of these Haitians migrants would have a very steep climb to establishing eligibility under the current criteria.

Mexico is not a passive entity

For anyone to be expelled directly across the border to Mexico instead of a flight to their country of origin, Mexico has to accept them in, which it has been doing. Haitian migrants in Mexico have faced raids by heavily-armed Mexican authorities, including units of the National Guard, which was created in 2019 in large part specifically to assist with migration control. As we’ve written about extensively, U.S. and Mexican security coordination on preventing migration and deterring would-be asylum seekers from even trying to reach the U.S. border has been ramping up, and is the key plank of the Biden administration’s long-term strategy on migration.

Mexico in recent months has also assisted in chain expulsions, taking expelled migrants from the United States and further expelling them to Guatemala, creating a sort of seamless continental strategy of international law violations and human rights abuses.

How we got here

The history of Haitian migration to the U.S.—and of the U.S.’s commensurate attempts to restrict Haitian migration—is particularly fraught. As David Fitzgerald wrote in Refuge Beyond Reach, his book cataloging wealthy countries’ attempts to prevent refugees and asylum seekers from ever reaching their borders, the first Haitian asylum seekers arrived in the U.S. Their arrival came shortly after dictator François Duvalier “won” his re-election by a margin of 1,320,780 votes to 0. The Immigration and Naturalization Service denied almost all of those Haitian migrants’ asylum applications, and continued to deny most Haitian migrants’ asylum claims for the next decade. 

Obtaining asylum in the mid-twentieth century was hardly an apolitical process. In theory, anyone who is fleeing persecution in their home country due to their race, religion, nationality, member in a particular social group, or political opinion may qualify for asylum. In practice, migrants from countries considered “hostile” to the U.S., such as the Soviet Bloc countries, were granted asylum at much higher rates than those from friendly countries. Given that the U.S. materially supported the Duvalier regime in Haiti by supplying the dictator with money and arms, granting asylum to the people fleeing that very regime would have amounted to a tacit acknowledgement that the U.S. was allied with a government that was actively persecuting its own people. So the INS largely considered Haitians “economic migrants” instead of asylum seekers fleeing political repression.

The Refugee Act of 1980 was intended to expand and standardize the asylum and refugee systems. But the rates of protection offered to asylum seekers from “friendly” countries—not only Haiti, but also El Salvador and Guatemala—remained abysmally low. In 1980, the Carter administration built new immigrant detention facilities to address the rise in both Central American and Caribbean migration. But Haitian migrants were detained indefinitely in these facilities, while Cuban asylum seekers were released to join family or sponsors in the U.S. Migrants fleeing civil war and political instability in Central America also faced unequal treatment. In 1984, for example, 3 percent of asylum applications filed by Guatemalans and Salvadorans were granted, compared to 100 percent of Cuban asylum applications.

In 1981, Reagan’s first year in office, his administration signed an agreement with Haiti that allowed U.S. immigration authorities to board Haitian ships sailing in international waters to inspect them for migrants. Haiti agreed to accept deportees and, crucially, to not prosecute them for illegally leaving the country. Executive Order 12324, issued by Reagan in 1981 in response to “the continuing problem of migrants coming to the United States, by sea, without necessary entry documents,” technically made an exception for refugees and asylum seekers. The order stated that “no person who is a refugee will be returned without his consent.” INS officials who interdicted Haitian ships were supposed to ask any Haitian migrants they encountered why they left their country and if there was any reason they couldn’t return. But according to Fitzgerald, the author of Refuge Beyond Reach, these interviews were cursory, if they happened at all. Just 28 of the 24,600 Haitians interdicted at sea between 1981 and 1991 were granted entry into the U.S. so they could apply for asylum. 

The Regan administration remained committed to its characterization of Haitians as economic migrants—so much so, in fact, that in April 1982 the Justice Department sent Associate Attorney General Rudy Giuliani to confirm that there was “no political repression” in Haiti. The younger Duvalier, who had taken over after his father’s death in 1971, “personally assured” Giuliani that “Haitians returning home from the United States were not persecuted,” the New York Times reported. Around the same time, Attorney General William Smith told the Times that the administration considered Haitians economic refugees. “The fact of the matter,” Smith said, “is that an illegal alien can go home and stand in line with all the other people who want to enter the U.S. legally.”

Meanwhile, the INS continued detaining Haitian asylum seekers while their claims were processed (and, generally, ultimately denied). In 1982, the Haitian Refugee Center Inc. sued the Reagan administration, claiming that the INS was illegally detaining Haitian refugees indefinitely while paroling asylum seekers from other countries into the U.S. A federal judge ruled that the Reagan administration had violated the Administrative Procedure Act (which regular readers of the newsletter will recognize) by indefinitely detaining migrants. But the judge also ruled that the Refugee Center “failed to prove” that the administration was incarcerating Haitian migrants “because they were black and/or Haitian, but because they were excludable aliens unable to establish a prima facie claim for admission and that non-Haitians were detained pursuant to this policy as well.” 

Conditions in Haiti continued to deteriorate: Duvalier stepped down in 1986, there were two coups in 1998, and another coup in 1991, overturning democratically elected president Jean-Bertrand Aristide. In 1991, the INS began detaining Haitian migrants in Guantanamo Bay. That year alone, the Coast Guard transferred around 12,500 Haitian migrants to the Cuban detention facility, which was deemed “beyond capacity” the following year and continued holding migrants until 1993. Haitians suspected of HIV were categorically barred from entering the United States until a judge intervened. The Clinton administration continued intercepting Haitian migrants at sea, a policy upheld by a 1993 Supreme Court ruling that the federal government wasn’t violating the Immigration and Nationality Act or the 1967 Protocol by having the Coast Guard prevent Haitian asylum seekers from reaching the U.S.

This relatively recent history shows how the odds have been stacked against Haitian asylum seekers and migrants for decades. Haitian migrants in the U.S. have had a few narrow victories, like Temporary Protected Status, but that only applies to those already present in the country, is only implemented in the wake of a natural disaster or another emergency, and can always be revoked.

This broader history also intersects with the current situation at the border. Since March 2020, the U.S. has been “expelling” asylum seekers rather than processing them into the country so they can apply for asylum. This policy, called Title 42, is ostensibly a pandemic-related public health measure—one that top officials at the CDC urged the Trump administration not to implement because it had no meaningful public health value. 

More than a year and a half later, the Biden administration has kept a haphazard version of Title 42 in place: first it decided not to apply the policy to unaccompanied migrant children, then it began allowing some families with children to enter the country while expelling others. The administration also entered an agreement with the ACLU in April, through which a few dozen families would be allowed to enter the U.S. at ports of entry each day. Through this agreement, the ACLU and its partners—migrant rights organizations and service providers on the ground—would identify which migrants were most vulnerable in Mexico. The ACLU would pass those names along to the Biden administration, and CBP would let a few of them enter the country each day. The Biden administration was reportedly ending Title 42 for families altogether by July 31—but then decided to keep the policy in place indefinitely, blindsiding the immigrant rights organizations that had been working with it on the exemption process.

Since Biden took office, the implementation of Title 42 has grown increasingly asymmetrical: some migrants are let into the country, others are expelled to Mexico (or, in some cases, to their countries of origin), and no one quite understands who gets let in or why. The rate of expulsion varies from sector to sector, and there are distinctions based on nationality as well. For migrants, the uneven implementation of Title 42—coupled with Biden’s campaign promises to implement a more humane immigration policy than Trump, and his subsequent about-face after taking office—have led to mass confusion. And for Haitians fleeing a combination of natural disaster and political instability, the Biden administration’s message to “not come” is unlikely to resonate, no matter how repressive the administration’s border policies are.

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