Immigration news, in context
This is the 126th 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 potential upcoming pledge by Spain and Canada to take in larger numbers of western hemisphere refugees
In Under the Radar, we look at an effort by the New York Legislature to tamp down on abuses by the immigration bond industry.
In Next Destination, we discuss a call for an investigation into low asylum grant rates at the USCIS Boston field office.
The Big Picture
The news: As first reported by Axios, the Biden administration is expecting to secure commitments from both Spain and Canada to resettle some portion of the intra-continental migrants that would otherwise be claiming asylum at the U.S. southern border, with the intent to announce the agreement at next week’s Summit of the Americas. These agreements haven’t been finalized, but signal one additional approach to lowering the number of arrivals.
There isn’t yet much detail on the exact contours of these proposed commitments—Axios references internal planning documents but doesn’t publish or excerpt them, and it sounds like they’re relatively preliminary—but broadly speaking it appears that Spain and Canada would commit to receiving Western hemisphere refugees directly.
What’s crucial to understand is that these do not appear to be so-called third country agreements that would send migrants to these third countries after they have already attempted to apply for asylum in the United States, effectively foreclosing access to the U.S. asylum system in lieu of another nation’s. This was a tactic deployed by the Trump administration in agreements with Guatemala, Honduras, and El Salvador, with removals to Guatemala having started before the Biden administration axed the policy (more on that later).
That program was possible under 8 U.S.C. 1158(a)(2)(A), the “safe third country” statute, which stipulates that the government doesn’t have to offer access to the asylum process to a migrant “may be removed, pursuant to a bilateral or multilateral agreement, to a country… in which the alien’s life or freedom would not be threatened” under the existing refugee standards, which are race, religion, nationality, membership in a particular social group, or political opinion, and where they could similarly apply for asylum.
While it’s possible that Biden officials would take this tack, it seems very unlikely given their rejection of the earlier agreements and the simple fact that they currently hold additional tools to exclude people from the asylum system. The most effective of these is Title 42 which the administration is in litigation to terminate, but will probably remain in place for some time. (If and when Title 42 is rescinded, there are plenty of other far less visible systems designed to keep asylum seekers out.) More likely is that Spanish and Canadian authorities will commit to bringing in greater numbers of people through the standard refugee processes, undertaken in countries of origin through their own personnel on the ground.
Indeed, the Axios story mentions a Canadian “recruitment and promotion” strategy that would presumably involve some local marketing to Haitians (incidentally, probably some of the same Haitians that were unceremoniously expelled by the Biden administration after thousands arrived almost simultaneously late last year) and an effort to have them processed prior to their arrival, also negating the need for some of the treacherous journeys they’re otherwise forced to make. Spain is already home to hundreds of thousands of Latin American and Caribbean-born people who’ve taken a number of different paths, including humanitarian migration.
These agreements will probably attempt to divert people away from the goal of reaching the U.S. border to seek asylum in the first place, which also has been a longstanding effort as exemplified by Vice President Kamala Harris’ now-infamous Central America tour, where she explicitly told migrants not to come. The problem with that is that would-be asylum seekers, contrary to what the histrionics of right-wing commentators would have you believe, aren’t typically spending their time carefully following U.S. domestic policy developments and making migration decisions based on that. Most will default to heading towards the U.S. anyway, and tens of thousands are already waiting in the border region for the lifting of Title 42 and other restrictions to be able to apply for protections.
It’s unclear at this point how aggressively the U.S. will try to dissuade migrants from this objective. As we’ve discussed before, and will delve into again below, U.S. administrations have long pursued a strategy that pushed the border outward, including through aggressive coordination with other countries’ own border guards, federal policy, and militaries. While it doesn’t seem particularly plausible that Biden will reignite safe third country arrangements, there are decent odds that this strategy will take the form of: take your asylum claim elsewhere, or else.
How we got here
From pretty much the moment the U.S. implemented a standardized asylum system, there has been a bipartisan project to shirk the responsibilities required by said system. These efforts have taken many forms, including characterizing refugees fleeing repressive U.S.-backed regimes as “economic migrants” unworthy of asylum, implementing “safe third country” agreements, and externalizing the U.S.’s borders so migrants can’t ask for asylum in the first place.
The United States is by no means the only country to do this. As David FitzGerald argues in Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, the U.S., EU, Canada, and Australia have all implemented systems of “remote control” to keep migrants at bay. A common form of remote control is visa and passport requirements, which prevent would-be asylum seekers from easily reaching the country in which they hope to seek protections, and often neighboring countries as well. Mexico, for example, implemented a visa requirement for Venezuelans last December at the U.S.’s behest, since Venezuelan migrants were flying to Mexico in order to ask for asylum in the United States.
Under Trump, the U.S. entered into “safe third country” agreements with Guatemala, Honduras, and El Salvador. These agreements allowed DHS to ship asylum seekers to other countries and required them to file claims there instead. The Guatemalan agreement was the only one to be fully implemented, and it quickly proved to be a sham.
In theory, safe third country agreements are designed to prevent “venue shopping.” For example, the U.S. agreement with Canada requires migrants to apply for asylum in whichever country they reach first. The idea is that if someone really needs protection, they’ll take it at the first opportunity. Of course, in practice, people typically tend to go where they have preexisting family or cultural ties, regardless of the validity of their persecution. The agreements with Guatemala and the other Northern Triangle countries were different in that they would have allowed DHS to send a Guatemalan migrant to Honduras to apply for asylum there even if they had never passed through Honduras, which is south of Guatemala.
These types of remote controls, FitzGerald writes, allow the U.S. and other nations to “evade the spirit of the international refugee regime while variably complying with its letter.” The distinction between “refugee” and “asylum seeker” becomes crucial here. Though the two are often used interchangeably in popular discourse, refugees must apply for status from refugee camps or other relocation sites, while asylum seekers typically apply after reaching their destination country. Refugee camps are another externalization tactic—most people who apply for refugee status never get it.
The Biden administration’s reported plan is a bit different from any of the above forms of externalization, in that it is trying to stop asylum seekers from coming to the United States by encouraging the growth of asylum programs in other countries—but this tactic is not a new one either. The U.S. has helped fund the expansion of Mexico’s asylum program for the same reason, with moderate success. Between 2016 and 2019, asylum requests in Mexico increased by more than 700, according to government data analyzed by the Washington Office on Latin America. Not incidentally, the U.S. has also funded the expansion of Mexican border security programs. It’s a twin effort to keep Central American (and, increasingly, extra-continental) migrants from reaching the U.S. by keeping them out of Mexico, and to encourage those who are undeterred by such efforts to apply for protections in Mexico instead of the United States.
We can presumably expect far more detail here when the policies are unveiled at the summit next week. According to the initial reports, the numbers will be relatively modest, at least to begin with, with Canada expected to commit to receive about 5,000 refugees from the hemisphere over a few years, which is ultimately a rounding error in overall flows. Spain is similarly not expected to pull out all the stops, though the United States certainly has extensive diplomatic clout and can push for increased commitments if it views these as successful interventions that it’s a priority to expand on.
The idea of externalizing what would otherwise be humanitarian migration obligations has been in vogue for the last several years. We mentioned the Trump era’s efforts to use formal third country agreements to send asylum seekers away to countries where they would functionally be facing almost the same set of issues. More recently, the United Kingdom reached an agreement with Rwanda to begin sending migrants there, and claims that it will begin sending the first groups as early as the middle of this month. The plan has caused considerable consternation within the UK, but illustrates the extent to which western democracies facing real or imagined anti-immigrant domestic political pressure are turning to this strategy.
As with many immigration and border policies, the true test is in the implementation. This could actually be a relatively positive initiative if it takes the form of giving migrants additional options for resettlement that would be much more straightforward and carry considerably fewer risks than the dangerous land and sea voyages they might otherwise be undertaking. Conversely, it could become just another avenue for the United States to wash its hands of its international obligations to accommodate humanitarian migrants.
It should be noted that, in the absence of formal third country agreements as stipulated in the law, those who do end up reaching U.S. soil would remain entitled to an asylum process and could not be sent away to Spain or Canada (though they could of course still be sent to Mexico under Remain in Mexico or sent back to countries of origin or Mexico under Title 42, for as long as those policies survive). Having other countries step up is not inherently a bad thing, either. Canada has plenty of capacity to accommodate refugees and comparatively little resettlement. The question is whether this will be a collaborative effort to prioritize the best way to serve the needs of the vulnerable populations seeking help or another attempt to erect barriers to the U.S. asylum process.
Under the Radar
New York lawmakers introduce a bill capping bond company fees
A new bill introduced in the New York state Legislature seeks to reduce the financial strain that immigration arrests have on noncitizens. The bill, called the Stop Immigration Bond Abuse Act, would limit the amount that private bond companies can charge and would prohibit the use of electronic monitoring devices, Documented reports.
Though deportation cases are handled by civil courts rather than criminal ones, the immigration detention system is remarkably similar to the criminal punishment system. Noncitizens in deportation proceedings often have to pay bonds to avoid being held in immigrant detention facilities, which are indistinguishable from prisons (and which, in fact, are often co-located in jails operated by local sheriffs departments). Bond amounts vary from state to state: a 2018 report by TRAC at Syracuse University found that median bond amounts range from $5,000 on the low end (in Orlando, Florida) to as high as $15,000 in Tacoma, Washington and Hartford, Connecticut. In New York, the median bond rate was $5,000 as of May 2018.
These rates are more than what most people can afford, which is where bond companies step in. They will pay the full cost of the bond up front but charge fees and interest, which can become difficult to pay back. In an interview with The City, one advocate described the immigration bond industry as the “Wild West,” particularly in terms of technological “alternatives to detention” such as electronic ankle monitors. Noncitizens have to pay hundreds of dollars a week for these monitors, and can often end up back in detention due to technological issues.
The new bill would cap the fees bond companies can charge and would implement other regulations on the industry. Companies that don’t comply with the new regulations would face misdemeanor charges, but it’s likely that any enforcement will rely on victims’ willingness to report it.
Members of Congress call for an investigation into low asylum approval rates in New England
Citing grant rates well below the national average, eight New England Democrats have requested a formal review of U.S. Citizenship and Immigration Services’s Boston asylum office, the AP reports. The Boston office oversees claims in Massachusetts, Maine, New Hampshire, and Rhode Island. According to a March report, it has approved just 15.5 percent of asylum applications over an undisclosed time period, compared to a national average of 28 percent.
USCIS handles affirmative asylum applications, i.e., those filed by people who are already in the United States. Defensive asylum applications, meanwhile, are handled in federal immigration courts. Defensive application grant rates also vary depending on location, with some judges not approving a single case that crosses their bench, while others have grant rates as high as 95 percent. Despite being adjudicated at the federal level, asylum cases—like pretty much every other type of immigration enforcement—are overseen by actors with high levels of discretion, meaning that a judge or asylum officer’s personal biases are often as important as the facts of a case.