Administration finalizes extreme asylum restriction—12-11-20

Immigration news, in context

This is the sixtieth 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 take a look at a finalized new rule greatly restricting access to asylum, an endpoint in a longtime campaign to end protections altogether.

  • In Under the Radar, we examine the immigration courts’ refusal to implement a plan for holding COVID-safe proceedings, as courts around the country close following exposures.

  • In Next Destination, we discuss a ruling forcing the administration to accept new DACA applications after its failed attempt to terminate the program.

The Big Picture

The news: A previously-proposed regulatory rule severely restricting both access to and likelihood of success on asylum has been finalized following half-hearted attempts to respond to the many concerns raised in public comments.

What’s happening?

If you’re a regular reader of this newsletter, we don’t have to tell you that asylum has been a bit of an obsession of the Trump administration. Stephen Miller seems to zealously believe that no asylum application is meritorious, or really that such a question is irrelevant, as humanitarian migrants inherently pose a threat to the United States’ culture and economy. As we had predicted and written about last week, Trump’s electoral loss has by no means tempered the restrictionist zeal, and in fact the ticking clock on executive power has launched these efforts into overdrive, with a slew of new rules and policy changes.

The restrictions on asylum have thus far been so expansive as to essentially preclude access to it altogether, with layered obstacles stopping claims even when discrete policies are struck down by the courts, as they often are. Currently, the CDC Title 42 order prompts the expulsion of almost everyone arriving at the southern border to claim asylum, and in the rare case that an exception is made, plenty of barriers remain (more detail below). So, yet another anti-asylum rule seems like petty overkill, but it’s hard to overstate just how eye-poppingly extensive this latest 419-page final rule is. Really it’s like several rules in one, targeting various areas of the asylum process, from initial eligibility to court proceedings, and including specific limitations on affirmative asylum applicants already inside the country — a group that has generally been spared the worst of the restrictions. It even explicitly clarifies that some of the new limitations apply to children.

Let’s break down some of the main points, starting with impediments to application eligibility: it would essentially revive an even more stringent version of the so-called transit bar, which has since been blocked by a federal court. Under the rule, anyone who transited through more than one country between their place of citizenship or residence and the United States, even as a layover, would not be eligible for an asylum grant unless they could prove that the other country wasn’t a signatory to international refugee agreements, that they applied for protections and were rejected, or that they were a victim of trafficking. Separately, anyone who spent fourteen days or longer in even one additional country would be ineligible unless they fulfilled the same criteria.

This would off the bat make the vast majority of people arriving to seek asylum ineligible for protections. For those already in the country, having been unlawfully present for one year or longer would render them automatically ineligible; while there is currently a general one-year time limit on asylum applications for all adults post-entry, the law explicitly makes certain exceptions for changed circumstance, a provision the rule seems to simply ignore. Failure to file state or federal taxes at any point would also be grounds for ineligibility.

Provided someone is able to actually pursue an asylum process, the rule makes numerous changes to the proceedings. For individuals in expedited removal processes, which includes all migrants arriving at the border, a credible fear finding would now put them in what are known as “asylum-and-withholding-only” proceedings as opposed to standard removal proceedings. As the ultranationalist Tanton-network group CIS put it (derisively), “[standard] Section 240 proceedings are often more detailed and provide additional procedural protections, including greater administrative and judicial review,” while the alternative considers much more limited evidence and doesn’t review any additional forms of relief.

Additional stipulations make it easier for judges to quickly decide asylum applications are “frivolous,” which automatically ends them and carries severe penalties, including generally the inability to ever apply for status again. It also attempts to more specifically define and put into regulation the administration’s longstanding efforts to tamp down on what constitutes a valid reason for seeking asylum. As we’ve explained before, there are very specific criteria for humanitarian migrants, boiling down to the well-founded threat of persecution against people based on race, religion, nationality, political opinion, or membership in a particular social group that the state either can’t or won’t prevent.

Each part of these guidelines are targeted, including what constitutes well-founded (certain evidence is made essentially inadmissible); what persecution is (“intermittent harassment, including brief detentions,” among other things, is not enough); and what it means to express a political opinion or belong to a particular social group (persecution based on protesting against a large criminal organization, for example, is not enough, even if they fully intend to kill you).

There were other stipulations, but these are the main ones. The proposed rule received over 80,000 comments, most of which appeared to be in opposition to its enactment. Homeland Security and the Justice Department — the two government departments jointly promulgating the rule — made cursory attempts to respond, mostly telling commenters they were wrong about their concerns, and made a handful of minor changes. The finalized rule is now slated to go into effect on January 11, though there’s a good chance it never will, as we’ll discuss below.

How we got here

Oh boy.

There have been so many attacks on asylum that we hardly know where to begin. As we said above, there is virtually no access to asylum in practice at the moment due to the CDC order effectively shutting down the southern border. Even before the pandemic, asylum had become notoriously difficult to obtain, thanks to a litany of policies intended to work in tandem towards a specific goal: obliterating migrants’ claim for protections one way or another.

We’ve covered of these at length, but let’s dig into some of them again:

The Migrant Protection Protocols: This policy, first implemented in January 2019 as a pilot program at the San Ysidro port of entry in California, forced some migrants from Spanish-speaking countries to wait out their court cases in Mexico. According to the administration, it was an attempt to cut down on non-meritorious claims, which it claimed were rampant. Under their logic, migrants would fraudulently claim asylum and then never show up to their hearings after being let into the U.S. In reality, almost all asylum seekers attend their hearings—especially when they have legal representation. From 2001 to 2016, for example, 86 percent of migrant families did not miss a single hearing for any kind of immigration proceeding; for asylum seekers in particular, that figure was 96 percent.

Still, the administration clung to its false claim that most asylum seeking families were skipping out on their hearings, and used faulty data to back up its point. It expanded the MPP to every port of entry along the southern border, even as stories emerged of migrants being extorted, attacked, raped, tortured, and even killed by gangs and drug cartels in Mexican border cities. In the end, those on the MPP docket ended up having higher absentia rates than those let into the country, largely because of the program’s bureaucratic inadequacies and the dangers migrants found themselves in. Hardly anyone on the MPP docket was able to find a lawyer, all but guaranteeing their deportation.

The third-country transit ban: In the fall of 2019, the administration unveiled a new rule denying asylum to anyone who passed through another country on their way to the U.S. and didn’t apply for protections there first. The stated goal was to eliminate “venue shopping.” What the rule ignored, of course, is that any migrant who arrives at the southern border is likely passing through countries with inadequate or nonexistent asylum systems—or, in the case of Mexico, rates of violence that make seeking asylum there moot. (That said, more migrants have started applying for protections in Mexico in recent years.) 

Once again, the ban was premised on the assumption that fraudulent claims are the norm rather than the exception. Anyone who is really fleeing persecution, the administration argued, would ask for asylum in the first non-hostile country they set foot in, even if those countries aren’t actually equipped to process their claims. A federal court ultimately ruled the policy unlawful, but not before thousands of asylum seekers were denied protections under it.

Asylum cooperative agreements with Guatemala, El Salvador, and Honduras: Last year, the Trump administration announced it had reached asylum agreements with three Central American countries. These deals were really agreements to draft actual agreements, which would send some asylum seekers who arrive in the U.S. to signatory countries to apply for asylum there instead. The only one of these so-called asylum cooperative agreements to actually be implemented was with Guatemala. Under that agreement, some asylum seekers from Honduras and El Salvador would be sent to Guatemala to apply for protections there, even though Guatemala hardly had an asylum program to speak of.

In practice, the Guatemala agreement was a roundabout deportation. Human Rights Watch called it “deportation with a layover.” Asylum seekers weren’t given clear instructions on how to apply, they had just a few weeks to file their applications, and—since they were from nearby countries—often didn’t feel safe in Guatemala, less than a day’s drive from the places they had fled.

Like both of the above policies, the Trump administration’s justification for the cooperative agreements was to cut down on non-meritorious claims. It was a similar argument to the one made for the third-country transit ban: if there are other countries where asylum seekers can obtain protections, and those countries are closer to asylum seekers’ countries of origin, why wouldn’t they just go there instead? This logic ignores the fact that Guatemala, Honduras, and El Salvador are all sources of asylum seekers. Why would someone fleeing Honduras feel safe in nearby El Salvador, where many of the same criminal organizations that threatened them had a major presence, and especially if Salvadorans were fleeing as well?

Attorney General and BIA decisions regarding asylum: As our Felipe De La Hoz previously wrote for The Nation, the Board of Immigration Appeals—the immigration courts’ appellate body—has become yet another enforcement arm for the Trump administration. The immigration courts are under the jurisdiction of the Department of Justice, and Trump’s various attorneys general (as well as their immigration judge appointees) have spent the last four years issuing a series of decisions intended to further gut asylum.

In Matter of AB-, for example, former attorney general Jeff Sessions ruled that victims of interpersonal violence, such as domestic violence or gang violence, don’t meet the qualifications to receive asylum. A subsequent decision issued by attorney general Bill Barr determined that being a member of a family doesn’t constitute the “social group” qualification for asylum. Both decisions were intended to reduce a certain kind of asylum claim: those of migrants from Central America, who are often fleeing interpersonal violence that the state is unable or unwilling to protect them against, and for whom persecution often occurs along family lines.

A generous interpretation of these rulings is that asylum law is intended to protect people who are being persecuted due to their “race, religion, nationality, membership of a particular social group, or political opinion” and was originally written with persecution from state actors in mind. With that in mind, the administration is attempting to narrowly apply the law. A less generous—and more accurate—interpretation is that the world has changed a lot since the Cold War, when these laws were first written. People are largely not fleeing state violence anymore; instead, they’re fleeing violence that the state can’t or won’t protect them from. Rather than interpreting the law to fit modern realities, the administration is looking at it as narrowly as possible in order to claim asylum seekers have no place in the United States.

What’s next?

This rule is basically the magnum opus of Miller’s white nationalist oeuvre, a final push to cram through the overarching vision of no more asylum before the jig is up. Indeed, it’s hard to conceptualize practically anyone in the current asylum seeker pipeline who would qualify for and receive asylum under this regulatory regime.

Now that the rule is final, though, we can definitely expect lawsuits seeking emergency injunctions to prevent it from actually going into effect, and on balance these motions have good odds of succeeding. The rule is a minefield of legal liability, starting with the fact that on the DHS side it’s being signed by Chad Wolf, a man who federal judges have repeatedly ruled is not legally running the department and doesn’t have the authority to enact new measures. Beyond that, the government arguably didn’t engage with and respond to the avalanche of public criticism, as it is required to, setting it up for an Administrative Procedure Act challenge (the bane of Miller’s executive actions).

That’s just the procedural side of things. There are plenty of places where the language of the rule seems to contravene federal law, including the above-mentioned one-year limitation on unlawful presence. By and large, federal rulemaking can’t simply toss out prior case law on agency discretion, which it appears to be repeatedly doing here. Then there’s the fact that it’s being enacted just nine days before a new president is being sworn into office. Technically, this doesn’t necessarily matter as far as the legal questions are concerned, but a judge might find the timing suspicious, especially if there are indications that the departments rushed the rule in order to have it in place while they still could.

In the case of a proposed rule, a new administration could simply choose to never finalize it. Once it’s final and enacted, however, it would probably have to go through an entirely new rulemaking and notice-and-comment process to turn things back. It seems to be part of the broader strategy of gumming up the works for the Biden team, and making it harder and more politically contentious to reverse the Trump era’s immigration shifts.

Under the Radar

COVID shutdowns at immigration courts continue

It seems like every day, the Executive Office for Immigration Review—the agency within the Department of Justice that oversees the immigration courts—announces a new coronavirus-related court closure. This week: Tacoma, Washington; Seattle, Washington; Cleveland, Ohio; Harlingen, Texas; Baltimore, Maryland; Buffalo, New York; Elizabeth, New Jersey; Dallas, Texas; Memphis, Tennessee; Las Vegas, Nevada. 

The courts aren’t being closed permanently, or even for an extended period of time. They’re temporary closures, usually just 24 hours, for “cleaning.” These sporadic closures—usually announced the night before or morning of—have been happening since the pandemic began, and EOIR has yet to find a better way to handle operations. The courts put all hearings for non-detained immigrants on hold for a few months earlier this year, but it has largely resumed them even as coronavirus cases surge in the U.S. Hearings for detained immigrants continued during this time, even as ICE detention facilities across the country became mini COVID epicenters.

Knowing what we now know about how the coronavirus spreads, the apparent lack of planning within EOIR is galling. In March, when the court closures began, we were still trying to figure out whether the virus was airborne or spread through surfaces. We now know that it spreads mainly through droplets in the air, meaning that closing a court building for a single day to wipe down surfaces pretty nonsensical—and making the agency’s insistence on continuing operations now, when case counts are at an all-time high, doubly so.

Next Destination

New DACA applications will be accepted for the first time since 2017

The Trump administration announced its plan to end Deferred Action for Childhood Arrivals in 2017. The program shielded around 646,000 young people brought to the U.S. as children from deportation, but it didn’t provide a path to citizenship or any other legal status; it was a stopgap meant to make up for Congress’s unwillingness to pass the DREAM Act. Almost immediately after the administration announced its plan to terminate the program, the University of California system, 15 states, and Washington, DC all filed lawsuits against the effort. Earlier this year, the Supreme Court ruled that the administration’s attempt to end DACA was unlawful. The problem wasn’t that it doesn’t have the power to end DACA, but that the way it went about doing so was “arbitrary and capricious,” meaning it didn’t follow the legal rule-making process.

Throughout this lengthy legal battle—which is still ongoing—those who already have DACA have been living in limbo. People who would otherwise qualify for DACA status, meanwhile, haven’t been able to apply at all, leaving them vulnerable to deportation. Over the summer, shortly after the Supreme Court ruling, news broke that the administration was categorically denying all new DACA applications. Thanks to yet another court ruling, issued last Friday, the administration now has to begin accepting new applications for the first time since 2017

Before the election, it seemed that the administration was refusing to fully reinstate DACA because it planned on gutting the program once and for all—this time in a way that didn’t violate the Administrative Procedure Act—in a second term. With Biden’s inauguration just over a month away, it’s unlikely that the administration has time to make any final DACA-related moves. Then again, Trump and Stephen Miller do seem single-mindedly committed to causing as much chaos as possible on their way out.