Afghanistan, new asylum rule, ICE priorities nixed, potential MPP reinstatement—08-20-21

Immigration news, in context

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It has been a rather eventful week in immigration policy, so this week we’re opting for our roundup-style format with blurbs on various momentous goings-on instead of the usual one-issue dissection.

This week’s edition:

  • The Afghan resettlement mess

  • New rule would let USCIS officers adjudicate asylum claims

  • Judge strikes down ICE detention priorities in broad injunction

  • Federal judge orders Biden to reinstate Remain in Mexico policy

The Afghan resettlement mess

The lack of advance preparation and morass of bureaucracy has led to a situation where Afghans have literally tried hanging onto U.S. Air Force planes departing from the Kabul airport. There’s been a lot of confusion among the U.S. public about what exactly is going on, who’s being evacuated, how quickly, and to where. At this stage, it appears that the only Afghans being evacuated directly to the United States are Special Immigrant Visa (SIV) holders or those at an advanced stage of that process, i.e. people who directly assisted in the U.S. war effort as interpreters or other support staff and have already spent months or even years in the administrative pipeline, as well as their families.

There have been reports of mass evacuations filling up C-17 cargo planes—including a now-famous picture of over 600 refugees filling up one plane’s bay—predictably leading to hand-wringing and back-and-forth between right-wing figures claiming the refugees are all coming to basically do white genocide and liberals celebrating their arrival and their potential contributions to the U.S. economy and declining urban populations. All of this discourse seemed to miss the fact that these planes are not touching down in the U.S. The plane from that famous photo landed in Qatar, along with many more of the Afghans who have been lucky enough to fly out of Kabul. These folks are certainly welcome to now enter the standard refugee process in an effort to be resettled in the United States. Given the length of this process, it’s likely that a smaller portion of those airlifted out of Afghanistan will potentially arrive in the U.S. in a couple of years, provided they make it through the red tape guantlet.

As of now, the government has only formally pledged to get 22,000 SIV applicants and their families into the United States by the end of August, a small fraction of even just the total number of SIV applicants, let alone the totality of Afghan refugees. Thousands of them have been stuck in eternal vetting processes, with the administration falsely maintaining that it can only really resettle those at or near the end of the process and there are legal obstacles to widespread airlifts into U.S. territory. As our Felipe De La Hoz has repeatedly argued, including most recently in The Washington Post, the government could easily use humanitarian parole to bring tens or hundreds of thousands of Afghans into the U.S. and process them later, once they’re already safe.

Instead, the administration seems to be mostly looking at ways to move refugees, including SIV holders, to third countries, such as Qatar and Kosovo. This posture seems to at least partially have been motivated by the threat of domestic political pushback to the sudden resettling of refugees, continuing a pattern of Biden-era immigration policymaking that is inordinately submissive to the potentially forthcoming rhetorical attacks from right-wing commentators and legislators. As we’ve discussed before, this stance endures even as it’s abundantly clear that the xenophobic screeching will continue identically no matter what policy action the administration ultimately ends up taking; in the eyes of their opponents, they will always be America-hating open borders zealots.

In the meantime, the logistical capacity to actually keep conducting evacuations remains very much in question. The U.S. military has stated that it cannot provide any type of safe passage to the airport, and its control there is tenuous at best. The Taliban have reportedly closed land borders and set up checkpoints along roads leading to the airport and to the borders. Even if the administration suddenly changed course on the desire to mass-evacuate Afghans to the U.S., it’s not clear if it would necessarily have the ability to do so. Ultimately, those fleeing the Taliban are likely to have to find their own way to neighboring countries and enter the global refugee system.

New rule would let USCIS officers adjudicate asylum claims

The Biden administration published a proposed rule in the Federal Register this week that would let asylum officers with U.S. Citizenship and Immigration Services adjudicate some migrants’ requests for relief. The rule is part of the administration’s attempt to reduce the backlog of immigration cases, which surpassed 1.3 million this fiscal year.

The new rule would work in tandem with the administration’s new, expanded expedited removal policy. It would have USCIS asylum officers, rather than immigration judges—who are employees of the Executive Office for Immigration Review, an agency within the Department of Justice—adjudicate asylum claims for migrants in expedited removal proceedings. If an asylum officer denies a migrant’s claim, the migrant can appeal their case to an immigration judge; but if they don’t appeal, or if a judge finds that they aren’t eligible for asylum, they’ll be quickly deported. The rule notes that the median completion time for asylum seekers in ICE detention was 43 days during the second quarter of the 2021 fiscal year, while the “recent average case completion time” for non-detained asylum seekers is 3.75 years.

The first step in the asylum process is the credible fear interview. Under current policy, asylum officers conduct these interviews to determine whether migrants have a “credible fear” of persecution in their country of origin. If the migrant passes their credible fear interview, their case moves on to the immigration courts. Under the new rule, “all noncitizen who receive a positive credible fear determination would have an asylum application on file … within days of their credible fear screenings.” The rule says this would avoid “the risk of filing delays” and automatically start the asylum seeker’s waiting period for work eligibility.

The Biden administration plans on doubling the number of asylum officers. A senior DHS official told Reuters the administration wants to hire 1,000 asylum officers and 1,000 additional support staff, with the goal of assessing migrants’ claims “within three months of arrival” in the U.S. 

The administration claims expedited processing will benefit both legitimate asylum seekers and the overburdened immigration adjudication system. But speeding up asylum cases could limit migrants’ already limited access to due process. Shorter proceedings mean less time to find a lawyer—and having legal representation makes asylum seekers much more likely to win their cases. Even under a streamlined process, asylum law is complex. It’s not enough for a migrant to prove that they’ve faced hardship or even persecution in their home country; they have to prove that they faced persecution because of their race, religion, nationality, membership in a particular social group, or political opinion. Moreover, they often have to explain why they couldn’t resettle in their home country. 

It’s clear that the administration’s goal is to speed up deportations—and to deter migrants from coming to the U.S. in the first place. “If we can determine who is a legitimate asylum seeker and who is not earlier in the process, I think that drives down some of the incentives for irregular migration,” the DHS official told Reuters.  

Judge strikes down ICE detention priorities in broad injunction

One of the Biden administration’s first immigrationactions was issuing a January 20 memo reversing the Trump administration’s policy of essentially eliminating any use of discretion in ICE targeting, arrests and detentions, which was itself a reversal of the Obama administration’s approach. The memo was rather broad, establishing criteria for enforcement that were very similar to the criteria under Obama—national security threats first, recent entrants second, those convicted of certain crimes third, and pretty much everyone else not a priority. This applied to both targeting for removal proceedings and detention during these proceedings; while it didn’t expressly prohibit agents from detaining immigrants who weren’t part of the priority categories, it basically instructed them to avoid doing so.

The memo also attempted to establish a 100-day deportation moratorium with limited exceptions, an effort that had been a Biden campaign promise and which was quickly enjoined by Texas U.S. District Judge Drew B. Tipton in response to a lawsuit brought by Texas Attorney General Ken Paxton; eventually, Texas would drop the lawsuit once the Biden administration stopped trying to enact the moratorium, de facto winning that battle. Now, Tipton has gone back and enjoined the detention prioritization portions of that memo along with another, February 18 memo that expanded on them.

It’s important to note here that the lawsuit—again brought by Texas and other states—was specifically targeting the administration’s self-imposed limits on carrying out portions of the law collectively known as mandatory detention, so while the whole prioritization scheme is technically enjoined, this judicial order is really about detention of certain individuals and not necessarily enforcement writ large (not that ICE has really been strictly following the guidance on filing new deportation cases).

Basically, at issue are two areas of the law, both of which deal with immigration detention: 8 USC §§ 1226(c) & 1231(a)(2). The former deals with people who’ve had certain types of criminal contact, for example the broadly defined “crimes of moral turpitude.” It states that the government “shall take into custody” anyone who fits the criteria “when the alien is released” from criminal custody. (In 2019, the Supreme Court ruled in Nielsen v. Preap that the “when” here can be at any time after their release, even decades later.) The latter deals with noncitizens who have already received a final order of removal and are in a so-called “removal period” during which the government is actually supposed to deport them. That statute states that the government “shall detain the alien,” and emphasizing that “under no circumstance during the removal period” should the government release people convicted of certain offenses or deemed a national security threat. There are extremely limited exemptions, such as if a detainee has to testify in a criminal matter.

A big part of the issue here is the exact meaning, nature, and context of the word “shall” in these laws. There is ample legal precedent that the federal government has broad discretion on immigration enforcement and detention, and other areas of the law, such as those permitting releases for humanitarian reasons, supersede any presumed detention mandate contained in 1226(c) and 1231(a)(2). However, Tipton here jettisons all that and takes the tack that shall is equivalent to must, and that the government has to detain the people that fall under the included criteria. Not only that, but his injunction includes eye-popping oversight over ICE’s nationwide operations, including ordering ICE to present him with new legal standards to ensure they’re complying with this new mandatory detention interpretation; and furnish monthly reports on the number of people subject to these statues who are not detained, log an explanation for why they weren’t detained, and even provide their addresses.

The states suing the federal government claimed that this was necessary because the failure to detain everyone subject to these provisions was costing the states in services like public education, healthcare, and detention systems from presumed criminal conduct that these noncitizens would undertake. This argument has been used repeatedly by states to prove standing in contesting more permissive federal immigration policies. Now, it’s up to an appeals court to potentially overturn this injunction, but until then, swaths of people who were previously considered releasable will be forced to languish in detention.

Federal judge orders Biden to reinstate Remain in Mexico policy

A Trump-appointed federal judge in Texas has ordered the Biden administration to resume a policy that required some asylum seekers to wait in Mexico while their cases were decided in U.S. immigration courts. 

Rolling back the Migrant Protection Protocols—commonly referred to as the “Remain in Mexico” policy—was one of Biden’s first acts in office. In April, Texas and Missouri sued the Biden administration, arguing that ending MPP would unduly burden both states by requiring them to provide social services to asylum seekers. The lawsuit also improbably argued that ending MPP “threatens damage to the bilateral relationship between the United States and Mexico”—or, in other words, that the Mexican government actually liked a policy that required tens of thousands of asylum seekers to live in squalor in Mexican border cities. 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.

In a 53-page opinion issued last week, U.S. District Judge Matthew Kacsmaryk ordered the Biden administration to reinstate the policy. Kacsmaryk, a Trump appointee, gave the Biden administration a seven-day period to file an appeal before his ruling went into effect. The Biden administration filed an appeal with the Fifth Circuit, but the appeal was denied. 

The Biden administration now has to reinstate the policy despite the fact that it put thousands of already vulnerable asylum seekers in danger. Time and time again, immigration advocates and researchers found that migrants subjected to MPP were at risk of being assaulted, kidnapped, raped, extorted, or even killed while waiting in Mexico. The policy was also a due process nightmare; it was nearly impossible for migrants in Mexican border cities to find lawyers in the U.S. who could represent them in court. Less than 2 percent of migrants on the MPP docket who had attended at least one hearing had legal representation, according to federal data analyzed b TRAC at Syracuse University. Only 720 MPP hearings ended with the migrant being granted some form of relief.

The fact that a Trump-appointed judge used the Administrative Procedure Act to hinder the Biden administration’s attempt to end a Trump-era policy is noteworthy. During Trump’s term, immigration advocates were able to successfully fight many of his restrictive immigration policies in the courts. They often argued that various policies, such as the attempt to end DACA, violated the APA. In many cases, the issue wasn’t that the Trump administration didn’t have the power to lawfully enact the policies it wanted (though this was sometimes the case as well), but that the way it went about enacting those policies was unlawful. Texas and Missouri made a similar argument in their lawsuit, and Kacsmaryk agreed.

As Vox’s Nicole Narea pointed out, Kacsmaryk incorrectly said that the federal government only has two options for dealing with asylum seekers: indefinitely detaining them until their hearings are concluded, or returning them to a “foreign country contiguous to the United States” from which they came (in this case, Mexico) until their hearings are concluded. Kacsmaryk also claimed that the Biden administration didn’t offer enough of a reason for ending the policy. Although DHS Secretary Alejandro Mayorkas issued a seven-page memo explaining the administration’s reasons for ending MPP, Kacsmaryk said the memo didn’t go far enough because it didn’t sufficiently consider conservative arguments against ending MPP.

If the MPP lawsuit makes anything clear, it’s that immigration restrictionists have learned valuable lessons from the last four years. They have seen that the federal courts are the key to preventing Biden from rolling back Trump’s policies, just as federal courts were the key to preventing those policies from going forth under Trump. And given that Trump appointed more federal judges than any of his predecessors, it seems like they’ll be primed to win. The Biden administration can now ask the Supreme Court for an emergency stay of the Fifth Circuit’s order, but it’s unclear whether that’ll be successful given the current SCOTUS makeup. The administration was reportedly considering reinstating Remain in Mexico anyway, albeit a purportedly “gentler” version of the policy that would provide food and housing for migrants and more access to attorneys.