Biden moves to expand refugee program, but practical questions remain—02-05-21

Immigration news, in context

This is the sixty-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.

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This week’s edition:

  • In The Big Picture, we analyze Biden’s executive order on refugee admissions.

  • In Under the Radar, we discuss a deportation flight to Africa that was canceled at the last minute.

  • In Next Destination, we look at the Senate’s effort to exclude undocumented immigrants from the latest round of stimulus checks.

Next week, we’ll have a special edition looking at the spate of immigration-related executive orders Biden issued this week.

The Big Picture

The news: President Biden signed an executive order aiming to raise the refugee admissions caps for the current and fiscal years, as well as reevaluate the policies and structure of the United States’ refugee and special immigrant programs.

What’s happening?

Headlines preceding and following the order’s rollout largely focused on Biden’s promise to raise the refugee cap to 125,000—a policy that actually wasn’t in the order itself, but is a stated priority for the 2022 fiscal year starting on October 1. The thrust of the order is rather a fundamental reimagining and jump-starting of the refugee programs decimated under Trump, who not only set the annual refugee cap at 15,000, it’s lowest-ever level, but created numerous procedural obstacles and allowed the machinery of resettlement to deteriorate.

The text is pretty expansive and has provisions that could broadly be divided into three categories:

  • Statements of support for certain conceptual points and guiding principles, like the notion that “individuals applying for immigration benefits under these programs must be treated with dignity and respect” and that “reunifying families is in the national interest.”

  • Directives for executive agencies and personnel to develop plans and set in motion additional concrete agenda items, like building processing and adjudicative capacity back up and reevaluating how vetting is done.

  • Policies with immediate effect, like the rescission of Trump-issued orders that established new vetting and local input standards.

In the short term, the impact is somewhat limited. The refugee cap remains the same, though the president has said he intends to confer with Congress about raising it to some unspecified number in this fiscal year (this can be accomplished under federal law if the executive can claim that an emergency situation warrants it). The terminations of Trump policy are consequential. They include the memorandum directing “extreme vetting,” which led to a massive increase in scrutiny and a heightened risk of summary rejection for visa applicants; and the executive order that resumed the refugee program after Trump stopped it near the beginning of his presidency, which created additional burdens on would-be refugees, leaving many in catch-22 situations where they would constantly have to provide additional documentation as their existing authorizations expired. An order that attempted to require local and state buy-in for resettlements, and which was tied up in court, was also rescinded.

More significantly, in the medium and long term, Biden’s order is seeking to recalibrate the way that the U.S. views and processes refugees and special immigrants (or SIV, a category very similar to refugees but which is currently limited to Afghan and Iraqi individuals who have assisted U.S. missions in those countries, and their families). Much of it deals with what is likely to be the biggest obstacle to setting these policy goals in motion: the infrastructure of the adjudicative and resettlement system. As The New York Times broke down in the days leading up to the order, it’s not feasible to bump up refugee admissions by over 100,000 year-over-year following years of a shrinking refugee corps and shuttered resettlement offices.

This takes the form of beefing up processing staff and processes and making it easier and more streamlined to apply. For example, it directs the government to expand the refugee program by “effectively employing technology and capitalizing on community and private sponsorship of refugees,” suggesting new paradigms for how the program can be run, relying more on individual sponsorship instead of fully on large nonprofits. Senior executive personnel in the White House and State Department are to be assigned to oversee this revitalization, and develop plans and recommendations for initiatives like “developing more efficient processes to capture and share refugee applicant biometric data” and allowing interviews to be conducted remotely via teleconference. The Office of Personnel Management is capacitated to use “all hiring authorities” to beef up its staff of refugee adjudicators.

There are concrete steps to support and uphold the rights of refugee applicants. Applicants that are denied will be given an explanation and provided an opportunity to present additional evidence—a very basic due process guarantee that nonetheless is shocking to see in the context of federal refugee policy in the last four years. The standards for SIV applicants to prove that they provided “faithful and valuable” service to the United States would be eased, and all applicants would have easier access to their own case files and information about the process.

The order also seeks to expand the categories of people eligible to become refugees. It directs the government to consider taking actions to “to recognize as ‘spouses’... individuals who are in committed life partnerships but who are unable to marry or to register their marriage due to restrictions in the law or practices of their country of origin,” a clear nod to the common issue of same-sex couples not being able to undergo the refugee process together. It calls on government personnel to make additional efforts to identify people who might qualify for the refugee program in the first place, and, perhaps most notably, directs various government entities to prepare a report on climate change and its effect on migration, signaling at least an openness to treating climate migrants as full refugees under the law.

How we got here

The refugee resettlement program as it exists today is a fairly modern invention. Before World War II, refugee resettlement was primarily handled by civic and religious organizations. The first piece of legislation regarding refugees, the Displaced Persons Act of 1948, was specifically geared towards European refugees who had been displaced as a result of the war. Roughly 125,000 Vietnamese refugees were resettled in the U.S. in 1975 as a result of the U.S.-backed conflict in the country at the time, and refugee admissions from Vietnam, Cambodia, and Laos continued in subsequent years. Until the Refugee Act of 1980 systematized the way the federal government handled refugee admissions, however, the resettlement process was fairly ad hoc. 

Refugee admissions are markedly different from the asylum process. Unlike asylum seekers, who arrive in the U.S. and then ask for protections, refugees must typically register with the United Nations High Commissioner on Refugees, the first step in a years-long resettlement process. After a refugee registers with the UNHCR, they must apply for resettlement in the United States through U.S. Citizenship and Immigration Services. Prospective refugees are subjected to rigorous, extensive background checks, interviews with U.S. immigration officials, and medical screenings. If they clear these hurdles, they’re matched with a sponsor agency in the U.S. (There are nine umbrella resettlement agencies in the U.S., many of which have been forced to close satellite offices across the country in recent years due to the Trump administration’s decimation of the resettlement program.)

The resettlement process is lengthy, and most people living in refugee camps abroad will never make it out; according to the UNHCR, just one in 500 refugees worldwide was resettled in 2019. Those who are ultimately granted entry still face long wait times. The refugees who are resettled in the U.S. in any given year were cleared for entry several months or even years prior. Still, the number of refugees admitted into the country each year is often lower than the refugee cap set by the president. In fiscal 2018, for example, the refugee resettlement ceiling was 45,000, but just 22,517 refugees were admitted. During the 2020 fiscal year, just 11,841 refugees were resettled in the United States, even though the cap had been set at 18,000.

The Trump administration went to great lengths to reduce the number of refugees admitted into the country, and it was no secret that Trump and Stephen Miller’s goal was to eliminate refugee admissions altogether. (For more on Trump’s refugee policies, we encourage you to read prior editions of the newsletter.) One of Trump’s earliest executive orders, the ban on travel from several Muslim-majority countries, banned refugee admissions for 120 days and indefinitely suspended the admission of Syrian refugees. A subsequent policy required local and state governments to affirmatively consent to receiving refugees, an administrative barrier intended to both make the admissions process more onerous for jurisdictions who did want refugees in their communities and to give anti-immigrant governors and mayors yet another way of allying themselves with the president.

Even before Trump, however, refugee admissions were on a decline. The annual refugee admissions ceiling peaked in 1980, the first year the program existed. That year, the ceiling was set at 231,700, and more than 207,000 refugees were resettled in the U.S. By 1985, the ceiling had dropped to 70,000, though it began rising in subsequent years. Since 2000, the refugee admissions ceiling has never been higher than 85,000, while actual resettlement figures have ranged from just over 11,000 to a peak of 84,995 in fiscal 2016.

What’s next?

As we’ve noted, many of the executive order’s effects will manifest in the longer-term, and the execution is really going to matter here. There are serious questions about the government’s capacity to process pending refugee and SIV applications, not to mention adding tens of thousands more, and simply announcing an intent to build this capacity is obviously not enough.

It’s also worth keeping a close eye on how all these supposed efficiencies are going to work. “Efficiencies” is one of those things that always sounds good in theory, but can often lead to the creation of a whole new slate of problems. Take the points about improving the capture and use of refugee biometric data; they indicate that the administration might be on board with Homeland Security’s lust for ever-increasing amounts of sensitive biometric information, to be ingested into opaque, contractor-run, and purpose-agnostic federal databases.

There are also red flags in the allusions to more efficient vetting and fraud detection. Often, these are keywords for algorithmic decision-making, which carries the veneer of impartiality but often replicates the biases of its creator. Look no further than the no-fly processing, which is ostensibly meant to root out national security threats but often ends up randomly flagging people for obscure reasons that are hardly challengeable. Pairing this sort of thing with global data-sharing risks creating international, poorly-understood dragnets that can follow people around. Like the promise of a “digital” border wall, an tech-savvy refugee processing system has the potential to simply put bad decision-making out of sight and out of mind.

One of the more interesting points here is the study of climate change. As we’ve noted before, our legal standards for refugees are basically unchanged since the end of World War II and lean heavily on state persecution based on certain protected categories. People fleeing natural catastrophe are eligible for protections like Temporary Protected Status, but do not qualify for refugee status. This is one of the sharpest questions around the future of the refugee program as our unfolding climate disaster increasingly drives people out of the countries least able to mitigate it (and, ironically least responsible). It is not unimaginable that in the next couple of decades, the majority of the world’s refugees will be driven by climate change, whether directly or through knock-on effects like climate conflict. Whatever the Biden administration chooses to do on this front will be hugely consequential.

Under the Radar

Deportation flight to Africa called off at the last minute

ICE canceled a deportation flight Wednesday afternoon just minutes before it was scheduled to take off, The Guardian reports. The flight was supposed to depart from Louisiana at 3 pm Wednesday carrying Cameroonian, Angolan, and Congolese asylum seekers—some of whom said ICE officers had forced them to sign voluntary departure paperwork authorizing their removal to the very countries they had fled. According to an affidavit published by Freedom for Immigrants and other immigration advocacy groups, ICE staff at the Winn Correctional Center in Louisiana assaulted Cameroonian detainees and forced them to put their fingerprints on voluntary departure forms despite their ongoing asylum cases. 

Similar allegations emerged from the Jackson County Correctional Center in Louisiana and the Adams County Correction Center in Mississippi last fall. In both instances, Cameroonian asylum seekers claimed that ICE offers coerced them into signing voluntary departure paperwork, often using physical force. 

There’s been a notable increase in the number of asylum seekers from Cameroon over the last few years due to the country’s ongoing civil war and the Francophone government’s crackdown against Cameroon’s Anglophone minority. English-speaking Cameroonians, particularly young men, face imprisonment and even death at the hands of a government that regularly conflates civilians with armed separatist groups in the country’s Anglophone regions, and Cameroonian asylum seekers in the U.S. say their lives are at risk if forced to return to their country.

Next Destination

Senate votes to exclude undocumented people from stimulus payments

An amendment to the $1.9 trillion stimulus plan that would bar undocumented immigrants from receiving stimulus payments passed by a 58-42 vote Thursday night. The amendment, introduced by Arkansas Sen. Tom Cotton and Indiana Sen. Todd Young, received support from eight Senate Democrats: New Hampshire Sen. Maggie Hassan, Colorado Sen. John Hickenlooper, Arizona Sens. Mark Kelly and Kyrsten Sinema, Michigan Sens. Gary Peters and Debbie Stabenow, and Montana Sen. Jon Tester.

Per the New York Times, House Democrats are expected to introduce their own budget proposal next week. It’s less likely that a similar amendment would pass in the House, which is less narrowly controlled by Democrats than the Senate. That said, it’s possible that undocumented people—who were excluded from the last round of stimulus checks as well—could be sacrificed to get a stimulus package out the door.