DHS nominee, the future of those turned away, and last minute restriction push—12-04-20

Immigration news, in context

This is the fifty-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.

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This week’s edition:

  • President-elect Biden late last month announced his pick for Homeland Security Secretary in somewhat of a consensus choice: former USCIS director DHS deputy secretary Alejandro Mayorkas pleased both moderates and progressives, and is expected to massively shift the department’s immigration focus and practice.

  • Meanwhile, Miller is using the time he has left to reach into his little drawer of horrors for the restrictions he can shove into place before Biden takes office next month. In just the month since the election, the administration has rolled out rules and policy guidances to increase the difficulty of the citizenship test, give USCIS officials greater discretion to deny visa applications, limit work permits and work visas, and interfere with due process in the immigration courts.

  • A group of children fighting deportation orders that were handed down based on policies since declared unlawful highlight the lasting impact of the Trump era’s immigration policies. Reversing or even rethinking the immigration regulatory framework might help new migrants, but it’s unclear what options exist for the many already ensnared by the Trump-era one, short-lived as it may be.

Crowd pleaser Ali

Alejandro “Ali” Mayorkas checks a lot of boxes. In an administration that has pledged to emphasize diversity in top positions, he has the benefit of being Latino and a Cuban refugee, having himself gone through the humanitarian immigration process (granted that until recently immigrating legally for Cubans involved pretty much existing anywhere on U.S. soil). He also has real experience within the department and its immigration functions specifically, having served as USCIS director from 2009 to 2013 and deputy secretary from 2013 to 2016, including during the initial rollout of the DACA program. Indeed he was one of the addressees on the 2012 policy memo establishing the program, and broadly responsible for its rollout.

In his first public address since being nominated, at a bipartisan immigration policy conference held over Zoom, he sounded rehearsed and cautious, which is in itself a notable departure from current (illegally) acting Homeland Security Secretary Chad Wolf. The statements were light on specifics but did generally point to a belief that immigration writ large is good for society and the economy, and that the system’s current functioning is both inefficient and inhumane. As we’ve noted before, very high-level policy such as decisions on use of deferred action and modifications to the public charge rule would probably come down from the president, but the DHS secretary has broad purview over implementation as well as hugely consequential internal issues like biometrics collection and Border Patrol operations.

Post-government service, Mayorkas went the route of many a bureaucrat before him to a high-paid gig in the legal-consulting industrial complex by signing up with the big law firm WilmerHale. While this might ordinarily set off alarm bells among the more progressive elements of the Democratic party, his forthcoming nomination has been generally celebrated by people throughout the party’s ideological spectrum, who have welcomed initial statements prioritizing a rollback of Trump immigration policy. Conversely, immigration restrictionists are already bemoaning the selection, with the Tanton network organization Center for Immigration Studies publishing a lengthy blog post calling him practically an open borders absolutist, a significant stretch.

The post, and some of the discussion about him on the right, has focused heavily on whistleblower complaints, an inquiry by Sen. Chuck Grassley’s office, and a subsequent investigation by the DHS Inspector General that alleged that Mayorkas had leaned on USCIS personnel to approve greater numbers of visa applications and be more compassionate to applicants. The IG investigation focused on EB-5 investor visas, which generally act as a path to residency for certain individuals who make large investments in the country. It concluded that Mayorkas had exerted undue pressure on certain applications for well-connected investors with ties to Democratic officials, but did not break any laws; he has maintained that his actions fell within the scope of his duties. This is unlikely to come up much except during his eventual confirmation process.

Speaking of which, his confirmation to the deputy secretary position was done on a pure party-line vote, without a single Republican vote in favor. That was seven years ago, and it’s safe to say that GOP senators have by and large not gotten any less partisan in the interim, what with the whole “tacitly or openly supporting fascistic president in attempt to subvert democracy” thing. The Georgia senate runoffs are still up in the air, and the lack of Senate control (or, even with Senate control, Joe Manchin’s ambivalence) might seriously hinder Biden’s ability to get Mayorkas (and many other cabinet-level nominees) confirmed. It’s not clear what happens in the event of a failed nomination, but it’s worth noting that of Trump’s five (count ‘em, five!) DHS secretaries, three served in acting capacity, a situation that caused problems mainly due to the administration’s abject incompetence but which could be deployed to greater effect by Biden.

At this point, Mayorkas seems mainly a template onto which Biden’s still somewhat nebulous immigration priorities can be projected. He’s generally a believer in immigration and humanity in the system, which is a lamentably low bar to clear, but beyond that he’s holding his cards close to the vest. He can probably be expected to be a loyal executor of the president’s priorities, whatever those may be. It’ll be tedious enough for the new DHS leadership to simply turn back the clock to the operations of a late-Obama era, but they also have an opportunity to move the needle forward on a re-envisioning of the system geared less towards the specter of national security and more towards fairness and benefit to the country, while taking account emerging circumstances like climate migration. Time will have to tell.

One last time, with feeling

We’re less than two months out from Biden’s inauguration, and the Trump administration seems to be working overtime to ram through as many restrictionist policies as possible in that time. Per Politico, some staffers have encouraged the president to sign an executive order ending birthright citizenship, which would undoubtedly lead to a protracted legal battle. While that hasn’t happened yet, there are plenty of administrative changes the Trump administration has made in the weeks since the election. 

The Executive Office for Immigration Review, the agency within the Department of Justice that runs the immigration courts, issued a policy memo this week announcing its plan to end master calendar hearings for immigrants with legal representation. Master calendar hearings are initial hearings: they’re where an immigrant responds to the allegations about their unlawful status in the country, a judge informs them of their rights and responsibilities, and schedules future hearing dates. 

On its face, cancelling these hearings may seem like a way of alleviating the immigration courts’ massive backlog, which surpassed one million active cases under Trump. But as immigration attorney Matthew Hoppock noted on Twitter, the memo also truncates the filing process for lawyers, requiring them to submit all paperwork for their cases 45 days from the date of the immigration judge’s initial scheduling order, even if subsequent hearings are scheduled for years in the future. 

Meanwhile, U.S. Citizenship and Immigration Services, the agency within DHS that oversees most legal immigration functions, implemented a more difficult citizenship test this week. Anyone who applies for citizenship after December 1 will have to take the new test, though it’s unclear when it will be fully rolled out. The new citizenship test is longer, and applicants now have to answer more questions correctly in order to obtain citizenship. The previous test required applicants to answer six out of 10 questions correctly; on the new test, applicants must get 12 out of 20 questions right. The new test also has more difficult questions, according to the Times.

USCIS also plans to change its policy manual to give officers more “positive and negative factors” to determine whether to accept or deny applicants for adjustment of status, Politico reports. 

These are all things the Biden administration could feasibly undo once he takes office. That said, it’s unclear how quickly any of it can be undone. Any change implemented via policy memo can be undone via policy memo, but the federal bureaucracy isn’t exactly known for moving quickly. Even if Biden undoes these policies, the Trump administration’s goal seems to be to create as much chaos within the immigration bureaucracy as possible until then—and to reduce the number of immigrants in the U.S. until the Biden administration reverses the policies. Put simply, by giving Biden more policies to undo, the current administration is accomplishing two things at once: it’s restricting immigration, if even for a relatively brief period of time, and creating more work for the incoming administration, which may prevent it from working towards implementing less restrictive policies.

Some things, however, can’t be undone. 

Last week, ICE expelled 33 unaccompanied migrant children to Guatemala just hours after a federal judge issued an injunction temporarily blocking the practice, BuzzFeed News’s Hamed Aleaziz reported. ICE said the flight departed for Guatemala “shortly before ICE was informed of the court’s injunction” against the border expulsion policy. 

As a reminder, the border has been functionally closed to unauthorized migrants since March due to a CDC order ostensibly related to public health. Rather than processing migrants, border officers are “expelling” them, either to Mexico or to their countries of origin. For children who arrive at the border without their parents, the process has been more complicated. Instead of immediately expelling them, immigration officers have been detaining unaccompanied migrant children in hotels along the border before then expelling them on flights back to their countries of origin.

Since expulsions aren’t deportations, it’s possible that those sent back under the CDC order will attempt to re-enter the U.S. once the Biden administration lifts it. However, it’s not clear how many people will actually want to make the long, costly, and dangerous journey again—especially children who may have been traumatized at any step of the way. 

Those left behind

From the beginning of his term, Trump did everything in his power to not only prevent immigrants from coming to the U.S., but to quickly dispose of those already here. A February 2017 ICE memo, for example, expanded enforcement priorities and instructed officers to “take enforcement action against all removable aliens encountered in the course of their duties.” As the number of asylum seekers arriving at the southern border swelled, the administration implemented a series of new policies designed to deter more migrants from coming, encourage those who had already arrived to abandon their cases, and make it more difficult to find legal representation. 

A common talking point on the left is that, year over year, Obama deported more immigrants than his successor. This is true, but not because the Obama administration had more punitive policies with regards to immigration. That’s not to say that the Obama administration—especially in its early years—didn’t expand the deportation machine, but rather that the focus of deportation processes that have come to characterize the Trump years is different. Under Trump, ICE has claimed that the combination of the immigration backlog (which, for the record, skyrocketed under the current administration) and “judicial and legislative constraints” have prevented it from reaching its full enforcement potential. Put simply, the Trump administration has faced a significant surge in asylum seekers, including families and children, arriving at the border, and those cases tend to move slower.

The administration has generally tried to compensate for the slower pace of the asylum adjudication process by making asylum more difficult to obtain. The intended outcome is the same: deportation. The Migrant Protection Protocols, implemented in January 2019, served to keep asylum seekers sequestered in Mexico for the duration of their cases. Unable to enter the U.S., most asylum seekers on the MPP docket haven’t been able to find lawyers to take their cases. According to federal data analyzed by the Transactional Records Access Clearinghouse at Syracuse University, less than 1 percent of the migrants on the MPP docket have lawyers.

Another asylum-related policy, the third country transit ban, denied asylum to anyone who crossed through another country on their way to the United States. In practice, people could instead obtain withholding of removal or protection under the Convention Against Torture, both of which have a higher burden of proof and don’t provide a path to U.S. citizenship. But without a lawyer, it’s unclear how many people would be able to compellingly argue their case before an immigration judge, especially with a language barrier. After a lengthy legal battle, the third country transit ban was overturned, but the damage has already been done. A July report by Human Rights Watch found that more than 500 non-Central American migrants were denied asylum because of the third-country transit ban in just four months. Even though the ban was struck down, ICE is attempting to deport dozens of families that have been in its custody for more than a year, all of whom were subjected to the third-country transit ban, BuzzFeed News’s Adolfo Flores reports. Per the BuzzFeed News report, judges say they don’t have the legal authority to stop deportations under the ban, even if they ruled the ban itself illegal.

Two other programs introduced last November, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP), have also served to fast-track the asylum adjudication process for some Central American and Mexican asylum seekers, respectively. Under PACR and HARP, the months- or years-long asylum process is handled in a matter of weeks. In both cases, the programs have kept migrants from accessing counsel, limiting their ability to build a legal case. This week, a federal judge upheld the programs. This is just a sampling: there have been innumerable additional restrictions, from third country asylum agreements to metering to immigration court precedents constricting the ability to qualify for asylum for those who do make it to trial.

Point being, a lot of people have already been deported, expelled, and prevented from seeking protections under a variety of policies that have been struck down by the courts, are currently in litigation, or are likely to be rescinded by the next administration. Aside from specific judicially-mandated remedies like unlawfully deported people being ordered returned, people who were subject to these policies don’t really have much remedy, even if the policies themselves were short-lived and illegal. Deportation in particular carries long-term legal consequences, including generally the inability to re-apply for asylum.

Restrictionists maintain that this is evidence that most asylum claims were non-meritorious in the first place, a laughable notion given the utter disregard for due process that has characterized these policy shifts. It’s not clear what if anything can be done to remedy this. Legal decisions are made pursuant to the regulatory scheme at the time that they are made, and the government probably wouldn’t be enthusiastic about opening the can of worms inherent in revisiting administrative decision-making that was based on discredited policy. However, you could argue that the scale and cruelty of the system’s failures under Trump call for some scheme to remedy the abuses.

The concept hasn’t really been explored in any concrete terms by Biden’s team, nor has there been a robust public conversation around it, but it certainly could up in the early months of his mandate as a sharp rise in the volume of asylum seekers arriving at the border is expected post-inauguration. Some of them may well be returnees who were previously deported under Trump-era policy. The administration has the discretion to parole such individuals in and explore grants of waivers of inadmissibility for prior deportations. Whether or not it will even consider such an option will probably depend largely on public support and pressure from progressives in Congress.