Homeland Security Secretary outlines more hard-line vision—04-09-21

Immigration news, in context

This is the seventy-fourth 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 comments made by Homeland Security Secretary Ali Mayorkas that could signal a new enforcement direction.

  • In Under the Radar, we look at new data on border apprehensions, and what it means.

  • In Next Destination, we review a recent court ruling that could make certain asylum claims more likely to succeed.

The Big Picture

The news: Notes of an internal forum held between Secretary of Homeland Security Ali Mayorkas and members of ICE, obtained by the Washington Times, reveal some of the first explicitly pro-tougher immigration enforcement comments made by a high-level Biden administration official, and hint at a pendulum swing back from the softer rhetoric at the start of his presidency.

What’s happening?

The story doesn’t note what the exact nature of the forum was, but does mention that it involved personnel from ICE’s three components: Enforcement Removal Operations, which handles immigration detentions and deportations; Homeland Security Investigations, which is in charge of investigating counterfeit goods and trafficking, among other things; and the Office of the Principal Legal Advisor, which oversees the government prosecutors in immigration courts.

There are a few big takeaways from Mayorkas’ statements, including that he doesn’t believe ICE should be broken up into these distinct components, which has been a goal not only of some outside advocates but some HSI personnel who feel the association with the broader ICE hampers their mission. He also expressed frustration with sanctuary jurisdictions, a consistent boogeyman of the Trump administration, but which the Biden team had thus far avoided engaging directly. According to the Washington Times’ story, Mayorkas said that dealing with jurisdictions with blanket noncooperation policies will be a “significant priority,” though he doesn’t appear to have specified what this means.

There are a few relevant factors here, as both the federal government and each particular locality can have policies governing who can be detained or investigated for immigration purposes, and how. The federal government sets directives on who it will prioritize for arrest and deportation. Trump essentially eliminated this scheme, making everyone equally subject to arrest and eliminating any discretionary exemptions. Biden quickly walked that back, moving to basically reinstate the priority categories that existed during Obama’s final years in office while Mayorkas and his staff formulate a final policy, which will likely be very similar. This prioritization doesn’t mean that ICE cannot detain and deport people who, for example, are longtime residents without criminal system contact, but it means that agents won’t actively target these people and will generally avoid taking them into custody if encountered.

Separately, states and localities develop their own policies about the extent to which they will cooperate with the government in carrying out these priorities. Some local criminal justice data-sharing is forced by federal programs, but local officials have a good amount of choice on the extent to which they will collaborate with ICE, primarily through how they respond to detainers — sort of administrative warrants that request localities hold suspected immigration violators in custody until ICE can come pick them up — and more active data-sharing through the 287(g) program, which deputizes local detention officers to perform immigration enforcement functions like checks and detentions. There’s a lot of muddying the waters about what exactly sanctuary policies mean, so here’s the simplest way to put it: under a full sanctuary policy, local officials treat immigrants the same as they would treat anybody else.

While opponents often describe these policies as leading to criminals being released from detention, they actually prevent immigrants from being subject to additional detention or screening as compared to their U.S. citizen counterparts. In fact, some federal judges have ruled that honoring federal detainers is itself unlawful, as local officials don’t have the authority to keep people in custody after the local criminal justice system has deemed they should be released, the same way as a sheriff or corrections department couldn’t simply keep people in criminal custody for, say, having unpaid federal taxes. During the Trump administration, the intense focus on immigration enforcement led to broad popular pushback that caused many jurisdictions to scale back cooperation with ICE, which is probably the preeminent reason the administration was unable to hit the deportation numbers reached by Obama.

The arrival of Biden and his stricter prioritization scheme has had some local officials reignite discussions about the appropriate level of cooperation, but many have still decided that any collaboration with ICE is still both counterproductive to their public safety missions and fundamentally not part of their role. It appears that the administration may now take steps to punish these jurisdictions, or try to force them to collaborate. In its most severe form, this could involve Trump’s tactic of attempting to withhold federal grants from sanctuary jurisdictions unless they changed their policies; federal judges ruled both for and against the previous administration on this front, meaning that Mayorkas would have to continue the litigation if this was a step he wanted to take.

He also said that he wanted to see an increased use of federal criminal prosecutions for illegal re-entry, as laid out in 8 U.S.C. § 1326. As we’ve noted before, immigration cases are handled in administrative courts under the Department of Justice, and immigration detention itself is civil. While immigration prosecutions have increased in the past few years, and now make up the bulk of several border-region U.S. Attorneys’ workloads, most people who enter the country illegally, particularly asylum seekers, are not prosecuted. It’s worth noting that Mayorkas referenced 1326, which encompasses re-entry after a removal, and not 1325, which involves an initial entry. Still, the criminal prosecutions are additional to civil immigration cases, and it’s not clear why or under what circumstances Mayorkas would like to see them ramped up. Perhaps most infamously, prosecutions were the vehicle for family separations during Trump’s 2018 zero-tolerance policy.

While Biden’s policies certainly haven’t been as pro-immigrant as many advocates had hoped, most of this has been through omission: failing to rescind the Title 42 order, leaving expansive entry bans in place, not preparing for a growing number of unaccompanied minors. So far, it has avoided any appearance of going in a tougher direction through active policy-making, but Mayorkas’ comments signal a willingness by the Homeland Security secretary to move away from this approach and start considering a harsher approach.

How we got here

The concept of “sanctuary cities” dates back to the 1980s, when Central American asylum seekers were arriving in the U.S. in droves—and were often denied protections due to the U.S.’s political alliances with the regimes they were fleeing. Immigrant rights advocates, especially those in religious communities, began talking about churches and other places of worship as “sanctuaries” for undocumented immigrants. (Even today, some undocumented people take refuge in churches, which ICE considers “sensitive locations,” i.e., places where it shouldn’t conduct immigration arrests.)

As for sanctuary cities, there’s no real consensus on what the term means. During the 2008 presidential primaries, Mitt Romney accused former New York City mayor Rudy Giuliani of presiding over a sanctuary city. (Really.) Per the New York Times, Giuliani “had inherited an executive order from previous mayoral administrations” that forbade city agencies from reporting undocumented immigrants who used city services over to federal immigration authorities. In other words, if an undocumented immigrant called the police to report a crime, the police weren’t supposed to turn them over to ICE (or to its precursor, the INS).

The debate over sanctuary cities blew up during the 2016 presidential election. On the campaign trail, Donald Trump repeatedly claimed that sanctuary policies put Americans in danger and promised to “end the sanctuary cities that have caused so many deaths.” And after Trump was elected, the leaders of big cities across the country vowed to oppose his immigration policies—promises that often rang hollow due to the deep connections between criminal punishment and immigration enforcement, even in jurisdictions that don’t honor ICE detainers or participate in programs like 287(g).

In 2017, Trump revived the Secure Communities program, a Bush-era policy requiring local law enforcement data to automatically be shared with federal immigration authorities (a similar but much narrower program had been instituted by Obama to replace Secure Communities). Even cities that have professed to not cooperate with ICE have to participate in Secure Communities, meaning that every single arrest of an undocumented immigrant anywhere in the country—for any kind of crime, even minor ones—can lead to a detainer being issued, and subsequently arrest and deportation, even if the person isn’t ultimately convicted. Biden has yet to end Secure Communities.

That’s not to say that local and state governments have no agency when it comes to cooperating with immigration enforcement. Cities and counties can opt in—or opt out of—the 287(g) program and the Trump-era Warrant Service Officer Program, which essentially deputize local law enforcement to conduct certain duties on ICE’s behalf, such as holding immigrants until immigration officers can pick them up and transfer them to federal immigration custody. The 287(g) program also used to have a “task force” model in which local police and sheriff’s deputies could make immigration arrests in the field, but the Obama administration ultimately phased it out because of concerns about racial profiling and civil rights violations.

The question, then, isn’t whether sanctuary cities cooperate with ICE but to what degree they do so. Secure Communities means that all cities, regardless of sanctuary status, help ICE in some way or another. Cities that criminalize “quality of life” violations such as open container laws and fare evasion on public transportation are essentially widening the net for ICE—every arrest could lead the agency to a potential immigration violation. Due to the racialized nature of policing in many American cities, the nexus between criminal punishment and immigration enforcement often means that Black and brown immigrants bear the brunt of these policies, even in so-called sanctuary cities.

Despite this extensive, mandatory collaboration between local law enforcement and federal immigration authorities, the Trump administration attempted to punish “sanctuary” jurisdictions for their supposed failure to cooperate with ICE. In the lead up to the 2020 presidential election, the Trump administration announced that ICE would be conducting mass immigration arrests in sanctuary cities. Earlier that year, the administration tried to withhold millions in federal grant funding from cities that refused to cooperate with ICE. In May 2020, a federal appeals court ruled that the administration couldn’t do so.

In any case, the existence of Secure Communities limits the efficacy of any “sanctuary” policies, and the Biden administration has yet to signal that it’ll get rid of it.

Mayorkas also commented on prosecutions for illegal re-entry under 8 U.S.C. § 1326. During the 2020 presidential election, some candidates—including former HUD Secretary Julián Castro—said they’d call on Congress to repeal Section 1325, which criminalizes first-time illegal entries, and stop prosecutions under the statute. Biden said he’d leave the statute in place. Mayorkas wasn’t talking about prosecuting first-time border crossers, but rather those who try to re-enter the U.S. after being deported. 

Still, immigration advocates have long held that 1325 and 1326 should be repealed, citing the statutes’ racist origins—it was the brainchild of a segregationist senator—and the fact that prosecutions for both illegal entry and re-entry are relatively recent, even though the statutes have been on the books for almost a century. As we noted above, 1325 and 1326 prosecutions were the legal basis of the Trump administration’s family separation policy. Additionally, it’s possible that people who were ordered deported under Trump-era policies that the Biden administration has since ended, such as the Remain in Mexico policy, may attempt to re-enter the U.S. and could be prosecuted under 1326 as a result.

What’s next?

These comments were all made in an internal forum, and neither Mayorkas nor anyone else in the administration has publicly commented on them since. Given the audience he was speaking to, it’s possible he felt more comfortable candidly expressing some of his preferences in a way that the administration won’t necessarily embrace writ large. While Mayorkas has a lot of authority and discretion in his current roles, the initiatives and shifts he described are of such a magnitude that they would probably require White House sign-off, and it’s not clear how on board Biden and Vice President Kamala Harris — who has increasingly been taking up the immigration portfolio— are with them.

Still, the administration appears to continue to hold the view that it must message to would-be immigrants that the government is not taking a lenient stance, and ramping up enforcement might be seen as a way to drive the message home. Illegal reentry prosecutions in particular seem like a relatively easy policy to sell, as the administration could make the case that those subject to them are knowingly breaking the law after they had already been given a chance to go through an immigration process, which they lost.

Tangling with sanctuary cities would be more politically complicated, as these are by and large blue jurisdictions whose populations might be displeased if the federal government starts exerting overt pressure to play ball on immigration enforcement. Here, Mayorkas would still have the ability to point out that the stricter ICE enforcement guidelines mean only “criminals” and recent entrants are being targeted, but many Democrats’ disgust with Trump-era immigration policy and their rising support for immigrants across the board might mean that the particulars are irrelevant and their will be pushback.

Even if it doesn’t end up being these policies, Mayorkas’ statements indicate that the secretary is at least somewhat frustrated with the current state of immigration enforcement directives, and is willing to explore ways of reasserting himself and taking a more draconian tack.

Under the Radar

New data shows migrant families are being expelled along most parts of the border

Customs and Border Protection published new data on border expulsions that further complicates the narrative of what’s happening at the border. 

The data show an increase in Title 42 expulsions in March—101,897 last month, compared to 71,948 in February—which suggests a rise in attempted crossings overall. If you compare the numbers to previous years, however, the increase in apprehensions and expulsions this March is in keeping with usual border trends; every year, more people start to cross in the spring and summer, and attempted crossings eventually taper off in the fall and winter. (Last year is an obvious exception to this rule, given the pandemic.)

Jessica Bolter, an analyst at the Migration Policy Institute, noticed an interesting trend in the data: immigration officers are still expelling families along most parts of the border. There are three places—El Centro, California, the Rio Grande Valley in Texas, and Yuma, Arizona—where most families are being let in rather than expelled. Of these three sectors of the border, the Rio Grande Valley is the most significant in terms of sheer numbers: 52,139 families were encountered at the border there, of which 32 percent were expelled. Meanwhile in Big Bend and Laredo, both in Texas, more than 90 percent of families are being expelled—but there are fewer crossings there.

As Bolter notes, this means that most families encountered at the border are no longer being expelled under Title 42, even though families are still being expelled in most parts of the border. Bolter suggests that it’s harder to expel families in the Rio Grande Valley because of the Mexican government’s refusal to accept families that the U.S. has expelled.

Next Destination

New federal ruling could expand grounds for successful asylum claims

The Ninth Circuit ruled this week that a woman who was domestically abused by her mother and husband qualified for asylum due to her political opinion as a feminist. 

As a reminder, to qualify for asylum, one has to prove that they’ve faced persecution due to their race, religion, nationality, political opinion, or membership in a particular social group. In recent years, the U.S. has seen an increase in migrants from Central America who ask for asylum because of gang persecution or domestic violence. Under the Trump administration, the Board of Immigration Appeals—the immigration courts’ appellate body—tried to undercut these claims by publishing precedential opinions making it harder for victims of gang violence, interpersonal violence, domestic abuse, and persecution based on family ties to obtain asylum. The Ninth Circuit’s recent decision may chip away at these limitations.

The case involved Maria Luisa Rodriguez Tornes, a Mexican woman who sought asylum in the U.S. after being abused by her mother and husband. Her attorneys argued that she was being abused due to her political opinion as a feminist and her belief that she deserved equal treatment to her husband. The Board of Immigration Appeals, however, determined that Rodriguez Tornes didn’t qualify for asylum because the violence was interpersonal—an analysis that the Ninth Circuit rejected and called “outdated.”

The Ninth Circuit’s decision could make it less difficult for survivors of domestic violence to obtain asylum in the future, even though the BIA has yet to overturn its own decisions regarding interpersonal violence.