Special edition: Biden suffers court defeat & the truth behind the Ukrainian refugee pledge—03-25-22
Immigration news, in context
This is the 117th 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 break down a federal judge’s injunction against part of the administration’s effort to prioritize ICE enforcement, and Biden’s recent pledge to supposedly resettle 100,000 Ukrainian refugees.
In Under the Radar, we discuss the Biden administration’s decision to expel migrants to Colombia.
In Next Destination, we look at a new rule that will expedite asylum processing.
The Big Picture
Federal judge denies motion to dismiss ICE prioritization lawsuit, issues injunction:
About a month after the Biden administration finally released its long-awaited new guidelines on internal immigration enforcement, the states of Arizona, Montana, and Ohio sued to get the guidelines thrown out on a number of legal grounds. The most fundamental was the notion that, despite long standing precedent in favor of prosecutorial and enforcement discretion at every level of government, including federal law enforcement, the administration was contravening the Congress’s intent by instituting prioritization or limits to agents’ enforcement focus.
The guidelines themselves were essentially an Obama policy redux, purporting to target people who posed public safety threats, who were national security concerns of some sort, or who were recent entrants to the United States (see link above for our full breakdown). These guidelines were issued not just for some purported moral reasons, but practical ones, owing to the reality of a limited spectrum of enforcement resources that must be deployed in some fashion.
Aside from discussions about whether ICE enforcement should exist at all or in its current format, and if the criteria delineated in these enforcement standards are reasonable or appropriate, the fact remains that if there’s going to be civil immigration enforcement in the interior of the country, it cannot practically target each and every single one of the nearly 11 million people without status in the United States. So, the prioritization either happens deliberately from leadership or haphazardly from the ground.
In batting away the states’ challenge, federal government lawyers argued that decisions about whether to bring enforcement action or not are fundamentally a matter of agency discretion. Among other things, they cited Heckler v. Chaney, a 1985 Supreme Court decision (in a death penalty case, incidentally) holding that an agency’s decision not to pursue a certain enforcement decision was an exercise of discretion not reviewable in the courts. The government asked for the judge to dismiss the case. Instead, U.S. District Judge Michael J. Newman of the Southern District of Ohio dismissed the motion and issued a preliminary injunction against the government, compelling it to stop using the guidelines.
At base, Newman agreed with the states that a generalized policy of non-enforcement of this type likely violates the law, specifically fixating on two provisions in Title 8, otherwise known as the Immigration and Nationality Act. The first is 8 USC § 1226, which in subsection (a) specifies that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision…” and goes on to list additional stipulations such as the ability for them to receive parole or bond releases.
The (c) subsection referenced in (a) notes that “the Attorney General shall take into custody any alien who…” and lists a series of conditions, including inadmissibility and deportability due to a broad range of so-called “crimes of moral turpitude” and distribution of controlled substances, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
That subsection has come into legal contention before, notably in the 2019 Nielsen v. Preap case, which found that this demand to take noncitizens into custody after their release from criminal detention did not apply only immediately post-release, but had equal weight years or even decades after a release occurred. Here, the judge is interpreting essentially as an absolute modifier of subsection (a), i.e. a demand that the federal government must detain individuals described in subsection (c), without any ability to exercise discretion or deprioritize them pending removal proceedings.
The second statute at issue is 8 USC § 1231(a), which deals with the detention of people after an order of removal is issued. It states that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days,” and during this removal period, the government “shall detain the alien.” There are some exemptions, and individuals can be released under supervision if it is not possible to remove them within that period, but the judge is here finding that there is again no discretion for the government not to actively move to detain people with removal orders within this period.
In addition to deciding that these practices were directly in contravention to statute, Newman also agrees that the government’s decision-making was arbitrary and capricious, since (and stop us if this is sounding familiar) it failed to take into account the impact that it would have on the states, which claim standing by arguing that that they are being directly impacted by the administration’s failure to detain everyone that enumerated in the above statutes, as then the states are ostensibly forced to expend greater resources in policing them, as they are, in the states’ estimation, largely criminals.
Versions of this same argument came up in state lawsuits against Title 42, for example. Even the statutory arguments have cropped up before, resulting in a rather similar injunction against an earlier, non-final version of the prioritization scheme. Both Tipton, the judge in that case, and Newman were appointed by Donald Trump. This latest injunction only applies to the people who would be covered by 1226 and 1231, but it fundamentally thwarts the administration’s attempt to have a cohesive enforcement priority scheme for its ICE field offices. Biden’s lawyers almost immediately filed an emergency motion for an administrative stay, but Newman denied the request. They will almost certainly now appeal up to a Circuit Court level, but in the meantime, the injunction is in force.
Biden says the U.S. will admit 100,000 Ukrainian refugees
This week, President Biden announced that the U.S. will accent 100,000 Ukrainian refugees. So far, the administration has not provided a clear plan for how this will actually happen, nor has it laid out a projected timeframe for doing so. What is clear is that the term “refugees” is likely being used colloquially here. According to the New York Times, White House officials said that Ukrainians would be received through “the full length of legal pathways,” including not only the refugee admissions program but also “humanitarian parole.”
Humanitarian parole was the mechanism used to quickly bring in more than 70,000 Afghan evacuees who were airlifted out of Kabul. Unlike the refugee resettlement process, which takes years and requires people to apply from outside the United States, humanitarian parole is relatively fast and easy—at least in terms of getting people to the U.S. The difficult part comes after. Humanitarian parole doesn’t confer any kind of permanent status. Most of the Afghans admitted into the country under humanitarian parole had to apply or were in processing for Special Immigrant Visas, or applied for asylum from within the U.S. If they are denied, they can be deported to Afghanistan.
Most of the evacuated Afghans who ended up in the U.S. had some ties to the American war effort or another reason to fear persecution in Afghanistan after the Taliban takeover, which is crucial to their applications for protections filed within the U.S. Asylum seekers aren’t granted status because they’re fleeing generalized violence; they have to prove that they face persecution due to their race, religion, nationality, membership in a particular social group, or political opinion.
The open questions are what kinds of protection Ukrainians will actually be able to receive, and whether there’s adequate infrastructure in place to process them. The Biden administration said it won’t airlift Ukrainians into the U.S. as it did with Afghans; those who want to get to the U.S. will have to do so on their own. Ukrainians need visas to travel to the United States, and they obviously can’t easily apply for them now, so only those with valid travel documents will be able to get here on their own. There has been a notable increase in Ukrainian asylum seekers arriving at the U.S.-Mexico border since the war began.
Some of these asylum seekers were initially turned back under Title 42, the ongoing public health statute that allows Border Patrol to “expel” migrants back to Mexico (or to other countries), ostensibly to prevent the spread of communicable disease. Last week, DHS secretary Alejandro Mayorkas reminded Border Patrol that agents are allowed to make individual exceptions to Title 42 on a case-by-case basis. Migrants of certain nationalities—including those from Mexico, Honduras, El Salvador, and Guatemala—have had trouble getting exemptions from Title 42, even in cases of serious illness or persecution in Mexico. It appears that the Biden administration is signaling that while Title 42 is continuing for asylum seekers from Latin America, it will allow Ukrainian refugees to enter the country and file asylum claims. Rather than ending Title 42 for everyone, the administration may further entrench a two-tiered system in which some migrants are welcomed while others are turned away.
There’s also the question of whether Ukrainians will actually qualify for asylum. The U.S. immigration system is not set up to take in mass numbers of people fleeing a war. In order to receive asylum or refugee protections, people must meet a very narrow set of criteria. Of course, exceptions can always be made: in 1975, for example, Congress passed the Indochina Migration and Refugee Assistance Act, which resulted in the resettlement of hundreds of thousands of Vietnamese, Cambodian, and Laotian refugees to the U.S. As our Felipe De La Hoz wrote for Slate, the policy was designed to include people who weren’t in immediate danger—all refugees had to prove is that they had been forced out of their homes by the North Vietnamese victory.
There hasn’t been any comparable effort to resettle hundreds of thousands of war refugees since then. Instead, the U.S. has largely defaulted to admitting only those deemed worthy of protection, either because they helped the American war effort in countries like Iraq or Afghanistan or because they fit the very narrow parameters of asylum. Biden’s decision to admit 100,000 Ukrainians into the U.S. could signal a shift towards a more inclusive immigration policy—but it could also not play out as announced at all.
Take last year’s refugee resettlement cap. Shortly after taking office, Biden announced that his administration would revamp the refugee admissions process, which was gutted under the previous administration. During Trump’s time in office, the refugee resettlement ceiling dwindled every year; in fiscal 2021, it was just 15,000, an all-time low. The administration’s ban on travel from several Muslim-majority countries reduced the pool of people who could be resettled in the U.S., creating a shift in which groups were being admitted into the U.S. Curiously, Ukrainian refugees were the third-most resettled group in the U.S. during the 2019 fiscal year. This was partly due to Trump’s travel ban, but it was also the result of the Lautenberg Amendment. Passed in 1989, the Lautenberg amendment allowed religious minorities from the Soviet Union (and later, from countries that used to belong to the USSR) to qualify for refugee status without having to prove that they had been persecuted or faced persecution due to their religious affiliation.
ABut as we mentioned above, the refugee resettlement process takes years. People have to apply from outside the U.S., have to go through a multi-step vetting process, and then, if granted status, have to wait to actually be resettled. The Trump administration dismantled the resettlement infrastructure, and the pandemic all but destroyed it.
As the Washington Post’s Catherine Rampell wrote on Twitter, U.S. Citizenship and Immigration Services severely reduced its processing of refugee applicants at the beginning of the pandemic. When Biden took office, he was slow to rebuild the resettlement infrastructure, and even slower to raise the ceiling for fiscal 2021. By the time the administration raised the resettlement cap from 15,000 to 62,500, it was too late—the end of the fiscal year was just months away. Ultimately, only 11,411 refugees were resettled in the U.S. in fiscal 2021.
As things stand, it’s unlikely that 100,000 Ukrainians will be admitted to the U.S. through the traditional resettlement process. It’s unclear how, exactly the administration will carry out this plan, but humanitarian parole seems like the likeliest option.
A similar process exists for Afghans who were evacuated to other countries, including Qatar, but didn’t make it to the U.S. But immigration attorneys have reported a wave of denials and have warned that the administration’s requirements for humanitarian parole are impossible to meet. One parole denial letter obtained by Axios said that “parole is not generally intended to be used in place of the international refugee protection regime or resettlement through the U.S. Refugee Admissions Program (USRAP).” The letter also says that applicants need to prove that they are “at risk of severe targeted or individualized harm” and that they need “documentation from a credible third-party source specifically naming the beneficiary and outlining the serious harm they face and the imminence of the harm.” It’s unlikely that an Afghan applicant—or that Ukrainians—will have such documentation, especially if they fled their homes.
Under the Radar
Administration begins expulsion operation to Colombia
The Department of Homeland Security launched an operation to expel Colombian migrants back to the country, CBS News’s Camilo Montoya-Galvez reports. The plan, which began this month, has resulted in the expulsion of hundreds of Colombians under Title 42. The Trump-era public health rule is ostensibly supposed to reduce the introduction or spread of Covid-19, but ICE is medically screening and testing all migrants before they’re expelled to Colombia. Anyone who is expelled must test negative and cannot exhibit any symptoms of Covid-19.
The fact that migrants must test negative to be expelled to Colombia undermines the Biden administration’s stated rationale for keeping Title 42. The Centers for Disease Control and Prevention has repeatedly extended the policy, citing the ongoing spread of Covid-19 within the U.S. White House spokespeople have used the emergence of highly contagious variants, including delta and omicron, to justify the continuation of Title 42. Meanwhile, the administration has signaled—domestically, at least—that the pandemic is over and that community spread is an inevitability.
New asylum policy aims to cut asylum processing down to six months
The Biden administration will soon publish a new rule that would let U.S. Citizenship and Immigration Services adjudicate some migrants’ asylum applications. The regulation is part of the administration’s effort to reduce the massive backlog of immigration cases, which surpassed 1.6 million in February.
Under the new policy, adjudication of asylum claims should take about six months, administration officials told the New York Times. Their claims would be processed by asylum officers instead of immigration judges. In the meantime, migrants would be paroled into the U.S. Officials from USCIS and the Executive Office for Immigration Review—an agency within the Department of Justice that oversees the immigration courts—told the Times that the process will be rolled out slowly, and that hundreds of asylum officers need to be hired to handle processing.
Immigration advocates have already expressed concerns about how expediting asylum cases—which often take years to resolve—will reduce migrants’ already limited access to attorneys. They have also noted that migrants who don’t pass their initial fear screenings will be quickly deported. The new rule is supposed to work in tandem with the administration’s expanded expedited removal policy. If an asylum officer denies a migrant’s initial claim, the migrant can appeal their case; but if they don’t appeal, or if an immigration judge finds that they aren’t eligible for asylum, they’ll be deported.