Special Edition—Immigration flurry in the waning days of the Trump era—01-15-21
Immigration news, in context
This is the sixty-third 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:
If all goes according to plan, by the time we send this newsletter out next week, Joseph R. Biden Jr. will be the president of the United States. (Jury’s still out on whether we’ll collapse into civil war by then).
The lawsuits have failed, the preemptive coup attempt wasn’t successful, and time really is up for Stephen Miller and his cohort. They have decided to squeeze out every ounce of immigration restriction available in the waning days, to varying degrees of effectiveness.
This past week, one such extreme restriction was blocked by the courts, while Homeland Security has moved to parry earlier federal court decisions by again trying to ratify policies previously struck down. Meanwhile, Vice President-elect Kamala Harris discussed some of the incoming administration’s immigration plans in more detail.
If at first you don’t succeed
For months now, Trump administration policies have been felled by Homeland Security’s own ineptitude in properly appointing its acting officials, including the department’s secretary. To recap, the Government Accountability Office concluded back in August that acting Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli had been illegally serving, as the rules of succession had not been followed going back to the appointment of Kevin McAleenan after the resignation of Kirstjen Nielsen, who was the last Senate-confirmed head of the department. (Cuccinelli has had several titles during his time at DHS, and is currently the “Senior Official Performing the Duties of the Deputy Secretary.”) Nielsen made tweaks to the orders of succession, but not in a way that would have allowed McAleenan to take over.
Several lawsuits have argued this same point when challenging specific policies, and a few judges have agreed with the premise and struck down Wolf-enacted policies, including the rescission of DACA and vast new asylum obstacles blocked just this week (more on those below).
DHS had previously tried to use sleight of hand and FEMA administrator Peter Gaynor—who would have been the designated acting secretary under the rules as written—to reverse-engineer the process, by making Gaynor himself alter succession and then appoint Wolf, an effort that failed to convince a federal judge. This past week, however, Wolf stepped down from his (unlawful) post atop DHS, returning to his position as under secretary for the Office of Strategy, Policy, and Plans (for which he is Senate-confirmed), and allowing Gaynor to fully take the reins. Gaynor then delegated policymaking responsibilities back to Wolf, who immediately issued a memo ratifying his own prior actions as secretary as well as several specific policies under question, including the expansion of expedited removal and the new public charge rule.
It’s a brazen, last-ditch move to protect marquee restrictionist initiatives from an easy legal challenge that could sink them without the incoming Biden administration even having to intervene or be forced to roll them back. The legal jiu-jitsu this time at least seems to be sound, if absurdly convoluted and an obvious attempt to sidestep the normal policy procedure. We’ll have to see whether it’s enough for the judiciary.
Death to the “death to asylum” rule
A federal judge blocked the Trump administration’s extreme, sweeping asylum rule last Friday, just days before it was scheduled to go into effect. The judge ruled that acting DHS secretary Chad Wolf had not properly been appointed to his position and was serving unlawfully. “Wolf has not spent his time idly at DHS,” wrote U.S. District Judge James Donato. “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vet non to change immigration regulations.”
As Donato notes, rather than putting forth new arguments regarding the validity of Wolf’s nomination, the administration simply kept arguing that previous rulings were wrong. “In effect, the government keeps crashing the same car into a gate, hoping it might someday break through.” This legal strategy sums up Trump-era immigration policy. For the last four years, the administration would hastily publish rules, memoranda, and executive orders knowing they’d be challenged in court and, in many cases, ultimately scaled back—not because the administration didn’t lack the authority to implement these policies, but because its attempts to do so were sloppy and rushed.
The rule itself—which we covered in depth in a previous edition—was expansive, and would have made it virtually impossible for most asylum seekers to receive protections in the U.S. It would have given immigration judges the ability to throw out “frivolous” asylum applications before merits hearings, automatically terminating the proceedings and rendering those applicants unable to apply for asylum again. It also would have limited who could qualify for asylum, as well as altered the definitions of “well-founded” and “persecution” (asylum seekers must prove they have a well-founded fear of persecution in their country of origin due to their race, ethnicity, religion, nationality, political opinion, or membership in a particular social group.)
The return of A-B-
The attorney general’s certification power over immigration court appellate decisions is one of those arcane immigration system procedures that makes most regular people’s eyes glaze over. Yet it’s an extremely significant power that has been used to immense effect by the Trump-era attorneys general to essentially shift who qualifies for immigration relief with decisions that are binding in all immigration courts overnight. A perfect example is Matter of A-B-, a decision issued in 2018 by then-Attorney General Jeff Sessions which effectively precluded victims of domestic and gang violence from qualifying for asylum.
As we’ve touched on many times (including in the very first edition of BORDER/LINES), the U.S.’S standards for refugee and asylum admissions are based on the internationally-accepted criteria dating back to the immediate post-World War II era, which describe a need to demonstrate persecution by a state (or at least that the state sanctions or is unable to prevent) based on race, religion, nationality, political affiliation, or membership in a particular social group. This last one, known as PSG, is the most subject to interpretation, and has for a long time been the vehicle to protections for people that don’t necessarily fit neatly into the other categories. Prior to A-B-, it was standard for asylum seekers, particularly from Central America, to successfully qualify as members of a PSG based on threats from gangs or partner abuse. Sessions declared that these were ultimately private criminal acts that did not fall under the auspices of the law’s protected classes.
Since that decision was issued, several federal lawsuits have challenged it, claiming that it was a new interpretation of the law and ran counter to the statute’s intent. Most significantly, in August of last year the Ninth Circuit court issued an opinion that chipped away at this categorical exclusion, opening up the door for gendered violence-based asylum claims again. Yesterday, Acting Attorney General Jeffrey Rosen (who has been on the job only since last month) issued another A-B- decision, reaffirming the administration’s earlier position and waving away the prior court precedent by invoking a doctrine known as Brand X, a which holds that agency statutory interpretations overrule appeals court precedents unless the statute has been ruled unambiguous. He argues that the A-B- standard of the state’s “complete helplessness” to protect the victims is substantially the same as the existing precedent of the state being “unable or unwilling” to protect them, even though it is obviously not.
This is just another precedent that Biden attorney general pick Merrick Garland will have the opportunity to reverse once he gets in office, if that is ultimately his intent. It’s representative of the Trump administration’s steadfast commitment to immigration restrictionism that this is considered a priority for the head of the Justice Department at a time when armed groups are threatening to attack Congress and disrupt next week’s inauguration.
DOJ officials try to distance themselves from family separation
The 2018 “zero-tolerance” policy and the family separations it wrought will likely be the most remembered aspect of the Trump administration’s immigration legacy—and some of those responsible for its implementation are already trying to deflect attention away from their own participation. A recent report from the Justice Department’s inspector general found that the department’s officials were the “driving force” behind family separation, though some of those officials instead attempted to shift blame to the president and the Department of Homeland Security.
Former Deputy Attorney General Rod Rosenstein told NBC News that zero tolerance was a “failed policy that never should have been proposed or implemented,” and added that he wishes “we had all done better.” But according to the inspector general report, Rosenstein and then-Attorney General Jeff Sessions “expressed a willingness to prosecute adults in family units if DHS made the decision to start referring such individuals for prosecution” during a meeting with then-DHS Secretary Kirstjen Nielsen.
Gene Hamilton, who provided notes from that meeting to the inspector general’s office and still works for the Justice Department, similarly attempted to deflect responsibility, claiming that the decision to separate families was made by Trump and Nielsen.
However, family separation would not have been possible without the participation of the Justice Department. The separations were the result of an increase in prosecutions for unlawfully crossing the border. Any adult caught crossing between ports of entry—whether they were traveling alone or with children—was taken into criminal custody after the policy was implemented. For those who had children, being charged with a crime meant being separated from their families; migrant children can be held in non-criminal immigration detention, but they can’t be incarcerated in criminal facilities with their parents, hence the separations. The prosecutions were a pretext for separations; the former could not have occurred without the latter, though there were some documented instances of families being separated after crossing at ports of entry.
Broadly speaking, Rosenstein and Hamilton’s recent comments appear to be part of a pattern of Trump administration officials attempting to distance themselves from the president and his policies in an attempt to remain in the party’s good graces. Several officials resigned last week after the Capitol riots, claiming the insurrection was the last straw despite having enabled the president and his supporters until that point.
U.S. will begin requiring negative COVID-19 tests for arrivals
The CDC has confirmed reporting by The Wall Street Journal and issued an order requiring that, starting on January 26, all international airline travelers present proof of a negative COVID-19 test taken within three days prior to travel—or proof that they’ve recovered from the virus—before being allowed to board flights to the U.S. The order applies to everyone two years of age or older, including U.S. citizens. The order comes on top of existing executive actions on travel, meaning that people who’ve been in any of the travel-banned countries in the fourteen days before their trip remain banned, negative test or not, unless they fall in one of the enumerated exemptions.
In enacting this order, the U.S. joins a number of other countries in requiring proof that travelers are not infected before they’re even allowed to initiate board aircraft en route to the country. Aggressive action on this front earlier could have partly spared the U.S. the uncontrolled spread that we’re currently seeing, but the administration instead prioritized the use of the pandemic to advance its longstanding anti-immigration aims, enacting a medically-unnecessary expulsion policy for migrants arriving at the southern border and banning most incoming permanent immigrants while continuing to allow the free flow of citizens and many temporary visa holders.
Joe Biden will inherit this web of restrictions and regulations and have to decide what to keep or modify, particularly as the specter of a new and more contagious strain looms. As the vaccine rollout continues throughout much of the developed world while remaining stalled in the Global South—thanks in part to rich nations over-buying the available stocks—a key question in the coming months will be how to handle the immigration from a vaccination standpoint. A vaccination requirement for travel to the United States could essentially block people from large swaths of the globe from being able to enter.
Kamala Harris says Biden administration will support a “pathway to citizenship” for immigrants
In a recent interview with Univision, Vice President-elect Kamala Harris said the Biden administration would push for a bill creating a pathway to citizenship for “the majority” of the roughly 11 million undocumented immigrants living in the U.S. Harris also discussed protections for DREAMers—undocumented people brought to the U.S. when they were children—and people with TPS status, who she said should be able to obtain automatic green cards.
Per Harris, the Biden administration also plans on reforming the asylum system. She said the administration will hire more immigration judges—something the Trump administration also did—and work to reduce the backlog of immigration cases, which has ballooned to more than 1.2 million over the last four years.
There’s a lot the Biden administration can do with regards to immigration without Congressional approval. If the last four years showed us anything, it’s that the executive has vast powers when it comes to issuing immigration policy. Granting legal status to millions of undocumented immigrants, however, will require legislation. The DREAM Act, the last big immigration bill that had a chance of becoming law, was ultimately tanked not by Republican opposition but by a handful of Democrats. But that was in the pre-Trump era, when immigration reform was an afterthought at best and a political third rail at worst. There are two possibilities going forward: either Democrats will seize the anti-Trump momentum and pass expansive immigration reform, or they’ll renege on their promises, much like they did in 2010.