Special edition—Year begins with BBB uncertainty, family separation filing, MPP restart, and Covid in ICE custody—01-07-22

Immigration news, in context

This is the 107th 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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Welcome to our first edition of 2022! Shockingly, things are still bad. Today, we have a roundup of four significant developments in federal immigration policy and practice.

Democrats struggle to include immigration measures in reanimated corpse of Build Back Better

Following a death blow from conservative West Virginia Senator Joe Manchin, Senate Democrats are attempting to resurrect President Biden’s signature Build Back Better agenda, in the form of the reconciliation bill that’s been in the works for months, by tailoring it more specifically to Manchin’s specifications. While the wisdom of a system where one very compromised senator from the 40th U.S. state by population—with a million fewer residents than just the borough of Brooklyn—gets to essentially write the social spending bill that may also have helped save us from climate cataclysm is suspect, the fact remains that it is the only way the bill passes.

For immigration advocates, that’s a mixed bag. Last July, the recalcitrant senator had signaled that he supported immigration measures in the reconciliation bill, including a path to citizenship for Dreamers, essential workers, and others. After Senate Parliamentarian Elizabeth MacDonough repeatedly ruled against attempts to include any immigration status in the bill, and as momentum built for senators to simply overrule her, as it is their power to do, Manchin indicated he would absolutely not vote to bypass her rulings. At this point, with MacDonough having come out against all three proposals, including one that would merely create a formal program to grant temporary status that already exists under the law, it’s pretty clear that she is not going to rule in favor of any path to either permanent or temporary protections for the undocumented. This has left immigration advocates and their legislative allies mounting a renewed push to simply ignore her and include the broad legalization provisions that had initially been proposed.

Ignoring MacDonough wouldn’t technically require a procedural vote in and of itself, but if Manchin was already prepared to tank the whole bill over his spending concerns, it’s certainly possible he’d be willing to tank it over a perceived rupture with Senate rules. Plus, while he’s been the most visible and vocal thorn in BBB’s side, he’s probably not the only moderate Democrat who would balk at the violation of decorum inherent in overruling the parliamentarian, in keeping with their penchant for unilateral disarmament (try to imagine a GOP-controlled Senate voting down a reconciliation bill because the parliamentarian tried to strip out strict border security measures).

Normally, in a scenario like this, Senate Majority Leader Chuck Schumer—who has shown support for going around MacDonough—would have some ability to strong-arm his caucus, but in a 50-50 Senate split, every legislator is a monarch, and there’s very little leverage to be had. The odds of getting anything substantively passed outside of a reconciliation bill while the filibuster remains in place are very slim, so there’s very little to promise any particular lawmaker. This also makes ignoring MacDonough the most realistic option to getting anything done on immigration complex as the path forward might be.

At the end of the day, Manchin is an opportunist and a political operator who will flip-flop on any given ideological position if it advances his goals, and so on the flip side he may well forget his opposition to overruling MacDonough if his Senate colleagues present him with a bill he actually wants to sign on to (probably one doing less on clean energy, but that’s another story). His position as a Democratic senator from a state that Trump won by about 40 points leaves him comfortable tanking his party’s agenda, but Democrats from more purple states, where the possibility of a strong primary challenger from the left is more realistic, will be less inclined to make themselves directly responsible for BBB’s death, making him yet again the key piece of the puzzle.

Biden administration lawyers motion to dismiss a family separation lawsuit

In a motion filed this week, Justice Department lawyers moved to have the U.S. District Court for the Northern District of California to move a family separation case to the District of Arizona, or alternatively, dismiss the suit altogether. Some commentators have pointed out that this is the first government filing in a family separation case since the administration walked away from settlement negotiations in mid-December, which is true, but it’s not quite useful to draw a straight line between these two cases, as they’re structured very differently and take into account different areas of law.

This gets a bit complex, so let’s take it step by step. To recap, the settlement negotiations that were widely discussed last year stemmed from a case called A.I.I.L. v. Sessions, which was itself a wholly separate case from the Ms. L v. ICE lawsuit that prompted a federal judge to order the government to reunite separated families. A.I.I.L. is a class-action lawsuit that incorporates all parents and children separated under 2018’s formal zero tolerance policy without a hearing demonstrating a rationale for such a separation. It delineated a number of specific constitutional and federal law violations that the government allegedly committed, and seeks both compensatory and punitive damages for all class members.

This latest filing was submitted in the case Wilbur P.G., et al v. United States of America, a separate case brought by three sets of separated parents and children, or a total of six plaintiffs. Unlike A.I.I.L., the Wilbur case alleges that federal agents violated Arizona law, not federal law, and seeks compensatory and punitive damages for these violations. This is possible because the claim is brought under the Federal Tort Claims Act (FTCA), a provision of law which broadly grants individual people the limited ability to sue the federal government for torts—civil violations that cause harm—and seek redress. Basically, in certain circumstances the FTCA can allow someone to sue federal agencies and officers who have caused them harm in roughly the same way they’d be able to sue a private entity for the same.

These tort claims are brought under state laws, which is why the complaint lays out supposed violations of Arizona laws against infliction of emotional distress, negligence, negligent supervision, and other claims (the families were separated in Arizona). While some of the plaintiffs in the A.I.I.L. are indeed also pursuing FTCA claims (indeed, given the class certification, the Wilbur plaintiffs are technically also A.I.I.L. plaintiffs), it’s a separate process and a separate area of law. In their motion, government lawyers are asking the judge to move the venue to the District of Arizona, where the separations took place and the bulk of the harm is alleged to have occurred (plaintiffs filed in California because that’s where they now live).

If the judge decides not to change the venue, the lawyers are alternately asking her to dismiss the suit altogether, on the basis that an exception to the FTCA is satisfied in this case. Generally speaking, the reason people can’t sue the federal government over official functions is that it has sovereign immunity, and the FTCA provides a limited avenue to circumvent this immunity. These avenues have significant exceptions, and while the lawyers’ arguments here get a little convoluted, they boil down to contending that the government retains its immunity because zero tolerance was ultimately a discretionary policy that the government was legally permitted to enact, and its agencies and officers are therefore shielded from any tort claims.

While this does not interface directly with the A.I.I.L. case, it certainly is the Biden administration formally and forcefully defending the legality of the zero tolerance policy in the first place, which it has so far been reticent about staking a strong position on.

Remain in Mexico 2.0 is off to a slow start

The Biden administration’s revived—and supposedly more humane—iteration of the Migrant Protection Protocols has been in place for a little over a month now. As of January 4, 217 migrants have been returned to Mexico under the policy at the El Paso port of entry, according to data from Human Rights First. The administration expanded the policy to San Diego this week. 

More than half of the migrants returned to Mexico under MPP, which is commonly referred to as the “Remain in Mexico” policy, are from Nicaragua. The remainder are from Venezuela, Cuba, Ecuador, and Colombia. Notably absent are Mexicans, Guatemalans, Salvadorans, and Hondurans—who, combined, make up the majority of the migrants apprehended in the El Paso sector, according to CBP data. Mexican nationals alone account for 46 percent of all encounters in the El Paso sector.

There’s a reason for this discrepancy: A U.S. official told CBS News’s Camilo Montoya-Galvez that the Biden administration’s MPP rollout has been “largely focused on nationalities that we currently—for one reason or another—can’t expel to Mexico or to their home countries.” Mexican nationals can’t be placed in MPP because that would break the rule of non-refoulement, which dictates that asylum seekers and refugees can’t be returned to countries where they face persecution. (They can, however, be returned if they lose their asylum case—even in situations where they face harm, so long as that harm is not due to their membership in a protected category.) In other words, the U.S. can’t enroll Mexican nationals in MPP, but it can expel them to Mexico without a hearing. The Biden administration could choose to enroll Guatemalans, Hondurans, and Salvadorans in MPP—as the Trump administration did before it—but it has instead chosen to continue expelling them to Mexico. 

Title 42 expulsions are still the administration’s preferred policy at the border; only those it can’t expel, whether because of their nationality or because they are deemed to face particular harm in Mexico, are being enrolled in MPP. In the past, they would have been admitted into the U.S. and either held in ICE detention or released into the interior pending their court hearings. Now they’re forced to wait in Mexico, where access to legal counsel is limited—despite the administration’s attempts to make access to an attorney a facet of its iteration of Remain in Mexico—and migrants of all nationalities face persecution at the hands of criminal gangs and law enforcement alike. Their court hearings will also be expedited, and immigration judges are expected to wrap up each MPP case within six months. The average length for an asylum case in the interior is roughly four and a half years, according to TRAC.

To be clear, the Biden administration was required to restart MPP, a Trump-era policy it had earlier attempted to terminate, by a court order. Biden announced his intent to end the policy on his first day in office, stopped enrolling migrants in the program, and eventually had DHS scrap it altogether by the summer. Two states sued the administration, arguing that ending MPP would unduly burden them by requiring them to provide services to asylum seekers and that the administration’s attempt to end MPP violated the Administrative Procedure Act, a law prohibiting capricious rule-making. A federal judge ordered the administration to resume MPP—but not to expand who was eligible, which it did, or to expedite migrants’ hearings.

ICE detention and Covid numbers increase under Biden

At the beginning of the pandemic, advocates warned that people in the custody of Immigration and Customs Enforcement were at particular risk of contracting Covid-19. Even those who didn’t have underlying medical conditions were vulnerable, because they were held in congregate settings and were unable to keep at least six feet of distance from others. (Now that we know the virus is airborne, the whole “six feet” thing seems less relevant in an enclosed space, but the danger posed by congregate settings is even more clear.) In the spring of 2020, immigrants in ICE detention told reporters they weren’t given adequate masks or other personal protective equipment, and even had to pay for soap. A federal lawsuit eventually forced the release of people in ICE custody deemed medically vulnerable, and detention numbers plummeted. Meanwhile, ICE facilities became breeding grounds for Covid-19, a problem made worse by ICE’s longstanding habit of transferring detainees across the country.

Almost two years later, the risk factors and negligence have remained largely unchanged. The number of detainees in ICE custody has grown by about 45 percent since Biden took office. ICE lagged in offering vaccines to immigrants in its detention facilities, and has largely administered the Johnson & Johnson vaccine—which studies have suggested is less effective than the Pfizer and Moderna vaccines for months now, especially when it comes to the new variants—to detained immigrants. Per reporting by Vox’s Nicole Narea, access to booster shots is almost nonexistent for immigrants in ICE custody. Advocates point out that there has been no national vaccination plan for ICE detention, and that it has instead been left up to individual facilities and the entities that operate them.

The biggest difference between then and now is that the detained population was declining during the first few months of the pandemic due to the aforementioned court-ordered releases and a slow-down in interior enforcement. In March 2020, ICE was detaining around 38,000 people per day, according to TRAC data; that figure dropped to around 13,000 people per day by February 2021 before climbing upwards in the months that followed and peaking at around 27,000 people in early July. There were 20,623 people in ICE custody as of December 19. 

According to TRAC’s data, the majority of those detained by ICE between March 2020 and March 2021 were placed in ICE custody after being arrested in the interior of the country. Before the pandemic began, most detainees in ICE custody had first been in the custody of Customs and Border Protection or its sub-agency, Border Patrol. The implementation of Title 42 expulsions in March 2020 caused the number of asylum seekers in ICE custody to plummet for about a year, as migrants encountered at the border were rapidly removed to Mexico instead of being given hearing dates in the U.S. In March 2021, however, that trend began to reverse, and the majority of those in ICE detention were once again migrants who had been encountered at the border.

The number of people in ICE custody under Biden hasn’t come close to Trump’s peak, when more than 50,000 immigrants were detained by ICE. However, it’s undeniable that detention numbers are increasing under Biden—and the data suggests that the administration is increasingly relying on detention for migrants encountered at the border who it cannot expel under Title 42, despite the health risks posed to both detained immigrants and the communities detention facilities are in. The result of the increased detention numbers and the lack of a cohesive program to protect people in custody has led to acknowledged Covid-19 cases in custody ballooning to 938 as of January 5, an increase of about 650 in just a week. Even that is almost certainly an undercount.