The last four years, and the next four—11-06-20
Immigration news, in context.
This is the fifty-sixth 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 have a necessarily abridged overview of the Trump administration’s immigration policy legacy, and look forward to what could happen under Biden.
In Under the Radar, we discuss the most recent Board of Immigration Appeals decision, which continues on restricting access to immigration relief even as the political landscape changes around it.
The Big Picture
The news: You know the news.
Note: given that much of our edition today is about recapping the Trump era and prognosticating about the next administration, we have a brief What’s happening? and extra long How we got here and What’s next? subsections, and are eliminating our usual Next Destination section.
What’s happening?
There remains no definitive call on the U.S. presidential election, but unless there’s a freak anomaly in the pools of uncounted ballots in several remaining states or Trump is successful in subverting the democratic process—which seems increasingly unlikely as his Congressional GOP support, steadfast throughout his term, quickly melts away—then Joe Biden will be the next U.S. president. The composition of the Senate remains very much up in the air, with the two Georgia races seemingly headed for runoffs that will determine the majority.
How we got here
When Donald Trump was running for president, he said he’d deport millions of immigrants and build a wall along the U.S-Mexico border, and a lot of people wrote it off as the kind of thing conservative politicians say when they’re running for president. The wall isn’t fully built and ICE may not have arrested or deported most of the unauthorized immigrants in the country, but it’s undeniable that Trump kept his immigration promises.
The administration has eviscerated nearly every aspect of the immigration system, from asylum to the seemingly simple process of naturalization.
Most of the public attention has focused on how the administration’s policies affect undocumented immigrants and asylum seekers, and with good reason. But the administration has also sought to make legal immigration more difficult. Processing times at U.S. Citizenship and Immigration Services, the agency within DHS that handles legal immigration, have skyrocketed, leaving hundreds of thousands of people in limbo. The public charge rule, for example, punishes low-income immigrants by potentially denying them green cards based on their current or future reliance on social services. Another regulation sought to require applicants for immigrant visas to prove they’d be able to pay for health insurance within 30 days of their arrival in the United States, though it was enjoined by the courts before it could go into effect. More recently, the administration has significantly tightened requirements for H-1B visas, increasing the wage floor for recipients and limiting which jobs H-1B applicants can have in the U.S.
For undocumented immigrants especially, the Trump administration has been particularly dire. Early on in the presidency, ICE shifted its enforcement priorities, instructing officers to target “all removable aliens encountered in the course of their duties.” Immigration arrests in the interior of the country shot up by 30% in fiscal 2017, and rose again the year after. The only reason arrests didn’t keep rising was because localities refused to cooperate and the administration shifted much of its attention to an influx of asylum seekers at the border—who, unsurprisingly, were met with brutal force.
Most people think of the 2018 family separation crisis as the defining moment of Trump’s immigration policies. Family separation was just one part of a multi-pronged strategy meant to deter asylum seekers from seeking refuge in the United States.
When asylum seekers presented themselves at ports of entry to ask for asylum, officers stationed there would tell them to come back later—a practice called “metering,” under which border officers would cap entries at an arbitrary number each day. This caused massive waitlists at the border, forcing some migrants who would have otherwise presented at the border to cross between ports of entry, potentially risking their lives.
In January 2019, the administration rolled out the Migrant Protection Protocols, a program requiring some asylum seekers from Spanish-speaking countries to wait out their asylum cases in Mexico. MPP—or “Remain in Mexico,” as some call it to avoid using the administration’s Orwellian term for forcing migrant families to spend months living in tent cities along the border while waiting for relief—has affected more than 67,000 people to date thus far. The overwhelming majority don’t have lawyers to help them navigate the complex asylum system. Migrant families on the MPP docket are often victims of violence, kidnapping, or other persecution at the hands of gangs, who target them because they’re believed to have money. There have been several reported instances of people missing their MPP hearings in the U.S. because they were kidnapped on the other side of the border.
Another asylum policy, the third-country transit ban, denied asylum to anyone who passed through another country on their way to the U.S., provided they didn’t apply for asylum in the other country first. Rather than obtaining asylum, people subjected to this ban could receive withholding of removal or protections under the Convention Against Torture, forms of relief that are harder to obtain and, unlike asylum, don’t provide a path to citizenship.
These policies were intended to work in tandem. A migrant from, say, Honduras could have feasibly been metered at the border, be put on the MPP docket once they’re finally allowed entry, and then be denied asylum because they passed through Mexico on their way to the United States.
Yet another set of programs, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review (HARP) Process expedited the adjudication process for certain asylum claims, truncating what would normally be a months- or years-long process into just a few weeks. Like nearly every other administration policy regarding asylum, the downstream effect of PACR and HARP was that migrants subjected to these programs had a harder time finding legal representation, all but dooming their cases.
The administration also established “asylum cooperative agreements” with Guatemala, Honduras, and El Salvador—three countries whose citizens often flee to the United States. Under these agreements, asylum seekers who apply for protections in the U.S. could instead be sent to one of the above countries and told to apply for asylum there instead. The Guatemala agreement was the only one to actually go into effect. Human Rights Watch called it “deportation with a layover,” and found that Honduran and Salvadoran migrants sent to Guatemala to apply for asylum were not given the time or resources to make informed decisions about their cases.
If you ask the administration about the purpose of this litany of barriers to asylum, they’ll say it’s to cut down on “non-meritorious” claims made by people who don’t actually need asylum and are instead trying to game the system. According to the administration, asylum seekers skip out on their hearings and disappear into the interior of the country, hence the need to either deter them from coming to the U.S. or, if they manage to make it, keep them locked in ICE detention centers—or stranded in Mexican border cities—before ultimately deporting them.
The other avenue for humanitarian immigration, the refugee program, was dramatically cut through the imposition of extremely low caps on the number of people who could be admitted every year.
Under Trump, ICE opened several new detention facilities in the Deep South, almost all of which are owned and operated by for-profit government contractors. Meanwhile, ICE field offices regularly deny bond and parole to detained immigrants, keeping them incarcerated indefinitely, often for the entirety of their cases.
The Executive Office for Immigration Review, the agency within the Department of Justice that runs the nation’s immigration courts, ended the practice of “administrative closure,” which let immigration judges indefinitely close cases rather than determining whether to grant someone relief or deport them. Under Trump’s series of attorneys general, the immigration courts have become particularly politicized. Judges have been given quotas, and EOIR has implemented a series of strategies—from its “no dark courtrooms” directive to its increased reliance on video hearings—ostensibly meant to clear the backlog of cases. Meanwhile, the agency’s own actions have caused the backlog to balloon. The Board of Immigration Appeals, another supposedly apolitical arm of the adjudication system, has turned into yet another tool for enforcement, with Jeff Sessions, Bill Barr, and others issuing decisions intended to limit asylum even further.
To be clear, this is far from an exhaustive list of changes the Trump administration has made to the immigration system in just one term. There’s plenty more we could discuss—including, of course, its weaponization of the coronavirus pandemic, which the administration has used to justify shutting off the border to asylum seekers further cutting legal immigration.
We could go on and on and on. The point is that nearly every change we’ve witnessed in the last three and a half years has been administrative; it wouldn’t necessarily be legally complicated for a Biden administration to reverse these changes, though it would likely be logistically so.
What’s next?
As the past few years have made clear, no legislative action is really needed at all to radically reshape the U.S. immigration system, a function of the depths of executive deference that Congress has engineered into the law. There are, of course, limits to what a president can do, and they tend to run one way: the executive has lots of tools to increase enforcement and enact punitive measures, but is a little more constricted in the ability to ease restrictions. Public charge, for example, is an area where Biden could turn things back to a far less stringent standard, but as a concept it’s statutorily mandated.
That said, there is plenty Biden could do unilaterally on immigration, including on day one. For our purposes here, let’s break things down into two buckets: undoing Trump-era immigration regulatory shifts, and implementing new policies that could potentially protect current and would-be immigrants and visitors.
In terms of rollbacks, there are a few obvious candidates, several of which Biden has already laid out. They include stopping the construction of the border wall; re-raising the refugee cap to a number more in line with Obama-era precedent; re-establishing enforcement priorities for ICE; rescinding the executive orders establishing travel bans, including the infamous so-called “Muslim” and “Africa” bans; and terminating the use of the MPP program for asylum seekers arriving at the southern border. This, of course, is just a small fraction of the staggering volume of immigration policy shifts that Trump—or, more accurately, Stephen Miller—has been able to enact with a single-minded precision alien to any area of the administration except perhaps the decimation of environmental regulations. A full and total rollback is, arguably, impossible, or at least wildly complicated to the extent that it could take an entire term to meaningfully get close to.
To take just one example of a complex bureaucratic system that would require painstaking, sustained intervention to reconstruct, look at the immigration courts, which are not independent but rather administrative bodies under the Justice Department. For the totality of Trump’s term, the Board of Immigration Appeals, which acts as the appellate body within the system, and the Attorneys General, who are akin to its supreme court, have issued decision after decision limiting relief to people in removal proceedings. The latest restrictionist decision came just yesterday (more on that below). This is a mass of administrative precedent that cannot just be thrown out. It would require an entirely new set of additional precedential decisions, to be handed down by an entirely new set of judges that Biden’s attorney general would have to appoint after the BIA was stacked with hardliners.
There are reams of other regulatory changes that would require more than just the will to shift things around. The above-mentioned potential loosening of public charge requirements would still require the administration to, first, drop its defense of the new public charge rule in litigation that has now dragged on for months. Then, it would need to actually go through the full notice-and-comment period again, even if only to change the requirements back to what they were before, and could easily face litigation from anti-immigrant groups. In fact, as with the Trump administration, a Biden administration’s immigration policymaking will probably be characterized by constant litigation, particularly as opponents enjoy a more sympathetic and conservative federal judiciary, another legacy of Trump’s time in office.
Then, there are the proactive measures. Most of what Biden’s promised to do on this front would require legislation, which, depending on the outcome of those Georgia Senate races, could easily be dead on arrival. Even with a Democratic majority, it’s not clear that it would be smooth sailing. The start of Obama’s first term also saw a united Democratic government, and yet it failed to enact any immigration legislation despite it having been put forward as a priority for the new president. Already, powerful Congressional Democrats are blaming the lack of an expected blue wave on progressive messaging, and there is no easier issue to jettison than immigration, which has a limited domestic constituency. Much like his former running mate, Biden is nebulously promising a pathway to citizenship for almost all undocumented immigrants in the country, a prospect that seems like a stretch at best.
This isn’t to say there are a number of affirmative steps he could take unilaterally. One of the bigger open questions is whether he ultimately plans to institute a deportation moratorium; he has publicly committed to the idea, but elicited confusion when it didn’t appear in his official immigration plan. The implied objective of such a moratorium would be to examine the immigration enforcement machinery and determine if any changes need to be made before people are sucked into it, but it’s not entirely clear what such an examination would entail. Biden has promised to reform ICE and CBP and put a more restrained leadership in key Homeland Security roles, but the effectiveness of this approach will largely depend on the extent to which there are consequences for mismanagement, abuse, and neglect within the system.
There are also a few out-there ideas that the leftist immigration wonk-sphere has been agitating for, and which could emerge if progressives in Congress bring their weight to bear on Biden’s immigration policy agenda. Perhaps the most interesting might be the use of parole in place (PIP) to provide a path to legalization for potentially hundreds of thousands or millions of undocumented immigrants. Essentially, there are currently many undocumented people who would technically be able to regularize their status through family relationships or employment, but they run into the barrier of the re-entry bars, which can bar admission to the United States for three years for people who have been unlawfully present for less than a year, and ten years for those who have been present for a year or longer.
Since these people were never admitted, technically they have to leave the country to reapply for legal admission, but doing so would block them from returning for those three or ten years. PIP is a way of allowing people to be ‘paroled’ into the U.S. after an unlawful entry, rendering them eligible to apply for legal status without having to leave and without triggering the bars. Currently, it’s only available to family members of military personnel, but executive action could change that. A PIP expansion is only one of the ideas for aggressive use of executive authority for pro-immigration purposes, but it could be one of the most consequential if it gains traction.
We also can’t forget that, in the very likely event of a Biden victory, Trump would remain president for another two months. As our Felipe De La Hoz has noted before, the specter of an electoral defeat had already sent the Millerite contingent into a frenzy of open vandalism of the entire immigration system, and there’s a good chance this will only go into overdrive as it becomes clear that they have mere weeks left in power. There are several regulatory changes currently underway, including a massive expansion of biometric surveillance for immigration benefits applicants, and Miller may well try to cram several more through in the hopes of gumming up the Biden administration’s efforts to undo them. Probable targets in the next few weeks include work visas like the H-1B and the OPT program for F-1 student visa holders, as well as perhaps an extension of the order allowing border authorities to summarily expel asylum seekers.
Under the Radar
Attorney General rules on duress exception to the asylum persecution bar
Attorney General Bill Barr issued a decision on Matter of Negusie, a case regarding whether people who committed acts of violence or persecution under duress can qualify for asylum. It began with a legal battle regarding an Eritrean asylum seeker, Daniel Negusie, who was denied relief because he had worked as a prison guard in his home country and thereby had participated in the persecution of people in the prison. Negusie said he had been forced to mistreat the prisoners, many of whom had been incarcerated for their religious beliefs, under threat of execution. He argued that any persecution he participated in was done under duress, thus the “persecution bar” to asylum shouldn’t apply.
Negusie’s case made it to the Supreme Court, which ruled that the Board of Immigration Appeals mistakenly interpreted the Immigration and Nationality Act as it applied to Negusie’s case and referred it back to the BIA. In 2018, the BIA ruled that Negusie did not establish that “he was under duress when he assisted in the persecution of prisoners” at the camp, but created a narrow duress exception to the persecutor bar. Barr’s decision reverses that 2018 ruling, eliminating the duress exception.
In practice, this means that anyone forced to participate in violent acts or other forms of persecution—say, a teenager forced to join a gang—will be denied asylum based on their involvement in the persecution, even if they can establish that their actions were committed under duress.