Trump-era deportees may be admitted under new initiative—07-02-21
Immigration news, in context
This is the eighty-fifth 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 look at a new administration initiative to reevaluate Trump-era deportations.
In Under the Radar, we examine dismally low grant rates of DACA applications filed in recent months.
In Next Destination, we discuss the impending closure of six emergency influx shelters.
The Big Picture
The news: As reported by Julia Preston in Politico and the Marshall Project, the Biden administration is considering a standard process by which to reevaluate the deportations of thousands of people during the Trump administration, looking for cases deemed overly harsh or in retaliation for political speech and protest.
It can be fairly easy to be issued a removal order in the United States; under expedited removal, recent arrivals can be deported within hours, and even cases in immigration court can result in a deportation order just by virtue of a respondent missing a single court date. Reversing a deportation, however, is often next to impossible. There isn’t really a clear route within immigration law to contest an already-realized deportation. Successfully doing so often requires the intervention of a federal judge, who can find that the removal itself was illegal or legally deficient in some way and order the return of the deportee. No process exists for someone to, say, fill out a form requesting that their deportation be reevaluated. At least, none has existed yet. According to Preston’s report, officials are looking into establishing one, and relatives of some military members have already returned.
There are really two issues here: the physical return, and the legal consequences of a deportation. The first is an easy enough matter for the administration to address systematically if it wants to, through the use of humanitarian parole. This is the same mechanism currently being employed to bring parents separated under the zero tolerance policy back to the U.S. Per 8 USC § 1182(d)(5)(A), Homeland Security can allow almost anyone into the country regardless of their formal immigration status, so long as it’s “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” The statute makes clear that this designation is temporary and “shall not be regarded as an admission of the alien,” even if it gets them through a port of entry.
Parole can get these folks back onto U.S. soil, but it can’t do anything for their underlying legal troubles, namely a continuing lack of status and a deportation record that will bar them from seeking visas or adjustment to permanent residency. Per the article, administration officials are looking into ways to actually reopen immigration cases in court, which is notable in that there has never been a widespread effort to permit the reopening of already-resolved immigration cases, and doing so after a deportation is almost unheard of. This of course doesn’t mean that they are guaranteed to win, which opens up the uncomfortable eventuality that people might be allowed to return only to spend months or a year fighting their cases and be deported again. Presumably, the administration will have to issue some guarantee that those allowed to return under parole won’t be detained once their immigration cases are reopened.
Officials are reportedly also considering a system for the issuance of inadmissibility and entry bar waivers to people whose cases are reevaluated. This is crucial because, unlike the case of the separated parents, it seems like most of the people who would benefit from this second look are those who already resided in the U.S. — either undocumented or as permanent residents — and who might have existing avenues under the law to regularize their status if only they weren’t barred from doing so. For example, deported individuals are married to U.S. citizens or the parents of citizens over 21, provided the 10-year bar on reentry and the grounds of inadmissibility were were both waived, would be eligible to apply for adjustment of status to permanent resident right after a parole entry and generally avoid any further immigration court proceedings.
It remains rather unclear what the exact process or criteria will be for consideration. A spokeswoman for DHS told Preston that the government would be looking at “individuals whose removals under the prior administration failed to live up to our highest values,” whatever that means. It is also emphasizing people it believes were retaliated against for publicly protesting against the immigration system or their own cases. So far, it’s apparently been limited to military families, which is unsurprising given that these are the least likely to receive pushback from anti-immigrant zealots. The administration is effectively testing the waters, and seems to be moving along very cautiously, as it has for most of their immigration moves so far. Also note the “under the prior administration” in that statement. More on that below.
How we got here
Under Trump’s tenure, ICE saw a significant shift in priorities. Starting in February, ICE agents were instructed to arrest “all removable aliens encountered in the course of their duties.”
During the final years of the Obama administration, ICE was working under a slightly narrower mandate: the Priority Enforcement Program, nicknamed “felons, not families.” Announced in 2014, PEP created a new enforcement hierarchy, prioritizing the arrest and deportation of those deemed “national security threats,” gang members, convicted of state or local felonies or aggravated felonies, or who were apprehended at the border. People who had been convicted of “serious” misdemeanors, three or more misdemeanors of any kind, who had “significantly abused the visa or visa waiver programs,” or who entered the U.S. without authorization after July 1, 2014 were deemed “priority 2” for arrest and deportation. But that didn’t preclude arrests and deportations of immigrants with relatively minor convictions, and immigration activists argued that the false dichotomy between “felons” and “families” ensnared a lot of people who had criminal records but nonetheless did not deserve to be deported.
This prioritization scheme, however flawed, disappeared under Trump. Immigrants who felt a relative degree of safety—such as one of the people mentioned in Preston’s report, an undocumented Mexican woman whose husband voted for Trump in 2016 and “never imagined his wife, a stay-at-home mother with no criminal record, would be treated as one of the bad immigrants Trump vowed to remove”—were priorities for deportation. It’s worth noting that no undocumented immigrant, or for that matter no noncitizen, has been entirely safe from deportation under any administration. But immigration arrests of noncitizens with no criminal records more than tripled during Trump’s first 14 months in office, according to a 2018 NBC News report.
The previous administration also presided over the arrests of several high-profile immigration activists, many of whom said they were being targeted because of their work. One activist, Sergio Salazar, was also a DACA recipient and was arrested just a few days after his DACA expired. He had applied for a renewal but it had been denied, unbeknownst to him. He also didn’t know that the FBI had been keeping tabs on him, and had marked him as a member of antifa and an anarchist extremist, according to a report in The Intercept.
But the Trump administration is by no means the first to deport people whose removal from the country provided, as the Politico article puts it, “little law enforcement benefit.” A 2014 analysis from the New York Times found that two-thirds of the almost two million people deported from 2008 to 2014 had either committed minor infractions, such as violating traffic laws, or had no criminal records at all. Moreover, while people can be picked up by ICE after being taken into criminal custody for some reason or another, years-old arrests or convictions can—and often do—trigger deportation proceedings as well.
The fact that the new plan will only reverse some deportations carried out under the Trump administration is significant. The Trump administration formally deported more than 900,000 people—but the Obama administration deported around 3 million, many of whom could also argue that their removal from the country was unduly cruel or posed no public safety benefit.
This is all pretty early stages and we don’t have a wealth of information beyond the fact that some military family members have already been returned and that the administration is generally looking at people who it feels have sympathetic cases or were deported as unlawful punishment for speech. It stands to reason that the people who it will return will be those that it feels have a pretty sure shot to either quickly regularizing their status or otherwise winning relief in immigration court; it would be pretty bad optics and rather nonsensical to have people be deported again.
Officials have hinted that the systematized program could begin with a few thousand cases and eventually expand into a more widespread effort. It would appear that the reevaluations would be handled by Homeland Security and not State Department consular offices, which typically adjudicate visa and other immigration applications tendered abroad. Whether this will take the form of filing the existing forms to request parole and the necessary waivers or the administration develops an entirely new methodology remains to be seen.
The real moment of truth here is going to be whether the Biden administration will even consider the cases of people deported pre-Trump. Maintaining that “unjust” deportations happened only between January 2017 and January 2021 would be patently ridiculous, particularly given that Trump, despite all his best efforts, never quite reached the massive numbers of deportations that characterized Obama’s early years. If Biden wants to maintain some self-consistency, this will require acknowledging that there were plenty of people removed in the preceding eight years who meet the exact same criteria that has already been laid out.
One thing to keep an eye out for is how the relevant data is compiled and reported. Will the administration put out figures on the number of people applying, whether their cases are considered, how many are accepted and how many are rejected? All of this will be important to understanding how the program works and is managed. Will it also be an open portal that anyone who’s been removed will be able to access and apply for consideration? Or will it be available only to those actively identified as fitting the criteria?
Either way, no matter how cautiously the administration approaches it and how limited the relief is, they’re probably getting ready for the inevitable Tucker Carlson rant where he stops just short of saying the Fourteen Words in claiming that Biden is prioritizing “criminal deported illegals” or some such. This is also such an unprecedented move that there will almost undoubtedly be legal challenges, probably taking the tack that this is a new regulatory scheme that the administration failed to properly consider and is overstepping its executive authority with. It’s likely such challenges will fail, as the executive plainly has the authority to parole people and there’s nothing legally precluding the reopening of immigration cases or the issuance of waivers.
Under the Radar
Just 1.5% of DACA applications filed since December have been approved
Around 50,000 people have submitted applications for Deferred Action for Childhood Arrivals since December, but fewer than 800 people have had their applications approved, according to federal data analyzed by CBS News. The majority of the applications haven’t been denied, but are pending. Per the CBS News report, U.S. Citizenship and Immigration Services had a backlog of more than 55,000 pending first-time DACA applications as of March 31.
DACA’s existence has been fraught from the beginning. The program was designed to be a stopgap after Congress repeatedly failed to pass the DREAM Act, which would have provided a path to citizenship for undocumented people brought to the U.S. as children who met certain criteria. Rather than a path to citizenship, DACA let the same people who would have qualified for the DREAM Act live and work in the U.S.—but it didn’t grant them legal status. DACA recipients exist in a state of limbo: federal immigration authorities know who they are and where they live, and promise not to enforce immigration laws against them as long as they continue to meet certain criteria. In exchange, DACA recipients can work on the books, pay in-state college tuition, and generally live with less fear of deportation than those with no protections.
But the program has faced legal challenges since its inception. The Trump administration tried to end it altogether, and stopped processing new applications while a lawsuit regarding the attempt to end DACA made its way through the judiciary. And now a federal judge in Texas is set to rule on DACA’s legality.
Administration to close 6 emergency shelters for migrant children
The Department of Health and Human Services will close six emergency shelters that hold unaccompanied migrant children, CBS News reports. The department will shut down emergency influx shelters at the Lackland Air Force Base outside of San Antonio; former camps for oil workers in Midland and Carrizo Springs, Texas; a shelter in Donna, Texas; and convention centers in San Diego and Long Beach, California.
The Biden administration opened up emergency influx shelters for migrant children earlier this year and is now closing them as the number of children in federal custody decreases. In early May, there were more than 22,000 migrant children in government shelters; that figure dropped to 14,400 as of June 29. Of those, 6,100 children are being held in emergency influx shelters, facilities that are not designed to be long-term shelters and thus aren’t subject to state licensing requirements. These shelters have made headlines for substandard conditions under several administrations. Notably, the Biden administration will not close the emergency shelter at Fort Bliss in the near future despite recent allegations of mass mental health problems among children held there.