U.S. acts to protect Ukrainians, as advocates point out differences in treatment—03-04-22
Immigration news, in context
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This week’s edition:
In The Big Picture, we analyze the Biden administration’s decision to grant TPS to Ukraine and halt deportation flights to the country.
In Under the Radar, we examine a series of breaches to the border wall.
In Next Destination, we discuss a recent ruling limiting the Biden administration’s ability to expel migrant families at the border.
The Big Picture
The news: The administration has quickly taken a number of concrete steps to protect Ukrainians in the United States and abroad, including designating Ukraine for Temporary Protected Status and halting all deportation flights to Ukraine and several other European countries. Resettlement advocates have praised these moves but have also criticized the Biden administration’s hesitancy to take similar steps with other refugee groups. Politically, some Republicans find themselves in the awkward position of calling for a ramp-up in the same refugee processes that they’ve spent years denigrating.
What’s happening?
In what appears to be record time, Homeland Security Secretary Ali Mayorkas designated Ukraine for Temporary Protected Status (TPS), just one week after Russia’s large-scale invasion of the Eastern European country. This is a step we predicted last week, given how straightforward and politically advantageous it would be, but it’s still astonishing to see it done with this type of speed. TPS has been a fraught topic for years, with advocates often having to lobby for months to get a designation or re-designation. TPS decisions are theoretically made by career DHS staff, though everyone knows agency leadership have the ultimate say.
At around the same time that the TPS designation was issued, U.S. officials took the unprecedented step of halting deportations not only to Ukraine, but to Russia, Belarus, Georgia, Hungary, Moldova, Poland, Romania, and Slovakia. For the first three, it’s a little bit of a “you can’t fire me, I quit!” situation in that the logistics of actually shuttling deportees to an active wear theater, its military aggressor, and a client state acting as a staging ground for Russian troop deployments are probably impossible. Still, it’s notable that deportations have also been paused to six additional neighboring countries that are taking in large numbers of Ukrainian refugees, presumably to ease the considerable friction that they’re already experiencing in attempting to accommodate these refugees.
As several advocates pointed out, it’s clear evidence that the administration is fully capable of simply stopping deportations to particular areas whenever it wants. It’s a stark contrast to Haiti, for example, to which officials actually ramped up deportations as the country was engulfed in political and health crises and teetering on the edge of social collapse, particularly in the aftermath of the assassination of former President Jovenel Moïse last July. Deportations to Afghanistan have continued in limited numbers even in the wake of the disastrous U.S. withdrawal and the Taliban takeover, and despite the U.S.’s abject failure to institute an effective evacuation program.
In an update this week to the State Department’s Foreign Affairs Manual, the government formally designated Ukrainians as “homeless visa applicants” for the purposes of applying for U.S. immigrant visas. The classification that now allows them to process these visas from Warsaw and Frankfurt, in an acknowledgement that it is now essentially impossible to apply for these statuses from within Ukraine, in large part because U.S. embassy and consular staff have been removed. Afghanistan, where U.S. foreign personnel were evacuated long ago, gets no such designation.
Of course, there are few scenarios that present as clear-cut of an immediate and ongoing hazard to life and safety as an all-out ground war, and it makes sense for the government to act fast to safeguard Ukrainians who would obviously be at imminent risk in Ukraine. Still, it’s a perfectly valid question to ask why the urgency and action that has manifested for Ukrainians has been somewhat absent with other populations. As we pointed out last week, throughout the Trump years, Ukrainians were in the top three of refugee resettlements, long before the invasion. This was rather straightforwardly because they were white and Christian, and that dynamic is still clearly present.
The administration enjoys much broader support for its efforts to assist Ukrainians than it has received for other would-be refugee populations, including from some of the same people who have railed against asylum seekers and refugee admissions before. In one illustrative example, Republican New York City Councilwoman Inna Vernikov—a Ukrainian-born elected official in the city with by far the country’s largest concentration of Ukrainian-Americans—has taken up the cause of Ukrainian refugees abroad, despite her forceful support of former President Donald Trump. Other GOP officials have followed the same route, from broad refugee skepticism to full-throated support of Ukrainians.
By way of explanation, the language typically echoes what officials are saying in countries like Poland when asked why Ukrainians are being welcomed with open arms while Syrians are turned away by force: it’s somehow harder to vet Middle Eastern, African, and Asian migrants than it is to the same for Ukrainians; they will be easier to integrate into U.S. society; they’re European (wink). At base, the argument ends up being a cultural, racial, and political one, whether or not these officials want to admit that. Accepting Ukrainian refugees in large numbers will more or less ensure that a sizable number of refugees admitted into the country are Caucasian, and that their presence in the country serves as a rebuke to Putin.
How we got here
Immigration policy is largely discretionary. While there are a dizzying number of laws and statutes on the books, in many cases it’s up to the executive branch to decide how and whether to apply them.
One of Biden’s first acts as president was to implement a 100-day moratorium on deportations. During the 100-day pause, ICE was supposed to review its enforcement priorities, and it’s possible that the review process would have led to some noncitizens' deportation orders being lifted altogether. The moratorium never came to fruition, though. Texas sued the administration immediately after the deportation moratorium was announced, and a federal judge temporarily blocked it from going into effect while the lawsuit progressed. In May, DHS said it would not extend the moratorium—which expired in April despite never actually going into effect—prompting Texas to drop the lawsuit.
That was the Biden administration’s only attempt to systematically stop deportations thus far—until now. Broadly speaking, it’s rare for the federal government to halt all deportations to a country because of political turmoil, or even war, there.
The Biden administration briefly suspended expulsion flights to Haiti in February 2021, but the flights resumed shortly afterwards. The administration ramped up expulsions to Haiti in the fall, apparently as a deterrence strategy. It clearly worked: the number of Haitian migrants who attempted to cross into the U.S. via Mexico fell by more than 90 percent in October after the administration expelled more than 17,000 Haitian migrants in September, according to Customs and Border Protection data obtained by the Washington Post. By February of this year, the administration had expelled or deported more than 20,000 people to Haiti, according to the Washington Office on Latin America.
ICE also canceled a deportation flight to several West African countries in February 2021 amid allegations that ICE officers had physically intimidated several non-citizens into signing and fingerprinting documents authorizing their removal. The Angolan, Cameroonian, and Congolese asylum seekers said they left their countries because they feared for their lives, and could be retaliated against—or even extrajudicially killed—if they were sent back. That flight cancellation was just a one-off, though; the federal government routinely deports Cameroonian asylum seekers to a country that is being torn apart by civil war.
In 2017, a federal judge halted the deportation of a group of Somali nationals who said they had been physically abused by immigration officials, but that order was the result of a federal lawsuit only involving that group of people. And in 2016, the Obama administration temporarily suspended deportations to Haiti in the aftermath of Hurricane Matthew.
It’s far more common for the government to deport people to dangerous and unstable situations than it is for deportations to be halted, even temporarily, because of strife in a particular country. Reports have found that the federal government has deported Yemeni, Eritrean, Salvadoran, and Mexican nationals to their deaths.
The federal government also chose to continue deportations in the early months of the Covid-19 pandemic, even as it used public health statutes to deny entry to asylum seekers at the border; nationals of China, Iran, and most European countries; and to deny visas to people from around the world.
All of this is to say that deportations aren’t a foregone conclusion. Theoretically speaking, anyone who is deemed to be in the U.S. in violation of immigration laws can be deported, but carrying out deportations is a choice—a political one at that.
The asymmetrical application of immigration law isn’t limited to deportations. An example we often point to is Cold War-era asylum decisions. At the height of tensions with the Soviet Union, the U.S. regularly granted asylum to Soviet defectors—and often made a big show of doing so—and to people fleeing communist countries. It was virtually unheard of for a Cuban asylum seeker, for example, to be sent back to their country of origin. Meanwhile, immigration judges denied almost all asylum claims filed by people from El Salvador, Guatemala, and Haiti, partly because the U.S. was propping up repressive regimes there. Asylum seekers from those countries were often classified as “economic migrants” who weren’t eligible for protection in the U.S. and deported accordingly.
What’s next?
As we discussed last week, it’s very difficult to game out what might happen in either the short or long term. Depending on the circumstances on the ground, the total number of refugees leaving Ukraine might remain more or less the same, or it might increase enormously if, for example, Russia ramps up a campaign of targeting civilian infrastructure in order to terrorize Ukraine’s defense forces. At a certain volume and intensity of exodus, it will start making far more sense for there to be mass resettlement in the United States. As things stand, with the United Nations estimating that about a million people have fled Ukraine, mostly to Poland, Europe can likely absorb all of them.
The precedent that U.S. authorities can, whenever they want, designate a country for TPS and halt deportations to an entire region in the span of a week will probably be seized on by advocates and migration experts to suggest that it should happen more often, but that’s unlikely to really be the case. This is a somewhat unique situation politically where Biden has to fundamentally expend little political capital to go all-out in defense of Ukrainian refugees. They’re popular among Democrats and Republicans in a way that is unfortunately hard to imagine others achieving.
One remaining discretionary tool that the U.S. could conceivably utilize is humanitarian parole, as it did for Afghan evacuees, though it’s doubtful that this would really be necessary unless there’s truly a huge outflow of refugees that overwhelms neighboring countries’ ability to manage them at all.
Under the Radar
Border wall has been breached more than 3,000 times
Smugglers and migrants have gotten around—or over, or under—Trump’s border wall at least 3,000 times, according to federal records obtained by the Washington Post.
The Trump administration built more than 450 miles of the wall along the U.S.-Mexico border from 2019 to 2020. Much of it replaced already existing structures, such vehicle barriers or shorter fencing. The wall cost taxpayers more than $15 billion. Nearly $4 billion of that was diverted from military funding, and $271 million was redirected from other DHS agencies, including FEMA.
Despite the costs, the wall has been far from foolproof. Migrants have climbed over it with ladders and smugglers have sawn through its steel bollards, the Post report found.
Next Destination
Biden administration can’t expel migrant families to places where they face persecution
The Biden administration can continue Title 42 expulsions with some key exceptions, a panel of federal judges in Washington, DC ruled today. Per the DC circuit court’s ruling, the Biden administration is allowed to expel asylum seekers, but it cannot expel migrant families with children “to places where they will be persecuted or tortured.”
The question is what this will mean for migrant families at the border, many of whom have been waiting for Title 42 to be lifted so they can file asylum claims. For example, could a migrant family from Mexico be expelled if they’re fleeing persecution elsewhere in the country? And how would Border Patrol officers, who are tasked with turning migrants back under the expulsion policy but are not trained in asylum law, screen migrants to determine whether they faced persecution?
As CBS News’s Camilo Montoya-Galvez pointed out, the court’s ruling could cause the Biden administration to stop applying Title 42 to families with children altogether due to the logistical challenges of screening migrants at the border. Of course, the administration has been pretty bullish about Title 42—even though it previously claimed it would stop applying the policy to families by the end of July 2021—and may appeal the decision.