Week 1: Making sense of the asylum ban

Immigration news, in context.

This is the first-ever edition of BORDER/LINES, a weekly newsletter designed to get you up to speed on the big developments in immigration policy. We launched this project after hearing from friends and colleagues who wanted to understand these stories but didn’t know where to start. Please help us serve this mission by giving feedback on this newsletter; we will read every comment, and make changes as appropriate. Reach us at BorderLines.News@protonmail.ch.

- Felipe De La Hoz and Gaby Del Valle

The Big Picture

The Asylum Ban

The News: The Supreme Court issued a decision allowing the reinstatement of a Trump administration policy barring most asylum-seekers arriving at the Southern border from receiving protections while the policy remains in litigation. Experts and headlines have called this the “asylum ban.”

What’s happening?

The main thing to understand about the so-called “asylum ban” ruling is that it wasn’t a final Supreme Court decision; it is merely allowing the policy to continue while the issue is litigated, overruling a lower court judge. In essence, SCOTUS is allowing the rule to remain in effect while the lawsuit is ongoing, but isn’t considering the case at this time.

The rule implemented by the government, which forms the basis for the lawsuit, does not block anyone from making an asylum claim at the border. This is crucial: While the policy has often been described as a total ban on asylum for anyone who isn’t Mexican and passed through at least one other country en route to the United States, it does close the door on these migrants’ ability to be granted asylum, not their ability to apply for it. As things stand, asylum petitions are still going to court, but applicants have their cases denied if they passed through another country and didn’t apply for asylum there first, provided that the resolution comes while litigation is still pending, or if the courts ultimately side with the Trump administration. An asylum-seeker whose case goes to court and is denied on this basis isn’t merely being turned away at the border. Instead, they’ll probably be ordered deported from the country. This deportation has severe knock-on effects down the line, such as heavily limiting this person’s ability to legally return to the United States for at least five years.

How did we get here?

The short answer: the Trump administration has been using every tool at its disposal to wage war on asylum-seekers and other migrants. One immigration official recently told Houston Chronicle reporter Lomi Kriel that the administration is “throwing all the spaghetti against the wall to see what’s going to stick.”

The asylum ban is just the most draconian of the measures the administration has taken as part of a multi-pronged strategy to deter migrants from making the trek to the US and quickly deport those who do arrive. Others include the “metering” policy, which limits the number of migrants allowed to cross at ports of entry each day, and the Migrant Protection Protocols, which forces some migrants to wait in Mexico for the duration of their US asylum cases.

These efforts partly stem from the fact that administration officials believe — or at least claim to believe — that most asylum claims are fraudulent. For example, the rule implementing the policy at issue here cites the high rate of asylum denials as proof that most migrants have “meritless” claims. Administration officials, including acting DHS secretary Kevin McAleenan, have also claimed that migrants claim asylum to be granted admission into the US, only to skip all their court dates once they’ve been released into the interior. The government’s argument is essentially that real asylum-seekers would ask for relief in the first country they reach — even if thousands of other people are fleeing those countries, and even though experts have pointed out that someone who is persecuted in, say, El Salvador, wouldn’t necessarily be safe in nearby Honduras.

That is largely untrue. But it is true that most asylum-seekers ultimately lose their cases. (TRAC has a really handy chart of judge-by-judge asylum decisions from 2013 to 2018.) 

There are a few reasons for that, three of which are:

  • Immigration cases are handled by civil courts, which means asylum-seekers and immigrants in deportation proceedings aren’t entitled to a free, government-appointed lawyer. The result? Most immigrants aren’t represented in court, but those who do manage to get lawyers are much more likely to win their cases.

  • People’s stated motivations for fleeing their countries — generalized violence, devastating poverty, and increasingly, climate change-induced threats to their livelihoods — don’t necessarily mean they qualify for asylum. 

  • Attorneys General (most notably former Attorney General Jeff Sessions), who have oversight over the operations of immigration courts, have issued policies that further restrict judges’ ability to grant asylum.

To qualify for asylum, a migrant needs to prove that they’ve been persecuted (or have a well-founded fear of being persecuted) because of their race, religion, nationality, membership in a particular social group, or their political opinion/affiliation. The definition of “particular social group” has varied over time, and doesn’t necessarily take modern realities into account.

What’s next?

A big open question is what happens to such cases if the courts ultimately rule against the government and strike down the new rules. Asylum cases take a long time to wind their way through the system, but so does federal litigation, especially if it ends up being appealed all the way up the chain to the Supreme Court. It’s not implausible that some applicants will already have been deported as a result of the rules by the time there’s a final say. Will the government be ordered to reopen the cases of people denied asylum under the now-invalid rules? If so, will it have to find them and bring them back to the United States? By then, the point might be moot as people returned to the circumstances they were claiming to escape might be dead or disappeared.

A few other takeaways:

  • Two other programs exist to shield migrants from deportation to danger: relief under the international Convention Against Torture (CAT) and withholding of removal. These programs will remain available, but both require much higher standards of evidence and do not provide a path to permanent residency and citizenship, and can be terminated if the conditions that led to the applicant being unsafe are deemed to no longer exist.

  • If refugee admissions numbers are cut even further, by next fiscal year there could be a very slim avenue for any humanitarian migrants worldwide to legally resettle in the United States, at least until this lawsuit case is settled. By statute, the president has the authority to set the annual refugee cap, including down to flat zero, as some in the administration have called for.

  • Mexico had already seen hugely increased rates of asylum applications in the last few years. Mexican Sub-Secretary for Human Rights Alejandro Encinas Rodriguez said earlier this year that the country expected 80,000 applications in 2019, well over double the amount in 2018. This was before the new asylum rule was put into place, raising the specter that the Mexican immigration infrastructure will be faced with a deluge of applications in a system that is already strained to the point of breaking.

Under the Radar

MPP hearings begin in Laredo 

The first remote immigration court hearings for asylum-seekers subject to the Migrant Protection Protocols — a policy that sends asylum-seekers arriving at Southern border ports of entry back to Mexico for the duration of their cases, which is currently wrapped up in litigation — got underway in Laredo last week. 

Tents were set up along the border to allow asylum applicants to briefly re-enter the country and have hearings before judges who were appearing by video from courtrooms in San Antonio. Immigration hearings are presumptively open to the public, but the government argued that the facilities themselves were secure and nonpublic, and told reporters who showed up that the hearings could only be viewed from the remote courtrooms were the judges sat. 

While the city had offered Homeland Security office space to set the makeshift courtrooms up, the department declined and used its own land instead. Tele-conferenced hearings occur elsewhere in the country, including at the Varick Street immigration court in downtown Manhattan. They have been known to often suffer from technical problems that can cause delays and confusion, so much so that the Government Accountability Office issued a 2017 report recommended limiting their use.

Former MA judges pen letter in support of colleague accused of obstructing ICE | MassLive

In April, Judge Shelley Joseph of the Newton District Court in Massachusetts was criminally charged for allegedly helping an undocumented man being arraigned in her courtroom evade capture by ICE agents who were waiting to detain him. Joseph is accused of turning off her recorder and instructing a court official — who was also charged — to take the man out through a back door. 

Immigration in state and county courthouses has been a flashpoint in the broader immigration debate, with defense attorneys, judges, and even prosecutors and police arguing that it interferes with criminal cases and makes people less likely to report crimes. Court systems in several states have taken measures to prohibit ICE courthouse detentions (the matter is being litigated in Massachusetts), but Judge Joseph’s is the first case where a judge was criminally charged for directly interfering with an ICE operation. 

A letter signed by 61 retired state judges urges the dismissal of the charges, arguing that it would cause local judges to live in fear of crossing federal officials. The outcome of the case could set a tone for how free local judges around the country could feel to foil ICE detentions in their courthouses.

The Trump administration fired DHS’s general counsel | The New York Times

John Mitnick, the general counsel for the Department of Homeland Security, was fired Tuesday. He’s not the first DHS official to get the boot this year — the department has been plagued by personnel shakeups under Trump, and several key officials are currently serving in an “acting” capacity, meaning they haven’t undergone the Senate confirmation process.

A quick rundown:

  • Kevin McAleenan is the acting secretary of DHS

  • Matthew Albence is the acting director of Immigration and Customs Enforcement, and Derek Brenner is its acting deputy director.

  • Ken Cuccinelli is the acting head of US Citizenship and Immigration Services.

  • Mark Morgan is the acting commissioner of Customs and Border Protection 

Notably, the White House hasn’t taken any steps to nominate most of these people for permanent positions, even though acting officials can only serve for up to 210 days. 

The administration’s reliance on acting officials isn’t limited to DHS: several other agencies and departments are led by officials who haven’t been confirmed by the Senate. “I like acting. It gives me more flexibility,” Trump told reporters in January after hiring a cadre of acting officials for several key roles, including Mick Mulvaney, who came on as acting White House chief of staff.

The administration has elided the nomination and confirmation process for department officials, but it has gone to great lengths to get federal judges, who serve lifetime appointments, nominated and confirmed. The Senate has confirmed 150 Trump-appointed federal judges so far, which could be a benefit for the Trump administration when its immigration policies get challenged in court. 

An NYC jail detained the wrong Luis Hernandez on immigration grounds  | Courthouse News

The Second Circuit re-opened the case of Luis Hernandez, a US citizen who was detained at Rikers Island for four days after DHS confused him for a Honduran immigrant with a similar name. 

Hernandez was arrested for public lewdness back in 2013. The judge overseeing Hernandez’s case said ICE had asked the jail to hold him for an additional period of time so he could be transferred into immigration custody.

But they had the wrong Hernandez. ICE was looking for Luis Enrique Hernandez-Martinez, a Honduran immigrant; the Luis Hernandez who ended up in Rikers was born in Brooklyn, a fact his lawyers say immigration officials could have verified by looking at his records, or at the Department of Corrections’ inmate lookup.

This kind of mix-up won’t happen again in New York City, which now declares itself a “sanctuary city” — a jurisdiction that won’t collaborate with immigration authorities on things like ICE detainers. Elsewhere in the country, so-called sanctuary cities and counties have stopped collaborating with ICE as well, and some have ended their 287(g) agreements. These partnerships between ICE and municipal law enforcement agencies allow local police officers and sheriff’s deputies to check people’s immigration status when they’re arrested for criminal violations, and to detain people ICE suspects of being in the country without authorization.

Some Border Patrol officers now handling first step of asylum requests | The Los Angeles Times

When someone petitions for asylum in the United States, the first step in the process is to undergo a credible fear interview (CFI). This is a supposedly non-adversarial interview with a trained government employee who guides them through a detailed description of what exactly they claim to be fleeing from, and then makes a determination as to whether they establish that they have a real fear of return. This step was specifically designed by Congress to ensure that no one who may have a valid asylum claim is denied and potentially sent back to danger, so most applicants make applicants are approved, a fact that has led various officials in the Trump administration to grumble that it’s too permissive. Earlier this year, after some reports that such a plan was in the works, Homeland Security revealed in a budget proposal that it intended to have Border Patrol agents, who are part of Customs and Border Protection, take over some of these interviews from asylum officers, who are part of the United States Citizenship and Immigration Services.

The proposal drew instant condemnation and concern from immigration legal groups and even some within DHS itself, who argued that the agents were not properly equipped to conduct the sensitive questioning that forms the backbone of a CFI, and pointed to reporting that the policy had been pushed as a way to drive up denials. Nevertheless, Border Patrol agents started training to administer the CFIs, which has now reached a phase that includes actually conducting them at the South Texas Family Residential Center in Dilley. Preliminary numbers show that they indeed have had lower approval ratings than asylum officers, though they have not done that many interviews so far, and decisions are reviewed by supervisor asylum officers. While initial denials can be appealed to an immigration judge, they make it much more difficult for an applicant to ultimately win asylum.

Next Destination

What will Joseph Maher do?

With Mitnick out, Principal Deputy General Counsel Joseph Maher is now acting general counsel at Homeland Security. Mitnick’s departure had been in the works for a while, and it’s unlikely that it was specifically triggered by any one point of disagreement with the White House. That said, it’s very possible that Mitnick, a more traditional conservative who previously served as senior vice president at the Heritage Foundation, was pushing back on Trump’s wish list. It’s now up to Maher, who has been at the department since 2003, to temper the administration’s demands as the chief legal officer for the department. Will he?

What does the Mexican government have up its sleeve?

By presidential decree, authority over Mexican migration policy has now been formally vested into the Department of External Relations (SRE), formalizing a gradual shift that has occurred under President Andrés Manuel López Obrador. Since being sworn in December of last year, AMLO, as he is often known, has been unexpectedly cooperative with the Trump administration’s immigration restrictionist plans, assisting with the MPP program and creating a new National Guard that has helped patrol for migrants. It’s unclear if the full transfer of control over migration to External Relations will have any immediate implications, but it’s likely another step in AMLO’s policy to use action on migrants as a cudgel to increase his administration’s standing in the White House.

To watch: ‘Oversight of ICE Detention Facilities: Is DHS Doing Enough?’ before the House Subcommittee on Oversight, Management, & Accountability, on Thursday, Sept. 26 at 2pm.