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Week 13: Congress passes massive appropriations bill
Immigration news, in context.
This is the thirteenth 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.
We will be off next week and back on January 3rd. Enjoy your holiday season and see you next year!
This week’s edition:
In The Big Picture, we dig into immigration implications of the appropriations bills Congress passed this week.
In Under the Radar, we discuss driver’s licenses for undocumented immigrants, the latest Remain in Mexico data, and a pathway to citizenship for Liberian immigrants buried in a defense spending bill.
In Next Destination, we speculate as to whether the Trump administration will send Mexican migrants to Honduras as part of its agreement with the Central American country and look at Trump’s latest proposed limits to seeking asylum.
The Big Picture
The News: Congress passed two behemoth appropriations bills that will fund government operations through next September, including provisions related to immigration, detention, border enforcement, and State Department operations. The legislation has been sent to President Trump to sign before midnight Friday, December 20.
One of the bills, H.R. 1158, has the bulk of the meat related to immigration: it funds Homeland Security, among other agencies (including the biggest expenditure, for Defense). These types of gigantic funding bills are typically good opportunities for lawmakers to push pet projects or force particular reforms that might not have had a chance as a standalone bill, and both progressive and conservative members of Congress had hoped to secure priorities on immigration and the border. But the extreme polarization on such issues specifically, and the need to come up with something that the Democrat-controlled House would pass and President Trump would sign, means it doesn’t depart radically from the status quo on this front.
The bill repeatedly nods to concerns over mismanagement, ill treatment, and deplorable conditions in immigration detention in particular. Notably, the bill creates the new position of Immigration Detention Ombudsman within the Department of Homeland Security., The ombudsman will report directly to the Homeland Security secretary and and prepare an annual report to Congress, and will have a $10 million budget and the power to:
review complaints against ICE and Customs and Border Protection personnel and their contractors with regards to immigration detention
conduct unannounced inspections of detention facilities
assist alleged victims of misconduct; conduct audits and issue recommendations
and refer cases to the DHS Inspector General and U.S. Citizenship and Immigration Services for further investigation and potential immigration relief.
The legislation also allocates $30 million specifically to “address health, life, and safety issues at existing Border Patrol facilities, including construction, and for improved video recording capabilities”; moves performance evaluations of contract facilities to the Office of Professional Responsibility; and prohibits the use of information collected by Health and Human Services on potential sponsors of unaccompanied minors from being used for immigration enforcement in most cases.
The other appropriation bill, H.R. 1865, covers departments including State and Health and Human Services — which handle refugee resettlement and unaccompanied minors — and similarly nods at oversight concerns. The bill:
prevents the Office of Refugee Resettlement, an agency within HHS from making changes to recent operational directives without written justification
limits the use of non-state-licensed facilities for unaccompanied minors, the use of which has been a priority of the Trump administration
mandates a monthly report, to be made available to Congress and publicly online, “with respect to children who were separated from their parents or legal guardians by the Department of Homeland Security” and put in ORR shelters as unaccompanied, reflecting a continued fixation with family separation at the border after the public backlash to the ‘zero-tolerance’ policy that ended last June. While such large-scale separation stopped, a number of families are still separated at the border after questionable determinations by CBP personnel.
It also prohibits the use of funds to prevent members of the House or the Senate from “entering, for the purpose of conducting oversight, any facility in the United States used for the purpose of maintaining custody of, or otherwise housing, unaccompanied alien children.” This addition is an explicit response to several recent high-profile incidents in which legislators were denied entry to facilities with unaccompanied minors, including a memorable June 2018 moment in which Oregon Sen. Jeff Merkley was filmed being turned away from a Texas facility where children separated under the then-active zero-tolerance policy were being held.
However, the bills didn’t go nearly as far as many Democrats wanted. Pro-immigrant groups were enraged that the defense and DHS bill continues to allow the DHS Secretary to “reprogram within and transfer funds to ‘U.S. Immigration and Customs Enforcement—Operations and Support’ as necessary to ensure the detention of aliens prioritized for removal,” meaning that funds could be moved elsewhere in DHS to ICE for detention space. While the number of ICE detainees has fallen to about 43,000 from a high of about 55,000 earlier this year, Congress explicitly funded the agency this fiscal year with the objective of getting the number to 40,500. If the administration retains the ability to move money from other programs to ICE, any such intended restrictions are pretty toothless.
There is a roughly $1.9 billion allocation for CBP “procurement, construction, and improvements,” of which $1.375 billion are earmarked for border wall construction. This received a lot of attention, as a border wall has been one of the president’s signature issues, for which he had requested $8.6 billion, and was a primary point of contention between Democrats and Republicans. The figure is the same as the funding level for the wall last fiscal year, and lets both sides claim victory to an extent.
Less widely noted were the remaining border earmarks, particularly some $222 million in funding for “the acquisition and deployment of border security technologies and trade and travel assets and infrastructure,” which is a technical way of saying border surveillance systems. This has been a growth industry in recent years, with private companies competing to supply drones, motion sensors, facial recognition cameras, artificial intelligence, and other cutting-edge surveillance tech at the border. Such systems are often more concerning to civil liberties advocates than the wall is, but tend to be more palatable to Democratic lawmakers.
How we got here
The Trump administration has repeatedly tried and failed to get Congress to fund an increase in ICE detention space, as well as to pay for Trump’s signature wall along the U.S.-Mexico border. Over the summer, during the height of this year’s so-called border crisis, Congress passed an emergency funding bill — commonly and mistakenly referred to as a “humanitarian aid” bill — providing the departments of Homeland Security and Health and Human Services with more than $4 billion in emergency funding. That bill didn’t provide money for additional ICE beds, nor did it allocate any funds for the border wall.
But the Trump administration has found other ways to pay for the wall — namely by redirecting money from other parts of the government, including the military. Earlier this month, a federal judge in Texas forbade the Trump administration from using $3.6 billion intended for military construction to help pay for the wall. In October, that same judge ruled that the Trump administration couldn’t declare a national emergency to pay for the wall using Defense Department money; the administration is currently appealing that decision.
Not all Democrats were on board with the most recent funding bill. Per Politico, members of the House Hispanic and Progressive Caucuses said the bill granted too many concessions to the Trump administration; some members of the Hispanic Caucus called the bill a “blank check” to the administration. Over the summer, members of both caucuses also opposed several key parts of the emergency funding bill, though they were eventually overruled and outvoted by the Democratic Party’s more centrist members.
As for the ombudsman, the position appears to be a nod to some members of Congress’ calls for more transparency in ICE and CBP detention facilities. Over the summer, as the number of families arriving at the border swelled, elected officials who visited both CBP facilities at the border and ICE detention centers in the interior were dismayed by what they saw. A Congressional delegation that toured Border Patrol stations in Texas said they were forbidden from speaking to any of the migrants who were detained there and had to practically push past Border Patrol officers to do so. Lawmakers also toured shelters for unaccompanied migrant children, which are operated by the Office of Refugee Resettlement, though they said the tours were far from transparent and had to be planned far in advance. In some instances, as with Markey, members of Congress were turned away from shelters altogether.
The provision allowing for funding to be redirected to ICE detention almost certainly means money will be moved around for this purpose, just as it was this fiscal year. In general, the number of ICE detainees has been falling anyway, but the agency won’t feel constrained by the supposed limits set by Congress. Given that the president did not get his wish of increased border funding, he’ll likely continue to try to raid it from elsewhere; if he can’t take it from military construction budgets, it may come from other parts of DHS.
It’ll be interesting to see who gets the detention ombudsman job and what they do with it. They will be appointed by the Homeland Security secretary, who is currently Chad Wolf but conceivably could be someone else by the time a nomination actually happens. Regardless of who ends up in the role, a singular mandate and $10 million budget is an encouraging sign that the consistently terrible conditions of detention in federal and private facilities, as well as local jails with ICE contracts, will receive at least a little more scrutiny and public accountability, though they won’t have much direct authority to make change.
The $222 million to be poured into border surveillance tech will accelerate the planned deployment of a number of technologies that CBP has been tinkering around. Expect to see more stories in the coming year about drones buzzing around the border region and CBP rolling out more facial recognition and algorithmic vetting at ports of entry.
Under the Radar
Undocumented immigrants will soon be able to get driver’s licenses in New Jersey
New Jersey governor Phil Murphy signed a bill allowing undocumented immigrants in the state to get driver’s licenses, making the New Jersey the 14th state — plus Washington, DC — to do so. Unlike driver’s licenses for U.S. citizens, green card holders, and others with status in the country, the licenses New Jersey will provide for undocumented immigrants won’t adhere to REAL ID requirements, which require proof of authorized residency in the U.S.
New York’s own driver’s license law, known as the Green Light Law, went into effect this week. On Monday, the first day undocumented New Yorkers could apply for driver’s licenses, hundreds of people lined up at DMV locations across the state to get their documentation.
The New York law also prevent DHS from accessing DMV data, since giving immigration officials access to the names and addresses of undocumented people who have been issued driver’s licenses could easily help ICE track them down. In a statement posted on Twitter, a DHS spokesperson claimed New York’s Green Light law would hurt public safety — even though, as Vox pointed out, research suggests issuing driver’s licenses to undocumented immigrants actually has the opposite effect.
Migrants wait longer for hearings and lack access to lawyers under Trump’s Remain in Mexico policy, new data show
Under the Migrant Protection Protocols, the Trump administration policy implemented in January that requires some migrants to wait out their immigration hearings in Mexico, migrants wait longer for hearings and are less likely to have attorneys or show up to court, according to new federal data analyzed by the Transactional Records Access Clearinghouse at Syracuse University.
More than half of all MPP cases are still open, and many finished cases were closed not because the applicants didn’t qualify for asylum, but because they didn’t show up to their hearings. As we explained last week, migrants in the Remain in Mexico program face nearly insurmountable hurdles that asylum seekers and other migrants in the U.S. don’t. They’re often targeted by gangs and drug cartels, and a report by Human Rights First found more than 600 cases in which migrants were kidnapped, extorted, raped, or subjected to physical violence. Most migrants on the MPP docket don’t have legal representation, and the danger of waiting at the border — coupled with the lack of access to counsel and DHS’s own failure to adequately notify migrants of their hearings — makes it that much harder for them to show up to their hearings.
Interestingly, TRAC’s data doesn’t line up with the government’s own figures on how many people have been sent to Mexico as part of the MPP. As the American Immigration Council’s Aaron Reichlin-Menick noted on Twitter, TRAC says 56,004 people have been sent back through Nov. 11. According to CBP, though, 54,985 people have been sent back through Dec. 16. And adding to the confusion, Mexico’s immigration agency says 60,011 people have been sent back through Dec. 13.
A massive defense spending bill provides a pathway to citizenship for Liberians
Congress passed a $738 billion defense spending bill with an unexpected immigration provision buried in it: a pathway to citizenship for certain Liberian immigrants. The Senate passed the 2020 National Defense Authorization Act — the same bill that created the “Space Force” — this week and sent it to Trump’s desk for approval. The bill also will allow Liberian immigrants to apply for green cards, provided they arrived in the U.S. before November 20, 2014 and have lived in the country continuously since then.
For Liberian communities across the U.S., the bill will certainly be a relief: many Liberians have had tenuous status since the ‘90s, when President George H.W. Bush granted Temporary Protected Status to roughly 10,000 Liberians in the U.S. after a civil war broke out in their country. Subsequent presidents renewed the status, which officially expired in 2017. Since then, some Liberians have been granted Deferred Enforced Departure, which Trump briefly threatened to end. A pathway to citizenship, meanwhile, much more stable — though green card holders can still be deported in some instances.
Will the U.S. send Mexican asylum seekers to Mexico under the ACA?
Since the Trump administration inked safe third country deals with Guatemala, Honduras, and El Salvador, one of the biggest open questions has been whether it intended to send Mexican asylum seekers, who obviously had not crossed through Central America on their way to the U.S., to one of those countries. The implementation of the Guatemala Asylum Cooperative Agreement (ACA) so far has included only nationals of El Salvador and Honduras, who are being sent to claim asylum in Guatemala (and many of whom have chosen to return to their countries of origin instead). The idea of sending others under the agreements had so far been largely waved away by DHS. That changed yesterday, as Ken Cuccinelli, now the acting deputy secretary of DHS — and, potentially, also still the acting director of USCIS, though even agency staff doesn’t seem too sure — tweeted that the administration was considering “all populations... including Mexican nationals.”
First of all, it should be noted that Cuccinelli views his role at least partly as troll-in-chief of the U.S. immigration apparatus and is not the most reliable narrator. That said, it makes sense for the administration to take this step. As we’ve noted previously, the final agreements never specifically restrict which population of asylum seekers can be sent to the third countries to seek asylum. Mexican asylum seekers have been viewed by the administration as a particularly complex issue, given that the principles of non-refoulement have prevented it from including them in formal programs like MPP, and even informal initiatives like border metering. (Though both have been known to happen before.) Mexicans also haven’t crossed through any other countries en route to the U.S., and so are not subject to the asylum ban. The tools that are available for shutting down the possibility of asylum to others are limited with regards to Mexicans. Their inclusion into the Guatemala ACA implementation must seem like a tantalizing option.
Proposed limits to asylum
The administration has published yet another proposed regulation to limit eligibility for asylum, this time by expanding the categories of criminal contact that would bar someone from receiving it. For example, anyone convicted of driving under the influence, found by an “adjudicator” to have committed an act of domestic violence even in the absence of a conviction, convicted of a local crime “involving criminal street gang activity,” found to have unlawfully received public benefits, or found to have used a false identification, would be unable to get asylum. The proposal is now in a public comment period.