Week 14: Reports of detained Iranian-American citizens and permanent residents
Immigration news, in context.
This is the fourteenth 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.
This week’s edition:
In The Big Picture, we explain — to the best of our ability — why Iranian-Americans were detained at a Washington state port of entry before being let into the U.S. this week.
In Under the Radar, we discuss two new developments at the border: Trump administration’s temporarily halted plan to deport Mexican asylum seekers to Guatemala, and the latest update on whether the Trump administration can use military funds to pay for the wall.
In Next Destination, we discuss the litigation surrounding Trump’s asylum ban and the administration’s policy requiring prospective immigrants to prove they can purchase non-ACA healthcare, and what an asylum agreement between the U.S. and Honduras could look like.
The Big Picture
The News: Earlier this week, as tensions soared over the assassination of Iranian general Qassem Soleimani and an anticipated response, reports emerged of Customs and Border Protection’s (CBP’s) temporary detentions and denials of entry to Iranian-American citizens and U.S. legal permanent residents at a port of entry between Canada and the U.S.
What’s happening?
Despite initial speculation about a nationwide wave of incidents, this situation appeared to play out mostly in one port of entry in Blaine, Washington, through which there happened to be many Iranian-born people returning from a popular Iranian pop star’s concert in Canada. A few isolated reports emerged from around the country, but the bulk of the issues presented at the Blaine port. There’s no verified total count of how many Iranian-Americans and residents were ultimately held up, but most accounts agree on around 60.
So-called “secondary inspection,” which is essentially just a longer admissions determination, is not the same as a formal detention at the border. Secondary inspection is typically used if officers suspect that an applicant for admission is obfuscating material facts like purpose of their visit, is using fake documents, or otherwise individually raises red flags. For example, and old CBP field officer handbook released in 2007 following a Freedom of Information Act request states that officers should “rely heavily on your powers of observation… [vehicle] occupants may initially appear to be admissible, but their responses to your questions combined with your observations, may indicate that further inspection is required.”
A subsequent denial of entry or detention would only occur if an officer could substantiate that an individual was either committing some kind of crime or doesn’t have a basis to enter the country. While country of origin can be taken into account during an assessment, is not usual (or legal) for secondary inspections to target people solely based on their national origin, as appeared to have been the case here. Questions about political opinions, which were allegedly asked during these encounters, would not generally be considered relevant to these inspections and could violate First Amendment rights.
A press release put out by the Council on American-Islamic Relations (CAIR) alleges that some Iranians “were reportedly refused entry to the United States due to a lack of capacity for [CBP] to detain them.” No concrete evidence has since emerged that this took place, and it would be a whole other ballgame legally, for citizens in particular. In the 1908 Chin Yow v. United States decision, the Supreme Court ruled that “the substantive right of citizens to enter and of persons alleging themselves to be citizens to have a chance to prove their allegation” superseded the decision-making of executive agents at a port of entry. Subsequent decisions have reaffirmed citizens’ right to return, and the right of legal permanent residents to have a full hearing before they can be denied entry and stripped of status. Therefore, preventing entry to these groups for something as mundane as a lack of processing space would certainly be illegal. Again, we haven’t seen any evidence that this occurred.
CBP insists that its leadership did not issue any sort of national directive to particularly scrutinize people of Iranian origin. Instead, the agency said acting CBP commissioner Mark Morgan and acting Homeland Security Secretary Chad Wolf issued general instructions to field personnel to adapt to the “evolving threat environment” resulting from the military strike against Iran. Clearly and unsurprisingly, and perhaps with tacit approval from the leadership, some line officers interpreted this directive as requiring close scrutiny of the Iranian-born, including U.S. citizens. According to emails sent to congressional staff, CBP leadership contacted staff at the Washington field office after reports of the seemingly indiscriminate secondary inspections emerged, in an attempt to gather more information and ensure people were being screened appropriately.
This particular series of incidents appears to be mostly overzealousness by a number of CBP line officers as opposed to a comprehensive policy directive. While this might seem like a relief to those concerned about civil liberties, the flip side of the coin is that it shows the extent to which officers spread throughout CBP’s massive national machinery have extreme individual latitude to interpret agency and departmental directives. Provided the same set of instructions, an officer in Blaine and an officer in Sumas, a short drive away, may make completely different determinations about their objectives.
Here, it appears that everyone ultimately got through, but that’s probably because all those reportedly affected were either U.S. citizens or green card holders. Things might have played out differently if one of the re-entrants held a valid nonimmigrant visa, like an F-1 student or an H-1B worker, or held an advance parole permit. A single officer at a port of entry could, with varying degrees of ease, use their own discretion to cancel these statuses and deny entry. Obtaining redress for such a cancellation and denial of entry is extremely difficult. See, for example, the case of Ismail Ajjawi, a Harvard freshman whose visa was cancelled after a CBP officer searched his phone and apparently discovered friends’ social media posts critiquing US policies. This is objectively an absurd basis on which to cancel a student visa, and arguably in contravention of the spirit of the law; however, it still took massive public outcry and the sustained intervention of the world’s most power university to reverse the decision.
How we got here
When reports of Iranian-Americans being denied entry at the Blaine port first emerged, some, including the American Immigration Council’s Aaron Reichlin-Melnick, said the situation was reminiscent of the confusion at airports and other ports of entry in the hours after Trump’s Muslim Ban went into effect.
Unlike the situation in Blaine, which appears to have been an isolated incident, the Muslim ban — a travel ban affecting nationals of seven Muslim-majority nations, including Iran — was a matter of policy. The ban caused immediate chaos at airports across the country. It was initially interpreted by CBP officers as banning entry to visa holders and U.S. citizens and legal permanent residents, as well as to refugees who had already been approved for resettlement in the United States.
Since prohibiting entry to nationals of those countries was left to CBP officers stationed at airports and other ports of entry, some of the chaos resulted from CBP agents using their discretion. In one instance, reported by The Guardian, a legal permanent resident from Sudan was detained and interrogated for six hours at New York’s JFK airport before being let into the country. In airports outside the U.S., airline staff staff and airport officials tried to block nationals of the countries on Trump’s list from boarding their flights altogether. Generally speaking, the ban affected people who had already gotten visas and arranged travel to the U.S. — plus U.S. citizens and legal permanent residents who, legally speaking, aren’t supposed to face such barriers to entry at all — once they set foot on U.S. soil, not before. The ban went into effect with little guidance for CBP officers or other officials, which contributed to the chaos.
In the wake of 9/11, Muslim, Arab, and South Asian passengers were subject to increased screening at airports and other ports of entry, ostensibly in the name of sussing out terrorist threats. In 2002, the American Civil Liberties Union published a report on how post-9/11 security measures disproportionately affected these travelers. In one instance, two international students traveling to San Francisco to Los Angeles — a Saudi national and a Sri Lankan national — were interrogated by officers with the Immigration and Nationality Service, the precursor to ICE and the US Citizenship and Immigration Services, for four hours, causing them to miss their flight.
In September 2002, INS created a database called the National Security Entry-Exit Registration System (NSEERS). The federal government required male travelers from 25 majority-Muslim countries to register in the NSEERS database. People required to register in the NSEERS database were only allowed to leave or enter the U.S. at designated ports of entry, and more than 13,000 people were put in deportation proceedings after being placed on the database, according to the Migration Policy Institute.
What’s next?
Just because there wasn’t a generalized policy targeting Iranians doesn’t mean there can’t be. There are a few provisions in law that would allow the Trump administration to specifically target Iranians in the event that tensions flare.
First of all, there’s the now-notorious section 212(f) of the Immigration and Nationality Act [8 U.S.C. § 1182(f)], which permits the president to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” if he finds that their entry “would be detrimental to the interests of the United States.” This is the statute invoked in the ‘travel ban’ executive orders, the third version of which was allowed to stand by the Supreme Court as a lawful measure to protect national security. This order targeted seven countries on pretty diffuse national security grounds; it would be reasonable to imagine that a similar order solely targeted at Iran, especially in the event of ongoing military hostilities and the threat of irregular attacks, would be upheld easily. The use of this statute would allow immigration authorities to prevent the issuance of visas to and the arrival of not only Iranian nonimmigrants, but intending immigrants who would be traveling to permanently reside in the U.S.
Then, there is 19 U.S.C. § 1318, which states that the commissioner of CBP, “when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.” This would be a more drastic step that could in theory only be used during emergencies, and probably couldn’t be sustained for more than a short period of time. However, as we explained in the previous section, ports of entry have been closed before in response to specific events, and the “take any other lesser action” there is general enough that it could be used to, say, specifically restrict entry to Iranians. The most likely scenario in which this would be invoked is the specter of an imminent attack by Iran; the trouble with this is that the intelligence substantiating this threat would probably be classified, leaving us to rely on the word of the Trump administration. The courts are also very deferential to the executive when it comes to homeland security.
It’s also not just about entry. There are hundreds of thousands of Iranian-born people already settled in the U.S. who could be targeted for surveillance. An obvious parallel is the post-9/11 situation, in which Muslims of all national origins found themselves in the crosshairs of both federal and local law enforcement. Famously, a secretive NYPD program to surveil Muslims in the New York metro area was eventually declared unconstitutional. There are already ominous signs in this regard; the Cato Institute’s Patrick Eddington filed Freedom of Information Act (FOIA) requests to several federal agencies asking for records relating to “implementation of detention programs for persons of Arab or Persian/Iranian heritage in the event of the declaration of a national emergency, declaration of war, or authorization for the use of military force against certain entities.” The Justice Department responded with what’s known as a “Glomar” response, i.e. one in which “neither confirm nor deny the existence of such records.” This kind of response is a red flag for those familiar with records requests, as it indicates that the agency probably has such records but is unwilling to acknowledge their existence, partially because this acknowledgement would force them to justify withholding them.
Under the Radar
The Trump administration rolls out — and quickly pauses — its plan to deport Mexican asylum seekers to Guatemala
When the Trump administration implemented its asylum deal with Guatemala last November, we speculated that the terms of the agreement could let U.S. immigration authorities deport Mexican asylum seekers to the Central American country. According to documents obtained by BuzzFeed News this week, the administration was planning to do just that — until overwhelming backlash from immigrant advocates, U.S. politicians, and the Mexican government caused the Trump administration to put the plan on hold.
As we previously explained, the document signed by the U.S. and Guatemalan governments is an “Asylum Cooperative Agreement” that not only allows the U.S. to send Hondurans, Salvadorans, and other migrants to seek asylum in Guatemala if they traveled through the country on their way to the U.S. — its terms are vague enough that any non-Guatemalan migrant can be deported there. This new plan appears to be a response to the increase in Mexican nationals — who aren’t supposed to be subject to other Trump administration policies like “metering” and the Remain in Mexico policy, formally known as the Migrant Protection Protocols — asking for asylum in the U.S.
A spokesperson for the Department of Homeland Security confirmed the plan to deport Mexicans to Guatemala to BuzzFeed news on Monday, before its implementation was halted. “Certain Mexicans seeking humanitarian protections in the United States may now be eligible to be transferred to Guatemala and given the opportunity to seek protection there, under the terms of the Guatemala Asylum Cooperative Agreement,” the spokesperson said.
Trump can redirect $3.6 billion in military funds to pay for his border wall, appeals court rules
A federal appeals court in Louisiana gave Trump the green light to use military construction funds to build a wall along the U.S.-Mexico border. In a 2-1 ruling, judges with the 5th Circuit Court of Appeals issued a temporary stay on a previous decision that prohibited the administration from re-appropriating the funds. In other words, the most recent ruling — which isn’t a final decision on the case — was a court order overturning a previous court order. In practice, this means that the Trump administration can use military funds to build the border wall while a federal court decides whether it’s unconstitutional for the Trump administration to use military funds to build the border wall.
As NPR notes, the Trump administration insists that it legally can use funds earmarked for the military to pay for the wall because the president declared a national state of emergency at the U.S. southern border last February. As part of the state of emergency declaration, Trump instructed federal agencies to come up with $6.7 billion in funding for the wall.
Building a wall won’t stop asylum seekers — the main and most visible targets of Trump’s attempts to limit migration to the U.S.— from presenting themselves at ports of entry and asking for asylum. And while building a wall could feasibly prevent migrants from crossing between ports of entry to avoid detection, making it harder to cross the border has historically increased migrants’ reliance on smugglers, which in 2020 almost always means giving money to cartels. In any case, it’s important to remember that seeking asylum isn’t a form of unauthorized immigration. Even if a wall would help curb unauthorized migrants, which it likely won’t, it will do very little to prevent people from seeking asylum — hence policies like Remain in Mexico, the “asylum ban” executive order, and the Asylum Cooperative Agreements with Central American nations.
Next Destination
Ninth Circuit hears asylum ban and healthcare ban cases
On Thursday, the Ninth Circuit Court of Appeals in California heard arguments in two enormous immigration policy cases: Al Otro Lado, Inc. v. Wolf, concerning the implementation of the administration’s so-called asylum ban, which would make anyone who transited through a third country before reaching the U.S. ineligible for asylum; and Doe, et al. v. Trump, et al., which challenges the rollout of Trump’s proclamation requiring intending immigrants to prove that they have health insurance or could pay for healthcare costs within 30 days of arrival in the U.S..
The healthcare policy has been enjoined as litigation continues, though the Trump Justice Department is fighting to have the injunction thrown out. The healthcare litigation in particular could have monumental repercussions for immigration to the United States; a Migration Policy Institute estimate based on the recent profiles of new immigrants predicted about 375,000 annually could be barred from entry under the proclamation.
The asylum ban, meanwhile, is still in effect for migrants who can’t prove they arrived at the border before it went into effect. Migrants who were metered at ports of entry prior to the ban’s implementation last summer but arrived in the U.S. after the ban was in place can still apply for asylum, though the administration is also trying to have this overturned. More recent arrivals are still subject to the ban and can only apply for lesser forms of protection. Even if the court ultimately strikes the ban down, some damage will have already been done.
The powerful Ninth Circuit has historically leaned liberal, but President Trump has managed to appoint nine members to its 29-member bench throughout his term.
Implementation of Honduran ACA nears
Acting Homeland Security Secretary Chad Wolf met with Honduran President Juan Orlando Hernández and, in a tweet, announced that they had “finalized the details of the [asylum cooperative agreement] and look forward to implementing in the coming weeks.”
This deal is nearly identical to the bilateral deal already implemented with Guatemala, and would allow the U.S. to begin sending asylum seekers to be processed in Honduras. The most significant impact will probably be that Guatemalan asylum seekers, who could obviously not be sent back to Guatemala to seek asylum there, could now be sent to Honduras. The existence of multiple such asylum agreements also gives the administration more wiggle room and leverage, in the sense that it can try with one nation what the other won’t accept. For example, if Guatemala ultimately decides that it will absolutely not accept Mexican asylum seekers, Honduras just may. The implementation of this agreement would be the second out of an expected three, since the U.S. signed a similar deal with El Salvador shortly after Honduras.