Week 15: Special Edition — When the federal government crosses the boundaries of legality

Immigration news, in context.

This is the fifteenth 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:

This week’s BORDER/LINES is a little different. 

  • In The Big Picture, we discuss five ways the Trump administration is breaking the law in the implementation of its immigration policy, including:

    • Reportedly putting immigrants arrested in the interior of the U.S. into the Migrant Protection Protocols

    • Holding minors in immigration custody for longer than the law allows

    • Using faulty dental exams to put minors in adult detention facilities

    • Metering Mexican asylum seekers at ports of entry

    • Categorically denying parole to asylum seekers in ICE detention

    • Issuing fake hearing notices to people in removal proceedings

  • In Next Destination, we look at whether New York will provide free immigration attorneys for all immigrants in deportation proceedings, and whether the Trump administration will start forcing Brazilian asylum seekers to wait in Mexico

The Big Picture

This week, we’re focusing on documented instances of federal personnel appearing to break the law in enacting the administration’s immigration policies.

To be clear, the legality of many of the administration’s formal policy initiatives, from the rescission of DACA and TPS programs to enactment of the public charge rule, is being litigated. Some orders, like the first two travel bans, were declared unconstitutional.

That’s not what we’re discussing; many of these are informal but persistent practices that are more obviously illegal, in some cases running directly counter to the language of federal law. This list isn’t exhaustive but is meant to illustrate the awesome power that agents and officials throughout the immigration enforcement bureaucracy have to carry out a perceived general agenda, shielded by official immunity and the often accurate belief that their targets won’t have an avenue for redress.

Putting immigrants arrested in the interior of the country into MPP

The Migrant Protection Protocols (MPP) program is designed to force non-Mexican asylum seekers to wait in Mexico as their asylum cases wind their way through immigration court. The Trump administration views it as one of the concurrent mechanisms to avoid releasing migrant families into the country. 

The program relies on 8 U.S.C. § 1225(b)(2)(C), which states that a so-called inadmissible alien — meaning someone without an existing legal avenue to enter the country, including asylum seekers — “who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States” can be returned to that territory “pending a proceeding under section 1229a of this title,” referencing the statute on removal proceedings. In the case of asylum applicants, these proceedings will determine whether they win asylum and remain lawfully in the country. According to data maintained by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), about 56,000 people had been put into the MPP program as of November 2019, most of them from Honduras, Guatemala, El Salvador, and Cuba.

The program has created a host of due-process issues for those in it, including an inability to secure attorneys on the Mexican side of the border and a need to travel through dangerous territory to reach the border and make it to court dates. However, one group should never have been in MPP to begin with: immigrants arrested in the interior of the country. By definition, people encountered and detained while already residing in the United States are not “arriving” in the country. Despite that, according to reporting in the investigative site Capital & Main, several immigrants who were already in the country have been sent to Mexico to await the outcome of their removal proceedings. The article cites a case in which an immigration judge terminated a case for this very reason, writing that he was forced to do so because “DHS cannot neglect to follow the law and then subject respondents to a procedure which it could not have pursued if it had followed the law.”

Given the challenges inherent in winning asylum as an arriving migrant put into MPP, putting undocumented immigrants who were already in the U.S. in the program essentially amounts to a stealth deportation, particularly because it makes it much more difficult for them to access necessary evidence on the U.S. side of the border to make their case for relief. It’s not clear how many MPP cases are of immigrants misclassified as arriving aliens, in part because the vast majority of people in MPP do not have attorneys.

Minors held in violation of Flores and federal law

The way that the government can hold minors is governed both by federal statute and the Flores Settlement, a landmark 1997 court settlement reached after years of litigation in federal court which laid out specific standards for the treatment of migrant minors. 

In terms of law, 8 U.S.C. § 1232(b)(3) states that “[e]xcept in the case of exceptional circumstances, any department or agency... that has an unaccompanied alien child in custody shall transfer the custody of such child to… Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.” (HHS houses the Office of Refugee Resettlement, which is tasked with looking after unaccompanied minors.)

Flores states that the Immigration and Naturalization Service — the precursor to ICE, CBP, and USCIS — will hold minors in “safe and sanitary” facilities, separate from unknown adults, until they can be transferred to HHS custody within three to five days. This time limit has a few exceptions, including “the event of an emergency influx of minors into the United States, in which case INS shall place all minors… as expeditiously as possible,” a term that has been interpreted as meaning twenty days. In 2016, a decision by the U.S. Court of Appeals for the Ninth Circuit affirmed that the provisions of the settlement applied to accompanied, as well as unaccompanied, minors, meaning that families with minor children could also not be held for longer than that twenty-day threshold, even in “emergency influx” situations. This settlement is legally binding, and Trump administration efforts to modify its interpretations have been shot down by the courts.

Despite this, minors are routinely held in restrictive, under-resourced Border Patrol facilities — which don’t even meet the criteria to allow minors to be held there for up to 20 days under Flores — for far longer than 72 hours. Last year, the Washington Post reported that, at the time the story came out, BP was holding over 250 children age 12 and under for an average of six days. Families who are supposed to be released after 20 days in CBP facilities are routinely being held for longer periods. While there are allowances for emergency situations, there has been a steady growth in the volume of both asylum-seeking families and unaccompanied minors for over two years, with no clear endpoint. It is incumbent upon the government to find a way to accommodate this growth in a way that complies with its legal obligations.

A few extra days in a Border Patrol facility may not seem like a big deal, but the conditions in some of these facilities have been described as borderline inhumane, and particularly for younger children, there can be lasting impact to physical and mental health. Several children have died in CBP custody.

Discredited dental examinations used to transfer minors to adult custody

The same section of the U.S. code that prohibits the holding of unaccompanied minors by non-HHS departments for longer than 72 hours lays out guidelines for age determinations of people in custody. Accurately ascertaining age is incredibly important, because all of the specialized protections afforded to minors in the immigration system do not apply to adults over 18, who can be put into ICE custody indefinitely during a removal proceeding and have a harder time winning protections in court. 8 U.S.C. § 1232(b)(4) states that HHS and Homeland Security shall jointly “develop procedures to make a prompt determination of the age of an alien… in their respective custody. At minimum, these procedures shall take into account multiple forms of evidence, including the non-exclusive use of radiographs.”

However, Reveal reported in 2018 that, following years of Congressional directives to cease this practice, ICE has continued to use unreliable radiographs (X-rays) of detainees’ teeth as the sole piece of evidence to transfer teens who claimed to be under 18 into adult custody. These tests have even been used to override countervailing evidence like birth certificates. Experts agree that dental analysis can be a useful tool in age determinations, but can never give a definitive answer. Nonetheless, the federal government has continued to use them to strip potential minors of their particular protections, in direct contravention of the law, which specifically reads that the evidence should include the “non-exclusive use of radiographs” (emphasis added).

CBP “meters” Mexican asylum seekers at ports of entry

Since 2017, the Trump administration has limited the number of migrants who can ask for asylum each day at official ports of entry. Every day, when migrants try to cross the bridges dividing Mexico and the U.S. to ask for protections in the United States, Customs and Border Protection officers are stationed at the midpoint tell them they have to wait. This practice is known as “metering.”

Metering mostly applies to Central American migrants, since migrants from the so-called “northern triangle” countries of Guatemala, El Salvador, and Honduras comprise the majority of asylum seekers who arrive at the U.S.-Mexico border. Migrants from countries outside Latin America, who are known as “extra-continentals” and who have been arriving at the U.S.’s southwestern border in steadily increasing numbers, are also regularly metered. Last fall, reports began emerging that Mexican asylum seekers were being metered at the border as well — a clear violation of domestic and international law.

8 U.S.C. § 1231(b)(3)(A) states that the Attorney General “may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” This doesn’t mean that asylum seekers can’t eventually be deported if they don’t win their case — but it does mean that the U.S. can’t immediately return asylum seekers to the country they’re fleeing.

Immigrants’ rights groups argue that metering is illegal no matter the nationality of those affected, and a case regarding its legality is currently being litigated in federal court in California. The metering of Mexican asylum seekers is particularly egregious — and blatantly illegal — because it violates the principle of non-refoulement, or non-return, which holds that a government can’t return refugees to the country they’re fleeing before determining whether their claim of persecution is valid. In practice, it means that if a Mexican national tells a CBP officer they have a fear of returning to Mexico, CBP can’t legally turn them away.

But that’s exactly what’s happening. Over the past few months, hundreds of Mexican asylum seekers have been told to wait their turn to enter the U.S. These migrants have set up encampments near ports of entry and are living in dirty, crowded tent cities while they wait for their “turn” to enter. It’s worth noting that reports of Mexican migrants being metered aren’t new, but a massive increase in Mexican asylum seekers fleeing gang and cartel violence in the states of Michoacán, Zacatecas or Guerrero in recent months shows just how pervasive the policy has become. 

U.S. immigration officials say CBP isn’t turning anyone away — it’s just telling them to wait their turn. But even if migrants are allowed in eventually, sending Mexican asylum seekers back to Mexico is a clear violation of the law. Metering has turned ports of entry along the southern border into a choke point and has slowed the number of migrants allowed to legally ask for asylum to a trickle. It’s likely that the policy has encouraged migrants to cross between ports of entry on their own, or to pay a coyote to help them, rather than wait for weeks. Even if the courts eventually bring an end to the policy, the damage has already been done.

ICE’s New Orleans field office issues blanket parole denials despite a court order

Although the Trump administration has gone to great lengths to prevent asylum seekers from entering the U.S., its efforts haven’t been entirely successful. Asylum seekers who aren’t subject to MPP, sent to Guatemala under a bilateral agreement, or prevented from applying for protections at all because of metering at the border still face another hurdle: indefinite detention in ICE facilities.

In August, BuzzFeed News reported that nearly 9,000 asylum seekers who passed their credible fear screenings — the first step in the asylum process where an immigration official determines whether a migrant has a “credible fear” of persecution if they’re returned to their home country — remained in ICE detention. In other words, roughly 16% of the more than 55,530 immigrants detained by ICE in August 2019 were asylum seekers who had cleared the first step in the asylum process. 

Asylum seekers in ICE detention are supposed to be eligible for bond or parole, meaning they can be released into the interior of the U.S. while an immigration judge rules on their asylum case, as long as they aren’t considered a flight risk or a danger to public safety. But under the Trump administration, migrants are being categorically denied parole.

ICE’s New Orleans field office, which oversees operations in 5 states, approved just 1.5% of all parole applications in 2018, according to a class-action lawsuit filed by the Southern Poverty Law Center last May. In September, a federal judge prohibited the New Orleans field office from issuing blanket parole denials — but ICE continues to do so.

Mother Jones reported this week that three asylum seekers at a privately run ICE detention facility in Louisiana have been on a hunger strike since November 1 and are refusing to eat until ICE releases them from its custody. ICE has begun force-feeding hunger strikers, according to the Mother Jones report, the agency is still issuing blanket parole denials despite the court’s ruling.

Fake hearing notices issued by federal authorities

CBP personnel have been issuing fake future hearing notices to people in the MPP program who have either won their cases or had them terminated without a decision in order to return them to Mexico. We did a deep dive on this issue in our Week 12 newsletter, which you can find here.

In addition, reports have consistently emerged about ICE issuing Notices to Appear (NTAs) — which are the charging documents that initiate removal proceedings — with fake court dates to people in the interior of the country. Federal judges have blocked officials from issuing NTAs without a date, so ICE has resorted to populating them with fake dates, resulting in situations like hundreds of immigrants showing up for court at once for a court date that wasn’t real. These are official government documents that are being prepared with fraudulent information.

Next Destination

New York lawmakers propose right to counsel for immigrants in removal proceedings

Legislation introduced to the New York state legislature would codify a right to counsel for immigrants facing deportation in the state’s immigration courts. New York City and state both already have government-funded programs that provide attorneys for immigrants who cannot afford them, but the bill would cement this in state law, assuring that it would be funded as an obligation, similar to the guarantee of an attorney in the criminal justice context.

While the Sixth Amendment has been interpreted by the courts as requiring representation for criminal defendants, the fact that immigration proceedings are civil in nature means this right has not been extended to people facing deportation. In most of the country, the inability to pay for a lawyer means you don’t get one, and consequently have a much lower probability of obtaining relief. Several other localities have publicly funded immigration defense programs, but New York would be the first to add a right to immigration counsel to state law.

With a fully Democrat-controlled state government, and ollowing a string of recent political victories for immigrant rights groups — including state tuition assistance and access to driver’s licenses for undocumented people — it’s entirely possible this bill will pass, and break the ice on this notion for jurisdictions around the country.

DHS considers putting Brazilian asylum seekers on the Remain in Mexico docket

When the Trump administration rolled out the Migration Protection Protocols in January 2019, the policy only applied to Spanish-speaking migrants at the San Ysidro port of entry in California. Since then, DHS has expanded the MPP to cover additional ports of entry along the U.S.-Mexico border, and more than 56,000 asylum seekers have been forced to wait out their cases in Mexico as a result. The Trump administration is now considering expanding the Remain in Mexico policy even further: Reuters reports that DHS is considering subjecting Portuguese-speaking Brazilian migrants to the MPP as well.

As we’ve written about before, MPP has put asylum seekers in incredible danger and has made it much more difficult for asylum seekers to have a fair day in court. Migrants on the MPP docket are often extorted, kidnapped, assaulted, or even killed by members of local gangs. They’re less likely to find lawyers than asylum seekers allowed to fight their cases from within the U.S., and they’re less likely to show up to court as well. In most cases, being forced to wait in Mexico all but annihilates a migrant’s chance of winning their asylum case.

A federal court is currently deliberating the legality of the Remain in Mexico policy, but DHS is allowed to continue putting migrants on the MPP docket while the case is decided. It’s possible that the court may eventually force the Trump administration to end the MPP altogether, but even if that is the case, the Trump administration has plenty of other ways to keep Brazilians — and asylum seekers from other countries — from applying for protections in the U.S.