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Week 22: Federal court twice permits injunction against MPP, twice stays the injunction
Immigration news, in context.
This is the twenty-second 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.
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This week’s edition:
In The Big Picture, we explain the recent developments in the ongoing court case against the Trump administration’s Remain in Mexico policy.
In Under the Radar, we examine reports that ICE is categorically denying bond and parole to detained immigrants across the country, as well as allegations of rampant medical neglect in ICE detention.
In Next Destination, we dig into the government’s new pilot program that will expedite hearings for some unaccompanied migrant children and begin hearing their cases over video.
The Big Picture
The news: Last Friday, a panel of the Ninth Circuit Court of Appeals voted to affirm a nationwide district court injunction (which had been stayed before it went into effect) against the Migrant Protection Protocols (MPP), also known as Remain in Mexico, which forces most asylum seekers to wait in Mexico as their cases progress. That decision was administratively stayed after an emergency motion by the federal government, which said it would seek a ruling from the Supreme Court. The Court has now issued another decision declining to further stay an injunction on the merits, but granting a partial stay limiting the scope of the injunction to the Ninth Circuit, which would include only California and Arizona. It also extended its full administrative stay through March 11, meaning the policy remains in effect everywhere until March 12 (if this sounds a little like word salad, don’t worry, we’ll go step-by-step).
We wrote about the legal framework and background of MPP in a prior edition, which we encourage you to read. Generally, the program lets federal agents force non-Mexican asylum seekers to await their immigration court hearings in Mexico, provided they arrived at the U.S. border from Mexico. Following each individual hearing, the migrants are sent to Mexico to await the next; there are even reports of the government removing people who have won their cases or had them closed as it considers whether to appeal. Initially, it applied only to Spanish-speaking migrants, but the government recently began including Brazilians as well.
The government has maintained that the MPP is a deterrent to frivolous asylum claims and doesn’t interfere with legitimate asylum seekers’ rights or due process, a contention that is easily disproved by the available evidence. While Mexico has agreed to take in the migrants as part of MPP, it does not provide much in the way of services or accommodations, forcing many to live in squalid and disease-ridden encampments. There have been hundreds of documented instances of rape, kidnappings, and murders. To make their hearings, migrants often have to travel long distances across dangerous territory very early in the morning. Most are not able to secure legal representation from Mexico.
In February of last year, several immigration legal groups and eleven unnamed asylum seekers who had been subject to MPP filed a lawsuit against the federal government (Innovation Law Lab v. Nielsen). They claimed the program was unlawful and asked for injunction to halt the immediate and ongoing harms, such as those described above, that it was inflicting. A judge from the Northern District of California granted such an injunction in April, but the injunction was stayed — prevented from going into effect — by the Ninth Circuit.
On February 28, the Ninth Circuit decided to uphold the prior injunction against MPP, which would have immediately stopped the program in its tracks. That same day, the government requested an emergency stay of the injunction until it could seek a ruling from the Supreme Court; the stay was granted, with the court directing both parties to file briefs and supporting documents this week. On March 4, the court issued a modified stay which would let injunction go into effect only in California and Arizona on March 12, provided that the Supreme Court does not weigh in by then.
Generally speaking, injunctions and stays of those injunctions take into account two things: the merits of the legal arguments made by each side, and the real or potential harm that such an order could prevent or inflict. So, for example, a judge can decide that one side is likely to succeed in its legal argument, but decline to issue an injunction or stay an injunction because ending a policy before it has gone through the full legal process could cause confusion and unexpected damage.
In staying the injunction, the Ninth Circuit panel rejected the government’s legal arguments concisely and wholesale. Essentially, the legal wrangling centers around 8 U.S.C. §§ 1225(b) and 1231(b).
Section 1225(b)(2)(C) reads: “In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding” in immigration court, and forms the basis of MPP. As it plainly reads, this language applies to applicants for admission described in (b)(2)(A), which basically includes anyone who is not already described in the separate subsection (b)(1)(A).
Subsection (b)(1)(A) can be described as the expedited removal statute. It allows for the immediate deportation of anyone who cannot prove that they have been in the country at least two years after an unlawful entry, or were arriving in the country and “inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title.” The subsection makes an exception for asylum seekers, who are instead placed in the standard asylum process, beginning with a credible fear interview. (That is, if they haven’t been blocked from doing so by the transit bar, but that’s another story.)
This is significant, because the two inadmissibility sections described in (b)(1)(A) deal with misrepresentation — falsely claiming some ability to enter the country — and lack of documentation, which are the grounds of inadmissibility invoked for almost all of the asylum seekers arriving at the southern border, including the eleven migrant plaintiffs. Very few asylum seekers could be found inadmissible for other reasons, such as prior deportation and affiliation with a terrorist group. For this reason, the plaintiffs argue that the government is misapplying the law by imposing a provision from 1225(b)(2), which describes a particular group of people, against the separate group of people described by 1225(b)(1), which has no similar provision.
The other main argument revolves around 1231(b), which prohibits a person’s removal to a country where “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 is standard non-refoulement — non-return — language that forms the basis of asylum law.
Most of the time, this is understood to mean an asylum seeker’s country of origin — but the law makes no such distinctions, and a migrant can fear returning to a different country, such as Mexico. The plaintiffs argue that the government is violating this statute by relying on migrants to actively report their fear of being returned to Mexico and not taking their concerns into account even when they do. There are other arguments, including that the government’s rollout of the policy violates the Administrative Procedure Act, but these are the primary ones.
On this front, the Ninth Circuit panel was unequivocal in its opinion, writing that “[t]here is no legal basis” for applying subsection (b)(2)(C) to migrants described in the separate subsection (b)(1)(A). With regard to the non-return section, “[i]t is clear from the text of the MPP, as well as from extensive and uncontradicted evidence in the record, that the MPP violates the anti-refoulement obligation embodied in § 1231(b).”
However, on the question of the scope of the injunction, the judges acknowledged that there are a number of delicate and conflicting questions. On the one hand, they wrote, judges have a responsibility to stop unlawful policies and, especially in the immigration context, it is important to do so uniformly. Letting certain immigration policies stay in place in one part of the country and not another creates confusion and hardship. On the other hand, the subject of nationwide injunctions has seen intense controversy lately, with Supreme Court Justice Neil Gorsuch assailing them in a recent decision on another immigration case involving the public charge rule. As such, the Ninth Circuit decided to limit the scope of the injunction to its jurisdiction alone, and allow the government to seek the intervention of the Supreme Court before it goes into effect next week.
How we got here
The Remain in Mexico policy began as a pilot program at the San Ysidro port of entry in December 2018. Over the past year, the administration has expanded MPP to ports of entry and Border Patrol sectors along the entire southwest border, despite extensive concerns about migrants’ safety and ability to fight their cases from Mexico. More than 60,000 people have been sent back under the MPP thus far, according to federal data analyzed by TRAC.
Most of those people don’t have legal representation. TRAC’s data tool shows that less than 1% of all migrants on the MPP docket have lawyers, which makes it difficult for them to obtain asylum. The dangers and day-to-day instability many migrants face in Mexico also makes it hard for them to attend their hearings at all.
Despite the administration’s claims that the Remain in Mexico policy is needed because asylum seekers allowed to live in the U.S. don’t show up to court, absentia rates in the MPP are much higher than those for non-detained asylum seekers in the U.S. The TRAC data shows that more than 40 percent of MPP cases heard thus far have resulted in an absentia decision. But a 2018 study by the American Immigration Council found that 86 percent of non-detained asylum seeking families showed up to court from 2001 and 2016.
In late February, the Washington Post reported that the administration is slowing down its use of MPP and is instead increasingly funneling migrants into expedited programs like PACR and HARP or deporting them to Guatemala to seek asylum there. (We wrote about this in a previous edition.) MPP has never been the administration’s sole way of limiting migrants’ ability to seek asylum in the U.S. — it’s part of a multi-pronged effort that includes expediting cases, deporting migrants to other countries, the asylum transit ban, and more.
The government will now attempt to get a fast-track decision on the injunction from the Supreme Court. If they’re not able to do so before March 12, the injunction will go into effect only in California and Arizona, creating a bizarre dual system where asylum seekers arriving at the border in those two states will not be sent to Mexico while those arriving in New Mexico and Texas will.
This could create a host of odd issues related to venue and jurisdiction. Migrants in MPP are often shuttled around the border, given court dates in one state and sent back across the border in another. Would a migrant who crosses the border in New Mexico and has a hearing scheduled in Arizona be ineligible for return to Mexico? Or, vice versa, could a migrant taken into custody in Arizona but sent to a detention facility in New Mexico be conceivably put into MPP? These are questions that the courts will likely have to settle quickly if the injunction as currently written takes effect.
That said, it seems relatively likely that the Supreme Court could side with the plaintiffs. The Supreme Court, after all, doesn’t really have to worry about scope of injunctions, and can concern itself solely with ruling on the legal merits. In this case, the Ninth Circuit panel has pretty unambiguously found that MPP is illegal on two separate statutory grounds; as long as the Supreme Court agrees on just one of those fronts, it will probably impose a national injunction and shut down MPP until it can make a final ruling in the case.
Under the Radar
Leaked DHS documents describe negligent medical care at an ICE facility for transgender immigrants
Internal DHS documents obtained by BuzzFeed News reveal a pattern of medical neglect at the Cibola County Correctional Center, the only ICE detention facility with dedicated space for transgender women. The allegations in the BuzzFeed report are horrifying: one woman told medical staff at the facility that she was bleeding from her rectum and was forced to wait 13 days for medical care; other detainees weren’t given proper medications for diabetes, epilepsy, and tuberculosis. The remote facility — which is located in Milan, New Mexico and is run by CoreCivic, one of the largest private prison operators in the country — reportedly had mumps and chickenpox outbreaks, during which detainees were exposed to poor sanitation while under quarantine.
ICE transferred 42 detainees, including 27 trans women, from Cibola in January — five months after the memo describing the poor quality of medical care was sent. According to BuzzFeed’s report, the facility had an average daily population of more than 100 people until January.
The negligence at Cibola doesn’t appear to be an isolated incident. In December, BuzzFeed News reported that substandard medical care at several ICE facilities led to two preventable surgeries and contributed to the deaths of four detainees. In August, immigrant advocates filed a class action lawsuit against the administration over what they say is rampant medical neglect at ICE detention centers across the country. The suit claims ICE deliberately denies medical care to the people in its custody, leading to dangerous and potentially fatal complications. “Although ICE detains individuals in a patchwork — and currently ballooning — system of private prisons, county jails, and directly operated facilities,” the complaint reads, “the inhumane and punitive conditions described herein are startlingly similar across the entire system.”
Despite these allegations, the administration continues to hold tens of thousands of immigrants in detention. ICE had more than 38,000 people in its custody as of late February, according to the BuzzFeed report, down from a peak of about 55,000 during the summer of 2019.
A Secret Memo Revealed How A Transgender Immigrant Bleeding From Her Rectum Waited 13 Days For Care While Jailed By ICE — BuzzFeed News
A Secret Report Exposes Health Care For Jailed Immigrants — BuzzFeed News
Trump administration sued over poor medical care in immigration centers — Politico
ICE is denying bond and parole to migrants across the country
Immigration officials in San Antonio, Texas are categorically denying parole to migrants detained there, according to a new report in The Intercept by BORDER/LINES’ Felipe De La Hoz. Instead of releasing migrants to their families in the U.S., ICE’s San Antonio field office is issuing blanket parole denials to all migrants subject to the asylum transit ban, which forbids anyone who passes through a third country on their way to the U.S. from receiving asylum. Instead, those migrants are being forced to wait out their cases behind bars, making it much harder for them to obtain legal representation or compile the paperwork needed to fight their case.
Meanwhile in New York, a lawsuit filed by the New York Civil Liberties Union and Bronx Defenders alleges that ICE’s “risk assessment” algorithm is resulting in blanket bond denials to immigrants detained there, even those who wouldn’t normally be considered a flight risk or danger to the community. The lawsuit claims the policy violates immigrants’ due process rights and has contributed to a rise in detention.
There are a few differences between parole and bond: migrants who are deemed “arriving aliens” — that is, those who present themselves at a port of entry or in some cases arrested after crossing the border, are eligible only for parole. Meanwhile, migrants apprehended in the interior of the U.S. can be eligible for bond, with the bond rate ultimately being set by a judge. Unlike in criminal courts, judges in federal immigration courts don’t have to consider someone’s ability to pay when setting their bond, and the average bond rate during the 2018 fiscal year was $7,500, according to TRAC.
ICE officials in Texas are keeping migrant in jail with potentially illegal parole denials — The Intercept
The Trump Administration Now Jails Nearly Every Immigrant It Arrests In New York — Including Those Who Don’t Pose A Threat, A New Lawsuit Alleges — BuzzFeed News
Trump’s catch-and-detain policy snares many who have long called U.S. home — Reuters
The government will begin hearing some migrant children’s cases over video stream
The Trump administration will begin expediting some unaccompanied migrant children’s cases, instructing judges to adjudicate them within just 60 days. It’s also rolling out a pilot program in Houston that would let judges hear certain cases via video teleconferencing — meaning some migrant children will essentially be attending their hearings via video. Guidance on the 60-day deadline and the video pilot program was emailed to immigration judges in January, the Houston Chronicle reports.
The video teleconferencing pilot program is reportedly scheduled to begin March 9 in Houston. As part of the pilot, children in certain shelters operated by the Office of Refugee Resettlement would be taken to a courtroom in Houston to testify, while an immigration judge and an ICE attorney heard their case from a courtroom in Atlanta. The Trump administration has rapidly expanded the use of video teleconferencing in immigration courts for adults: a FOIA request filed by immigration attorney R. Andrew Free revealed that immigration judges across the country heard more than 25,000 cases by video stream during the first 17 days of 2020, compared to 95,492 cases in all of 2019.
Advocates worry that the combination of expedited cases and video hearings will let the administration rapidly deport children, possibly even before they’re released from government shelters to their families in the U.S. Until recently, the government waited at least a month to file a notice to appear in immigration court for an unaccompanied child, according to the Chronicle. In Houston and Phoenix, that paperwork is now being filed a few days after children arrive.
In a press call on Wednesday, representatives with the advocacy organization Kids In Need of Defense say they believe the government’s ultimate goal is to establish a single, ultimate video docket for unaccompanied children, pending the outcome of the pilot. They declined to say whether they will sue the administration over the program, but it’s likely the move will ultimately be challenged in court, as most of the Trump administration’s immigration policies have.
New Trump administration policies fast-track some children’s immigration court hearings, including video pilot in Houston — The Houston Chronicle
The number of migrant children in Texas shelters dropped dramatically in 2019 — The Texas Tribune