Week 24: Special edition — Coronavirus shuts down parts of immigration system, raises specter of new policies

Immigration news, in context.

This is the twenty-fourth 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:

This week, we’re taking a look at how COVID-19 has affected the U.S. immigration system. Instead of focusing on one particular development, we’re breaking down how the novel coronavirus has affected several parts of the federal immigration apparatus, including:

  • The immigration courts

  • ICE detention

  • Interior enforcement

  • U.S. Citizenship and Immigration Services

  • Deportations

  • The Migrant Protection Protocols

  • The border

The Big Picture

The pandemic spread of the novel coronavirus has radically shifted life and government systems around the world, and the U.S. immigration system is no exception. Slowly but surely, some of its core functions have been curtailed, as the Trump administration considers draconian border measures and some of its deportation efforts fall apart.

The immigration courts

As we’ve noted before, the country’s immigration court system falls fully under the jurisdiction of the U.S. Department of Justice, via an internal agency called the Executive Office for Immigration Review (EOIR). This also means that, unlike state and federal courts around the country, regional immigration courts do not have the authority to unilaterally shut down and postpone their dockets, and instead must wait for direction from EOIR headquarters.

By last Friday, as other courts suspended in-person appearances, only the Seattle immigration court had closed; all other courts were still having initial, master calendar hearings and trial-type individual merits hearings. On Friday evening, EOIR announced, via Twitter, that initial hearings for immigrants not in detention would be postponed in six courts; on Sunday, it announced that all non-detained master calendar hearings would be postponed; and on Tuesday night, it announced that non-detained hearings of every type were postponed and several immigration courts were shutting down fully, at least until April 10.

Still ongoing are all hearing types for people in detention, which EOIR has somewhat haphazardly decided includes people in the Migrant Protection Protocols program, otherwise known as Remain in Mexico. These migrants are forced to wait in Mexico for their U.S. immigration cases to go forward, but they are not in government custody. The administration has at different times and for different purposes made the case that people in MPP are and are not “detained” for legal purposes; for example, it has refused to permit bond hearings, arguing that they don’t qualify as they are not in detention. (We’ll have more on MPP below.)

The closure came only after sustained and unprecedented pressure from a coalition of the immigration judges’ union, the ICE trial attorneys’ union, and the largest professional association of immigration lawyers, which jointly represent each part of the immigration adjudication system. All were concerned that the courts would serve as a vector for disease, a fear that seems to have been realized as at least one judge and attorneys who’ve been in court are exhibiting COVID-19 symptoms.

If the decision-making around the courts seems jerky and arbitrary, it may be because, as the Miami Herald reported, court staff was told that it was ultimately the White House that would have to pull the trigger on any specific closures. It’s unclear why the decision is being taken all the way up the chain.

For now, detained and MPP dockets are continuing, and the odd-bedfellows coalition of immigration lawyers, ICE lawyers, and judges is still pushing for a full shutdown. The potential vectors of infection go beyond in-person hearings, as the lack of an e-filing system for most courts means filing evidence and motions in-person, with paper filings. Attorneys are also fearful of meeting with detained clients to prepare cases, as such meetings could serve as the virus’ entry point into detention centers.

Immigration Detention

Perhaps one of the areas of most concern when it comes to the spread of the virus is people in ICE detention, who are confined all together in enclosed spaces, have notoriously poor access to medical treatment, and often get shuttled around. At least one worker at the Elizabeth Detention Center in New Jersey has received a positive COVID-19 diagnosis, as has a corrections officer at the Bergen County Jail, also in New Jersey, which is under contract with the federal government to house ICE detainees.

In the past, ICE has failed to contain the spread of less dangerous pathogens, like the mumps, which last year spread to at least 900 detainees in dozens of different facilities. The preparations to head off a potential coronavirus outbreak seem to be lacking. One detainee at the Hudson County Correctional Center in New Jersey described being put into group lockdowns with elderly and immunocompromised detainees for whom no special precautions were being taken. Detainees were being relied on to affirmatively report symptoms once they’d already developed them. 

The agency maintains that no detainees have been confirmed to have contracted the disease, but it’s highly unlikely that none actually have in the country’s expansive immigration detention system, which currently holds over 37,000 people. While some are subject to mandatory detention under the law, ICE has full discretion to release thousands of people on either bond or humanitarian parole; in particular, the agency has an internal directive to presumptively release all asylum seekers who have passed a credible fear interview. 

Attorneys and immigrant rights organizations are calling on ICE to exercise this discretion and release as many detainees as it lawfully can before the virus has a chance to spread widely inside the centers.

Interior enforcement

The global pandemic hasn’t slowed down ICE arrests — but it might. In Los Angeles, ICE agents carried out arrests while wearing protective gear and wiping the steering wheels of their cars down with hand sanitizer, the LA Times’ Brittny Mejia reports. Lawyers tell BORDER/LINES that they’ve also heard anecdotal reports of ICE arrests in New York City and San Diego despite the pandemic.

On Wednesday, ICE said it would “temporarily adjust its enforcement posture” in light of the ongoing pandemic. Instead of targeting “all removable aliens,” as the agency has been doing since 2017, ICE said it would instead “focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds.” For all others subject to detention and deportation, including undocumented immigrants and legal permanent residents with certain criminal records, the agency will now “exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention.”

On its face, this statement seemed like a return to the late Obama-era enforcement tactic of going after “felons, not families.” The Washington Post asked ICE how many of the 37,000 people in detention it planned on releasing in light of the directive and didn’t receive an answer; it’s likely that for them, these new instructions will change very little.

Less than 24 hours after the directive was announced, acting Homeland Security deputy secretary Ken Cuccinelli claimed, in a 5-part Twitter thread, that the new instructions wouldn’t prevent ICE from arresting “other removable aliens” encountered in the field, including those without criminal records. Under Trump, the agency has ramped up its reliance on so-called “collateral arrests.” (If ICE enters a home with the purpose of arresting one person there and agents end up discovering that someone else in the home is undocumented and arrest them as well, that would be a collateral arrest.)

Instead of clearing up ICE’s enforcement priorities during the pandemic, Cuccinelli’s statement made things more confusing. As CQ Roll Call’s Tanvi Misra noted on Twitter, Cuccinelli has muddied the waters before. 

In any case, there are real concerns that not pausing arrests during the pandemic will introduce COVID-19 to detention facilities across the country, even in cases where the people arrested don’t have any symptoms. Even if arrests slow down, there’s a non-zero chance that ICE could arrest someone who is asymptomatic and who, once in detention, could spread the virus to other detainees.

U.S. Citizenship and Immigration Services

USCIS, the agency that handles asylum, visa, permanent residency, and citizenship applications, as well as naturalization ceremonies, is temporarily suspending all in-person services in light of the virus. An agency spokesperson told CNN that in-person services will be suspended until at least April 1, but employees will continue to work remotely. 

Naturalization services and asylum interviews will be on hold until April 1, and BuzzFeed News reports that some interviews will still be conducted in “emergency situations.” The closure will also affect biometric services, which as Sarah Pierce, an analyst at the Migration Policy Institute points out, will make it nearly impossible for people to renew their employment authorization documents. It will also affect renewals for those with Deferred Action for Childhood Arrivals (DACA), which also require biometrics appointments.

Without extensions on work authorization documents and DACA status, the closure of USCIS offices — necessary as it may be to slow transmission of the virus — could cause trouble for thousands of people whose status in the country is already tenuous.

Deportations

Much like detention, the federal government shows no sign of slowing down deportations. In an emergency budget request sent to Congress, the administration requested $249 million in additional funding for ICE, an undisclosed amount of which would be used to ensure deportations could continue. “With fewer commercial flight options,” it reads, “ICE charter aircraft are needed to continue repatriating aliens ordered removed and reduce the need for additional [detention] beds.”

But some countries have signaled their desire to stop accepting deportees, at least for the time being. The Guatemalan government stopped accepting deportees from the U.S. on Tuesday, saying the move was a temporary measure that would give Guatemala time to establish sanitary protocols to deal with the virus. By early Thursday morning, the Guatemalan government was once again accepting deportees. El Salvador had similarly suspended deportation flights from both the U.S. and Mexico, according to Reuters, while Honduras had closed all its airports to International traffic, though it hadn’t stopped accepting deportees on paper.

These developments are significant: after Mexico, nationals of Guatemala, Honduras, and El Salvador make up the bulk of migrants deported by federal immigration authorities each year, in that order. During the 2019 fiscal year, the U.S. deported 127,492 Mexican nationals, 54,919 Guatemalan nationals, 41,800 Honduran nationals, and 18,981 Salvadoran nationals, according to federal data.

In a statement on its website, ICE said it will conduct “a visual screening consistent with current ICE policy and procedures” on detainees who are about to be deported and that it will not deport any detainee “suspected of having a health-risk condition potentially contagious” to others. The agency also said it will take the temperature of everyone set to board a deportation flight and “immediately” refer detainees with a temperature of 100.4 degrees or higher to “a medical professional for higher evaluation.”

This precaution doesn’t reduce the risk of asymptomatic spread, and Central American governments have implemented additional measures to prevent the virus from spreading within their countries. El Salvador, for example, now requires all Salvadoran nationals arriving from abroad to quarantine for 30 days. 

Even if all three countries end up accepting deportees again, the COVID-19 outbreak has given them a degree of leverage in immigration negotiations with the U.S. Guatemala is no longer accepting Honduran and Salvadoran nationals deported there by the U.S. under the asylum cooperative agreement between the two countries. (We wrote about those agreements in a previous edition.) El Salvador’s national quarantine also prevents its own cooperative agreement with the U.S., which was set to go into effect soon, from being effectuated any time soon.

The Migrant Protection Protocols

For the tens of thousands of migrants living in Mexico under the MPP, more commonly referred to as Remain in Mexico, a coronavirus outbreak could be particularly dire. Unable to afford apartments or find beds in shelters run by churches and nonprofits, thousands of migrants instead live in encampments in Mexican border cities. 

Now organizations that provide services to these migrants are scrambling to prepare for the worst-case scenario: a COVID-19 outbreak in one of these tent cities, which could spread quickly due to a lack of adequate shelter or sanitation. Meanwhile, attorneys in the U.S. are demanding that ICE parole every migrant on the MPP docket, allowing them to enter the country and shelter-in-place with their families.

EOIR, the Department of Justice agency that oversees the immigration courts, has postponed hearings for non-detained immigrants — but hearings for immigrants detained in ICE facilities are still on, as are those for migrants on the MPP docket, who are considered “detained” for administrative purposes. The National Association of Immigration Judges, the union for federal immigration adjudicators, is calling on EOIR to postpone all hearings for the time being.

Continuing hearings for migrants forced to wait in Mexico could ensure that the virus bounces back and forth between the U.S. and northern Mexico. Many volunteers who work in the border encampments live in the U.S., as do the attorneys who represent the handful of migrants on the MPP docket who have legal counsel. To attend their hearings, migrants have to present at ports of entry three hours ahead of time to be processed by Customs and Border Protection, where they come into contact with officers who could carry the virus in with them or out into their communities.

To be clear, as of March 17 there are no confirmed COVID-19 cases in the border cities where most migrants on the MPP docket live, and Mexico only had 82 cases as of Tuesday. But the virus spreads rapidly, and many warn it’s only a matter of time before it hits the migrant encampments. Migrants living in the encampments and in shelters aren’t able to practice social distancing because they live in close quarters. It’s unlikely that the Mexican government would care for them since they aren’t Mexican nationals, and anti-migrant sentiment is on the rise in border cities like Matamoros. Mexican officials have yet to confirm whether they have any plans to prevent the virus from spreading to the encampments.

On Wednesday, DOJ told immigration judges that no one who had been in a “Level 4” country could enter immigration courts. The State Department issued a Level 4 advisory for every country in the world just a day later, which, according to BuzzFeed News’ Hamed Aleaziz, judges thought meant MPP hearings would be put on hold. Instead, EOIR issued new guidance: instead of relying on State Department travel advisories, they would rely on country guidance from the Centers for Disease Control and Prevention. In short, MPP hearings are still on.

For now, the administration has given no indication that it plans on paroling migrants on the MPP docket, and it has been hesitant to let those migrants into the U.S. in the past — even when it has been told to. After a federal appeals court blocked the policy in late February, migrants tried to enter the U.S., telling CBP officers that the policy was illegal. Instead of letting people in, CBP closed at least one port of entry.

It’s likely that if EOIR does postpone all cases on the MPP docket, the administration will go to great lengths to prevent migrants forced to wait in Mexico from entering the country. President Trump has repeatedly characterized the coronavirus as a “foreign” disease and has virtually sealed off the U.S., supposedly in an attempt to prevent the virus from spreading further. Even though there are no confirmed COVID-19 cases in the migrant encampments in northern Mexico, it’s not hard to imagine the administration arguing that letting migrants in would spread the virus further.

Administration wants to remove those crossing the border without a hearing

The administration has said it will begin swiftly removing migrants who cross the U.S. border illegally by invoking 42 U.S.C. § 265, which gives the Surgeon General “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate,” if they determine that “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health.”

There are a number of legal pitfalls associated with this effort, particularly whether a disease can be “introduced” to a country with more than 13,000 confirmed cases, and whether the courts would agree that this power supersedes the non-refoulement responsibilities outlined in domestic asylum law and the United States’ international treaty obligations. Generally speaking, people cannot be returned to a country where they fear for their life and safety due to reasons of race, religion, nationality, membership in a particular social group, or political opinion without a full and fair hearing (whether of asylum, withholding of removal, or protections under the Convention Against Torture).

It’s unclear when it will move to roll out this policy, but it was predictable that it would utilize the health crisis to continue increasing immigration and travel restrictions. There will probably be more travel bans of the kind issued against China, Iran, and many European countries.