Week 26: Federal courts order releases of vulnerable detainees while asylum seekers are turned away

Immigration news, in context.

This is the twenty-sixth 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 look at the legal efforts to have immigration detainees released as a result of the pandemic, and the administration’s new policy of blocking almost all asylum seekers. 

• In Under the Radar, we examine how deportations are continuing despite the global public health crisis.

• In Next Destination, we return to the immigration courts, which are still seemingly being closed and reopened reactively, without a unified policy.

The Big Picture

The news: As the coronavirus pandemic continues to threaten people in ICE detention, attorneys and legal groups are aggressively seeking to have federal courts order releases of vulnerable people, with some success. Meanwhile the administration has used the public health situation to shut down all asylum claims at the border.

The releases

As we explained last week, ICE has very broad discretion to release a majority of the roughly 36,000 people it’s holding in detention around the country, though by and large it has refused to do so until forced. A number of legal groups have spent the past few weeks trying to force just that, leapfrogging the immigration adjudicative system — housed entirely in the executive branch — and going directly to federal judges with requests for injunctions and habeas petitions to get immigrants out of detention immediately. 

The requests have run the gamut from motions on behalf of two people — a successful petition on behalf of two detainees in California — to attempts at mass release of eligible detainees.

The Southern Poverty Law Center, for example, has filed an injunction request as part of its broader litigation against ICE’s blanket parole denials, which seeks to force ICE to, “given the dangers

posed by COVID-19, ensure compliance with parole standards pertaining to individuals with a) serious medical conditions, and/or b) whose continued detention is not in the public interest,” for a class encompassing essentially all asylum-seekers. The legal groups RAICES, ALDEA, and the Rapid Defense Network filed a request for an emergency injunction seeking to have all “family units” — families with adults and minor children — from ICE’s specialized family residential centers. In the long-running Flores litigation, which forms much of the basis for how the federal government is permitted to treat migrant and immigrant minors in its custody, a federal judge ordered ICE and the Office of Refugee Resettlement, which has custody of unaccompanied minors, to justify the continued detention of minors in light of the pandemic.

Most of the legal argumentation in these cases has centered around the Fifth and Eighth Amendments. With regards to the former, the reasoning centers around the fact that immigration detention is civil, not criminal. As such, it has to fulfill some government purpose and cannot be punitive in nature, or is otherwise a due process violation. With regards to the latter, the reasoning is simply that the government has a responsibility to ensure that people in its custody are safe, including protecting them from the encroaching danger caused by the coronavirus, and is failing to do so. If judges deem that these arguments are likely to succeed on the merits, and there would be probable irreparable harm to those in custody, they can order immediate releases.

So far, almost every judge who has issued a decision on these requests has ordered releases, or at least that the government justify its use of detention. In one case, a Circuit Judge even orderedsua sponte — i.e. an order issued without prompting by one of the parties — that “[i]n light of the  rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers… Petitioner be immediately released from detention.”

The one exception appears to be a Judge James Robart of the Western District of Washington, who denied a temporary restraining order on the grounds that the government wasn’t expressly trying to punish the plaintiffs, and that their lawyers could not establish that pandemic posed a risk of imminent harm, partly as no positive cases had been identified in the detention center where the plaintiffs were held.

This is likely to remain an exception insofar as targeted injunction requests are concerned. Since that denial, cases have continued cropping up in ICE detention, lending credence to the argument that it’s not so much a question of if but when the coronavirus will arrive. It’s also become clearer that the precautions ICE is taking to prevent the spread internally once the virus does arrive are, to put it graciously, lacking.

Broader efforts targeted more at large classes rather than small groups of detainees will probably have more of an uphill battle, but the very well-documented and widespread nature of the public health crisis certainly gives them traction. Moreover, the successful orders that have come so far set a strong precedent; fundamentally, the fact pattern relevant to one group of detainees facing a pandemic in detention is more or less the same fact pattern affecting all people in detention.

The border

The Trump administration has closed the border to virtually all unauthorized migrants, including asylum seekers, claiming travelers without identifying or medical documents are potential vectors for the novel coronavirus. Under the policy, which went into effect March 20, Border Patrol agents are instructed to immediately turn away all inadmissible migrants apprehended at the border — without first processing them and regardless of whether they fear persecution in their home countries. 

According to an internal Border Patrol guidance obtained by ProPublica, asylum seekers must be turned away unless they affirmatively state they’ll be tortured if forced to return to their home country. Under the law, migrants who the government deems have a well-founded fear of being persecuted or tortured in their home countries can receive asylum in the United States. The new guidance, called Operation Capio, not only raises that bar, but places migrants’ fates in the hands of Border Patrol officers who aren’t trained to analyze their claims. Migrants not only have to convince a Border Patrol agent that they’ll be tortured after being sent home; they also have to have their claim approved by the chief patrol agent of whichever Border Patrol sector they’re in. (Migrants apprehended at the border typically have their initial screening, known as a credible fear interview, conducted by an officer from U.S. Citizenship and Immigration Services. However, the Trump administration rolled out a pilot project allowing some Border Patrol officers to conduct these screenings last summer.)

The new policy requires border officers  to “expel” Mexican nationals — as well as nationals of Honduras, Guatemala, and El Salvador — back to Mexico. The administration was already sending Central American nationals, as well as people from other Spanish-speaking countries, back to Mexico under its “Remain in Mexico” policy. Under that program, officially known as the Migrant Protection Protocols, migrants are forced to wait in Mexico while their cases are adjudicated by U.S. immigration courts. Under the new guidance, there are no cases to process. Migrants are simply turned away. Border officers have expelled more than 7,000 people under the order so far, sources told ProPublica.

Children are also being turned away under the order. According to government data obtained by BuzzFeed News, the Department of Homeland Security referred an average of 14 unaccompanied migrant children per day to shelters operated by the Office of Refugee resettlement — a 78% decline from February.

Notably, the new policy is the result of an order from the Centers and Disease Control and Prevention. Per U.S.C. § 264, the CDC can suspend admissions of people who are capable of spreading “infectious disease” in the U.S. But the United States has far more coronavirus cases than Mexico. In fact, the U.S. — which has more than 244,000 confirmed cases thus far — has more cases than Mexico, Honduras, El Salvador, and Guatemala combined. As ProPublica’s Dara Lind noted, the statute allows the CDC to deny entry to nationals of certain countries if there’s concern about the “introduction of [a communicable disease]” into the U.S. But the novel coronavirus was present in the United States before any cases had been confirmed in Mexico or Central America.

There’s also the question of non-refoulement, or the policy of non-return. Broadly speaking, the U.S. and other countries that have signed onto the 1951 Refugee Convention cannot return a person to their home country if they would be persecuted there based on their race, nationality, religion, political opinion/affiliation, or membership in a particular social group. This doesn’t necessarily mean that people who could face persecution are never deported — it simply means that they must first have their claim adjudicated by a U.S. immigration judge. There are a host of barriers that prevent people with valid claims from being denied asylum, including lack of access to an attorney. In some cases, people are persecuted for reasons other than their race, nationality, religion, political opinion/affiliation, or membership in a particular social group, and therefore don’t qualify for asylum. The law doesn’t require the U.S. to take in everyone who says they’ll be persecuted if sent home — but it does require officials to adjudicate the merits of their claim. Operation Capio essentially puts an end to this, at least for people who have just arrived at the border.

It’s possible that Operation Capio will be challenged in court, but some lawyers told ProPublica that it’s been difficult to build a case against it because of its secrecy. That could change as more information comes out about the policy and its implications on both sides of the border. In the meantime, though, the pandemic has given the administration the ability to do something it has long sought to accomplish: close off the border to all asylum seekers with virtually no exceptions.

Under the Radar

Deportations continue amid the pandemic

Even as the U.S. closes its borders and denies entry to nationals of certain countries due to the coronavirus, COVID-19 hasn’t put an end to deportations. By continuing deportations amid the pandemic, the U.S. — which has more cases than China or Italy — risks spreading the virus to countries with lower rates of infection. According to CBS News immigration reporter Camilo Montoya-Galvez, three recently deported Guatemalan children had to be transferred to a hospital on March 30, the same day they were deported, because they had high fevers. A day earlier, a 29-year-old deportee had tested positive for the virus.

In a press release, ICE touted its ability to keep deportations going during the pandemic by using chartered, non-commercial flights. Last week, we reported that ICE had used one of its deportation planes to evacuate U.S. citizens who were stranded in Honduras — just hours after the same plane had been used to deport Honduran nationals to their country. Several people who were on the repatriation flight to the U.S. told BORDER/LINES that officials initially declined to tell them what the plane had been used for, calling it a “military” plane. 

Next Destination

What’s going on with the immigration courts? Part 2

Last week, we wrote about the chaos at immigration courts across the country. Not much has changed since then, but the lack of change is noteworthy. Hearings for non-detained immigrants are still postponed, and the Executive Office for Immigration Review — the Department of Justice agency that oversees the courts — is still announcing daily court openings and closures on Twitter.

On Thursday night, for example, EOIR announced that the New Orleans, Conroe, and Boston immigration courts would be closed the following morning. The New Orleans and Conroe courts were also closed on April 2 due to “a report of the presence of an individual with a test-confirmed coronavirus diagnosis,” and “a report of secondhand exposure to coronavirus,” respectively.

Meanwhile, all hearings for migrants on the MPP docket — those forced to wait out their cases in Mexico — have been postponed. EOIR said migrants with hearings through May 1 should present at the border on the date of their hearing so they can “receive tear sheets and hearing notices with new hearing dates.” It’s unclear how the migrants, most of whom don’t have lawyers and may not be on Twitter, are expected to get this information.