Week 30: Administration eyes expansion of immigration ban, weighing demands from restrictionists and business
Immigration news, in context.
This is the thirtieth 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 how President Trump’s recent order limiting immigrant visas could be expanded.
In Under the Radar, we discuss the latest news regarding the status of migrant children in government shelters, as well as a new report of rationed soap in ICE detention facilities.
In Next Destination, we look at what’s happening with the Remain in Mexico program and examine pandemic-related lawsuits filed by guards in ICE detention centers.
The Big Picture
The news: U.S. officials are already openly pondering ways to expand last week’s presidential proclamation restricting immigration, which had been assailed almost immediately by both pro- and anti-immigration groups. Few analysts believe the order will remain as written, or active for only 60 days.
What’s happening?
The ink was still drying on the proclamation when groups like the Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies (CIS) assailed it for failing to include all the wish-list items that White House adviser Stephen Miller has been eyeing for years. As we mentioned last week, the proclamation as written definitely has an impact, but not an extremely broad one (all of this caveated by the fact that the immigration system is practically shut down for now anyway, as consulates abroad have suspended operations in response to the pandemic).
Miller responded to this criticism by telling supporters that the order was part of a longer-term vision for reforming the American immigration system, including through limiting work visas. Acting Homeland Security Secretary Chad Wolf backed up his point, telling Fox News that the administration was looking at limiting the Optional Practical Training (OPT) and Curricular Practical Training (CPT) programs — which allow student visa holders to work for a short period of time in the United States, with heavy restrictions — as well as work visas like H-1B, H-2B, and H-2A, which permit people to work in the United States in specific occupations, and for temporary periods of time (the H-1B is “dual intent,” meaning it can be used to transition to permanent residency; more on that later).
Fundamentally, it seems that the administration is testing the waters for broader orders that target the whole world, as opposed to specific national delimitations or classes of people, and which will continue to expand until they achieve the long-sought end of almost all entry for both immigrants and temporary workers.
How we got here
FAIR and CIS, two leading anti-immigration groups, have considerable ties to the White House.
Miller was first introduced to the restrictionist think-tanks while working as a communications director for then-Senator Jeff Sessions, according to The New Yorker’s Jonathan Blitzer. By the time Miller became a member of Trump’s 2016 campaign, he was shaping immigration coverage at Breitbart. In November, the Southern Poverty Law Center unearthed more than 900 emails Miller sent in the months leading up to the 2016 presidential election, including several emails in which Miller encouraged journalists at Breitbart to write up CIS reports. Kurt Bardella, a former Breitbart spokesman, told the New York Times in 2019 that Miller was “almost a de facto assignment editor for the political team at Breitbart.”
Robert Law, the chief of policy and strategy for U.S. Citizenship and Immigration Services who helped draft the order, also has ties to restrictionist groups. From 2013 to 2017, Law worked as a lobbying director and director of government relations for FAIR, one of the oldest and most influential immigration restriction think-tanks in the country. Other current and former administration officials are also CIS or FAIR alumni: John Zadrozny, the acting chief of staff of USCIS, previously worked at FAIR. Julie Kirchner, the former ombudsman of USCIS who resigned last October, was previously FAIR’s executive director.
FAIR, CIS, and a third group, NumbersUSA, have been pushing for an end to family-based migration for decades. Founded in 1979 by the late Michigan ophthalmologist John Tanton, FAIR was initially an environmentalist-adjacent organization primarily focused on overpopulation — its primary focus was on limiting population growth by curbing immigration, particularly from non-white countries. It quickly became the largest and most formidable anti-immigration lobbying group, supporting policies like California’s Proposition 187, which barred undocumented immigrants from accessing services including public education and helping draft Arizona’s “show me your papers” law. NumbersUSA helped tank George W. Bush’s immigration reform plan, which would have created “a rational middle ground” between “amnesty” and deportation for undocumented immigrants. CIS lobbied against the DREAM Act.
Until relatively recently, the three restrictionist groups primarily focused on local and federal legislation; they split their attention between championing local policies intended to make life more difficult for immigrants and lobbying against legislation that would grant status to unauthorized immigrants. Although deportations increased under presidents Clinton, Bush, and Obama, the Tanton network organizations didn’t have many allies in the White House — their goal wasn’t just ramping up deportations, but also reducing lawful and unlawful immigration, as well as the entry of foreign workers on non-immigrant visas.
Things are a bit different under Trump. Although the administration has attempted to drive up interior enforcement, it has also largely focused its efforts on limiting immigration, typically through administrative changes and executive action. Trump’s infamous “Muslim ban” executive order was issued during his first week in office; a subsequent order blocking all immigrant visas from four countries and diversity visas from two others was issued this February. The administration has also sought to prevent people from obtaining immigrant visas if they can’t prove they can afford unsubsidized health insurance upon arrival in the U.S., and targeted “birth tourism” medical travel. At the administrative level, processing times for visas has slowed down considerably. The administration has also proposed raising fees for naturalization and certain asylum applications. According to the Migration Policy Institute, doing so “would likely reduce the number and shift the profile” of those who apply for legal status in the U.S.
Together, these changes — and the countless others we didn’t outline here — have dramatically changed the immigration system, often quietly and behind the scenes. While the administration publicly focuses on limiting asylum, ending unauthorized migration, and arresting deporting undocumented immigrants, plenty of work is being done behind the scenes to make it more difficult for people to immigrate lawfully or obtain employment-based visas as well.
As we’ve written before, the administration has used section 212(f) of the Immigration and Nationality Act [8 U.S.C. § 1182(f)] to justify many of these changes, including the health insurance bar, the initial travel ban and its subsequent iterations, and the recent ban on most immigrant visas. Broadly speaking, 212(f) allows the president to suspend entry of any “class of aliens” deemed to be detrimental to the national interest. The statute itself is vague enough that “national interest” can be determined as anything from national security concerns — the stated rationale for the Muslim travel ban — or economic interests. Over the past three and a half years, we’ve seen the administration use 212(f) to deny (or attempt to deny) entry to several groups of people. Rather than function independently, these executive and administrative changes have built on each other, creating a series of hurdles to immigration.
What’s next?
Now comes the ever-present tension between restrictionists and those who support employment-based visas on practical grounds. On the restrictionist side, you have Trump, Miller, and their stable of hawkish policy shops like FAIR and CIS, which can provide the analytic backing and strategic policy to achieve an ultimate objective of bringing the entry of anyone but tourists functionally down to zero. Meanwhile, much of the country’s business community understands that extensive restrictions on workers, and in particular temporary work visa holders, would be catastrophic to many industries, even if they share much of the same ideological space with restrictionists.
Business interests have intervened continuously to stop restrictions on work visas, and they were responsible for the latest proclamation’s targeting of only immigrant visas, not any temporary work visas or existing domestic work allowances like OPT and CPT. While all visa processes have become more tedious, difficult, and uncertain over the past three years, there’s a reason that the programs most targeted by the administration have been humanitarian, like asylum and refugee programs, or related to permanent immigration.
This tension was well-captured by Adam Serwer in The Atlantic. As he notes, the business interests for whom the specter of an H-1B or H-2A suspension is anathema aren’t necessarily clamoring temporary workers’ full participation in society, or even access to robust work protections. In fact, the H-1B is the only one that meaningfully provides a path to residency, and that’s provided you’re not from one of the countries for which the backlogs top decades.
It also exposes the contradiction of claiming that the latest proclamation is tailored to protecting the U.S. labor market, when many of the people it affects aren’t traveling to the United States to work, and many of those who are will be unaffected. The tension has existed uneasily for decades, but the catastrophic economic consequences of the pandemic may finally be what tips the restrictionists over the edge. They may soon openly override the corporate concerns that have tempered their hawkish impulses, and take drastic steps to limit what is at any time a significant standing temporary workforce.
Such moves would almost certainly make any economic downturn worse, but Miller et al might see it as a good opportunity to finally rip off the bandaid and move to greatly restrict or even completely shut down the processing of a range of visa types, probably again framed as a “pause” while the administration supposedly reevaluates their use. Indeed, from a pure public relations perspective, it’ll be that much more difficult for business leaders to balk at visa restrictions as the U.S. unemployment rate hits 20 percent.
For an administration that has transformed immigration policy through sheer executive authority (reminder: not a single immigration law has changed since Trump took office), it’s a tempting moment to pull the trigger on something so sweeping, with the guarantee of an at least moderately receptive Supreme Court, one which already gave it sweeping power to restrict entry in Trump v. Hawaii.
Under the Radar
Federal judge orders release of some migrant children in government custody
The government must expeditiously release certain migrant children held in shelters operated by the Office of Refugee Resettlement (ORR) or in ICE family detention centers, a federal judge said last Friday. Judge Dolly Gee, who oversees the Flores agreement — an ongoing court settlement that outlines guidelines for the treatment of migrant children in federal custody — didn’t call for the release of all children detained by the government. Instead, she ordered the release of children in ORR shelters who have a parent or guardian or other relative or close family friend in the U.S.
Migrant children in government custody are divided into four categories, depending on who their sponsor is:
Category 1: Parent or legal guardian
Category 2: Another relative, like grandparents, aunts and uncles, or cousins
Category 3: Distant relatives or close family friends
Category 4: No identifiable sponsor
Under Gee’s latest order, children in categories 1 through 3 must be released as quickly as possible. As of March, there were around 3,600 unaccompanied migrant children in federal shelters. Gee also ordered the government to release all children in ICE detention to sponsors in any category.
Three children at a shelter in New York tested positive for the virus in late March.
Read more:
Judge Tells Feds to Abide by 20-Year Deal on Release of Detained Immigrant Kids - Courthouse News
3 migrant children in U.S. custody test positive for coronavirus - CBS News
Detained immigrants forced to pay for soap during pandemic
Cost-cutting measures at private ICE detention facilities have created an added layer of danger for the immigrants held there, Jack Herrera reports for The Nation. At several detention centers, including the Jefferson County Jail in Texas, breakfast is served at 3:30 am in an attempt to keep attendance low. Most detainees are given a single bar of soap to last them the week — a level of rationing that was difficult even before the pandemic and could prove deadly now. If they run out, detainees have to buy soap from the facility’s commissary, often for prices that are exorbitant compared to the wages they’re paid for the work they do in the detention center.
ICE and the private companies that run many of the nation’s immigrant detention centers, including CoreCivic, GEO Group, and LaSalle Corrections, have maintained that detained immigrants are given adequate soap, hand sanitizer, and protective equipment such as masks and gloves. Immigrants in federal detention centers say they often have to “beg” for more soap, even as people are urged to wash their hands more frequently to prevent transmission of the virus.
The administration has increased its use of private detention facilities, particularly in the South. As of January 2020, 81% of immigrants in ICE custody were detained in facilities owned and operated by private government contractors, according to a new report by the ACLU.
Read more:
In ICE Detention, Forced to Pay for Soap - The Nation
Justice-Free Zones - ACLU
Next Destination
MPP hearings through June 1 postponed
Hearings for migrants in the Trump administration’s “Remain in Mexico” program scheduled through June 1 will be postponed because of the pandemic, the government announced Thursday night.
The program, officially known as the Migrant Protection Protocols, is in a unique situation. Migrants on the MPP docket are considered “detained” for some administrative purposes — including the pace at which their hearings are scheduled — and “non-detained” for others. The Executive Office for Immigration Review, the agency within the Department of Justice that oversees the immigration courts, has postponed all non-detained hearings. Hearings for immigrants in ICE detention, however, are still ongoing.
For weeks, migrants on the MPP docket have had to present at ports of entry on the day their hearing was supposed to take place to “receive tear sheets and new hearing notices containing the dates of their rescheduled hearings,” according to EOIR. It’s unclear how many migrants are able to do so, or how many are getting word of these changes in the first place.
The coronavirus has made the situation at the border particularly dire. Even before the pandemic, migrants forced to wait in Mexico were living in crowded tent cities or, if they were lucky, shelters run by nonprofit organizations or churches. Shelter space was already limited before the pandemic. According to Vox, some shelters have shut down altogether. There seems to be no end in sight, and it’s possible that some migrants will abandon their cases and either enter the U.S. between ports of entry or make the trip back to their home countries.
Read more:
The US has abandoned asylum seekers in Mexico during the pandemic - Vox
Still Fearing Violence, Migrants Subject to Trump’s Remain in Mexico Policy Are Now Bracing for a Pandemic - Texas Monthly
Two guards sue CoreCivic over pandemic conditions
In two separate lawsuits, detention officers working for CoreCivic — one of the largest private detention companies in the country — at the Otay Mesa Detention Center allege that their employer failed to provide adequate protection against a COVID-19 outbreak, and even prohibited them from taking steps to protect themselves. The facility is one of ICE’s worst-hit detention centers, with a federal judge recently having ordered that medically vulnerable detainees be released as a result of the extant danger within the center. Over 160 people in custody had tested positive for the virus as of this week.
The lawsuits could be the first of a wave of legal actions from staff at ICE detention centers, which have had a terrible track record of dealing with the unfolding pandemic. Favorable findings in these cases could open the door for not only more guards but detainees to hold ICE and the management at private detention centers, federal facilities, and jails under contract to house federal detainees accountable for failing to act to protect the people inside.
Read more:
Guards sue CoreCivic over allegedly dangerous workplace amid COVID-19 - The San Diego Union-Tribune