Week 32: Administration intends to enact border restrictions indefinitely, shutting down asylum

Immigration news, in context.

This is the thirty-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 look at the Trump administration’s order barring most migrants from seeking protections at the southern border, and the possibility that it could be extended indefinitely.

  • In Under the Radar, we discuss how minors in federal custody are not being reunited with U.S. sponsors as the pandemic rages.

  • In Next Destination, we examine the postponement of hearings for migrants stuck in Mexico under the MPP program, and a new pandemic-response bill that has significant immigration stipulations.

The Big Picture

The news: The Trump administration moves to extend its near-total closure of the southern border to those seeking humanitarian protection, a closure that thus far has been extremely effective at preventing migrants from even having the opportunity to seek asylum or other protections.

What’s happening?

The New York Times reported on Wednesday that the administration would seek to indefinitely extend the order from the Centers for Disease Control and Prevention (CDC) putatively allowing it to turn away almost all migrants arriving without valid entry documentation at the southern border, regardless of intent to petition for asylum. This is something we (and pretty much every other informed observer) predicted.

To recap, the government is utilizing an obscure provision of law — 42 U.S.C. § 264 — that permits the CDC to suspend the admission of people who it deems might spread infectious disease (we covered it in more detail here). The order was issued effective March 20, and generally prohibits people who are not U.S. citizens or residents and don’t otherwise have visas, waivers, or other travel documents from either using ports of entry or being taken to Border Patrol stations (where those caught crossing illegally would be taken) at the borders with Canada and Mexico. It was initially set for an extendable 30 days, and was extended once already, on April 20.

The draft version viewed by the Times would apparently be in place until CDC Director Dr. Robert Redfield determines that the risk of introduction of COVID-19 to the United States ceases to be a danger to the public health, an extremely diffuse standard, especially given that estimates around how long it will take to bring the pandemic fully under control vary wildly. Just this Wednesday, the chief scientists of the World Health Organization estimated a “four to five-year timeframe.” It’s possible that the virus will never really go away, only be managed.

The assertion that the order effectively shuts off access to protections migrants arriving at the border isn’t theoretical. The CDC order allowed border authorities to exempt people based on a “totality of the circumstances,” including humanitarian interests. Yet even unaccompanied minors are being included in its provisions, and almost no one is getting through. On Wednesday, the Washington Post found that since March 12, only 59 people had even gotten to the stage of being interviewed by USCIS agents for an evaluation under the Convention Against Torture — the only type of protection still available, with a much higher evidentiary bar than asylum and no access to permanent status.

Of these, 54 had been rejected, three were pending, and only two had been approved. It’s important to note that these two have only completed the first step in a process, and it’s very possible that their claims will still be rejected and they will be deported, in which case the total number of people who’ve actually been able to win humanitarian protections at the southern border under the CDC order will be a flat zero.

On its face, this seems to violate a number of domestic laws and international treaties, but the administration actually hasn’t been sued over this policy yet. The lack of a legal challenge is likely in part because it’s difficult to find plaintiffs when almost no one is being formally processed, only expelled, and the pandemic has made finding them even more treacherous. So far, the closest the administration seems to have gotten to explaining its legal reasoning is in response to a letter sent by the chairs of the House Committees on Foreign Affairs, Homeland Security, and the Judiciary, as well as the ranking member of the Senate Committee on Foreign Relations, demanding legal justifications for the policy.

A State Department staffer responded by saying the policy was appropriate under domestic law by essentially reiterating the statute that it was based on and the details of the CDC order. As far as international law, the staffer provided a very short explanation: “As for our international obligations, the Supreme Court has noted that neither the United States nor any State or municipality has any legal obligation to conform its conduct to international treaties that are not self-executing or otherwise implemented into domestic law by an Act of Congress,” in effect fully admitting that the administration was in violation of international law, but claiming it didn’t matter.

How we got here

As we explained a few weeks ago, even getting to the credible fear stage is much more difficult now. 

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. Rather than being interviewed by a USCIS officer, migrants must first convince a Border Patrol officer that they’ll be tortured after being sent home, and then they must also have their claim approved by the chief patrol agent of whichever Border Patrol sector they’re in. More than 20,000 people have been “expelled” into Mexico under the policy since late March, where they face the difficult choice between returning to their home countries and waiting for the order to be lifted.

When the order went into effect, the United States had more coronavirus cases than any other country in the world and, in fact, more cases than Mexico, Guatemala, El Salvador, and Honduras combined. There were confirmed coronavirus cases in New York City and Seattle, but not in the border encampments set up by migrants waiting to be allowed into the U.S. Despite the effective shutdown of the border — and the ongoing bans prohibiting Chinese, Iranian, and certain European nationals from traveling to the United States, as well as the recent “immigration” ban — coronavirus continues to spread across the country. 

Together, these new restrictions have done little — if anything — to slow the spread of the virus, but they have accomplished something that is perhaps more of a priority for the president and his advisors. The pandemic justification has allowed the White House to swiftly enact many of the immigration policies it has long tried and failed to implement, including an effective shutdown of the asylum system.

As Sarah Pierce, a policy analyst at the Migration Policy Institute noted, Trump unsuccessfully tried to shut down the border, cut family-based immigration, end the diversity visa lottery, and slow down the release of unaccompanied migrant children in federal custody before the pandemic. It has now successfully done all of these things.

Over the past three years, Central American asylum seekers have become the president’s most visible target. Metering (the practice of letting in a trickle of migrants in each day, causing massive backlogs), the Remain in Mexico Policy, the third-country transit bar, the Asylum Cooperative Agreements with Central American countries, expedited asylum dockets under PACR and HARP, the 2018 family separation policy, and the emphasis on indefinite detention for asylum seekers have all served as both punishments for those currently seeking refuge in the U.S. and, the administration hopes, deterrents for those who may want to come later. 

Internal emails obtained by NBC News last year made it clear that eliminating asylum by any means possible has long been the administration’s goal. “My mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with,” a National Security Council official wrote to CBP officials in July 2019.

Effectively closing down the border accomplishes what the above policies could not by all but eliminate an asylum seeker’s chances of even making a claim, much less winning one.

What’s next?

There was never really a chance that the order would be temporary. If indeed the administration issues an open-ended order, it will probably interpret the danger of the introduction of the virus in the broadest way possible. That is to say, even the formal end of the public health emergency declaration issued by the Secretary of Health and Human Services earlier this year almost certainly won’t include the rescission of the CDC order. If anything, a full recovery from the pandemic will be used as a reason to prevent further entry, as it will “reintroduce” the virus and reverse the gains made.

This is also just one part of a constellation of measures meant to take advantage of the emergency for the purpose of advancing the administration’s broader restrictionist agenda. As we mentioned, it also issued an “immigration ban” that, while relatively restrained, is set to be expanded to include restrictions on work visas. A good crisis is not something to be wasted in the eyes of Stephen Miller and his allies, especially in an election year. The restrictions will most likely continue, expanding ever outward until most avenues for entering the country as anything but a tourist will become either impossible or at least wildly impractical.

As far as the CDC order, it certainly is a bit odd that there has been no litigation thus far, but litigation will undeniably come, particularly if and when the administration tries to implement it for a completely unspecified period of time, and especially in light of the numbers of people actually being granted so much as an initial interview. Some of the current legal argumentation around the third “Muslim ban,” which the Supreme Court upheld, involves whether there’s an effective way to get around it using the built-in waiver process. The situation at the border isn’t exactly analogous, but it could also center around the fact that there is discretion permitted, but not really being utilized.

Of course, there are additional items in domestic law that run counter to the order; the asylum statute does not include exceptions to when a credible fear interview must be conducted for someone who claims a fear of return. It simply must.

Under the Radar

Citing pandemic, the government slows down the release of migrant kids in federal custody

A new report by Aura Bogado at Reveal from the Center for Investigative Reporting shows how the coronavirus has created additional complications for unaccompanied migrant children in government shelters. The Office of Refugee Resettlement, the federal agency that oversees the shelters, as well the release process for children, has reportedly effectively halted family reunifications. Since the pandemic began, Bogado writes, ORR officials “have repeatedly altered the agency’s rules for discharge, argued that children may be safer in custody than at home with their families, cited confusing reasons for postponing the release of vulnerable children in its custody and made arbitrary exceptions.”

Judge Dolly Gee, who oversees the ongoing court settlement outlining the standards for treatment of immigrant children in federal custody, has issued a series of rulings that should, in theory, let the reunification process continue. On April 10, she required ORR to temporarily waive its fingerprinting requirement for sponsors; two weeks later, she instructed ORR to “continue to make every effort to promptly and safely release” to their sponsors, so they could shelter in place in their homes. 

Meanwhile, life in the shelters is the same as it was before. Staff come in and out of the facility every day, many not wearing masks or other protective equipment. Migrant children wait for their sponsors to be approved and fear turning 18 in the shelters — if they become legal adults before being released, they “age out” of the shelter system and get transferred to ICE detention. Children also fear getting sick; at least 68 minors in ORR custody have tested positive for the virus so far. 

Next Destination

Remain in Mexico hearings postponed again

The Executive Office for Immigration Review, the federal agency that oversees the immigration courts, announced this week that all hearings on the Migrant Protection Protocols (MPP) docket are postponed through June 19. Hearings for detained immigrants are still ongoing; non-detained hearings have been postponed. The administration has maintained at different times that people in MPP are both detained and non-detained. When non-detained hearings were cancelled due to pandemic concerns, it claimed that people in MPP were detained and should continue going to their hearings; when attorneys pointed out this meant they should be eligible for bond hearings, the administration took the stance that they were non-detained for this purpose.

According to a DHS letter sent to Human Rights First researcher and policy analyst Kennji Kizuka, migrants with hearings scheduled between May 10 and June 5 “should present themselves at their designated [port of entry] one month later than that date to receive their new notices of hearing … and tear sheets for a future court date.” Those whose hearings are scheduled between June 8 and 19 have to present themselves at their designated port of entry on their scheduled hearing date to receive a new notice. 

Few migrants subject to the Remain in Mexico policy have heard about these changes, Law360 reports. On May 11, more than 100 migrants presented at the Paso del Norte International Bridge expecting to get their new hearing dates, immigration attorney Taylor Levy told the site; more than 100 additional migrants showed up the next day. 

Since it’s unlikely that the pandemic will be over by June, it’s likely that the same migrants currently being told to wait a month to receive their new hearing dates will once again have their hearings postponed. The ongoing public health crisis has put these migrants’ cases in indefinite limbo. It’s possible that some will ultimately abandon their claims and return to their home countries — likely an intended effect. 

Meanwhile, lawyers and advocates have asked the administration to parole all migrants on the MPP docket into the United States, which would allow them to wait for their hearings in less crowded and dangerous settings, but it’s unlikely the administration would do this without a court order. 

New coronavirus relief bill could provide protections for immigrants

The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, a hefty new relief bill introduced by the House, has a number of immigration provisions that would, broadly speaking, provide temporary protections for immigrants deemed to be essential workers. 

The bill would defer enforcement actions — i.e., arrests and deportations — against otherwise inadmissible or deportable immigrants engaged in critical work such as agriculture, transpiration, the energy sector, and other industries. It would also extend work authorization for those who have already been granted deferred action, such as people with DACA or TPS, and extend filing deadlines for applications to change or extend non-immigrant statuses like visas and work permits. 

Notably, the HEROES Act would require ICE to “review the immigration files of all individuals” in ICE custody and prioritize the release of those without certain criminal charges or convictions. In order to address the ongoing lag in naturalizations due to USCIS suspending all in-person services, the bill would also create provisions for remote naturalizations.

We’ll be covering the HEROES Act more in depth today in a premium edition for paid subscribers. For access to that subscriber-only edition and more, we encourage you to subscribe here.