Week 34: USCIS careens towards furloughs as Congress weighs emergency funding

Immigration news, in context.

This is the thirty-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:

• In The Big Picture, we explain the history behind USCIS’s impending financial collapse.

• In Under the Radar, we examine reports of the most recent Covid-19 death in ICE custody, as well as an allegation of sexual assault in ICE detention.

• In Next Destination, we look at how the Trump administration has changed the immigration courts.

The Big Picture

The news: The government agency that adjudicates all visa, residency, and citizenship applications is on the verge of furloughing staff as it starts running out of operating funds.

What’s happening?

As we noted last week, the United States Citizenship and Immigration Services is one of the few federal government agencies across the executive bureaucracy that’s mostly fee-funded as opposed to operating with congressional appropriations (the largest of these being the U.S. Postal Service, which is itself teetering on the verge of insolvency).

The Immigration and Naturalization Service (INS), the precursor to the modern ICE, CBP, and USCIS, has had some type of immigration processing fee schedule since 1952, when Congress established it; for example, an immigrant visa would cost $20. Curiously, nonimmigrant visa fees were made contingent on how much the country of which the applicant was a national charged U.S. citizens for similar immigration processing. The money went into nondescript Treasury accounts and was not primarily used to fund the agency until 1988, when Congress created the Immigration Examinations Fee Account (IEFA) specifically to receive fees paid for immigration adjudication services.

The law allows fees to be set at a level to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants” [8 U.S.C. § 1356(m)]. Not only is USCIS instructed to cover its adjudicative operational costs, but it actually reimburses the government for administrative expenses that have come out of appropriations. The agency does still receive a small amount of appropriations money, mostly for running the employment eligibility verification system E-Verify, but it generally constitutes about four percent of less of its total budget.

The ongoing coronavirus pandemic has forced USCIS to suspend almost all in-person processing and scale back its operations significantly, causing a sharp drop in the numbers of applications and fees paid. Travel restrictions and the administration’s ban on immigrant visas have meant fewer applications for such visas filed around the world (the State Department handles the issuance of most visas abroad, but USCIS still adjudicates petitions for intending immigrants).

In addition, the administration has imposed a number of cumbersome requirements on the agency’s processes, which have stretched its capacity. For example, the public charge rule that the Supreme Court allowed to go into effect earlier this year, which was supposedly implemented to prevent immigrants from relying on public assistance. It expanded existing residency application forms and created an entirely new one, the 18-page I-944, with very detailed requirements for supporting evidence. Burdensome and granular evidentiary requirements aren’t just a problem for applicants, but for USCIS officers whose workflow consequently balloons.

In response to some of these changes, the Department of Homeland Security proposed an increase in fees. It now appears to be attempting to fast-track that process, but for now fees remain the same (more on the fee increase proposal below). Just before the pandemic, USCIS had enacted a hiring freeze, and it is preparing to resume some of its normal services on June 4. Nonetheless, it won’t be able to make up the shortfall by simply restarting its usual functions.

With little money coming in, the agency is running out of funding. Earlier this month, it sent an urgent request to Congress for $1.2 billion in emergency funding, which the agency would apparently attempt to pay back via an additional ten percent surcharge on USCIS application fees going forward. This week, a top USCIS official informed staff that absent this budget injection, the agency would begin furloughing staff by July 20.

How we got here

For most of this country’s history, migrating to the United States was as easy as paying for a steamship ticket and getting on a boat, provided you were a white (by the era’s standards, which were not the same as today’s) European. In 1790, when Congress implemented the first Naturalization Act, you didn’t need a visa to immigrate to the U.S. — you just needed to get on a boat. The privilege of citizenship, however, was limited to “any Alien being a free white person … of good character” who had lived in “the jurisdiction of the United States for two years.” That was all it took. Subsequent acts increased the requirements little by little: in 1795, the two year residency bar became five; by 1798, the Alien and Sedition Acts made it 14. 

At the turn of the 20th century, a flurry of exclusionary legislation drastically affected who could immigrate to the U.S. First came the 1882 Chinese Exclusion Act, which all but ended immigration to the U.S. from China. The 1917 Immigration Act tightened restrictions further, implementing an “Asiatic Barred Zone” and essentially denying entry to all nationals of Asian countries, excluding Japan and the Philippines, at the time a U.S. colony. It also introduced a literacy test for immigrants from other countries, administered at U.S. ports of entry.

Restrictions became even tighter in the 1920s. The Immigration Act of 1924 effectively ended immigration from Eastern and Southern Europe. Known as the Johnson-Reed Act, the law set country-based immigration quotas for the first time in U.S. history. Each country’s quota was set at 2 percent of “the number of foreign-born individuals of such nationality resident in continental United States” at the time of the 1890 census — one of the last years that immigrants from Western Europe outnumbered those from less preferred regions. (The 1924 law also established the Border Patrol.) It didn’t apply to immigrants from the Western Hemisphere, meaning Mexicans and other Latin Americans were more or less free to come and go until 1929, when Congress passed a law criminalizing entering the U.S. between official ports of entry.

All of this is to say that the notion of passports, visas, and lengthy adjustment of status applications are relatively new in the United States. The exorbitant fees charged for such processes are even newer. As we explained above, it cost $20 to apply for an immigrant visa in 1952 — about $194 in today’s dollars. 

Today, USCIS charges foreign nationals who receive immigrant visas a $220 “immigrant fee.” To get to that step, prospective immigrants have to file a number of other petitions — such as the I-130, the form U.S. citizens or permanent residents must file to request immigrant visas for their relatives abroad or adjustment to residency for relatives in the U.S., which costs $535 — take and pay for medical exams, wait for their documents to be processed, be interviewed at a U.S. embassy or consulate in their home country or USCIS officials domestically, and wait some more. Applying for naturalization costs $725; applying for most non-immigrant visas costs $160. USCIS’s website has a full breakdown of the fees it charges for everything from genealogy records requests ($65) to employment authorization applications ($410) to “Application for Regional Center Designation Under the Immigrant Investor Program” ($17,795).

The creation of the 1988 Immigration Examinations Fee Account helps explain the significant rise in costs. The Trump administration’s restrictive immigration policies, meanwhile, explain its impending financial collapse. 

One of Trump’s first presidential acts was an executive order banning nationals of several Muslim-majority countries from traveling to the United States. The administration has since implemented additional travel bans, which we’ve covered in the past. As of this writing, most nationals of Iran, Libya, Syria, Yemen, Somalia, Venezuela, North Korea, Myanmar, Eritrea, Kyrgyzstan, and Nigeria can’t apply for immigrant and many nonimmigrant visas. (There are some exceptions, including those who have provided assistance to the U.S. government abroad, but the exceptions are effectively just legal cover for the administration.) Nationals of Sudan and Tanzania no longer qualify for diversity lottery visas. A 2018 Washington Post analysis of State Department data found that the number of visa recipients was on track to drop 12% during Trump’s first two years in office. Of course, applicants still have to pay processing fees regardless of whether their visas are approved, but it’s likely that Trump administration’s public war on immigrants has dissuaded people from applying at all.

Last November, DHS proposed raising fees for a number of applications. Naturalization fees, for example, would increase from $750 to $1,170. Fees for U-visa applications, reserved for victims of crimes who help the government with the investigation, would in some cases increase from $585 to $1,415. For the first time, affirmative asylum applications would cost $50. Asylum seekers would have to pay $490 for work permits. Doug Rand, a former White House official under president Obama, told CBS News the proposal was “an unprecedented weaponization of government fees.” The revenue wouldn’t all have been used to fund USCIS — an estimated $207 million would have been transferred to ICE. 

What’s next?

After some will-they won’t-they, the White House appears to be backing USCIS’ request to Congress, heading off some speculation that it was content to let the agency spin into crisis. It’s now up to policymakers to implement the emergency spending measure, which provides a rare opportunity for Congress to flex its appropriations muscle over the agency. Given USCIS’s unusual position as one of the few fee-funded bureaucracies, Congress actually doesn’t possess the funding lever that it can wield over other agencies. (As an aside, there was a decent amount of hand-wringing over this when former President Obama expanded the DACA program in 2014 and his opponents in Congress found they couldn’t exert much leverage over USCIS.)

The proposal is definitely tailored towards appeasing deficit hawks with its repayment program, and even the most hawkish policymakers generally don’t believe that USCIS should cease its operations. However, this does present an opening for them to try to extract some other concessions around, for example, the processing of temporary work visas, under threat of letting the agency run out of money. As of now, this hasn’t really come up, but it’s certainly a possibility.

There is of course also the chance that Congress doesn’t intervene, and USCIS does finish burning through its operating funds. At that point, we’re in uncharted waters. Due to the nature of its funding, USCIS has been among the agencies that kept operating normally even when other government employees were furloughed, such as during government shutdowns. This same structure now leaves it in the opposite position, and we don’t have much data on how this looks.

One of the primary open questions is how the furloughs would look. Would some percentage of the personnel in each agency section be furloughed? Would employees be furloughed on a rolling basis to keep each distinct adjudicative function working? Or would entire USCIS functions be shut down? It’s not difficult to imagine a scenario where just the asylum officers are furloughed, putting another stake through the heart of the asylum process. Even USCIS employees don’t seem to have much clarity on this front.

Under the Radar

Private prison company sued over alleged rape in ICE detention center

An immigrant woman filed a lawsuit against ICE and CoreCivic, a private prison company, saying she was raped while in ICE custody the night before she was deported to Mexico. The complaint, first reported by BuzzFeed News, says three men assaulted the anonymous Jane Doe and two other women in a secluded area of the Houston Processing Center in Texas. The three women were deported the following day and, according to the complaint, suffered injuries because of the assault. 

In theory, ICE and CBP detention centers are supposed to adhere to the 2003 Prison Rape Elimination Act, but the Department of Homeland Security didn’t finalize its PREA standards until 2014. Even in situations when rape or other forms of abuse in ICE custody are reported, complaints don’t tend to lead anywhere. According to a 2017 study by Freedom for Immigrants, there were at least 33,126 complaints of verbal and physical abuse against DHS agencies from January 2010 and July 2016. Of those, just 225 were investigated. 

Second immigrant in ICE custody dies of Covid-19

Santiago Baten Oxlaj, a 34-year-old immigrant from Guatemala, died from coronavirus-related complications on Sunday, BuzzFeed News reports. Baten had been detained at the Stewart Correctional Center in Lumpkin, Georgia since March and had been granted voluntary departure, meaning he could leave the U.S. without having a deportation on his record. He got sick while waiting and, on April 17, was taken into a local hospital because of decreased oxygen saturation levels. He died a week later.

There have been 19 confirmed coronavirus cases at the Stewart Detention Center as of May 28, according to ICE. That figure is likely an undercount of the total number of cases — according to the BuzzFeed News report, Baten was tested for coronavirus on April 17 after being admitted to the hospital. Guards at Stewart, which is owned by private prison giant CoreCivic, have twice pepper sprayed detainees for protesting a lack of personal protective equipment, such as masks and gloves, given to them. Baten’s death comes just a few weeks after the death of Carlos Ernesto Escobar Mejia, a 57-year-old immigrant detained at the Otay Mesa Detention Center in California. According to a recent report by The Intercept, guards at Otay Mesa largely ignored other detainees’ reports of Escobar’s deteriorating condition until it was too late.

Next Destination

DOJ continuing attempts to bring BIA into the fold

An internal memo viewed by CQ Roll Call’s Tanvi Misra shows James McHenry — the director of the Executive Office of Immigration Review, which is the Justice Department agency that oversees the nation’s immigration courts — tried to convince pre-Trump members of the Board of Immigration Appeals (BIA) to take buyouts and leave the board.

The BIA functions as the central appellate division of the immigration courts, and as such issues rulings which can be binding policy for all such courts nationwide. Misra had previously reported on documents that showed McHenry was shifting the hiring standards for the board to emphasize hawkish judges and shorter hiring timelines. The BIA has also been expanding, growing from 17 members at the start of the Trump administration to 23 now, including some that can simultaneously work as trial and appellate-level judges.

The new documents show that, beyond trying to bring restrictionist judges in, EOIR has been trying to quietly get prior judges out, without the controversy that would accompany outright firings (because immigration judges are not Article III federal judges but administrative law judges under the Department of Justice, they can be fired).

This project is unlikely to stop here. While unknown to the vast majority of the public, the BIA has a significant role in shaping immigration policy, and the administration is likely to continue its efforts to shift it to an enforcement posture rather than a putatively impartial judicial one.