Week 45: Administration considering yet another asylum bar in quest to end asylum altogether
Immigration news, in context.
This is the forty-fifth 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 latest attempt to end asylum, this time under the cover of the coronavirus.
In Under the Radar, we discuss the current state of the immigration courts.
In Next Destination, we explore the potential implications of a GAO report finding that two top DHS officials were improperly appointed.
The Big Picture
The news: The administration is getting ready to unveil yet another restriction on the ability to apply for asylum, this time tenuously tied to the ongoing coronavirus pandemic. It is another step towards the ultimate goal of preventing even a single person from receiving asylum.
As we’ve discussed at length before—including extensively in BORDER/LINES weeks 1, 2, 8, 10, 12, 15, 22, 2632, 33, and 36, among others—the administration (essentially Stephen Miller, who pretty much sets the priorities) is very focused on limiting access to asylum, almost fanatically so. To even list and briefly describe the current formal and informal restrictions placed on migrants’ ability to receive asylum would take up this entire newsletter. There are obstacles at every step, from before they’ve even reached the border (e.g. Mexican and U.S. agents physically blocking their path) to tendering a claim at the border (e.g. metering) to having the claim actually be processed (e.g. transit bar) to staying in the country while the claim is ongoing (e.g. MPP) to having the claim be successful (e.g. BIA/AG decisions for immigration courts).
These were all in place before the pandemic, and the public health crisis has only provided more avenues for the government to block asylum-seekers. Now, BuzzFeed News’ Hamed Aleaziz (who you should definitely follow, as he is more plugged-in to the goings-on at the Department of Homeland Security than its potentially illegally-appointed leaders; more on that later) reports on a new draft rule that would designate as security threats any land arrivals who’d spent any part of the prior 14 days in Canada or Mexico, and make them ineligible for asylum or withholding of removal. (Canada and Mexico are, of course, the only countries through which an individual can enter the United States by land.)
Currently, there is an active order issued by the Centers for Disease Control and Prevention (CDC) under 42 U.S.C. § 265, which gives the agency authority to order the suspensions of “persons or property” into the U.S. if it determines that there is a “serious danger of the introduction” of a communicable disease. Under that order, the administration has been quickly expelling away asylum-seekers, including unaccompanied infants, without allowing them to petition for protections.
Here’s where the differences between expulsion and removal become critical. The terms can seem interchangeable, and the immediate effect is similar: the person in question is removed from the United States. However, there are enormous legal distinctions. Namely, an expulsion doesn’t create a record of deportation, which carries significant consequences for anyone hoping to at any time reenter the country.
There are reports that administration officials aren’t even giving expelled asylum-seekers alien numbers, the unique identifiers that every noncitizen processed by a U.S. immigration agency is supposed to receive. Incidentally, the fast turnaround and lack of formal processing mean many people are reattempting potentially dangerous crossings. The CDC order is at least in theory not really about immigration, but about introduction of disease, and as such it stipulates no further immigration consequences or procedures except the inability to enter the country, period.
If the new policy is enacted, however, it could permit migrants to petition for asylum or withholding of removal (a less robust alternative) only to categorically deny them the option to proceed and then formally deport them through expedited removal, which would essentially bar them from ever trying again.
We haven’t seen the full text of the draft rule, but it seems very similar to a draft rule the administration had already published in July, which would similarly declare asylum seekers arriving by land to be health hazards and bar them from asylum and withholding. That rule is going through the full formal policy-making process, recently undergoing a notice-and-comment period, and is probably weeks away from being able to go into effect. According to Aleaziz, the new draft states that the government simply cannot wait to go through the full process, and it will instead be effective immediately upon publication.
Assuming it is substantially the same as the rule currently in process, the rule will invoke 8 U.S.C. §§ 1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv), which codify exceptions to asylum and withholding of removal, respectively, if “there are reasonable grounds to believe that [or “for regarding” in the latter] the alien is [“as”] a danger to the security of the United States.” Like many provisions in immigration law, this can be stretched quite a bit; in this case, the mere possibility that migrants could have contracted COVID-19 is enough to rule them a danger to the security of the country. There’s no indication that only those who tested positive would be subject to the rule. The option of making petitions under the Convention Against Torture (CAT) would remain available, but it is a very high evidentiary bar to clear. The rule also provides for “streamlining” determinations and funneling people from denial to expedited removal as quickly as possible.
How we got here
The very first edition of this newsletter, published in September 2019, was about what was—at the time—the Trump administration’s most expansive effectuated attempt to ban asylum: the third-country transit ban. That policy barred any migrant who passed through another country on their way to the United States from obtaining asylum, leaving them eligible for either withholding of removal or protections under the Convention Against Torture, lesser forms of relief with higher burdens of proof.
A federal appeals court struck down the transit ban in July after a long legal battle, but thanks to a grab bag of other policies implemented by the current administration, obtaining asylum is still incredibly difficult. The Migrant Protection Protocols, a program that went into effect in early 2019 and requires some asylum seekers to wait out their lengthy court cases in Mexico, has made it nearly impossible for tens of thousands of migrants to find legal representation. The practical and logistical challenges of having to cross the border to attend their hearings—not to mention the safety risk of being stuck in cities with high rates of crime—has increased the rate of absentia decisions, according to federal data analyzed by TRAC. Of more than 31,000 MPP cases decided so far, just 3 have led to some form of relief.
Last year, the administration signed asylum-related agreements with Guatemala, El Salvador, and Honduras. These “cooperative agreements” allowed the U.S. to eventually send asylum seekers to those countries to have their claims processed there instead. For example, a Guatemalan asylum seeker could be sent to Honduras and told to apply for relief there; a Honduran asylum seeker could be sent to Guatemala. Only one such agreement was fully in place before the pandemic hit, but all three were either put on hold or called off altogether after the virus made its way to Central America. These agreements were never intended to succeed. None of the three countries had a functioning asylum system when the agreements were reached, and experts argued that none of the countries could safely take in asylum seekers, since their own citizens were often fleeing themselves.
There’s also the Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP), two expedited adjudication programs we covered in a previous edition that condense the lengthy asylum process into less than two weeks.
On top of all of that, the administration has begun charging fees for asylum seekers, allegedly due to U.S. Citizenship and Immigration Services’s perpetual budget woes.
There are also policies that haven’t gone into effect, such as a 2018 ban on asylum for anyone who crossed between ports of entry, commonly called the “first asylum ban,” which was ultimately blocked by a federal judge. And there’s a slew of smaller, less visible changes: asylum seekers who pass their credible fear screenings, for example, are now regularly detained throughout the entirety of their case. Some unaccompanied children’s hearings are now conducted over video conference, despite outcry from attorneys and legal advocates.
Looked at together, these interlocking policies reflect the administration’s stance on asylum and migration in general. Back in September, an immigration official told reporter Lomi Kriel, formerly of the Houston Chronicle, that the administration “is throwing all the spaghetti against the wall to see what's going to stick.” Or, as a National Security Council official said in an email to CBP officials, these policies serve to “multiple unsolvable dilemmas to impact [migrants’] calculus for choosing to make the arduous journey to begin with.”
If implemented, this rule is standing on very shaky legal ground. The government is essentially saying that it has a process currently underway to enact a particular rule, but it’s going to preempt its own process by enacting basically the same rule without any public notice or comment. It will probably argue that the emergency nature of the pandemic is forcing it to move ahead on its own timetable. Remember, the CDC order is still in place, kind of rendering this point moot. The administration continues to have the authority to simply expel any asylum-seekers apprehended at the border, and obviously the ability to deny them asylum as well is irrelevant to the supposed objective of preventing the spread of disease.
If the order is enacted, it’s unclear how it would intersect with the CDC order. Expulsions are the fastest option for the administration to turn back migrants, but the administration retains the discretion to not expel migrants. It would seem a bit sadistic for border officials to decline to expel asylum seekers only to immediately deny asylum and withholding and deport them on the spot, but that’s likely what would happen.
Aside from the potential rule, other asylum bars still remain in effect. Notably, an asylum cooperative agreement with Guatemala is still technically in effect, and permits asylum seekers to be sent there to apply for asylum. However, an asylum bar based around having been present in a contiguous country in the two-week period preceding an entry is extremely easy to establish, requires no coordination with another country, and, with a streamlining of expedited removal, could cause deportations to occur in an extremely short timeframe. It wouldn’t be as fast as an expulsion, but would allow the administration to prevent pretty much all current asylum seekers from applying to asylum ever again.
As with many of its other asylum policies, the latest order would also effectively act as a backstop in case its other policies were struck down by the courts. The CDC order is currently in litigation, but having this rule in effect would make it so that, in the event a judge enjoined the expulsion policy, asylum seekers could still be quickly removed.
Under the Radar
COVID-19 slows immigration court case completions to a halt
A new report by researchers at Syracuse University shows the degree to which coronavirus has affected the immigration courts, with hundreds of thousands of hearings being put on hold as courts across the country shut down. More than 40,000 cases were completed during the first two months of 2020—but after the pandemic began, the number of cases dropped precipitously, first to just over 26,000 in march and to 6,460 in April.
The immigration courts have been in a state of chaos since March, when the Executive Office for Immigration Review, the agency within the Department of Justice that oversees the immigration court system, decided to keep the courts open. EOIR later suspended all in-person hearings, as well as hearings for people subjected to the Remain in Mexico policy, but kept the courts open for detained hearings. According to the TRAC report, non-detained hearings have fully resumed at just two locations: the Chicago and Newark immigration courts.
For months, there have been sporadic shutdowns of certain courts, usually after it’s determined that someone in the court building—be it a judge, staffer, ICE attorney, or immigrant detainee—tested positive for coronavirus, potentially exposing dozens of people. EOIR has taken to announcing court closures the night before, often via Twitter. When that happens, everyone’s hearing date gets pushed back by weeks or months, and some non-detained immigrants say their hearings have been pushed back by several years.
What will happen to DHS’s unlawfully appointed officials?
Last week, the Government Accountability Office determined that acting DHS secretary Chad Wolf and acting deputy secretary Ken Cuccinelli had both been improperly appointed to their positions. In other words, the two top DHS officials have been serving unlawfully for months, potentially rendering every policy they’ve helped implement both unlawful and invalid.
The Trump administration has notoriously relied on “acting” officials for a number of positions, especially within DHS. This has allowed the administration to fill cabinet positions without having to go through the Senate confirmation process. The Federal Vacancies Reform Act prohibits acting officials for serving in excess of 210 days, and earlier this year, a federal judge ruled that the administration violated that act by making Cuccinelli the acting director of USCIS. Cuccinelli was later promoted to “senior official performing the duties of the deputy secretary,” a position that allows him to skirt the vacancies act.
The GAO referred the matter to DHS’s inspector general. It’s possible that the IG will determine that both officials were unlawfully appointed, calling the legitimacy of their actions into question. There are a number of lawsuits currently arguing this very thing, and given the GAO report, a judge could very well rule in the plaintiffs’ favor. But DHS maintains that the administration has done nothing wrong. “We wholeheartedly disagree with the GAO’s baseless report,” an agency spokesperson told Politico.