Week 46: Special Edition — USCIS furloughs cancelled, new rules for immigration courts, asylum seekers, and data collection, leadership changes at DHS
Immigration news, in context.
This is the forty-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:
This week, we’ll be digging into six recent immigration-related developments:
The narrowly avoided furloughs at U.S. Citizenship and Immigration Services
A proposed new rule expanding the administration’s control of the immigration courts
The ongoing appointment issues at DHS
The latest news regarding the administration’s policy of detaining unaccompanied migrant children in hotels
New employment rules limiting asylum seekers’ ability to legally work in the U.S.
A new CBP database that gives border officers even broader surveillance capabilities
USCIS cancels planned furloughs, but it’s not out of the woods
U.S. Citizenship and Immigration Services has been in a standoff with Congress for weeks, threatening to furlough about 70 percent of its workforce, which would effectively bring the immigration processing system to a standstill without a massive injection of federal funds. As we explained in more detail here, USCIS is almost entirely fee-funded, meaning its operation budget stems from the fees that applicants pay to file petitions for visas, DACA, work authorizations, TPS, residency, citizenship, and other immigration-related benefits.
A mix of massive workload increases related to the administration’s own heavy-handed policies—such as the reams of additional evidence required as part of its public charge rule—declining work and student visa applications from would-be applicants wary of dealing with the Trump administration’s capriciousness, and the impact of the COVID-19 pandemic caused the agency to adjust its 2020 fiscal year budget projections to a half-billion dollar deficit earlier this summer. The furloughs were planned in response to this supposed deficit, but then kept in place even as the agency abruptly reevaluated its financial situation to actually project a surplus, drawing the ire of a number of lawmakers who questioned why either an emergency $1.2 billion infusion or the furloughs were necessary.
The furloughs were supposed to go into effect this Sunday, August 30, but the plans were temporarily called off this week as the agency claimed it had the funding to make it through the end of the fiscal year, which in effect is just one more month (federal fiscal year 2021 begins on October 1). However, as Deputy Director for Policy Joseph Edlow said in a statement, “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.” Even prior to these developments, USCIS had been getting more sluggish and difficult to deal with, both due to formal policy changes—like rejecting visa applications for having any blank spaces, even where there was nothing to fill in—and a general sense of sloppiness and recalcitrance, with attorneys reporting that applications were being denied under incorrect reasoning or issued requests for evidence that was already provided, for example.
There’s no real indication that USCIS is unable to operate normally with its current cash flow; rather, these latest efforts to derail its operations should be properly seen as a continuation of a longer-term effort. Hamstringing the agency has been seen as a backdoor to achieving the administration’s broader immigration agenda items without having to enact policies that could face aggressive litigation. Collapsing the system can achieve the same goals of making immigration impossible with a lower likelihood of perilous litigation. USCIS is currently in the process of trying to dramatically raise its fees, and add for the first time a fee for asylum applications. Even if it is successful, however, that probably won’t affect its calculus for the furlough decision, because it’s not really about the budget.
Even without the furloughs, already astronomical processing times are likely to get even longer, to the point where even straightforward applications can be stuck for years. If the furloughs go through, every applicant could see additional years tacked on to the wait.
New rules to limit discretion and consolidate power in immigration courts
It has been a longstanding goal of the administration to shape the immigration court system into something resembling more an administrative processing extension of White House policy, as opposed to an impartial adjudicative body. Unbeknownst to a good deal of the public, the country’s immigration courts aren’t actually independent components of the federal judiciary. Instead, the entire immigration court system is contained within the Department of Justice, overseen by political appointees who have the power to hire and fire immigration judges, set policy, and issue decisions.
This task was enthusiastically undertaken by former Attorney General Jeff Sessions and his successors, and was turbocharged by the 2017 appointment of James McHenry as director of the Executive Office for Immigration Review (EOIR), the sub-agency that oversees the courts. McHenry was formerly a high-level ICE prosecutor, and has worked to fulfill the vision of a court system dedicated to executing the policy vision of the president’s immigration restrictionist advisers, mainly Stephen Miller. Our Felipe De La Hoz recently wrote about the transformation of the Board of Immigrations Appeals (BIA)—the appellate body within the court system—into such a politically-entangled body.
Now, EOIR has published a new proposed rule to the Federal Register, which would take a huge step forward in the ongoing mission to defang immigration judges, make cases increasingly unwinnable for immigrants facing deportation, and hand the ultimate authority to political actors. Perhaps most notably, the rule enormously expands the role of the EOIR director, who historically has had much more of a management than an adjudicative role. It would allow him to step in and issue decisions directly when an appeal before the BIA has been pending for longer than 335 days, which is just barely above the median timeframe for such a decision. The rule would also bizarrely give immigration judges the ability to essentially contest BIA decisions and remands on their cases by asking the EOIR director to intervene; the rule claims this would only apply in limited circumstances, but doesn’t really define what those circumstances are besides very general tenets.
It would also change existing federal regulations to specifically limit immigration judges’ and the BIA’s ability to administratively close cases. These closures have long been used by judges to suspend proceedings in certain cases where, for example, the respondent is awaiting an adjudication from USCIS or otherwise has a compelling humanitarian circumstance. The cases were neither resolved nor terminated, but functioned as a kind of escape valve to let judges set them aside and help tamp down on the immigration court backlog.
Sessions had previously tried to stop the use of administrative closure—and reopen all closed proceedings—through a unilateral A.G. decision, which was abrogated by a federal circuit court because it ran counter to federal regulations. EOIR is now trying to change those underlying regulations. The rule also wants to provide the BIA with the power to issue decisions itself, without needing to remand to the immigration judges, and otherwise limit both it and the judges’ ability to consider new facts in a case, reopen cases, and make all number of discretionary decisions. In effect, the rule is further trying to shift them into a purely bureaucratic role. The rule is in a public comment period until September 25.
Another Acting ICE Director, and Wolf officially nominated to lead DHS
Former chief ICE prosecutor Tony Pham has been named as the successor to acting ICE director Matt Albence. ICE has gone through numerous and turbulent leadership changes throughout the Trump administration, during which it has never had a Senate-confirmed director. Instead it has already gone through five different officials “performing the duties of the director,” including Albence, who was on his second stint in the role. The turnover has been partly as a result of the constant controversy and Trump’s sustained insistence on more draconian and often illegal agency practices. Former acting director Ron Vitiello, for example, had his nomination to the position withdrawn because Trump wanted to go in a “tougher direction.”
Pham is an interesting choice in that he is relatively new to the ICE bureaucracy. He joined the agency earlier this year and had previously not worked at all in immigration enforcement, instead running a jail and serving as a local prosecutor in Virginia (Ken Cuccinelli, an alleged top official at the Department of Homeland Security, was formerly Virginia’s attorney general and may have had a hand in Pham’s hiring). Pham will also serve in an acting capacity, and it’s unclear if the administration has any plans to formally nominate him.
In other nomination news, Trump said he is nominating purported acting Homeland Security secretary Chad Wolf to formally occupy his current role. The decision, particularly in the context of a president who’s been more than happy to have acting top officials littered throughout the administration, is probably a practical one. The Government Accountability Office recently found that neither Wolf nor Cuccinelli were legally serving in their roles, after former acting DHS Secretary Kirstjen Nielsen bungled intended changes to the department’s rules of succession. Both the administration and DHS have strongly disputed that finding, but the facts are pretty straightforward: under the rules set by Nielsen, her resignation should not have elevated Kevin McAleenan, and by extension his successor, Wolf, to the role. The GAO decision does not carry the weight of law, but several lawsuits are currently advancing the same argument.
If a federal judge agrees, it could top-level directives issued by both illegally-acting DHS secretaries. The nomination appears to be an effort to safeguard against those legal arguments, though it’s not clear that it would do anything to prevent a finding that the actions prior to Wolf’s nomination were appropriate.
Nearly 600 unaccompanied children detained at border hotels since March
The U.S. government has detained 577 unaccompanied migrant children in hotels before “expelling” them back to their home countries since March, according to a new court filing. Earlier this year, the Centers for Disease Control and Prevention issued an order effectively shutting down the border to all inadmissible migrants, ostensibly due to the coronavirus. (In this context, “inadmissible” means people without documentation allowing them to enter the U.S., including asylum seekers.) Border officials have rapidly turned away most migrants since the implementation of the CDC order—but unaccompanied children and some migrant families have instead been sent to hotels in the U.S., where they’re detained for days or weeks before being sent back to their countries of origin. (Adults traveling alone, meanwhile, generally get sent back to Mexico regardless of their country of origin. )
Expulsions are legally different from deportations, if not practically. The end result is the same: the person in question gets sent back to their country despite their wishes and against their will. But unlike deportations, expulsions don’t require adjudication—a migrant who is about to be “expelled” doesn’t get the chance to go before an immigration judge or consult with a lawyer, provided they can find and afford one. (Remember, immigrants in removal proceedings aren’t given free, government-appointed attorneys.) For months, immigrant advocates and attorneys have been sounding the alarm about every step of the expulsion process, especially the practice of keeping unaccompanied children and families in hotels with no access to legal counsel.
This latest court filing, submitted as part of an ongoing consent decree regarding the care of migrant children in government custody, says that 25 hotels across three states—with high rates of coronavirus—have been used to detain migrant children and families since late March. The youngest unaccompanied child detained in this network of hotels was 10 years old, and the average length of stay was 5 days, though at least one child was detained in a hotel for 28 days.
As the Texas Tribune’s Lomi Kriel and ProPublica’s Dara Lind previously reported, ICE agreed to test children for COVID-19 before expelling them to their home countries—which makes sense from a public health standpoint, but completely invalidates the stated reason for the expulsions. The CDC order is based on a law that allows the agency to deny entry to certain foreign nationals to “prevent the introduction” or spread of a communicable disease. By testing the children briefly in its custody, ICE is at the very least ensuring that they don’t return to their home countries with the virus, but it’s also exposing the rationale behind the CDC order as a farce.
New employment rules for asylum seekers go into effect
A number of changes regarding asylum seekers’ employment authorization documents (EADs) went into effect this week. The rules, first proposed last fall, make it much harder for asylum seekers to work in the United States while their cases are pending. They require asylum seekers to live in the U.S. for at least a year before they’re legally able to work, which would effectively force any asylum seeker without family resources to rely on charity, live in poverty, or work illegally while their case makes its way through the lengthy adjudication process. The rule also makes asylum seekers who enter the country without authorization—that is, by crossing between ports of entry rather than presenting themselves to a border agent at an official entry point—ineligible for work authorization. Any asylum seeker convicted of a felony or “serious non-political crime outside the United States” would also be ineligible for work permits. Anyone who is still able to obtain work authorization would have to submit biometrics and pay an $85 fee.
When the employment rule was first proposed in November, migrants were being “metered” at the border, meaning CBP would only let a trickle of them in each day, causing massive backlogs and forcing people to wait months before they could officially enter the country. Rather than wait, some migrants opted to cross between ports of entry, sometimes risking their lives in the process. Now that an order issued by the Centers for Disease Control and Prevention requires border officers to turn away virtually all migrants they encounter, it’s likely that unauthorized entries are becoming more common. If an asylum seeker were to make it across the border without being apprehended by immigration authorities, the new rule could prevent them from legally working at all while their case was processed (provided that their entry was recorded and they weren’t merely expelled) in a process that can take months if not years.
A group of immigrant advocacy organizations filed a lawsuit against the EAD rule in July, claiming that the administration violated the Administrative Procedure Act—a law requiring the federal government to lay out clear and substantive bases for administrative decisions, which has been the focus of several high-profile lawsuits against the administration, including the DACA litigation—and that Chad Wolf, the acting director of DHS, “has no valid claim to the office … and therefore lacked the authority to issue the rules.”
CBP’s new database lets it keep traveler data for up to 75 years
Customs and Border Protection has a new database that compiles and lets officers search through data collected from phones, computers, and other devices seized at the border, Motherboard reports. As Motherboard notes, CBP seizes tens of thousands of devices from travelers each year and keeps them indefinitely, even in instances where no one is charged with a crime. (Under 8 U.S.C. § 1357(c), CBP has the “power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States” as long as there is “reasonable cause to suspect grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.”)
Until recently, the agency could access data from any of the devices it seized, but it hasn’t had a singular searchable database until now. According to a CBP privacy assessment, the database could create a “risk that irrelevant information extracted from devices will now be accessible to a larger number of (US Border Patrol) agents with no nexus to that particular case.” Still, CBP told Motherboard that the information obtained through device seizures is useful in “combating terrorist activity, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud,” adding that the agency has “strict guidelines to ensure that these searches are exercised judiciously, responsibly and consistent with the public trust.”
This isn’t the only way CBP is using personal data taken from people who haven’t been charged with a crime. As Motherboard reported this week, CBP recently paid $476,000 to a company that sells data analytics software using data collected from apps on people’s phones. The software lets agents look for devices in a particular area—say, along the border—and get the history on where a specific device has been. CBP told Motherboard that the software it purchased lets officers “view a limited sample of anonymized data consistent with existing border security or law enforcement operations.” (8 U.S.C. § 1357 (a)(5) gives border officers the authority to conduct arrests “for any felony cognizable under the laws of the United States”—not just immigration offenses—“if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.”)
Recommended reading: Returned, by Kate Morrissey and Lauryn Schroeder at the San Diego Union-Tribune.