Week 51: Refugee admissions slashed in eleventh-hour decision
Immigration news, in context.
This is the fifty-first 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.
If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.
This week’s edition:
In The Big Picture, we look at the Trump administration’s plan to cut refugee admissions to their lowest-ever level.
In Under the Radar, we examine a ruling blocking fee increases for immigration benefits applications.
In Next Destination, we discuss another ruling partially blocking an attempt to ban certain work visas, and a new proposed rule that could further target low-income would-be immigrants and their U.S. sponsors
The Big Picture
The news: In a statutorily-required report to Congress filed just a half hour before fiscal year 2021 was set to begin, the Trump administration indicated that it would limit refugee admissions for the year to 15,000 individuals, the lowest refugee ceiling in the program’s history.
What’s happening?
As we have noted previously, U.S. law gives the president the final say on refugee numbers for any given fiscal year. While the executive is required to engage in “appropriate consultation” with Congress, under 8 U.S.C. 1157(a) they ultimately have the authority to set a total ceiling and specific allocations for refugees whose entry is “justified by humanitarian concerns or otherwise in the national interest.”
This must be done prior to the beginning of each federal fiscal year, which starts on October 1. Close to midnight on Wednesday, September 30, the president and the Departments of State, Homeland Security, and Health and Human Services finally sent the report, formally announcing that the cap was to be set at 15,000, breaking last fiscal year’s record low of 18,000 as the smallest number of permitted resettlements since the modern refugee program was created in 1980. The report itself was not immediately made publicly available by the administration, but a copy was obtained and posted by the Miami Herald.
The allocations are distributed among the following categories:
Up to 5,000 refugees who specifically have been “persecuted or have a well-founded fear of persecution on account of religion,” or are covered by a provision of law known as the Lautenberg and Specter Amendments, which broadly speaking are intended to lower the evidentiary standards and facilitate the resettlement of persecuted religious minorities in the former Soviet Union, Southeast Asia, and Iran.
Up to 4,000 refugees from Iraq, who were employed by the U.S. government, U.S. media and NGOs, organizations funded by the U.S. mission, or are religious minorities.
Up to 1,000 refugees who are nationals or habitual residents of Guatemala, El Salvador, and Honduras.
Up to 5,000 other refugees, including those who were already ready for departure by the end of the 2019 fiscal year.
The report repeatedly blurs the distinctions between the refugee and asylum programs, claiming that high volumes of asylum applications should be taken into account when setting the refugee numbers. Despite the fact that the requirements for qualifying as an asylee and refugee are virtually identical (and woefully outdated), the programs themselves are entirely distinct. There are no numerical limitations on asylum seekers because they are not resettled into the country as asylees; instead, any noncitizen in U.S. territory or at a port of entry can generally file an asylum claim (with limitations that have expanded enormously under the Trump administration).
Refugees, meanwhile, are processed outside of the country, typically being referred to the U.S. refugee program by the U.N. and undergoing years’ worth of applications and checks before entering the country already having been approved. It’s not even the same staff that handles processing for each of the programs, with the dedicated U.S. Citizenship and Immigration Services (USCIS) staff handling interviews and vetting, and the State Department taking point for the actual resettlement process for refugees. Meanwhile, a separate USCIS asylum officers corps conducts initial asylum interviews, and most asylum cases are decided in Justice Department immigration courts.
Nonetheless, the administration’s reasoning leans heavily on large numbers of asylum applications in recent years, noting that “[a]ccording to the UN High Commissioner for Refugees (UNHCR), the United States led the world in the number of new asylum applications received in calendar years 2017, 2018, and 2019.” The report does not note that the vast, vast majority of such applications, particularly in the last year, have been denied.
As with most of the administration’s immigration policy choices, this one also emphasizes a national security dimension, at one point lamenting that refugees are very hard to deport if the government determines that they pose some sort of safety threat, and “[d]ue to limits on the maximum amount of time such aliens can be held, it is likely that a refugee without a country to return to would be released into the interior of the United States.” It also references Executive Order 13780, better known as the second travel ban, which established restrictions on immigration from, among other nations, Yemen, Somalia, and Syria. Refugees were not included in this group, but this report states that the president now proposes to halt all admissions from these countries, except those who fall into one of the categories of special humanitarian concern, which here can only mean religious persecution. (The travel bans have also variously blocked refugee admissions, but those provisions are not currently in effect.)
This is in keeping with the report’s obvious preference for Christian refugees. The majority of those resettled under the various religious persecution provisions could be expected to be Christians of some sort; indeed, the report notes that for the 2019 fiscal year, the top country of origin for refugees was Ukraine, with almost 4,500 resettlements. This is a function of the Lautenberg Amendment, which was created in 1990 in large part to pave an easier path for certain Soviet residents, primarily Jews, to escape the Soviet Union, but which is now used to resettle large numbers of overwhelmingly Christian Ukranian refugees.
Refugee resettlements resumed in August after having been paused for months as a result of the coronavirus pandemic. The report notes that “[a]lmost 7,000 of the 18,000 refugee numbers available [in FY 2020] went unused. The President’s proposed refugee admissions ceiling for FY 2021 incorporates these places that might have been used if not for the COVID-19 pandemic,” a bizarre assertion that insinuates the refugee cap would have been set at something like 8,000 if all of this year’s refugee slots would have been used. The pandemic not only paused admissions but hamstrung new refugees’ progress in the United States, as our Felipe De La Hoz wrote in The New Republic in April.
How we got here
This fiscal year’s refugee cap is the lowest in the program’s history. The Trump administration has lowered the ceiling of refugee admissions every year since he took office. It was 45,000 in FY 2018, 30,000 in FY 2019, and just 18,000 during the last fiscal year.
Despite the administration’s claim that the steadily declining refugee ceiling is due to a rise in asylum applicants—a claim it also made last year—the real reasoning for the low number of refugee admissions is likely the president’s disdain for them. At a September campaign rally in Minnesota, Trump said Democratic presidential nominee Joe Biden would “turn Minnesota into a refugee camp.” He made the same comment at yet another campaign rally in Duluth this week, where he also accused refugees of draining America’s resources.
Still, it’s worth examining the administration’s reasoning, even if only to explain how ridiculous it is. Since March, the border has been effectively closed to asylum seekers due to an order issued by the Centers for Disease Control and Prevention issued in relation to the coronavirus pandemic. That order effectively says that the CDC can deny entry to anyone who could introduce or spread a communicable disease in the U.S., which the administration has interpreted to mean migrants, even though the U.S. has a more widespread coronavirus problem than many of the countries asylum seekers hail from. Rather than processing migrants at the border, the administration is “expelling” them, either back to Mexico or to their countries of origin. It’s unlikely that this will change any time soon, especially since the U.S. still doesn’t have the pandemic under control.
Additionally, a regulation proposed in June seeks to implement new restrictions to the asylum system, making it that much more difficult for migrants to obtain humanitarian protections in the U.S. The regulation would let asylum officers determine whether asylum applications are “frivolous.” It would also limit access to asylum for migrants who spent 14 days or more in any other country with an asylum system prior to their arrival in the United States. Those who manage to clear those hurdles—and others we looked at more in depth in a previous edition—would have to meet a narrower set of criteria to prove persecution in their country of origin.
There are plenty of other attacks on the asylum system to get into: the so-called “Asylum Cooperative Agreements” with Guatemala, Honduras, and El Salvador, which send asylum seekers to apply for protections there; the Migrant Protection Protocols, which forces asylum seekers to wait out their cases in Mexican border cities; the spate of precedential decisions from the Board of Immigration Appeals, which have tightened the qualifications for asylum; and so many others.
In short, there’s no validity to the claim that the low refugee numbers are intended to make up for a surge in asylum applications, because we’re no longer at a place where most migrants even make it to the stage where they can petition for asylum thanks to the CDC order. Even before the border closure, the administration was implementing a series of barriers to asylum, all with the goal of gutting the asylum program as much as possible.
As we explained in a previous edition, the administration has repeatedly tried to end refugee admissions in the past using different justifications. The executive order banning travel from certain Muslim-majority countries initially paused refugee admissions for 120 days and suspended the admission of Syrian refugees indefinitely. A subsequent executive order said state and local governments should “be granted a role in the process of determining the placement or settlement” of refugees there, requiring governments to affirmatively consent to refugee resettlement.
What’s next?
Congress is free to weigh in on the numbers, but statutorily the president gets to implement a total ceiling and designate specific categories for admission. Refugees who were approved but not resettled in this past fiscal year do remain eligible for resettlement, though it can be a difficult balancing act to keep all of the documents and authorizations valid and unexpired long enough to actually travel to the United States.
Late last year, the president had signed an executive order that attempted to give states and localities veto power over the resettlement of refugees in their jurisdictions. The policy was enjoined in January, but remains in litigation and could come into play again if a higher court lifts the injunction or rules in favor of the administration.
The resettlement program is currently active, but could certainly be suspended again if there’s another coronavirus spike in the fall, as some experts predict. A number of states have increasing infection rates, and Trump could certainly use the ongoing pandemic as an excuse to stop resettlements again, even if the active spread is mostly in the United States and not among the nations the refugees would actually be coming from.
USCIS itself also continues to face the prospect of deep furloughs, which did not ultimately come to pass in August but which could still occur at some point in the future. The agency furloughs were expected to affect about 70 percent of its entire workforce, which would probably slow down processing of refugee applications.
Under the Radar
Federal judge temporarily blocks USCIS fee increases
Starting this Friday, people applying for U.S. citizenship, asylum, or other forms of humanitarian protections were supposed to pay exorbitant fees to do so, allegedly to help alleviate a budget shortfall within U.S. Citizenship and Immigration Services. The agency, which has had funding woes under the Trump administration, was about to begin charging $1,170 for naturalization applications (up from $640) and a first-time fee of $50 for asylum.
A federal judge in California temporarily blocked the fee increase on Thursday, just a day before it was supposed go into effect. He determined that the hike violated the Administrative Procedure Act—a law requiring the federal government to lay out clear and substantive bases for administrative decisions—as several Trump administration immigration policies have been found to do. There hasn’t been a final ruling yet, but it’s likely that the judge will rule against the administration.
Notably, the judge also took issue with the appointment of acting DHS secretary Chad Wolf, who the Government Accountability Office recently determined had been unlawfully appointed to his position. This could affect a number of other lawsuits, since plaintiffs can argue—and some already have—that DHS’s recent policies have been invalid since they were done under the purview of an unlawfully appointed official.
Next Destination
Judge issues limited injunction against work visa ban
A separate federal judge blocked the administration's full implementation of a June presidential proclamation that limited access to H, J, and L-type visas on the grounds that they were hampering Americans’ job prospects. The injunction does not apply across the board, instead limiting the government’s ability to block visas for prospective employees of the organizations represented by the lawsuit’s plaintiffs, which are the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation, tech industry group TechNet, and cultural exchange facilitator Intrax Inc. These groups collectively encompass hundreds of thousands of U.S. employers.
The decision is at odds with an earlier decision by a separate federal judge, which means the matter will be escalated to the circuit level. The ruling did not address other restrictions purportedly meant to address the pandemic’s economic impact, such as a still-active ban on most immigrant visas.
New proposed policy is public charge 2.0
DHS is proposing an affidavit of support rule requiring anyone who has received means-tested benefits in the last three years—such as SNAP, Medicaid, or housing vouchers—to have a sponsor for their petition. As the American Immigration Council’s Aaron Reichlin-Melnick noted on Twitter, the rule would place significant burden on people who want to sponsor immigrant family members, as it would require them to submit personal banking information, credit reports and credit scores, and copies of their tax returns.
As with the “public charge” rule, which counts people’s use of means-tested public benefits—or their potential use of benefits in the future, which is entirely speculative—against them when applying for green cards, the new affidavit of support rule is intended to reduce legal immigration. More specifically, it’s intended as a hurdle for low-income immigrants,
The rule has to go through the required 30-day comment period, after which it may be modified depending on public comment. It’s likely that there will be a legal challenge, as there was with public charge. That said, the public charge rule was eventually allowed to move forward in all but three U.S. states.
It’s noteworthy that the administration doesn’t seem to have reduced the pace of immigration-related rule-making as the election gets closer. There’s a chance—especially if Trump loses the election—that the administration will continue making immigration policy changes until the last possible moment, which raises questions about whether a Democratic president would undo Trump-era immigration policies, and which ones they would reverse.