Week 8: New pilot programs and procedural sleight of hand further limit asylum access

Immigration news, in context.

This is the eighth 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.

The Big Picture

Even when migrants are allowed to apply for asylum, new obstacles make it almost impossible to obtain

The News: In late October, the Washington Post reported that the Trump administration had created a secretive new program to expedite credible fear interviews and deportations for migrants caught up in the asylum ban. This week, BuzzFeed News revealed that a separate program exists to speed up asylum cases for Mexicans. Along with other procedural shifts, this makes it even harder for migrants to be granted asylum.

What’s happening

If there’s one through-line of the Trump administration’s approach to immigration generally and asylum specifically, it’s the implementation of several small and somewhat arcane policies that, like the gears of a clock, will tick together in unison to collectively achieve his restrictionist agenda. (Or, to a greater extent, Stephen Miller’s agenda.) Asylum has been one of the administration’s greatest focus areas, and these developments are a case in point.

The Prompt Asylum Claim Review (PACR) program, first revealed in the Washington Post, is essentially the most draconian implementation of the asylum ban, which was permitted to go forward by the Supreme Court as litigation against it continues.

For now, the PACR program is only being piloted in the El Paso area, but like the Migration Protection Protocols (MPP) before it, this is a prelude to a rollout all across the border. Under PACR, migrants stay in Customs and Border Protection (CBP) custody while their asylum claims are adjudicated, a process that has been condensed to no more than 10 days. This is not only shorter than the typical process; it’s orders of magnitude shorter than the months or years that such a determination typically takes. 

In this regard, the federal government is demonstrating the effectiveness of duration times at both ends of the spectrum in preventing access to protections: too fast, and migrants don’t have enough time to gather evidence and prepare with attorneys; too slow, and conditions may change, evidence becomes outdated, and witnesses become unavailable.

Asylum seekers placed in this program reportedly have one day to contact family or an attorney by phone before having a credible fear interview (CFI). These interviews have always required some prior preparation, but the asylum ban ups the ante by making almost all non-Mexican migrants ineligible for asylum and thus dependent on two avenues of legal relief that are both inferior and harder to obtain: withholding of removal and protections under the Convention Against Torture. Both require an applicant to demonstrate that they are “more likely than not” to face persecution or torture, and have no paths to permanent residency and subsequent citizenship.

Holding asylum seekers in in CBP custody as opposed to releasing them or even keeping them in ICE custody has the intentional side effect of preventing meaningful consultation with attorneys, who are generally not allowed in these facilities. 

Under federal regulations, asylum seekers may consult with an attorney prior to their fear screenings, provided such consultations “not unreasonably delay the process.” This consultation is by no means guaranteed. The attorney “may be present at the interview and may be permitted, in the discretion of the asylum officer, to present a statement at the end of the interview,” but isn’t necessarily allowed to otherwise participate (8 C.F.R. 208.30(d)(4)).

Asylum seekers who  fail their credible fear interviews are entitled to appeal the decision to an immigration judge. Under PACR, this appeal is heard by a judge in New Mexico over the phone. The phone hearings might seem like a due process violation, but their availability is actually codified in the law, which reads that an immigration judge shall evaluate the claims “either in person or by telephonic or video connection” (8 U.S.C. 1225(b)(1)(B)(iii)(III)).

The problem with this program —  at least in the eyes of the administration —  is that it doesn’t apply to Mexican asylum seekers, who are not subject to the asylum ban’s provisions. 

To address this, the administration created an almost identical program, first reported by BuzzFeed News, which throws many of the same sets of obstacles in their way. Like PACR, the Humanitarian Asylum Review Process (HARP) gets asylum claims adjudicated within 10 days, keeps Mexican migrants in CBP detention away from counsel, and allows denials to be appealed to a judge over the phone. 

Unlike their non-Mexican counterparts, Mexican migrants can still be granted asylum, but passing a CFI with little to no legal guidance remains very difficult; by the time they’ve understood how to build their case, they may already have been deported.

The administration also expanded MPP yet again, this time to the Eagle Pass area. While adjudications under MPP don’t occur on the accelerated timeframe of the PACR and HARP programs, asylum seekers’ forcible return to Mexico accomplishes the same goal of preventing access to counsel and stunts the ability to prepare for a case. Many people find it difficult to return for their court dates. 

Recent reporting by the San Diego Union Tribune highlights a particularly disturbing new trend: even when some asylum seekers in MPP have had their case terminated, or been ultimately granted asylum, CBP officers have unexpectedly sent them back to Mexico with false future court dates. No law or regulation to cite on this one; it appears to be straight-up fraud.

Collectively, these are additional cogs making asylum or other humanitarian relief for migrants at the southern border both a legal and practical impossibility.

How we got here

As we’ve written before, a lot of the Trump administration’s asylum policies appear to be the result of a persistent belief that asylum seekers are faking their claims. The rule implementing the “asylum ban” specifically cited the high rate of asylum denials as proof that most migrants’ claims are “meritless” — even though a lack of access to counsel is a massive hurdle for asylum seekers hoping to get a fair day in court.

Most Trump policies — from the asylum ban to the Migrant Protection Protocols to the agreements to send migrants to Central American countries — stem from the belief that asylum seekers are lying about being persecuted to gain admission into the U.S. These policies were collectively effective because, in recent years, most migrants who requested asylum at the U.S.-Mexico border were from countries other than Mexico — something that has changed over the past few months.

Mexican asylum seekers are increasingly asking for relief at the border, which has decreased the impact of the administration’s signature asylum policies. For one, Mexican migrants can’t be enrolled in the Migrant Protection Protocols — though some have been — because doing so would violate the principle of non-refoulement, i.e., not sending asylum seekers or refugees back to a country where they’re being persecuted. Mexican nationals can’t be metered for the same reason, although Customs and Border Protection agents have turned away Mexican asylum seekers who presented at ports of entry in recent weeks, forcing Mexican asylum seekers to set up encampments in cities like Juarez and Matamoros while they wait to be let into the U.S.

The Mexican nationals asking for asylum at the border can be broadly divided into two groups: people fleeing gang violence and drug cartels, and indigenous asylum seekers from southern states like Chiapas and Guerrero.

What’s next?

The pilots will probably soon be expanded from just El Paso to other sections of the border. Something like this is particularly attractive to the administration because it boosts completion numbers very quickly. A constant boogeyman for Miller and Trump has been so-called ‘catch and release,’ a byproduct of the Flores settlement, which limits the amount of time minors can spend in restrictive immigration custody and often forced the government to release families into the interior of the country as their asylum cases played out.

Instituting MPP partly resolved this ‘problem’ by forcing most non-Mexicans to wait in Mexico as their cases moved forward. However, case processing times still allowed immigration attorneys time to get involved and prepare clients, and Mexicans were exempt, and still had to be allowed into the country (if they waited long enough to be allowed to apply for asylum at a port of entry, or ultimately crossed the border illegally).

PACR and HARP overcome the Flores limitations by running through asylum adjudications so quickly that migrants families never hit the 20-day limit of how long minors can spend in CBP custody. Once they’ve applied, they’re never released into the interior of the United States or even to Mexico, making the first moment they spend outside of very restrictive detention likely their deportation. It’s de facto an almost automatic denial of protections, particularly for non-Mexicans who can no longer receive asylum, but also for the rising number of Mexicans who theoretically still could.

Even more so than other asylum restrictionist programs implemented by the administration, the lightning-fast timeline of these deportations and the isolation of asylum seekers in detention makes it very difficult to keep track of. We know of some PACR deportations because the migrants had legal representation ahead of time. If large numbers of people start being put through the programs, there won’t be much visibility into their functioning or time for mobilization before many migrants are quickly removed. It will be hard to assess how many may have had valid claims that they were never prepared to successfully present without the advice of an attorney, and hard to verify whatever numbers the administration puts out. Things will be pretty opaque from the moment asylum seekers arrive at the border to the moment they’re deported.

The programs should also be understood as an intermediary step to the administration’s ultimate goal of preventing most migrants from even applying for asylum in the first place. The government is preparing to begin sending migrants to apply for asylum in Guatemala any day now, and is continuing to pursue the implementation of similar deals with Honduras and El Salvador. In the end, the idea is to have a full menu of options for impeding, roadblocking, and rejecting asylum claims for migrants at the southern border. 

We can also expect to see the administration continue to use obviously legally deficient tactics like fake future court dates in MPP cases to seal whatever cracks remain in its asylum wall. Even if these practices run afoul of the law, it only matters if someone brings a legal challenge. At the current volume of immigration-related legal battles, they know the parties who could bring such challenges are stretched pretty thin.

Under the Radar

A bipartisan amnesty bill could provide status to 325,000 undocumented immigrants

A bipartisan immigration bill introduced in the House this week could provide a path to citizenship for an estimated 325,000 undocumented agricultural workers — roughly 2% of the total unauthorized population in the U.S. 

The bill, called the Farm Workforce Modernization Act of 2019, would give special “Certified Agricultural Worker” status to immigrants who have worked in agriculture for at least 180 days over the past two years. The status would be renewable, and workers with at least four years in the industry — who also pay a $1,000 fee for being in the country without authorization — would get a pathway to a green card and, ultimately, citizenship. 

Farmers acknowledge their industry’s dependence on immigrant labor and have increasingly relied on temporary agricultural visas amid an overall decrease in undocumented workers coming to the U.S. It’s no surprise that agricultural groups support the bill, and as Vox’s Nicole Narea has pointed out, it has gotten seemingly unlikely support from 20 Republican members of Congress who represent major agricultural districts. But it’s unclear if it’ll go anywhere: A similar bill failed to garner significant Democratic support in 2018, and it’s unlikely that Senate Republicans will back such a bill now.

Bernie Sanders rolls out his immigration plan 

The Vermont senator and Democratic presidential candidate released a comprehensive immigration plan on Thursday that would not only end the Trump administration’s signature immigration policies — including the MPP and Safe Third Country agreements with Central American countries — but would also fundamentally change the way immigration enforcement is handled.

Among other things, Sanders’ plan would halt all deportations while the federal government audits “current and past practices and policies;” end all for-profit immigrant detention; provide aid to Latin American countries to help stem migration flows; expand DACA and create similar protections for undocumented parents of DACA recipients, permanent residents, and citizens; provide funds for immigrant defense; and create a pathway to citizenship for undocumented immigrants who have lived in the country for at least five year. 

Though Sanders isn’t quite calling for the abolition of ICE, he does want to restructure the Department of Homeland Security, which was created in 2003 in the wake of 9/11 and which oversees most federal immigration policies. (Immigration courts are under the purview of the Department of Justice, and refugee resettlement is partly handed by the Department of Health and Human Services, as is the sheltering of unaccompanied migrant kids.) DHS component agencies like ICE and CBP would be reassigned to other federal departments.

Sanders’ plan would also eliminate 8 U.S. Code Section 1325, the statute that makes illegal entry a crime, and perhaps most importantly, repeal the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which essentially created modern immigration enforcement as we know it. 

He’s not the first candidate to make some of these proposals. Julián Castro unveiled his immigration plan, which contains many of the same provisions, in April. Elizabeth Warren rolled out her immigration plan in July. But while both Warren and Castro’s plans would reverse decades of restrictive immigration policies, Sanders’ is arguably the most progressive of the three so far.

Next Destination

SCOTUS to hear DACA case

On Tuesday, November 12, the Supreme Court will hear arguments in three consolidated cases —  Department of Homeland Security v. Regents of the University of California, Trump v. NAACP and McAleenan v. Vidal — challenging the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program. DACA has certainly seen its fair share of legal battles, with states and other entities alternately suing to preserve and terminate it. In this particular case, SCOTUS is not ruling on the legality of the use of executive authority to implement such a deferral program per se, but rather on the question of whether Trump’s decision to end it was appropriate.

When the administration tried to wind down the program, the courts stepped in and blocked a full dismantling; at present, the government continues to accept renewal applications for about 700,000 young undocumented people who were already protected by the program, though no new applications are being processed. With a pretty slim likelihood of a permanent solution for Dreamers passing in Congress, the preservation of DACA is the only foreseeable way for these immigrants to maintain work authorization and protection from deportation.

The government’s argument boils down to an assertion that it is acting within its discretion to end a program that was created by executive action in the first place and is not based on any specific law, and this decision is not reviewable by the courts. The plaintiffs have countered that the administration’s stated rationale has been that it believed that DACA was unlawful in the first place, and its arrival at this conclusion and decision to end the program are subject to review and compliance with the Administrative Procedure Act, which prohibits capricious rule-making. As in many other such legal cases, Trump has been his own worst enemy, as his contradictory and confusing statements on DACA over time have been used as evidence of an arbitrary process.

SCOTUS could rule that it has the power to review this decision and that it was an unlawful decision; that it has the power to review it and it was lawful; or that it does not have the power to review it. The former would preserve the DACA program. The latter two would allow it to end. The court is expected to issue a ruling sometime early next year.