This Week in Terrible Immigration News #3

Even though many of us care, abstractly, about immigration, it can be very hard to tell what exactly is going on in the world of immigration enforcement. Reporting on immigration issues in the mainstream media tends to be quite bad. Additionally, our immigration system, in terms of law and policy, is truly one of the most complicated and bewildering systems in existence, so its workings are difficult for sane human beings to comprehend. In “This Week In Terrible Immigration News,” I try to explain recent developments in immigration that I think are important for leftists, and human beings generally, to know and care about, and seek to untangle areas of confusion in mainstream reporting on immigration issues. I encourage readers to write in if there are other issues I’m missing that need greater attention or explanation.

I am an immigration attorney working in a detention center near the southern border. All opinions expressed here are my own, and not on behalf of any organization or group.

Hello everyone, and welcome back. This digest was incredibly hard to write, because every time I finished banging out a draft, some new bullshit happened and I had to restructure the whole thing. Even now, some new things are coming down the pike that I am having to leave out! It’s really amazing how many government bureaucrats wake up every morning with the fixed intention of devoting their entire day’s labor to crushing the lives of the poor! What a great country we live in.

TLDR: What’s happening

The government continues its thousand-pronged strategy to block immigrants from being able to seek asylum.

The government’s plan to trap asylum-seekers in Mexico, officially known as the “Migrant Protection Protocols,” is steadily expanding across the border.

Border Patrol officials can now detain and deport immigrants throughout the country without even giving them a chance to go before a judge.

Our refugee resettlement program is on the verge of complete elimination.

Elizabeth Warren has an immigration platform now, and it’s not bad!

TLDR: What you can do about it

Call your currently-preferred presidential candidate and let them know that ending MPP/Remain in Mexico, ending immigration detention, and dismantling the police state for immigrants are issues that matter to you. Encourage them to attend one of the mass court proceedings in El Paso for asylum-seekers placed in MPP, for example, and bring more press to the issue generally. Encourage them to visit the Mexican side of the border across from San Diego, El Paso, Eagle Pass, Laredo, or another place where asylum-seekers are being blocked from crossing or forced to return, so they can see the conditions there. For your reference, Bernie Sanders’ staff can be reached at 202-224-5141, 802-862-0697, or 800-339-9834, while Elizabeth Warren’s staff can be reached at 202-224-4543, 617-565-3170, or 413-788-2690.

If your currently-preferred presidential candidate is Bernie Sanders, call him and ask if he’s read Elizabeth Warren ’s and Julián Castro ’s immigration plans, and inquire how he plans to improve upon them.

If you speak Spanish or another language, look for a local organization that might need help with Know Your Rights presentations to advise people on how to avoid being picked up and placed in expedited deportation proceedings.

Participate in (or organize!) an anti-ICE protest near you!

If you learned anything new from this digest, tell at least five people in your life that you think might not know either.

All right, here we go. These items are in no particular order of priority, because there is TOO MUCH HAPPENING—

The government has put forward a new rule barring people from asylum eligibility who pass through any other country on their way to the southern border (but for now, this rule has been temporarily suspended.)

I mentioned in my last digest that the government was working on a new regulation to thwart asylum-seekers who pass through other countries on their way to the United States. On July 16, the government rolled out what’s called an “interim final rule,” declaring that asylum-seekers who approach the southern border will be ineligible for asylum in the United States unless they have attempted to seek asylum in at least one of the other countries they travelled through on the way here. The only exceptions are (1) people who have already applied for asylum in another country and been denied there, (2) people who have been victims of “severe” human trafficking, whatever that means, and (3) people who have only passed through countries that aren’t signatories to the Refugee Convention or the Convention Against Torture, which ISN’T EVEN PHYSICALLY POSSIBLE, because you can’t approach the southern border without passing through Mexico, and Mexico is a signatory to all of these treaties. Because this regulation was an “interim final rule” promulgated under “emergency” conditions, the government claimed that it didn’t need to be put through the usual 90-day notice-and-comment process, and that it could go into immediate effect.

Two lawsuits were filed against this new rule, and one of them (brought by the ACLU and others in the Ninth Circuit) resulted in an injunction on July 24, which means that the rule can’t be applied anywhere in the country for the time being. The judge who granted the injunction, Jon Tigar, is the same judge who granted the injunction against the presidential proclamation in November 2018 that was supposed to make asylum-seekers who crossed the border anywhere other than a port of entry ineligible for asylum. Injunctions are not a permanent fix, however—they just mean that the government can’t continue implementing its desired policies while these cases are making their way through the courts. And what will happen if and when these two cases make it up to the Supreme Court is far from certain: The Court has traditionally given the executive branch extraordinary deference when it comes to national security and foreign affairs. We saw with the Muslim Ban case that the government only had to minimally reformulate its original policy to make it acceptable to the Supreme Court, despite extensive evidence that the policy was primarily motivated by religious and racial animus. (Note also that just a few days ago, the Supreme Court voted to lift an injunction that had temporarily barred Trump from diverting funds from other departments to build a wall on the southern border.)

I’m certainly relieved by court injunctions in the short term (not least of all because rules like this have an immediate impact on my work with asylum-seekers near the border—the new rules from both July 2019 and the November 2018 raised the standards for the screening interviews that asylum-seekers must pass to avoid summary deportation; every time the government tries something like this, we have to scramble to formulate new arguments and strategies in real time). We can’t afford to be complacent. The Trump administration is seeking to limit asylum eligibility by as many avenues as possible, and they don’t need all, or even most, of these tactics to succeed to accomplish their goals. Just for reference, here’s a list of a few of the things the government is simultaneously trying to push through:

Reduce legal protections for children in order to make them eligible for indefinite detention.

Force parents to choose between being separated from their children or being detained alongside them. Then establish a broad policy of detention for all asylum-seekers throughout the duration of their proceedings.

Make virtually all asylum-seekers ineligible for bond, ensuring their indefinite detention.

Make everyone who crosses the border between ports of entry ineligible for asylum, while simultaneously blocking off all the ports of entry.

Return all non-Mexican asylum-seekers to Mexico for the duration of their proceedings.

Make all non-Mexicans who pass through Mexico on their way to the U.S. ineligible for asylum.

Use the Attorney General’s powers to reverse favorable precedents for the legal defenses that are most readily applicable to the people fleeing to our southern border.

There are significant redundancies (and even some contradictions) between these different policies: They don’t fit together into a coherent whole. Trump’s immigration advisers know full well that some of these tactics are long shots. They’re simply trying to keep immigration advocates continuously busy with new legal battles, and maximize the slate of options available to the government so it can punish people for seeking asylum. Really, only one of the above policies needs to clear the legal hurdles for the government to radically restrict the right to seek asylum. And, if we’re being pessimistic, odds are decent that at least one of them will succeed.

And speaking of new tactics to block asylum-seekers…

2. The U.S. apparently just signed a Safe Third Country Agreement with Guatemala

The Trump administration announced yesterday that it has reached a Safe Third Country Agreement with Guatemala. The full details of this agreement are not yet public, but it would necessarily require any Salvadorans or Hondurans who pass through Guatemala on their way to the U.S. border to apply for asylum in Guatemala first. (You will observe that it is geographically impossible to reach Mexico overland from either El Salvador or Honduras without passing through Guatemala—although I suppose the coyotes could start charting some sea routes. What could go wrong?)

Rumor has it that the president of Guatemala initially balked at signing this agreement, but caved after Trump began threatening punitive tariffs and a travel ban for Guatemalan citizens. It’s unclear whether the agreement is actually legal under the Guatemalan constitution—I know very little about Guatemalan law, so I am relying purely on secondhand reporting here, but The Guardian tells me that “Guatemala’s constitutional court has granted three injunctions blocking its government from entering into a deal without approval of the country’s congress.” The Guatemalan government has been vague about what the agreement entails on their side and has avoided referring to it as a “safe third country” agreement, so—who the fuck knows.

At the moment, our only other Safe Third Country Agreement is with Canada—meaning that, if you pass from Canada into the U.S., or vice versa, you’ll be bounced back to apply for asylum in whichever country you entered first—but there are a lot of exceptions built into the treaty. First of all, if you make it across the U.S.-Canadian border undetected and then apply in the interior of the country, the bar doesn’t apply. If you are apprehended at the border, the bar won’t apply to you if you’re an unaccompanied minor, if you have family members who are citizens or permanent residents, if you hold certain kinds of visas or permits, or if applying the bar is not in the “public interest.”

At this stage, it’s totally unclear what the enforcement of this Guatemalan agreement would look like (would qualifying asylum-seekers actually be physically sent back to Guatemala, or would they merely be found to be ineligible for asylum at their final hearings?), or how the government would ensure that this enforcement didn’t clash with our binding obligation under both international and domestic law not to send people back to territories where they will face persecution. Designating Canada a “safe” country has a kind of logic to it (since it’s difficult to imagine a persecutor that could act with impunity in Canada and not the U.S.), but there’s abundant documentation that many Salvadoran and Honduran asylum-seekers are fleeing criminal organizations that are also present in Guatemala, to say nothing of the fact that the borders between these countries are highly porous.

We know very little about the agreement at this point, so we’ll just have to wait and see what happens.

3. The “Migrant Protection Protocols,” a.k.a. “Remain in Mexico,” rolls out in Nuevo Laredo, with a rumored expansion to the Rio Grande Valley forthcoming.

Every one of these digests until further notice is going to contain at least one item entitled “MPP IS STILL HAPPENING,” because I still think this is actually the most dangerous of the Trump administration’s new border policies, even though it’s probably getting the least amount of media attention. For new readers, the “Migrant Protection Protocols” is a misleadingly-named program[1] under which asylum-seekers are given court dates in the United States, but are forced to stay in Mexico—where there is absolutely no infrastructure in place to physically support and protect them, much less to provide them with legal services—between those court dates. This means stranding resourceless asylum-seekers, including families with small children, in Mexican border towns with very high murder rates. MPP is so inhumane that even the union for Asylum Officers, who are employees of the Department of Homeland Security, has publicly spoken out against the program and also provided supporting evidence for a lawsuit seeking to halt it.

MPP has now been expanded to San Luis and Nuevo Laredo. In Laredo, they’ve begun building big tents that will serve as “virtual immigration courtrooms where immigration judges can preside over cases via video conferencing.” Concentrating legal proceedings ever-closer to the border, away from regular immigration courts, is a deliberate tactic to further isolate asylum-seekers from any practical access to legal services—to say nothing of mental health services, community supports, and their family members waiting in the U.S.—in order to hasten their deportations. Rumor has it that MPP will soon expand to the Rio Grande Valley, which has the highest volume of border crossers (and is, in particular, where the majority of families with children present themselves.)

As of right now, the government is still only putting a random subset of individuals into MPP—I ran into a family just this week where the mother had been sent to a family detention center with one child, and the father had been put into MPP in Mexico with their other child. The majority of asylum-seekers are still not being sent back to Mexico through MPP: many are indefinitely backlogged at ports of entry on the Mexican side of the border and not allowed to apply for asylum at all, while others are sent to immigration jails inside the U.S., or given court dates at the border and released into the interior. But the government is clearly looking to expand MPP’s capacity in the near future, and MPP hasn’t been immediately enjoined in the courts the way some of Trump’s other policies have been. Outsourcing the bad conditions in U.S. border cells to the Mexican side of the border, conducting mock hearings in tents just inside the U.S., and then denying claims en masse is a great way to pay lip service to the U.S.’s legal obligations to asylum-seekers while simultaneously hiding their suffering from the public eye. I am not sure MPP will ever become totally universal, because private prison companies make an enormous amount of money detaining immigrants inside the United States, and will lobby hard to protect that cash cow. But I do think MPP will continue to grow, and become more and more normalized, unless something is done to stop it.

4. Super-fast extrajudicial deportation proceedings can now happen anywhere in the country.

You may have heard the term “expedited removal” floating around in the news recently and how it is being “expanded.” There are probably much better explainers out there already, but here’s my brief history of this terrible policy!

For a long time, the way our immigration system worked went like this: If you were apprehended in the U.S. by immigration officials who believed you did not have any legal right to be present in the country, you would be put into deportation proceedings and scheduled for a hearing before a judge to argue against your removal. This included if you were apprehended upon arriving in the U.S. to ask for asylum, which became a formalized process with the passage of the 1980 Refugee Act. It wasn’t common to detain people in large numbers while their deportation proceedings were pending in the courts (although the government did screw over would-be asylum-seekers in other ways, most notably by interdicting Haitians trying to come to the U.S. by boat, some of whom were then detained in fucking Guantanamo.[2]) Most immigrants would live and work in the U.S. while waiting for their court dates to come up.

Then, during the second Clinton administration, the Democrats and Republicans came together in a beautiful spirit of bipartisanship to pass a bill called the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Among other terrible consequences, the IIRAIRA established a new kind of rapid deportation proceeding that didn’t require pesky interferences like “judges” and “courts” and “opportunities to argue your case.” Basically, all that has to happen under expedited removal is that if a Border Patrol official asserts that you entered the U.S. without authorization and claims that you haven’t been continuously present in the United States for at least two years, then Border Patrol can sign your deportation order and ship you right out of the country. No hearings, no judges, no nothing. There’s a poorly-administered safeguard built into the process allowing people who assert fear of return to their country of citizenship to receive a screening interview from the Asylum Office, and the government has to do some kind of “investigation” if you assert under oath that you are in fact a citizen or permanent resident, but beyond that, there’s no legally-prescribed process for appealing your placement in expedited removal proceedings. If you don’t happen to have two years’ worth of receipts in your pocket when you’re detained, you may be shit out of luck. Even citizens and other people with legal status could end up detained and deported because they can’t prove their status, because Border Patrol believes their evidence is fraudulent, or because they have mental health issues preventing them from understanding their situation.

There has always been statutory language allowing this extrajudicial, super-fast deportation process to be applied to any supposedly unauthorized immigrant apprehended anywhere in the U.S. who cannot affirmatively prove two years of continuous presence in the United States. Per its own internal policies, however, the Department of Homeland Security has only historically placed individuals in expedited removal who were apprehended within 100 miles of a U.S. border and could not prove 14 days of continuous presence. Expedited removal was thus mostly deployed as a cudgel to beat back recent border-crossers coming in from Mexico, rather than as a widespread enforcement tool in the interior (although it has been used at the Canadian border in places like Vermont to disrupt labor organizing among undocumented dairy workers). Now, however, the government has announced that it will expand its use of expedited removal to the fullest extent allowable under the law, which means any person picked up in a traffic stop or workplace raid anywhere in the U.S. could now be summarily deported with virtually zero due process.

5. The government may be planning to admit no refugees next year.

The Trump administration is reportedly considering shutting down our international refugee resettlement program completely, going from a historic low of 30,000 proposed admissions in 2019, to a new low of… zero. This proposal is the brainchild of Stephen Miller—who, I believe, swore a childhood vow to murder 1,000 refugees for every hair follicle on his head that fails to regenerate.

Refugee resettlement is important because it is the only means of ensuring that countries that happen to be adjacent to major conflict areas don’t have to absorb the entire population of refugees—which can be difficult, given that many of these neighbor states are not wealthy and have their own internal challenges. Wealthy countries like the U.S. and Canada that have small populations relative to their habitable landmass can take in refugees far more easily than smaller and poorer countries. Even before the Trump administration, the U.S. was not pulling its weight: Although the U.S. resettled the largest number of refugees per year in absolute numbers, there were about .84 refugees for every 1000 U.S. residents in 2015, as compared to 1.82 per 1000 in the United Kingdom, 14.66 per 1000 in Sweden, and 208.91 per 1000 in Lebanon. International refugee resettlement proceeds on a kind of honor system, because there’s nothing in the Refugee Convention that explicitly dictates how refugees should be resettled. If countries like the United States, for whom resettling refugees is a relatively small burden, begin to simply ignore their obligations, the worldwide compact will begin to unravel, and refugees will remain trapped in countries that have almost no infrastructure in place to help them. Our abdication of our moral obligations will have implications well beyond the United States.

6. Asylum-seekers are being forced to proceed rapidly to screening interviews.

Lastly, here is an example of the kind of small, petty bullshit that goes on constantly in our immigration system that isn’t significant enough to make the news, but inflicts needless additional suffering on traumatized people. U.S. Citizenship & Immigration Services, the agency within DHS that’s responsible for overseeing asylum interviews, recently put forward a new policy saying that all asylum-seekers at the border will be subjected to screening interviews within 24 hours of being detained. Any asylum-seeker who does not proceed immediately to their interview—because they want more time to consult with an attorney, gather evidence, or mentally collect themselves to talk about the most traumatic incidents of their lives—, will be automatically issued a negative decision. This internal policy change is specifically designed to obstruct asylum-seekers’ access to legal services in advance of an extremely complex, high-stakes adjudicatory process. It also comes on the heels of an email to asylum officers from the new head of U.S. Citizenship and Immigration Services—a Trump-appointed immigration hardliner named Ken Cuccinelli—implicitly threatening asylum officers with punishment if they don’t start denying more asylum-seekers’ claims at the border.

A special supplement: LESS TERRIBLE IMMIGRATION NEWS

Elizabeth Warren’s new immigration plan is not too bad!

Elizabeth Warren put out a plan a few weeks ago called “A Fair and Welcoming Immigration System.” She is now, along with Julián Castro, one of only two Democratic candidates with anything resembling a detailed immigration policy platform. Rumor has it that Warren was impressed with Castro’s performance in the first round of debates, and her “Fair and Welcoming” plan tracks pretty closely to his “People First” plan:

Both plans propose significant reductions in the use of immigration detention: Castro’s language is a little bit stronger, saying that he would “effectively end the use of detention in conducting immigration enforcement, except in serious cases,” while Warren proposes “guidance ensuring that detention is only used where it is actually necessary because an individual poses a flight or safety risk.” It’s hard to say if this is an actual policy difference or just a difference in phrasing. Castro also specifically mentions guaranteeing the right to bond hearings for immigrants, which Warren doesn’t. Both of them want to end private detention altogether.

Both plans are pretty vague about how they intend to “reshape” or “reconstitute” ICE and Border Patrol, but suggest they would narrow both organizations’ mandates to focus on trafficking and smuggling, and reallocate some of their other functions across other agencies. It’s hard to say what this would look like in practice. Neither plan calls to abolish ICE.

Both propose a path to citizenship for undocumented people, but don’t say much about what this would look like in practice or what requirements people would need to meet to qualify.

Warren’s plan proposes ending expedited removal altogether, which is GREAT and would potentially revolutionize the way migrants are treated near the border, in particular (see item 4 above).

Castro’s plan for revamping the visa and family reunification system has some more detailed line items for expanding eligibility and reducing specific kinds of backlogs, as compared to Warren’s.

Although neither plan is very specific on labor issues, Castro’s is perhaps slightly better: He proposes strengthening labor protections for guest workers and giving them options to pursue residency or citizenship in the U.S. (agricultural guest workers are currently not eligible for either residency or citizenship, even though our food system would collapse without them). Warren has some good language about holding employers accountable for exploiting workers and failing to adhere to labor standards, but also has some “American workers first” rhetoric in there I don’t like at all, since a) privileging some workers over others based on their immigration status is morally unacceptable, b) promoting worker solidarity over worker divisions seems both morally and strategically superior to me, and c) the “immigrants are taking our jobs” narrative doesn’t even have clear, reliable data to back it up.

Both Castro and Warren propose increasing legal services for immigrants. Currently, immigrants are legally entitled to a lawyer in regular deportation proceedings if they can retain one themselves, but the law specifically forbids providing immigrants with a lawyer at government expense. Castro’s plan proposes “increasing access” to legal services for asylum-seekers. Warren likewise proposes guaranteeing “access” to counsel in immigration court and setting up a public defender corps of immigration lawyers. It’s not clear to me if either of these proposals go so far as to guarantee a right to an attorney in immigration court—it sounds like something short of that, although Castro’s plan does seem to guarantee lawyers for children in immigration proceedings specifically. At least toddlers will no longer have to defend themselves in court.

Both plans propose decriminalizing unauthorized border crossings, preventing regular law enforcement from getting involved in immigration enforcement, making immigration courts into Article I courts (a.k.a. no longer subject to direct control by the sitting Attorney General), increasing refugee admissions, ending metering and MPP, and repealing the three- and 10-year bars that prevent people with prior deportations from returning to the U.S.

Both plans signal an intention to guarantee asylum protection for people fleeing gang violence and domestic violence, but don’t clearly state what mechanism they’d use to make this happen (amending existing laws to make these protections more explicit? Handing down guidance from the Attorney General, presumably prior to the immigration courts being severed from the Department of Justice?)

Warren’s and Castro’s plans aren’t perfect, and whether they’re ultimately “good” or “bad” depends a lot on the fleshing-out of particular details that are left vague in these policy overviews. But as articulations of general goals, I am pretty heartened by both Warren’s and Castro’s commitment to significantly curtail immigration detention and other punitive forms of enforcement, setting up more pathways to status, and trying to ensure better due process protections for immigrants. If we must have an immigration system (which I still maintain we need not!), these plans at least have the potential to move our system in a less egregiously inhumane direction. The lack of “but first we must secure the border”-type language is especially encouraging, since increased enforcement has made a poison pill of every Democrat-backed “comprehensive immigration reform” proposal to date.

I admire Warren’s willingness to follow the lead of a fellow-candidate who had already thought pretty deeply and seriously about an important policy area that she had hitherto badly neglected. And I’m really hoping to see a similar plan, or ideally a better plan, come out of the Sanders camp in the near future. If he’s genuinely committed to human rights and labor rights, then he’d really better.

[1] Incidentally, I ran across this good and informative op-ed in the Washington Post, by a historian of concentration camps, which somehow ended up with the baffling title “Trump’s ‘Migrant Protection Protocols’ hurt the people they’re supposed to help.” I’m sure this title was not the author’s doing, but was the work of some chump of an editor. I am enjoying imagining what kind of sweet naif would believe that Trump’s MPPs were originally “supposed” to help asylum-seekers and now have gone Horribly Wrong.

[2] By the way, there is currently some kind of scheme to resume detaining migrants in Guantanamo! We don’t know anything about it, except that there’s a government contract on the books for personnel for a Guantanamo “migrant operations center.”