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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
TLDR: What you can do about it
All right, here we go. These items are in no particular order of priority, because there is TOO MUCH HAPPENING—
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:
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 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:
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.”
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