You have probably heard that there is a crisis going on at the border right now. Hundreds of troops have been dispatched to the southern frontier to help staunch a massive flood of dangerous immigrants. (It turns out that the best way to defend the homeland is by filling out paperwork and succumbing to heatstroke, because that’s mostly what the troops have been doing lately.) But here’s an interesting puzzle. For the past few weeks, as the Trump administration’s anti-immigration rhetoric has steadily ramped up, the government has been casually mass-releasing immigrants from border detention centers in large numbers. Why would a government that was terrified about the security concerns posed by immigrants just empty out its immigration jails?
The answer is that these mass releases—as with most aspects of immigration detention—are pure political theater. Sure, the caravan is en route, but it’s still weeks away, whereas the mass emptying of detention centers began shortly before the midterm elections. ICE dumped large numbers of immigrants directly into streets and bus stations in towns all along the border, without first allowing them to make travel arrangements as they normally do. Churches and community organizations were forced to scramble to find informal housing for stranded migrants while they contacted the migrants’ families throughout the country to help purchase plane and bus tickets. These scenes of “chaos” were engineered to make it appear that there was some kind of out-of-control influx taking place on the border, in order to frighten skittish voters, to justify the otherwise pointless presence of troops, and to create the impression that swift executive action was needed. Even The Washington Post was stupid enough to fall for this ruse, breathlessly reporting about an ongoing “crisis” on the border and quoting an ICE spokesperson’s explanations of the releases at face value. Advocates along the border, however, have been trying to report the truth, which is that there is no actual shortage of bedspace at immigration detention centers at the moment. There’s no real logistical reason the government can’t detain and process people as they normally would. The mass releases have been entirely at the government’s whim, likely because they wanted images of migrants flooding bus stations around the time of the midterms, and probably because they don’t want to have to deal with processing too many people right as new policies are being rolled out.
Obviously, we should be delighted that a lucky handful of people who would otherwise have been subjected to a grueling screening process (and, especially in the case of adults travelling without children, a likely months-long spell of imprisonment) have been released into the interior of the country to join their friends and family, and hopefully to find a lawyer to defend them at their eventual deportation hearing. But it’s also a frustrating demonstration of how much suffering immigrants are used as political pawns. Our government’s detention policies are calculated to create the impression that immigrants are dangerous. Sure, in a technical legal sense, immigration detention isn’t “punitive,” it’s merely administrative—but everyone knows the reason you imprison people is because you’re afraid of them and believe they could harm you. In reality, of course, however, the government knows that 99.9999 percent of immigrants pose no danger to anybody at all. That’s why the government can, on a dime, simply choose to release hundreds and hundreds of immigrants, knowing that there will be no mass crime wave, no subsequent finger-pointing at the reckless administration that dared to let thousands of dangerous undesirables loose among decent Americans. The government knows that it could easily choose not to detain immigrants at all, and that it would have no perceptible effect on national security. The fact that they can release immigrants whenever it serves their political purposes is a clear indication of this.
The next wave of border-crossers will not be so lucky. A few days ago, the Department of Homeland Security promulgated a new interim regulation stating that anybody subject to a presidential proclamation is barred from asylum eligibility. Concurrently, the President issued a proclamation stating that anybody entering the United States through the southern border for the next 90 days—and possibly longer—is automatically barred from being granted asylum, unless they enter through a designated port of entry. This, on its face, might not sound too bad. Asylum-seekers have to hand themselves in at a port of entry rather than trying to sneak across the border—so what? Isn’t that what you’d do if you were a bona fide refugee, anyway? Ask U.S. officials directly for help, rather than trying to evade detection?
But the picture is more complicated than that. First of all, the border is huge—1,954 miles—and there are only 33 towns with legal ports of entry. Migrants have almost no say about where they’re brought or the manner in which they enter the United States. For the vast majority of people crossing the border, those choices are made by coyotes, who are operating with the say-so of the cartels that control the major migration routes. Migrants are often stashed in houses near the crossing-point—where many of them are assaulted or held for ransom at the very ends of their journeys—and then driven out to the river in hours of darkness and ordered onto rafts. They have no idea where they are or which port of entry, if any, may be nearby. (Also, did I mention that Trump’s proclamation also applies to children, including unaccompanied children? A child who crosses the border anywhere besides a port of entry—even though they have absolutely no say in where they cross—is now ineligible for asylum!) Typically, people coming to apply for asylum—especially parents travelling with children—who cross the border between ports of entry actually hand themselves in to U.S. officials as soon as they encounter them. They know that this is an acceptable means of initiating the asylum process, so the idea that people cross between ports of entry specifically for the purpose of avoiding Border Patrol is not broadly true.
Trying to ask for asylum at a port of entry, moreover, means that you are at the whim of U.S. border officials, who have the physical power to decide whether you actually enter the country at all. Numerous reports have described how border officials frequently turn back asylum-seekers at ports of entry, telling them that they do not qualify for asylum (as if border patrol officials were remotely qualified to make this legal assessment) or that the United States is “full” and not accepting any more asylum-seekers. And indeed, the language of the new regulation envisions that the “orderly processing” of asylum-seekers at ports of entry will take cognizance of “resource constraints at ports of entry and in U.S. detention facilities.” In other words: U.S. border officials are going to turn back scores of asylum-seekers, or make them wait for weeks in the streets of dangerous cartel-controlled towns, by making totally unverifiable assertions about “resource constraints.” (It’s worth mentioning that immigration detention facilities are almost never at full capacity at any given time, so claims that the U.S. is “full” are usually just blatant lies, apart from the fact that there is nothing in U.S. asylum law that actually allows you to deny asylum-seekers entry simply because you’re not sure where to lock them up.)
Is any of this actually legal? On the one hand, probably not: Congress created our domestic asylum system in the 1980s specifically because they were tired of the Attorney General arbitrarily paroling in groups of refugees, and wanted to assert the legislature’s control over the asylum process by implementing a set of consistent standards for how courts should decide who qualified for asylum and who didn’t. Allowing the president to suddenly bar a huge swath of people from asylum eligibility without going through any kind of legislative process would cut pretty significantly against this goal. On the other hand, courts have routinely ruled that the executive has considerable power to make decisions on immigration matters, and Congress hasn’t really fought the courts on this. Trump is invoking the same legal authority for this presidential proclamation that he previously used for the Muslim ban. And according to the Supreme Court ruling in the Muslim ban case, all the president really needs is a minimally plausible reason that a given immigration restriction serves a “security” interest in order to be viable, even if there’s ample independent evidence that the restriction is actually motivated by, say, racial animus. Inscrutable texts, whether religious tracts written by long-dead mystics or laws written by indifferent congressional sociopaths, will always accommodate any number of contradictory readings, so who the hell knows! It all depends entirely on what politicians and judges want them to say.
So what will happen to the asylum-seekers who now cross our border between ports of entry? They are still, in theory, eligible for certain non-asylum forms of protection, most notably something called “withholding of removal.” Withholding of removal, simply put, is a shit status. It’s designed to ensure minimal compliance with international law by preventing certain people who would face persecution in their home countries from being deported, but without granting them any of the other rights that asylees enjoy in our country. If you win asylum in a U.S. immigration court, you can confer your asylee status on your spouse and children. You are usually eligible for a green card after one year. Withholding of removal, by contrast, gives you work authorization and nothing else. You can’t get a green card; you usually can’t travel outside the country; and, mostly importantly, you can’t share your status with the other members of your immediate family. A person who wins asylum can extend this protection to their child: This means they can regularize their child’s status if they’re already present in the U.S., or bring their child from abroad if the child is still trapped in the home country. A person with withholding of removal status can do absolutely nothing to protect their family members. The standard for winning withholding of removal is also higher than the standard for winning asylum. Per case law, a person is supposed to be eligible for asylum if they can show that there’s at a least a 10 percent chance that they would face persecution in their home country. But you’re not eligible for withholding of removal unless you can show at least a 50 percent chance of persecution. These numbers, of course, are completely subjective: All it really means is that a capricious adjudicator has even freer rein to deny a withholding case than an asylum case. And things are plenty bad enough without further artificially raising standards of proof: I cannot stress enough how stupidly inadequate our existing asylum laws are at actually protecting people from violence, and how often people whose fear of death is genuine and undisputed fail to win protection simply because they aren’t being threatened for a legally relevant reason.
It also remains to be seen how this higher standard will affect the way migrants are screened at the border. Most people at the border who claim to be afraid to return to their countries are put through an interview process to determine whether they might be eligible for asylum or withholding. If they fail this interview, they can be immediately deported from the border without a judicial hearing, so it’s a very high-stakes process. People seeking withholding have to show a higher probability of persecution, which increases the likelihood that they will be deported at the very beginning of the process, rather than being allowed to actually argue their case in front of an immigration judge. And for parents who cross with children, who are detained together, it’s unclear whether it’d be enough for either the parent or child to show eligibility for asylum or withholding for the whole family to be given a chance to apply, or if each member of the family—the parent and each accompanying child—needs to independently show a 51 percent chance of persecution. If parents and children each need to make independent cases, this often results in situations where a parent is found to be eligible for withholding, but the child isn’t, or vice versa. This can easily lead to family separation, either on the border or in the future: If the parent or child are released from detention with one of them having an active order of deportation, ICE can freely choose to deport that person at any time, without any warning or further judicial process. A child could come home from school to find their parent gone—or a child with an active deportation order could be caught up in a deportation raid and whisked away.
This new regulation fits into a broader scheme of anti-immigration policies that the Trump administration has been pushing forward since its earliest days in office, but in the immediate term, it’s a political response to the migrant caravan that’s been slowly wending its way through Mexico from Central America for the past few weeks. Democratic lawmakers have been largely silent on the caravan: Nancy Pelosi characterized it as a distraction being hyped up by the Trump administration as a midterm gimmick. But it is not a distraction. Sure, it’s not a crisis, the way the Trump administration has been painting it—6000 people, many of them women and children, showing up at the border of our approximately 325,000,000-person country is not a crisis. But it is one of the most important mass marches in recent North American history. And it is probably a phenomenon we are going to see a lot more of, as violence and climate change continue to destabilize our southern neighbors, because no one in affluent countries gives a fuck about the sufferings of the global poor until they show up in person on our doorstep. This, for me, is one of the chief goods of migration. The world’s poor should not have to “wait their turn in line” for a slim chance of getting what some lucky few of us were handed as a birthright. They should walk over here right now and demand their share.
That said, the caravan migrants themselves are actually a pretty mild bunch, with few fighting words: When interviewed, they mostly talk about how much they love the United States, and how they firmly believe that God will touch Donald Trump’s heart. The touching of Donald Trump’s heart would be a miracle to put that whole resurrection-of-the-dead business to shame. But maybe there is some hope for the rest of the country. I spend a lot of time around migrants, and I often think that if more U.S. Americans had direct contact with the actual living humans who are coming here to be our neighbors, they would more easily see through right-wing screeds about dangerous rapists, and lazy center-left platitudes about how well of course a nation needs border security. Having close contact with our immigration system is a sure way to become very pessimistic about human civilization generally, because it’s such a clear example of an elaborate and expensive bureaucracy that serves no actual practical purpose, but simply tortures and demoralizes ordinary people to the point of mental breakdown. The one advantage of Trump’s presidency is that it’s helped more people see clearly the cruel contours of a system that was largely submerged from general public view under Obama. But Democrats are still making a very poor showing. They need to do better than tut at Trump: They need to actually propose decent immigration policies—ones that make migration easy and safe, that don’t force vulnerable migrants to contort themselves through weird legal hoops to prove that they don’t deserve to be violently murdered—and throw their support behind decent labor policies, ones that protect both immigrant and native-born workers equally, and definitively explode the right-wing narrative that Democrats simply want more immigrants for cheap labor and easy votes.
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