Most people on the left agree that our present regime of immigration enforcement—a well-resourced system of surveillance, harassment, kidnapping, imprisonment, and exile of human beings who happen to have been born in a different place than the one they are living in now—is one of the most unconscionable features of our state. And many leftists and liberals alike are very disturbed by the way the present administration uses immigrants, especially asylum-seeking families and children, as scapegoats for economic ills and focused targets of hatred for its racist base.
But 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. No doubt, this is partly due to the fact that many journalists don’t care enough to get it right. Reporters sometimes conduct sloppy investigations, take the government’s self-serving statements at face value, or focus on less important developments in immigration at the expense of truly urgent ones. But the other problem is that our immigration system, in terms of law and policy, is truly one of the most complicated and bewildering systems in existence. It is incoherent from both a logistical and a moral perspective. As a result, it’s very difficult for sane human beings to understand what’s going on at any given time.
In my recurring feature “This Week In Terrible Immigration News”—which I genuinely hope I won’t be putting out every week, but that will depend on the government, not on me!—I’m going to try to explain recent developments in immigration that I think are important for leftists, and human beings generally, to know and care about. I will also seek to untangle areas of confusion in mainstream reporting on immigration issues. Whenever I can, I will give suggestions about things you can do to help. Because my day job is in asylum law, my focus will likely gravitate naturally towards issues that affect asylum-seekers and other people attempting to cross the border. I encourage readers to write in if there are other issues I’m missing that need greater attention or explanation.
- The status quo since last autumn: Asylum-seekers are being blocked en masse at border ports of entry, trapping them in dangerous Mexican border cities.
Since around November 2018, CBP has been continually crying crocodile tears about how dangerously overcrowded the border is becoming, and how ill-equipped our current systems are to deal with the volume of migrants coming through El Paso in particular. (It continually astonishes me how often the NYT, for example, will quote the CBP Commissioner on the “border crisis” and apparently take his assessments at face value without analysis or qualification. If some guy who’s notorious for beating the shit out of his wife on a regular basis suddenly starts anxiously telling everyone that his wife is having a really hard time and he’s just really worried about her, would you think he had good intentions??? How dumb would you have to be? ANYWAY.)
It’s important to be aware that part of the reason there have been so many migrants at the Paso del Norte port of entry in El Paso (where all those dramatic pictures of migrants packed under bridges are coming from) is because Border Patrol has been systematically choking off access at other ports of entry. Asylum processing at two other pedestrian crossings in El Paso was shut down in order to funnel migrants through only one chokepoint. Elsewhere on the border, ports of entry are effectively blocked off; according to the ACLU’s estimates, in the Rio Grande Valley area, an estimated two adults and one family are now allowed to present themselves to seek asylum each day. Now, you aren’t required to pass through a port of entry in order to seek asylum: Under the law, if you cross the border anywhere, you are at least entitled to try to enter the asylum process. But often, people who are eager to do things “the right way,” who are anxious about the safety of themselves and their children if they attempt a dangerous river or desert crossing, who are afraid of being separated from their children (as just last summer the U.S. separated families who crossed other parts of the border), or who simply don’t know there’s any other way to seek protection will present themselves directly at legal border ports of entry and ask to apply for asylum. Under our immigration laws, any person who presents themselves at a port of entry is legally eligible to ask for asylum, just as if they were standing on U.S. soil.
What the U.S. has recently been doing to get around their clearly-defined legal responsibilities, therefore, is to use the Mexican government to help them prevent asylum-seekers from reaching the ports of entry. Mexican police stand in the middle of the bridges on the Mexican side and block people trying to come forward. Anybody who wants to approach the port of entry now has to put their names on a list and wait around in Mexico for months. This practice is known as “metering.” Under the Obama administration, people were sometimes turned away from ports of entry on an ad hoc basis, but since the fall of 2018, it’s become a normalized, systematic practice of the Trump administration. Advocates have already been extremely worried about the safety of asylum-seekers forced to wait in border cities for their turn to cross. Shelters for migrants in these cities are already at capacity. And these are among some of the most dangerous cities in Mexico: Juarez, in particular, once had the highest murder rate in the Americas and was particularly notorious for its high number of femicides (murders where women’s bodies are sexually mutilated). Although Juarez saw a slight lull in violence from 2014-2016, things have been getting a lot worse recently: “In 2017, there were 772 homicides. In 2018, homicides rose to 1,247, according to the Chihuahua State Prosecutor’s Office, a threefold increase over 2014.” Multiple armed groups are currently battling each other, as well as the notoriously violent Mexican military stationed in Juarez, for control of the city. Homicides, femicides, and kidnappings are all on the rise. These are not safe places for unprotected, unconnected refugees to be living with their children.
- BUT WAIT, IT GETS MUCH WORSE: “Remain in Mexico,” a.k.a. the “Migrant Protection Protocols,” a.k.a. from now on asylum seekers are going to be denied lawyers, deprived of their documents, and left to die in Mexico.
You may have heard a lot of hullabaloo over the last couple days about President Trump threatening Mexico with tariffs. You may then have seen a brief follow-up story about how the U.S. and Mexican governments averted the tariffs after a round of intense diplomatic talks, where Mexico agreed to do more to staunch the flow of migrants to the U.S. border. This is a great example of the media getting distracted by high-octane political theater and totally missing the reality of what’s actually happening on the ground, which is the quiet roll-out of the worst program for the terrorization of asylum-seeking families since the mass family separations of last year.
I’ll tell you the view from the border. In January 2019—while all of the metering bullshit I described in Item 1 was ongoing—the government began implementing a pilot program at the San Ysidro-San Diego crossing called “Remain in Mexico.” Under this program, several thousand asylum-seekers who showed up at the crossing were returned to Mexico to wait for their court dates, rather than being released or detained in the U.S., as has been normal practice up until this point. The program was later expanded to Calexico as well. A few months later, after systematically blocking asylum-seeker crossings at most ports of entry along the border and diverting migrant flows to that one particular Juarez-El Paso crossing, Border Patrol and ICE started doing a lot of press on the “humanitarian crisis” they had deliberately created in El Paso and the lack of resources to safely detain and process asylum-seekers, which the media lapped right up. And then, what do you know, the Remain in Mexico (RIM) program—soon after rebranded as the Migrant Protection Protocols (MPP)—started being used in El Paso, too! In early May, a lawsuit challenging the Remain in Mexico program in the Ninth Circuit faced a serious early setback, which means we very likely can’t count on the court to declare the program unlawful. This is bad news, because Ninth Circuit injunctions are the Hail Mary the Democrats have routinely counted on so far to block the worst of Trump’s anti-immigrant programs, since literally no other political strategy has worked out. (Don’t trust judges to do your political work for you!!) Then, just yesterday, the Trump administration quietly announced that the Remain in Mexico program would now be implemented across the entire border. The impact of this announcement was severely muffled, I think, because the expansion was presented as an insignificant part of a package of things that Mexico had agreed to in order to resolve the tariff issue, even though the U.S. government has been laying the groundwork for the expanded protocols since January.
So much for the political shenanigans, then—what does this program actually look like for asylum seekers? Basically, asylum seekers from Central America and other countries, including families with children, are given a court date in the U.S. Their identification documents are confiscated by Border Patrol. Then they are returned to Mexico. While they wait for their hearing dates, in some of the most dangerous border cities in Mexico (see above!), their survival is their own problem; nothing in particular is being done by either the U.S. or Mexico to protect or care for the refugees. On the date of their hearing, they are responsible for making their way to the U.S. border, where ICE will take them into custody and bus them to their hearing. After their hearing, ICE busses them right back to Mexico. If they miss a hearing, they can be ordered deported. (Typically, asylum seekers have several hearings in immigration court—preliminary hearings for scheduling, advisals, and pleadings, and then a final hearing on the merits of their claim.) Meanwhile, they have no access to legal counsel in Mexico, because there aren’t any U.S. immigration attorneys practicing there (and no one is even entirely sure how work authorization for U.S. attorneys will function), and the asylum seekers can’t come into the U.S. to meet with any attorneys on our side of the border.
In theory, any person who can prove that it is “more likely than not” that they will “face persecution or torture in Mexico” should not be returned to Mexico under the protocols. Asylum-seekers who claim at their court hearing that they are afraid to return to Mexico may, at the government’s discretion, receive a screening interview to determine if they can legally be returned without violating international refugee law. These screenings are conducted by DHS asylum officers by phone at border holding cells, where asylum-seekers have no access to counsel. The standards and content of these screening interviews are totally secret. They are not reviewable by a judge. They are not even submitted to the immigration court as evidence. No statute or regulation lays out any parameters for how they shall be conducted. Asylum officers have already been crying out to the press that they feel they are being manipulated into sanctioning the return of asylum seekers to danger in Mexico, and that DHS supervisors have been unilaterally overturning any decisions finding that asylum-seekers have a fear of persecution in Mexico.
There’s a very good report by the Women’s Refugee Commission about the rollout of this program in Tijuana, Calexico, and El Paso, which I encourage everyone to read. Here are some relevant excerpts:
-“Shelters in Ciudad Juárez, Mexico, are at capacity. Local advocates and the migrants placed in RIM [Remain in Mexico] confirmed that migrant shelters in Ciudad Juárez are at capacity or exceeding capacity. The families we observed in court proceedings on April 24 and 25, 2019, told the court that they were informed by shelter personnel that they would not have a place at the shelter when they were returned following their hearing, given the number of migrants arriving and waiting for shelter. Some parents were crying and trembling, saying they had no money to afford a hotel or other accommodations and wondering out loud where they would go if returned to Ciudad Juárez. They surmised that they would have to live on the streets.”
-“CBP is returning migrants to Mexico under RIM without their passports, birth certificates, or other identity documents. This dangerous practice puts migrants at risk of exploitation and abuse. Additionally, contrary to the Mexican government’s claims that it would provide those in RIM with humanitarian visas to allow them to live and work in Mexico, many persons subject to RIM in the El Paso area hold only temporary tourist visas for Mexico, which do not permit the recipient to work.”
-“WRC [Women’s Refugee Commission] has received and confirmed numerous reports of family separation through RIM. This is especially concerning given the danger involved to those returned to Mexico, the difficulty in communicating or reunifying after such a separation, and the additional potential risk of trafficking this practice creates. The separation of families in this manner is a violation of due process and presents both logistical and safety issues. Children who are separated from an adult or parent who is then sent back to Mexico where they face additional dangers are indefinitely separated with no means of contacting the parent or adult.”
-“It is nearly impossible for migrants in the program to find an attorney who is able to represent them in their proceedings. Local attorneys and advocates have reported that communication is extremely difficult with asylum seekers in Ciudad Juárez because of restrictive phone policies at the shelters, making communication with clients extremely challenging. Migrants who come to court were also told that they could not return to the shelters after the hearings, making it virtually impossible for attorneys to even locate their clients in Mexico. Attorneys are also apprehensive about potential issues arising from practicing US law in Mexico. Families who do have representation still face substantial difficulties in preparing for hearings as their pre-hearing prep time in the US is limited, in some cases just 30–60 minutes before the hearing itself.”
-“In court, no one—not the immigration judge or DHS attorneys and certainly not the migrants themselves—knew all of the program’s rules and policies. When asked by the immigration judge, DHS attorneys in court could not identify a process for requesting parole, refusing to even specify which component of DHS (CBP, ICE, US Citizenship and Immigration Services (USCIS)) might be the appropriate one to submit a request to. Nor could DHS specify how a person subject to RIM might be able to challenge their inclusion in the program beyond having a non-refoulement interview [author’s note: the secret screening interview I described earlier] with USCIS. This is despite existing implementing guidance indicating that people with known physical or mental health issues should not be subject to the program. On the second day of RIM hearings, WRC observed the case of a four-year-old Honduran child with Guillain-Barre syndrome who was nonverbal and could not walk on her own. Despite her obvious health issues, this child was nevertheless unconscionably placed into RIM with her mother and older sister.”
Other advocates and reporters visiting Mexican border cities or observing RIM/MPP hearings in border courts have written up harrowing snapshots of the horrors asylum-seekers are enduring under this program, including family separations, assaults, and kidnappings of children:
Make no mistake: This program will result in the deaths of asylum-seekers and the permanent separation of families. It’s not as obvious an opportunity for grandstanding by politicians as mass family separation, nor will it be as easy to report on, since it requires reporters to actually go to Mexico and look for migrants instead of just going to photograph the same cage full of children in the U.S. But this is the most dangerous development for asylum-seekers in a long, long time. There needs to be a mass outcry and mobilization the way there was around family separation. I am hoping people cleverer than me will have some ideas about how to do this. But in particular, I think left candidates like Bernie Sanders and Elizabeth Warren need to go to the border now and witness some of these hearings in person, accompanied by press. If you agree, why don’t you call them and tell them so?
Bernie Sanders: 202-224-5141, 802-862-0697, 800-339-9834
Elizabeth Warren: 202-224-4543, 617-565-3170, 413-788-2690
- New jails for children, plus cuts to such expensive extravagances as “basic education” and “soccer games” at child jails.
Unaccompanied children who cross the border alone (or who cross with a relative who is not their parent or legal guardian, or a parent the government deems a security risk, and who are then summarily ripped away from this adult without so much as a hearing) are placed in shelters administered by the Office of Refugee Resettlement (ORR), which is under the Department of Health and Human Services (HHS). These shelters, nominally, are not prisons. But ORR just announced that they’re canceling educational and recreational services for kids in these shelters: “The Trump administration is canceling English classes, recreational activities including soccer, and legal aid for unaccompanied migrant children who are staying in federally contracted migrant shelters…. In an emailed statement, HHS spokeswoman Evelyn Stauffer said ORR is instructing its shelters to scale back on activities ‘that are not directly necessary for the protection of life and safety,’ as the Antideficiency Act requires.”
Somehow, however, the cash-strapped Department of Health and Human Services has found the money to hire a private contractor to run a new facility for minors in Carrizo Springs, Texas, in a “compound that formerly housed oil-field workers.” The children housed in this facility, as well as in military bases in Montana, Oklahoma, and Georgia, will “be housed in dormitory-style buildings until case workers can place them with a parent or sponsor in the United States, but they will not have the educational programming or recreational activities that are normally required in child shelters” because these are, supposedly, merely “temporary emergency shelters.”
It’s worth mentioning that all of these cuts in programming are probably illegal under the Flores settlement, which provides some minimal protections for kids in detention. The government has been assiduously seeking to replace the Flores settlement with new regulations effectively allowing children to be detained indefinitely. It remains to be seen whether they’ll get away with that. Life in unaccompanied minor shelters is already plenty bleak: To take just one example, the Miami New Times reported on a privately contracted shelter for unaccompanied minors in Homestead, Florida:
“Migrant children… described living in constant fear of breaking strict rules, hearing other children ‘crying and crying,’ and fearing they might never be released. ‘Sometimes it’s really hard having to stay here,’ said a teenage girl from Guatemala who’d been detained for five months. ‘A couple of girls since I’ve been here have been cutting themselves. … I have spent a lot of time crying and the other girls too.’”
… “Children are allowed only two ten-minute phone calls a week, during which they are typically accompanied by a social worker. They described wishing they could speak with their families privately and for longer lengths of time. Requests for extra time are sometimes denied, even under extenuating circumstances such as the death of a family member. ‘I can’t even access the phone to talk to my mom on my birthday,’ one child told attorneys. ‘Nobody has sung happy birthday to me today.’”
… “Legal advocates warned that every child they interviewed stated that the rules, which include five-minute showers, walking in lines, finishing food and avoiding any touching at all, were strictly enforced and that the kids constantly fear that breaking rules will mean they’ll be trapped in the facility even longer. Some worry they or their families might be deported.”
… “New Times reported last year that children who turn 18 while at the facility are handcuffed on their birthdays and transported to adult Immigration and Customs Enforcement detention centers. But the new filings add that if ICE cannot pick up a detainee in time, the young adults are kept in solitary confinement in a windowless room that contains no bathroom.”
… “‘I cannot give anyone a hug,’ one child said. ‘I need to be comforted, but there is no way for that to happen here.’”
Now imagine all of that, but you can’t even play soccer.
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