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Current Affairs

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This Week In Terrible Immigration News #5

An update on what your government is doing to people.

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.

All opinions expressed here are my own, and not on behalf of any organization or group.

Hello everyone! It’s been nearly two months since I last wrote one of these digests, partly because I have been very busy at my job, and also because I was in the process of moving from Dilley, Texas (which has been my home for the past 14 months) to San Antonio, a little over an hour away. It’s nice to live in a city again. As a welcoming gesture—knowing that it would be disorienting for me to have to live too far from jailed child refugees—the city of San Antonio is currently considering rezoning a church so that the government can use it as a detention center for minors. Very thoughtful of them!

Before we get into the Terrible Immigration News, I want to highlight some recent pieces of Good Immigration News, since I don’t usually spend much time on those (because they happen less often). Firstly, some of the bad policies that I highlighted in my last digest (specifically, items three, five, and six) have now been tied up in the courts. Judge Gee, the federal judge who assesses whether the government is complying with the terms of the Flores Settlement Agreement, ruled that the awful new regulations promulgated by the government—which would have effectively allowed for the indefinite detention of children—violate the terms of the settlement, and permanently enjoined them from going into effect. Meanwhile, a nationwide injunction by a federal judge has temporarily blocked the Trump administration from implementing its new “public charge” rules, which would bar many people from eligibility for green cards and other forms of immigration status because they are poor and/or have used public benefits. And U.S. Citizenship and Immigration Services, the subset of DHS that handles many immigration applications, has now chosen to resume its “medical deferred action” program, which grants temporary relief from deportation to some individuals already in the United States who are facing life-threatening medical conditions. These are small victories, and not necessarily durable ones, but still worth celebrating.

Secondly, Bernie Sanders has now finally put out an immigration plan. It’s broadly similar to the plans put out by Julián Castro and Elizabeth Warren, but it’s more detailed, and substantively superior to the other two plans in several areas. For example, Sanders spells out immediate short-term fixes he will implement through executive action (in addition to longer-term goals that will require some Congressional buy-in), proposes ending all detention for immigrants who have not committed violent crimes, seeks to get rid of low-level criminal bars to immigration relief, wants to significantly restructure the Department of Homeland Security to effectively eliminate ICE and CBP, and has a more detailed plan for safeguarding the rights of working immigrants. Legal Editor Oren Nimni and I recently recorded a podcast episode on the Sanders plan, if you’re interested in hearing a much more detailed dissection.

More generally, I’m relieved and heartened that Sanders has chosen to put forward these public commitments. Sanders doesn’t have the strong, consistent, clear-cut history on immigration that he does on so many other issues, and as much as I wanted to believe that he would do the right thing once in office, his lack of policy proposals and frequent recourse to the empty rhetoric of “comprehensive immigration reform” made me very nervous. There are some factions on the left—comprised of a small number of noisy people on the internet, I hope—who are willing to throw immigrants under the bus because they believe it will win points with the citizen working class (even though throwing immigrants under the bus won’t materially improve the situation of the citizen working class in any way, and even though I’ve yet to see evidence that a majority of the citizen working class even identifies immigration as a major source of their ills, and even though condemning immigrants to detention, deportation, and death is both morally wrong and totally opposed to the broader project of leftist solidarity). I worried that Sanders’ quietness on immigration was connected to some desire to placate these misinformed supporters, or, worse still, that he shared some of their views. But this plan makes it pretty clear that Sanders favors dismantling the immigrant police state, that he intends to use the president’s extensive individual authority over immigration enforcement to begin dismantling it immediately, and that he has consulted actual immigrant workers and organizers about the best way to safeguard workers’ rights (which notably does not involve immigrant surveillance systems like eVerify that just deputize employers as immigration cops).

There are a few things missing from Sanders’ plan—for example, expanding the categories of people who are eligible for asylum protection—that I wish had been in there, and which I think would have been reasonable to include. That said, it’s still the best of the plans released so far. We now have two frontrunners for the Democratic nomination who seem to largely understand what needs to be done on immigration! I think this is reason to be hopeful for the future.

And now: on to the terrible things. 

  • 1. Tens of thousands of asylum-seekers are stranded in Mexico, awaiting their court dates in the United States. Meanwhile, the government appears to be falsifying and deleting records about their cases.

The “Migrant Protection Protocols” (sometimes called “Remain in Mexico”) is a program 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. As of last month, there were at least 50,000 asylum-seekers in the program. Because there are no immigration courts in most of the border towns where asylum-seekers will be bussed in for their hearings, giant tents are being erected and filled with teleconferencing equipment so that hearings can be conducted remotely en masse.

As I’ve written in my previous digests (and will continue writing until the heat death of the sun or the demise of this program, whichever happens first), MPP/Remain in Mexico is the most dangerous of the Trump administration’s policies targeted at asylum-seekers. This is true both in terms of how severely the program handicaps asylum-seekers from successfully proving their claims—there are virtually no legal services available to immigrants in MPP because there aren’t enough lawyers on the border, plus U.S. lawyers aren’t authorized to practice law in Mexico—and the intense level of physical risk to which asylum-seekers are exposed while their cases are pending. This Guardian article from October notes that there have been “at least 340 reports of rape, kidnapping, torture and other violent attacks against people returned to Mexico while they wait for their case to be heard in U.S. immigration court,” and recounts some truly chilling stories, which are also typical of stories I’ve personally heard from individuals whose family members are trapped in this program.

a three-year-old boy from Honduras and his parents were kidnapped after being returned to Nuevo Laredo. The mother said the last time she saw her husband he was lying on the ground, beaten and bleeding and told her: “Love, they’re going to kill us.” The kidnappers released the three-year-old and his mother, who doesn’t know if her husband is alive.

A Cuban asylum seeker told [Human Rights First] he saw a group of men stop a taxi outside a Mexican government immigration office and kidnap the four Venezuelan women and girl inside who were being sent to a shelter.

… In September, a Salvadoran woman who was eight-and-a-half months pregnant and experiencing contractions was apprehended by U.S. border patrol, given medicine to stop contractions in a hospital, then returned to Mexico.

In March, a 27-year-old with the cognitive age of a four-year-old child was separated from the cousin and son he traveled with and sent back to Mexico. He was reunited with his mother in the US at the end of August after the Guardian reported on his case.

It’s also worth mentioning that the government has done a truly abysmal job keeping track of who’s in the program, and therefore has resorted to simply making shit up. The Los Angeles Times reports that “asylum seekers who have finished their court cases are being sent back to Mexico with documents that contain fraudulent future court dates, keeping some migrants south of the border indefinitely,” noting at least 14 cases where individuals who had either won asylum or had their cases terminated on procedural grounds were sent back to Mexico instead of being released into the United States, after Border Patrol gave them documents with made-up court dates on them.

In addition, the Transactional Records Access Clearinghouse, a research organization that regularly obtains court data on immigration cases through Freedom of Information Act requests, reports that as of last month, there were “over 700 missing records regarding cases and/or court proceedings, over 600 missing charges that the Department of Homeland Security filed in court, [and] over 900 missing records relating to scheduled hearings,” and that “over 1,200 records related to the processing of minors, families seeking asylum, and individuals subject to the Migrant Protection Protocols (MPP) were also missing.” TRAC also noted that, based on massive discrepancies in overall record numbers, it believes that the immigration court system has “started silently but systematically deleting records.” MASS DELETING GOVERNMENT RECORDS ABOUT CONTROVERSIAL PROGRAMS SEEMS VERY NORMAL, NOTHING TO SEE HERE.

  • 2. Border Patrol officers are now in charge of “credible fear interviews,” which were formerly conducted by Asylum Officers. Because water-jug-slashing sociopaths are definitely qualified to determine who is legally entitled to seek asylum.

I’ll start by first explaining the significance of the “credible fear interview.” Because of a terrible law that was passed in 1996, immigrants who are apprehended within 100 miles of the border can be placed in a super-fast deportation process called “expedited removal.” What this means is that a Border Patrol officer unilaterally determines that you have no right to be in the United States and signs your deportation order right there at the border. You get bounced out of the country without ever having an opportunity to talk to a lawyer, go in front of a judge, or make any kind of argument for why you should be allowed to stay. Because the speed and sloppiness of expedited removal creates a substantial risk that people who meet the legal definition of a refugee will be deported back to countries where they face persecution—which would violate both international and domestic law—there’s a special failsafe built into the expedited removal process. This failsafe entitles anyone who’s afraid to return to their country to pause their deportation process and have a screening interview with the Asylum Office (which is currently housed under U.S. Citizenship and Immigration Services, one of the subparts of DHS). At this interview, the Asylum Office makes a threshold determination about whether the individual would have a “significant possibility” of winning asylum or a related form of protection if they were given the chance to fully develop their case in front of an immigration judge. This interview is called a “credible fear interview.” 

The stakes of the credible fear interview are incredibly high. If you pass the credible fear interview with a “positive,” you get taken out of the rapid-fire expedited removal proceedings and put into long-form removal proceedings in front of an immigration judge. For some people, the “positive” can also mean that they are released from immigration detention while their hearings are pending, allowing them to join their family and friends in the U.S., recruit a lawyer, gather evidence for their case, access medical care and mental health services, get work authorization, pursue their education, begin setting down roots in a new community, and all the other good things that go along with not being locked up in a jail cell. If you fail the credible fear interview with a “negative,” on the other hand, the government will quickly resume your deportation process.

Being placed in expedited removal is only one of several things that could happen to you as an asylum-seeker at the border. For example, Border Patrol could simply place you in the long-form deportation process right off the bat and release you straight into the United States with a paper for a court hearing: They still do this sometimes if it’s the most logistically convenient option for them in the moment. Or, they could give you a paper for a court hearing, but force you to remain in Mexico while your court hearing is pending (see item one). But for the random subset of asylum-seekers placed in expedited removal, the credible fear interview is incredibly important.

In the past, credible fear interviews were always conducted by Asylum Officers. Now, I don’t want to say that Asylum Officers are universally great: The Asylum Office contains all sorts of people, and even officers who are favorably-disposed towards immigrants may feel that their ability to issue good decisions is constrained by difficult legal precedents. That said, the Asylum Office (at least before Ken Cuccinelli—who famously compared immigrants to rats—became the acting director of USCIS in August) has proved slightly more resistant to Trump-era policies than other parts of DHS. The Asylum Officer’s union, for example, has spoken out against the Remain in Mexico program. Asylum Officers have also historically undergone a fairly detailed training program on how to interview traumatized asylum-seekers, and on how to apply fiendishly complex immigration laws to the complicated life stories of people fleeing intense violence.

Starting a couple months ago, Border Patrol officers began conducting credible fear interviews of asylum-seekers, in place of trained Asylum Officers. You might recall that, just this summer, it was revealed that thousands of Border Patrol agents were members of a secret Facebook group that mocked migrant deaths and photoshopped women (including Alexandria Ocasio-Cortez) into rape scenes. After a Trump-era hiring surge, arrests of Border Patrol agents for various crimes are now at a five-year high (and many additional crimes are likely being swept under the rug, as often happens when law enforcement is the perpetrator). Border Patrol agents are regularly implicated in sexual and physical assaults against migrants in their custody, to say nothing of verbal abuse and degrading treatment of detainees. They also regularly sabotage food and water supplies left by aid groups to help prevent migrants from dying in the desert.

These are the people the government has now deemed qualified to assess the complicated legal claims of asylum-seekers at the border. These are the people to whom asylum-seekers are expected to disclose harrowing stories of rape and torture. The Trump administration’s rationale for doing this is obvious: They expect Border Patrol agents will deny more cases, and send more asylum-seekers back into terror and death.

  • 3. YET ANOTHER new program for rapidly deporting people is now being piloted at black sites on the border.

Another fun new thing that can apparently happen if the government places you in expedited removal is that you can get thrown in a brand-new secret program called “Prompt Asylum Claim Review,” or PACR, which is designed to “streamline” the asylum adjudication process down to 10 days or less, since that feels like an appropriate timeframe during which to decide whether someone gets to live or die. The main way that PACR cuts down on the time it takes to review someone’s asylum claim is by totally removing people’s access to lawyers. Normally, people who are being subjected to credible fear interviews have those interviews at immigration detention centers administered by ICE. Lawyers have the right to visit their clients in ICE custody, and some detention centers have immigration lawyers on-site through pro bono organizations or Legal Orientation Programs, which can help at least some people prepare for their interviews. Getting lawyers mixed up in this whole process is just so annoying for the government, though. Under PACR, immigrants are apparently housed not in ICE detention centers, but in a 1,500-bed Border Patrol facility in El Paso. Since lawyers are not allowed to access Border Patrol facilities, they can’t physically visit the people who are locked up there. Anybody who’s lucky enough to already have a lawyer when they’re apprehended (i.e., almost no one) would then still have to rely on Border Patrol to coordinate a phone call with their lawyer.

The Washington Post reported on two women with infant children who were subjected to PACR. Border Patrol repeatedly refused to coordinate phone calls between the women and their lawyer, after which they both lost their claims:

The sisters crossed the border in El Paso on Oct. 8, surrendered to Border Patrol agents and asked for asylum, Rodriguez-Alvarez said. Each had an infant child, and one was accompanied by her husband. They had notified the attorney of their plans before leaving their home country and signed forms authorizing Rodriguez-Alvarez to represent them. The sisters called family members shortly after being taken into custody, but Rodriguez-Alvarez said she couldn’t find out where they were being held until last week. Family members said the sisters repeatedly asked Border Patrol agents to call the attorney, but Rodriguez-Alvarez said she never heard from them. The sisters failed their interviews to prove fear of persecution if returned home, and then one was ordered deported, Rodriguez-Alvarez said. The woman was not represented by an attorney at her deportation proceeding despite requesting her assistance, Rodriguez-Alvarez said. She was returned to her home country Monday, less than two weeks after crossing the border. The second sister decided to abandon her asylum claim because her child has become ill in Border Patrol custody, Rodriguez-Alvarez said. She is still being held in El Paso.

We don’t yet know much more about this program because the government is being very tight-lipped about it. Although there’s one particular Border Patrol station in El Paso where PACR is known to have taken place, it could theoretically be carried out at any border patrol station along the border, since proceedings are conducted entirely by phone. It’s also worth mentioning that apprehensions along the border in the El Paso sector have plummeted since the spring, so the government doesn’t even have the flimsy cover of a so-called border “crisis” to justify these extreme new processing measures. 

  • 4. Remember the raids the Trump administration promised over the summer? GUESS WHAT, they’re happening right now… in slow motion.

Remember this summer, when the Trump administration announced that there would be mass raids on immigrant communities over the course of a single weekend? Remember how everyone freaked out and frantically retweeted Know Your Rights flyers? Remember how then the raids didn’t actually happen, and Trump tried to bluff that they had happened, and then we all mocked Trump for being an incompetent liar?

Well. It’s true that there didn’t end up being mass arrests on that weekend in July: Honestly, home raids on such a vast scale would be a logistical nightmare to coordinate, especially if you’re trying to keep them relatively discreet (as opposed to a jackbooted public spectacle). Knowing where thousands of people will be located at a particular time on a single day is pretty damn hard—and certainly, if you’re serious about apprehending a lot of people, you wouldn’t announce your intentions on national news two weeks in advance. I still don’t know if what happened in July was a botched operation (because Trump leaked it too early) or a publicity stunt that was never truly intended to work.

What I do know is that, with the public’s attention now firmly elsewhere, more immigration raids are currently underway. There have been a few well-publicized mass worksite raids, for example, in Mississippi, where a record-setting 680 people were arrested in coordinated assaults on seven food processing workplaces. Because the government has chosen to bring criminal charges, as well as civil charges, against many of the immigrants, Mississippi’s public defender offices have been completely overwhelmed. Many of the arrested immigrants are young Guatemalan parents who speak an indigenous language as their primary language, adding an additional layer of complexity to the provisioning of legal services. (This raid reminds me strongly of the 2006 Michael Bianco factory raid in New Bedford, Massachusetts, carried out under the Bush administration, which similarly targeted Central American workers, most of them indigenous Guatemalans. Many of the immigration cases I helped with as a law student in Boston, 11 or 12 years later, were directly impacted by this raid. For raid victims who manage to avoid rapid deportation, the ensuing legal fallout can still consume years and years of their lives.)

I can also say, anecdotally, from personal observation, that the government is ramping up its apprehensions of immigrants inside the country. I don’t think this is really on the media’s radar, and understandably so, because the way ICE is conducting these arrests is usually very discreet and orderly. I think it’s worth explaining HOW the government carries out a lot of its “raids,” because it doesn’t always involve storming a worksite in riot gear, or banging menacingly on the door of a family home, or indeed driving an armored vehicle through the middle of a neighborhood.

If you are a family coming to the border to seek asylum, for example, and the government decides to let you in to plead your case, you will be given a legal document called a Notice to Appear. This is a document informing you (in English only, because the U.S. government is less technologically advanced than a mom-and-pop restaurant with bilingual menus) of the charges against you and the address of the court you’re scheduled to appear in. Usually, this document doesn’t contain an actual date and time for your hearing—it’ll just say something like, “at a time to be determined.” The government will then, in theory, send you an updated Notice to Appear at whatever mailing address you give them at the border, once the court schedules you for an actual date.

Now, it’s well-documented that the government fucks up sending out these updated Notices to Appear on a constant basis, never mailing notices to people who are patiently waiting at their registered address, or sending them their notices after their hearing has already happened. This is a big problem, because if you miss an immigration hearing, you are ordered deported AUTOMATICALLY. It’s especially bad for “family unit” cases (i.e., parents who cross the border with children) who, since the Obama years, have been intermittently placed on something called the “rocket docket,” which is an accelerated case timeline that affords very little notice to immigrant families and very little opportunity to find a lawyer, so your court date could come up very quickly. (Judicial efficiency is greatly enhanced when people don’t have pesky lawyers gumming up the proceedings, and it’s smooth as clockwork if you can prevent the respondents from being there at all! TRAC, the organization I mentioned in item one that frequently audits the immigration courts’ records, also notes that according to the government’s own files, a shocking number of people have been ordered deported for failing to attend their hearings, but that often these decisions have been entered in the court’s systems before the hearing date even took place… which, uh, means the government is just randomly ordering people deported without even giving them a chance to attend their hearings.)

Another issue here is that immigrants at the border are usually given papers ordering them to report to regular check-ins at a local ICE office. Because ICE is housed under the Department of Homeland Security, and the immigration courts are housed under the Department of Justice, these check-ins have jack shit to do with immigrants’ court hearings, but, understandably, immigrants can’t really tell the difference between an ICE “check-in” and a court “hearing” (nor, I might add, can the average American trying to help out their immigrant friends, speaking as someone who has fielded many questions from U.S. citizens on this topic). Because many asylum-seekers and immigrants are poor, their housing situations are frequently unstable. Understandably, they usually think that if they bring proof of their new address to their ICE check-in, and ICE writes down the new information, then they have successfully changed their registered address with the government. What they DON’T realize is that there is a whole ridiculous process to officially change your address with the court that involves mailing a form in English to multiple addresses, and is entirely separate from notifying ICE. (“Why can’t ICE just notify the immigration court when someone changes their address?” you might ask, and of course they COULD, but they DON’T, because they have no legal obligation to do so, and they actually want people to be deported, so why would they bother?)

So: You have some people who don’t receive their court notices because the government fucks up, and other people who don’t receive their court notices because they’ve moved addresses and don’t realize that updating their address with ICE is not sufficient to notify the court of their new location. They keep dutifully attending their ICE check-ins, believing that they are complying with the law, while the ICE agents twiddle their thumbs and carefully never say a word about the upcoming court date. Then, suddenly, at one of their check-ins, ICE says something like “PSYCH YOU MISSED COURT LAST WEEK YOU’RE GONNA BE DEPORTED” and takes the immigrant into custody.

Now, usually there’s a brief spell in detention while ICE arranges the deportation flight, and if you’re lucky enough to then be shipped off to a detention center where there’s some kind of legal assistance available, anybody ordered removed in absentia (fancy legal language for “ordered deported when you weren’t even fucking there”) can file a motion to try to reopen their case, explaining the reasons why they weren’t able to attend their hearing. While this motion is pending before the judge, ICE can’t act on the removal order, so this puts a pause on the deportation process. BUT, people are usually detained hundreds, even over a thousand miles from the court that has jurisdiction over their case, and some court clerks will categorically refuse to accept documents without original ink signatures, plus all courts close at like 3:00 or 4:00 p.m. because apparently that is a normal hour for adult humans to stop working, so getting a motion to reopen filed in some random court before ICE proceeds with your deportation is usually an impossible race against the clock.

ANYWAY, what I am trying to express here is: This system is set up to ensure that people fail. Aside from the legal standards for immigration relief, which are themselves profoundly unfair, the government deliberately puts logistical barriers in the way of immigrants acting on their few guaranteed rights. In a climate like this, “raids” are less a choreographed assault and more a lazy fish-in-a-barrel shootout. All you have to do is wait for would-be law-abiding people to turn up at their check-ins.

I think it’s important to remember that it’s not just the obvious violence of kidnapping immigrants from their homes and workplaces, but also the pitiless workings of the immigration bureaucracy—which are completely impossible for ordinary people to negotiate, due to the stupid complexity of the laws and the totally impractical intricacies of its procedural mechanisms—that make the lives of asylum-seekers and immigrants so hellish. Even if Bernie or another immigration-friendly candidate manages to defeat Trump, dismantling this system, many of whose worst aspects long predate his presidency, will require real political determination.

That said, it’s very clear that defeating Trump is a necessary condition to improving the lives of immigrants. In addition to all the other action items I usually suggest in these digests—attending and organizing protests, watching public immigration hearings in the court nearest to you, donating to immigrant bond funds, spreading the word to friends and family—the other big thing we need to do is organize to put an immigration-friendly president in the White House in 2021. The executive’s almost unfettered ability to dictate the actual scope and nature of immigration enforcement means that who the president is, personally, has a much more direct and immediate impact in the area of immigration policy than in most other policy areas. I’ve wrestled for a long time with feelings of pessimism, mistrust, and despair as I think about the election, frustrated by the Democratic candidates’ lack of attention to issues that feel overwhelmingly urgent to me, and unsure of how far to trust anyone’s vague public rhetoric. But now that we have three candidates with decent immigration policy plans, and two of them (Sanders and Warren) are frontrunners, it feels like time to put the cynicism temporarily on ice, and push hard to get one of these people in office. Unless and until we unseat this administration, most of our efforts to stop these atrocities will likely be in vain.

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